The Divisional Court quashed decisions of the defendant Police and Crime Commissioner to suspend, pursue the statutory process against and require the claimant former Chief Constable to resign, following his statement on the Hillsborough disaster. The Commissioner’s decisions had been irrational, as the Chief Constable’s statement had been within the range of reasonable responses, and the Commissioner had failed to engage with HM Chief Inspector of Constabulary’s observations and to provide cogent reasons for his different view.
R (on the application of Crompton) v Police and Crime Commissioner for South Yorkshire  EWHC 1349 (Admin) - Queen’s Bench Division, Divisional Court, Sharp LJ and Garnham J
Police – Chief constable – Suspension – Claimant former Chief Constable seeking judicial review of defendant Police and Crime Commissioner’s decisions, suspending, invoking statutory procedure and requiring resignation – Whether decisions being irrational – Police Reform and Social Responsibility Act 2011, section 38 – Policing Protocol Order, SI 2011/2744.
In April 1989, 96 people were killed in the disaster at Hillsborough Stadium during the course of the FA Cup semi-final. In April 2016, the jury hearing the inquests into the deaths returned its determination. Later that day, the claimant former Chief Constable issued a full apology on behalf of the force. At 12.20 the following day, the Chief Constable issued a second statement (for the terms of the statement, see  of the judgment). At 2.50, the defendant Police and Crime Commissioner for South Yorkshire (the Commissioner) suspended the Chief Constable from his office. In July, the Commissioner maintained that decision, despite the first interested party, HM Chief Inspector of Constabulary’s (HMCIC) response to his reasons for invoking the procedure in section 38 of the Police Reform and Social Responsibility Act 2011 (section 38), which criticised the Commissioner’s decision to suspend (the second decision). In August, he notified the Chief Constable that, having considered representations from him and the HMCIC, he was still proposing to call upon the Chief Constable to resign or retire (the third decision). In September, following the section 38 procedure, the Commissioner formally called upon the Chief Constable to resign and he did so. The Chief Constable sought judicial review of the Commissioners’ decisions.
The issues for determination concerned: (i) the Schedule to the Policing Protocol Order, SI 2011/2744 (the protocol) and the duty of co-operation; (ii) the test to be applied to the Commissioner’s decisions and the margin of appreciation, if any, due to the Chief Constable; and (iii) the application of article 8 of the European Convention on Human Rights (article 8); (iv) whether permission should be given to challenge the first to third decisions or whether they had been out of time; and (v) whether the decisions had been irrational.
The application would be allowed.
(1) The Act sought to achieve two, sometimes conflicting objectives. First, it sought to maintain proper operational independence for Chief Constables. Second, it sought to achieve proper democratic oversight of the conduct of Chief Constables, for which purpose the electoral mandate of Commissioners to hold the police to account was given statutory expression. There would inevitably be tension between those two imperatives in practice. However, the protocol provided a mechanism by which those tensions were to be managed. An absence of goodwill, professionalism, openness and trust or of efforts to work together was likely to destroy the proper working relationship between Commissioner and Chief Constable. It was also likely to undermine attempts to secure that the police force was efficient and effective, and to undermine the proper exercise of the powers of the Chief Constable to assist the Commissioner (see , , ,  of the judgment).
(2) Section 38 should not be construed as permitting the Commissioner to require the Chief Constable to resign or retire only for matters within the Commissioner’s primary duty, as interpreted by reference to the protocol. Nothing in the Act limited the wide obligations of the Commissioner which required him to hold the Chief Constable to account for the exercise of any of the Chief Constable’s functions. Matters relevant to operational independence were not excluded from the scope of the Commissioner’s powers of scrutiny. The power under section 38 could fairly be described as a ‘sanctioning power’, but there was no principle that such a characterisation mandated the reading down of the clear words of the statute. The consequences of the exercise of the power were relevant to issues of rationality and proportionality where that was in issue, but no more. The authorities did not mean proportionality had to be incorporated into English domestic law where neither European Union law nor the Convention was engaged. However, they did make good the submission, if it were ever open to doubt, that the intensity of review of a decision subject to judicial review would vary according to context, which was provided by the protocol. The terms of the protocol served to qualify the Commissioner’s powers. The duty of co-operation proceeded on the basis of goodwill, professionalism, openness and trust between the Chief Constable and the Commissioner. Given those considerations, it was necessary always for a Commissioner to accord a Chief Constable a margin of appreciation in the decision he took. Therefore, the proper test to be applied by the Commissioner to the actions of a Chief Constable was to ask whether those actions were outside the range of reasonable responses available to a Chief Constable. The test for the court to apply to the Commissioner’s decision-making was whether that decision-making met the requirement of public law, namely, whether it was lawful, procedurally proper and rational (see , , , , , -,  of the judgment).
Kennedy v Charity Commission  2 All ER 847 considered; Pham v Secretary of State for the Home Department  3 All ER 1015 considered.
(3) It was plain that the exercise of the section 38 powers had had the capacity to significantly affect the Chief Constable’s reputation. There was no hesitation in rejecting the submission that the interference with the Chief Constable’s private life occasioned by the suspension and its consequent publicity was insufficiently grave to engage article 8. Accordingly, it was open to the Chief Constable to additionally challenge the Commissioner’s decisions on the grounds that they had been disproportionate. Although, given the conclusions on the rationality challenge, it was not necessary to consider the application of art 8, the four decisions had been disproportionate (see , , , ,  of the judgment).
(4) Notwithstanding that the claim in respect of the first two decisions had been issued out of time, there was good reason to grant an extension of time to permit the Chief Constable to challenge them. Doing so would not cause hardship or prejudice to the Commissioner. On the facts of the case, where each of the decisions had been a step along the path required by statue when a direction under section 38 was being contemplated by a Commissioner and where the Chief Constable argued that a flawed approach by the Commissioner underlay all the decisions made, it was understandable that the Chief Constable should wait until the final decision before launching proceedings. Those circumstances provided a good reason to extend time. Given that the challenges to the third and fourth decisions were in time and fell to be considered, there was no prejudice to the Commissioner or detriment to good administration in permitting those claims also to be considered (see - of the judgment).
(5) With respect to the suspension decision, given the margin of appreciation which the Commissioner should have allowed the Chief Constable, his decision to exercise his section 38 powers in the circumstances had been irrational. The Chief Constable’s second statement had been comfortably within the range of reasonable responses to the jury’s verdict and to a call for a further statement from the police. Accordingly, the decision to suspend had been irrational. With respect to the second decision, the independence, statutory function and institutional experience of HMCIC meant that it would be irrational of a Commissioner to fail to give particular weight to his views. That was especially so where the expression of those views was detailed, thorough and closely reasoned. HMCIC’s observations had been guidance of a type which any Commissioner should consider with great care and from which he should depart only if he had cogent reasons for doing so. The Commissioner’s response had failed to engage with the substance of much of HMCIC’s observations and had failed to provide cogent reasons for having taken a different view. In all those circumstances, the second decision had been irrational. With respect to the third decision, in the light of the conclusions on the suspension and second decisions, it was plain that it could not stand. The Commissioner’s decision to press on with the s 38 process in the light of all that he had received from the Chief Constable and HMCIC had been irrational. With respect to the resignation decision, the Commissioner had made an irrational first decision and, despite powerful observations of both the Chief Constable and HMCIC about the validity of that decision, had failed to recognise its flawed nature in his final decision. In any event, the decision to require the Chief Constable’s resignation had been disproportionate (see , , , , , , , ,  of the judgment).
R v Secretary of State for the Home Department, ex p Venables  3 All ER 97 distinguished; R (on the application of Shoesmith) v Ofsted  IRLR 679 distinguished; R (on the application of Khatun) v Newham London Borough Council  All ER (D) 386 (Feb) considered; R (on the application of Munjaz) v Mersey Care NHS Trust  4 All ER 736 considered.
Hugh Davies QC and Jessica Boyd (instructed by Kingsley Napley LLP) for the Chief Constable.
Jonathan Swift QC and Joanne Clement (instructed by Bevan Brittan LLP) for the Commissioner.
Clive Sheldon QC and Christopher Knight (instructed by HM Chief Inspector of Constabulary) for HMCIC.
Adrian Phillips (solicitor advocate) for the South Yorkshire Police and Crime Panel, as interested party.
Karina Weller solicitor (NSW) (non-practising).