)-v i - hillsborough independent...

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South Yorkshire Joint Secretariat

P.O. Box 37, Regent Street,

Barnsley, South Yorkshire S70 2PQ.

Fax: Barnsley

W.J. Wilkinson, BA(Econ), CPFA. Clerk and Treasurer

Our ref.

Your ref:

Date: 30 December 1998

This matter is being dealt with by: M iS S M V O a d e S

•4 i

S O U T H Y O R K S H IR E POLICE

A UTHO RITY

Direct Line:

Dear Ian

HILLSBORUGH DISASTERAPPLICATIONS FOR FINANCIAL ASSISTANCE TOWARDS LEGAL REPRESENTATION - DAVID DUCKENFIELD AND BERNARD MURRAY

I enclose for your information copies of recent letters sent to the Solicitors acting for Messrs Murray and Duckenfield and also to Ann Adlington, Solicitor to the Hillsborough Family Support Group. You will see that arrangements are to be made for a special meeting of the Authority on the 15 January 1999. The decision to provide for a special meeting was taken to allow the Authority appropriate time to take on board all relevant information.

Yours sincerely\ /

Maureen Oades ^ ^Assistant Clerk and Solicitor

Enc

Assistant Chief Constable I DainesSouth Yorkshire PolicePolice HeadquartersSnig HillSHEFFIELDS3 8LY

Fax: Barnsley





Our ref:


AUTHO RITY

Your ref:


This matter is being dealt with by: MiSS M V 0ad6S Direct Line:

Dear Sirs

FINANCIAL ASSISTANCE TO POLICE OFFICERS IN LEGAL PROCEEDINGS -

YOUR CLIENT: MR B MURRAY

I thank you for your facsimile letter dated the 24 December 1998. In view of the delay in the Crown Prosecution Service providing details of the reasons for the decision taken not to intervene to take over the conduct of the private prosecution proceedings instituted by the Hillsborough Family Support Group, it now appears unlikely that the Authority will be in a position to fully consider the further requests m ade for financial assistance when it meets on the 8 January 1999. Accordingly, I have taken steps to call a special meeting

of the Authority on the 15 January 1999.

Yours faithfully,

Maureen Oades Assistant Clerk and Solicitor

W alker Morris Solicitors Kings Court12 King StreetLEEDS LS1 2HL




Fax: Barnsley


S O U T H Y O R K S H IR E POLICEOur ref:

AUTHO RITY

Your ref:


This matter is being dealt with by: MiSS M V OadeS Direct Line:

Dear Mr Eastwood,

FINANCIAL ASSISTANCE TO POLICE OFFICERS IN LEGAL PROCEEDINGS - YOUR CLIENT MR D DUCKENFIELD

I thank you for your facsimile letter which was dated and received on the 23 December 1998. As indicated in my facsimile letter of the sam e date I have made arrangements for the requests for further financial assistance to be considered by the Authority on the 8 January 1999. However, in view of the delay in the Crown Prosecution Service providing the reasons for its decision not to intervene to take over the conduct of the private prosecution proceedings instituted by the Hillsborough Family Support Group, it now appears unlikely that the Authority will be in a position to fully consider these further requests when it meets on that date. Accordingly, I have taken steps to call a special meeting of the Authority on the 15 January 1999.

Yours sincerely,


Winckworth SherwoodSolicitors and Parliamentary Agents35 Great Peter StreetWestminsterLONDONS W 1 P 3 L




Fax: Barnsley


Our ref:

Your ref:

date: 30 December 1998

This matter is being dealt with by: MlSS M V OadeS

Dear Madam,

On the 23 December 1998, you asked to be informed of the date of the meeting at which the Authority would be asked to give consideration to further requests from Messrs Duckenfield and Murray for financial assistance in connection with legal proceedings which they intend to take. At this stage it is the intention to report the requests made to the meeting of the Authority which is to take place on the 8 January 1999.

Yours faithfully,


Ms A AdlingtonHillsborough Family Support Group Central Buildings North John Street LIVERPOOL L2 6RR


AUTHO RITY

Direct Line:

1.3/01 ’99 15:23 FAI 0113 284 T001 HAMMOND SUDDARDS $ 002

H am m ond S u d d a rd s 2 r‘"t La"eLeeds

S O L I C I T O R S LS3 IKS

Telephone (0113) 2S4 7000

DX No. 26441 Fax (0113) 284 7001P e te r. fvi c rc f i Ifvi’FI :i 1111 n < i ii (1S11 c! d a rrts.co.uk

lan Daines Esq Assistant Chief Constable South Yorkshire Police Police Headquarters Snig Hill Sheffield S3 8LY

O ui Ref;

PCM SB. CHI 57-9Y our Ref;

ACC ID NMHD ata ;

13 January 1999

By Fax & By Post

Dear Ian

Hillsborough Stadium Disaster 1989 Applications for Financial Assistance /

V t i A

C u t ,

Further to our telephone conversation this advice is based on Home Office Circular number 77/87 and on the interpretation put on their circular in the case of R Derbyshire Police Authority Ex P Wilson (The Times August 8 1989)

I assume you have access to a copy of the circular and I enclose herewith a copy of The Times Law Report of the Derbyshire case.

The concern which I raised us to the appropriateness of your seeking sepai ate legal advice about thus matter was clearly misguided, Paragraph 14 of the circular requires that the application for assistance be submitted to the chief officer who is to put the application with his own recommendation to the Police Authority. Clearly if you are to make a recommendation then you are entitled to have regard to legal considerations when doing so and this in turn entitles you to take legal advice,

2. Reverting to the opening paragraph of the circular this refers to the discretion of The Police Authority to meet legal expenditure incurred by officers pursuant to the general statutory duty o f the Authority to maintain an adequate and efficient Police Force for its area. The

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13 Januaiy 1999 Ian Dairies Esq

Assistant Chief Constable South Yorkshire Police

reference to an adequate and efficient Police Force in the Police Act 1964 has been replaced by a reference in Section 6 of the Police Act 1996 to the duty of the Authority to:-

1 Secure, the maintenance o f an efficient and effective Police Force fo r its area"

3.

4.

5.

6.

7.

8.

I cannot see any point to be made on the slight difference between the old wording and the new, that is to say the substitution of “effective” for ''adequate".

Remaining with the opening paragraph of the circular it should be noted that the discretion to meet legal expenditure arises where the officers have acted in good faith in pursuance of their duties or (my emphasis) the interests of the force as a whole are involved.

This indicates that if you wish to do so you are entitled to argue that even if the Authority finds that there has been any want of good faith on the part of the Applicants it might still be in the interests of the Force as a whole for assistance to be given,

Paragraph 3 deals with prosecution by the Crown Proseculiun Service which is not relevant here.

Paragraphs 4 and 5 deal with private prosecutions and it is interesting to note the distinction that is made between the two different forms of prosecution. J.n paragraph 4 it is said that;-

“I f in a case where a member o f the public brings a prosecution against an officer, the Authority is satisfied that ihe officer has acted in Igood faith and has exercised his judgement reasonably] the Authority should (my emphasis) provide or fund legal advice and/or representation

Clearly this pre-supposes some judgement being made On the part of the Authority as to whether the officers have acted in good faith and exercised their judgement reasonably. In this respect it seems to me that there is only one piece of evidence upon which the Authority could rely in taking the view that David Duckenfield in particular had not acted in good faith. This is the statement which he admits making at about 3;2Q on the day of the disaster to the effect that fans had forced open Gate C.

My view is that this would represent dangerously thin evidence upon which to form any judgement about bad faith but I have to accept that others might think differently.

I am not, au vising David Duckenfield but if I were I would consider carefully whether he should not advance some explanation for having made this statement. If he does so then I think the Police Authority would be in grave difficulties if they were to form a view that he

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313 January 1999 Ian Daines Esq


had not acted in good faith since this would effectively pre-judge exactly what a jury will have to decide.

If he chooses not to make any reference to this incident at all there is the possibility of the Police Authority not being satisfied that he was acting in good faith in relation to the charge o f attempting to pervert the course of justice,

9. Paragraph 5 of the guidance appears to contemplate the question of costs being dealt with after the event but it seems to me that this, along with all the other individual instances must be read subject to the general provisions in paragraph 14 which provide for financial assistance to be made available in advance if this is thought appropriate.

10. This is nothing in the circular which requires the Authority to insist that the officer should explore alternative funding, including Legal Aid, before making his Application Indeed the contrary is the case. The central principle is that, subject to conditions previously mentioned, the officer should have the services of a lawyer and he should not be out of pocket. The only direct reference to the possibility of alternative funding is 10 be found ini paragraph 16 which relates to the possibility of funding being provided by the Police Federation where it clearly states that assistance should be sought from the Police Authority first and only if that is not available should an application go to the Police Federation. Although that provision is irrelevant here it is surely a pointer to the way in which the Home Office expect the Authority to approach their task.

11. I do not see any basis upon which a properly advised Authority could insist that the Legal Aid avenue be explored first. This is particularly so when the Police Authority are aware that the officers concerned are in receipt of police pension and it must be regarded as likely that they would be ordered to contribute to Legal Aid and thereby be “out of pocket” .

12. It could be argued that the Police Authority could offer to meet the cost of any contribution ordered but I do not think this affects the basic point that the circular makes no reference to the possibility of exploring alternative means of payment, save in relation to paragraph 16 where it expressly excludes the Federation alternative until a decision has been taken on the merits of the Application to the Police Authority.

13. It is my conclusion that if the Police Auxhority were even to consider the availability of Legal Aid they would be taking into account an irrelevant consideration and would make themselves liable to judicial review,

14. You raised the question of whether the Police Authority could offer to pay any excess charge over and above what was available on Legal Aid, eg. the difference between charges raised by firms such as Winkworth Sherwood (and Hammond Suddards) as against the payment that would be available on Legal Aid. I can confirm that whilst the Police Authority could make that offer it would in fact be unlawful for the firms concerned to accept any additional payment and it might well be in the circumstances that the officers would be deprived of

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*

*4

13 January 1999 Ian Daines Esq


representation by their present advisors if they were obliged to apply for Legal Aid and were awarded it.

I am very conscious that in providing the opinion above I am differing with the recorded account of advice obtained from Leading Counsel, no doubt sclccted by the Police Authority lawyers as competent in his or her field. As we both know there are some I .eading Counsel whose opinions are not worthy of great respect but even so I am concerned about reaching such a diametrically opposite conclusion and until I have actually seen the opinion or a record of the advice given you will have to keep in mind the possibility that there is something I have overlooked.

Bearing in mind the points made at numbered paras. 1, and 3. above there is no bar (save budgetary constraints) to your seeking your own QC’s opinion and if you wish to discuss this option fu rth er

please let me know

Yours sincerely______

P C M ETCALF

13 JAM ’99 0 113 284 7001 PA G E .005

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tgj 0 0 f?

olice committee erred in relying on a report from a

panel in legal costs applicationRegina v Derbyshire Police Authority, Ex parte WiUon and Anofhei-Before Lord Justice Ralph Gibson and M r J ustice Nolan (Judgment July 20]Members o f a police ccmrrmt&i deciding whether to indemnify polk* ofiioefs andyuf the Polic-e federation for the costs o f legal representation at a d istric t auditor's inquiry should ail be fully a ware o f the evidence and the representations made by the officera and should exercisc their own judgment and not reiy on the report o f a panel.

There was a presumption that where an officer could be shown to have acted in good faith in pursuance o f his duties, any refusal to reimburse would be a bad decision unless there were some relevant factor which could reasonably justify the refusaL

The Queen's Bench Di- isionai Court so hcid when

allowing the application o f Inspector Wilson and Sergeant Dalton fo ra writ o f certiorari to quash the Derbyshire PoHcc Authority’s decision of July 26, 1985 refusing to -indemnify them out o f police funds for legal expenses,

M r Nicholas Underhill and Mr Benedict Patten for the applicants; Mr Alan Newman. QC and Mr Jacques Algazi for the police authority,

LORD JUSTICE RALPH G1BSGN. delivering the judgment o f the court. said that a complaint was made by two ratepayers concerning expenditure on the Chief Constable's offices when work to convert one o f them into a conference room v^as carried out,

That was intended to be paid for by an authorized change in the purpose o f sums in the a n n u a l e s t im a te s . T h e authorization of the police committee was not obtained and the spending was therefore contrary to law.

The auditor found that no one had made any personal gain, that none o f the officers had been shown to have been guilty

o f wilful misconduct and in the circumstances it would not be proper to seek an order for repayment from them.

The services o f solicitor and counsel had been made avail-able for the two officers by thePolice Federation wiih no stipulation as to personal contribution.

When the result o f the inquiiy v.as known, the federation apj> lied to ihe police authority for the legal costs to be paid. The authority had power to make payment out of police funds but decided to make no payment.

The decision of the authority had been attacked on three main grounds. It was said that ihc police authority, a committee with a full membership of 24 had left the decision to a pane! offivc members appointed 40 do no more than hear submissions and report; that they had made the decision on an incomplete report from the panel; in particular the panfii had failed to tell the authority what the applicants" submissions were.

Home Office Circular No 77/37, dated December 4, I9S7, provided guidance for the policc authority as to the circumstances in which policc funds might be used under section 4$ o f the Policc Act 1964 to most expenditure “ incurred by officers in all kinds o f legal proceedings where the officers have acted in good faith in pursuance o f their duties".

T!w circular was not a regulation and did not have the force o f statutory law, it contained guidance with reference to a power to make payments but had not created a specific duty io make payments-1

The panel, all members of the police committee, was set up to hear representations and report.h was entitled to add a recommendation. But if u was to do what it had been instructed to do. it was essential to repon fairly the substance of the representations it had heard. It was useless to recite that "all the arguments have been carefully considered”.

No further report or explanation of meir recommendationwas intended upon the sub

mission o f the report to (he police authority. The applicants were entitled to have their representations considered 1 by the police authority itself.

The task given to the police authority under the 1964 Act, in the context o f the guidance given in the circular, was| o f considerable difficulty — similar to that which courts had: tq perform in deciding whether a succcssful litigant, should despite his success, not be awarded his costs.

The panel, if it was to have made a decision, needed guidance on matters of law relevant i o the exercise of its discretion. In particular ihe authority had to make its decision with reference to any ground of application put forward.

The authority had full power to delegate but did not use that power and the discretion being exercised while administrative was not purely administrative.

The power to consider and, if thought fit. to award reimbursement o f costs arose unck-r’-.he general administrative powers given under the statute; but once a particular claim was made, in dealing with it, the authority was deciding a claim for financial redress based on a reasonable expectation o f having1 the claim considered in accordance with the principles set Out in the Home Gfficc ctreufar.

The authority had dccided to retain to itself the decision on the applications, but having done that the members of the authority were required to decide ihem by their own decisions

Mis Lordship acccpled: Mr Underhill’s submission th3t the ccntral principle in the circular meant that ihere was s presumption that if an officer was shown to have acted in good faith in pursuance of his duties he sho u l d be en t i t l ed to reimbursement,

A refusal io reimburse would be a bad decision unless there was some relevant factur^hich could reasonably justify Ihe refusal.

Solicitors; Russell Jones & W a lk e n SvingsfOi'd D c irm a n J*. Roulh Stacey.

13 JAN ’ 99 1 5 : 2 7 0 1 1 3 2 8 4 7 0 0 1 PAGE . 1306

S o u th Y o rk sh ire

POLICEJ U S T I C E w i t h C O U R A G E

M i l H e d g e s QPM LLBChief Constable

W J Wilkinson Esq 27 January 1999Clerk and TreasurerSouth Yorkshire Joint SecretariatPO Box 37Regent StreetBarnsley

S70 2PQ BY FAX

/

Meeting of the Police Authority Re Hillsborough Stadium Disaster 1989

I refer to the fax (14.46 hours, 26 January 1999) from your solicitor (Garretts) to my solicitor (Peter Metcalf). The fax caused Peter Metcalf to make urgent contact with Assistant Chief Constable Ian Daines and Ian spoke to you urgently yesterday afternoon. Ian has briefed me and I write to express my concerns.

Ian tells me you think the members may not be in a position to decide on the funding issues at the meeting on 5 February because the legal position may not be clear. This issue was first scheduled for discussion on 15 January. It was deferred and it was hoped that we would discuss the issue on 29 January but it has now been put back to 5 February. I would be loath to see the decision deferred again. Six months ago you wrote to Mr Duckenfield and Mr Murray telling them that their legal expenses would be paid by the Authority. Some weeks ago they applied for funding for a judicial review to challenge the DPP’s decision, of 18 December 1998, not to intervene in the prosecutions. They must commence the judicial review proceedings within three months, their deadline is 18 March 1999. The committal proceedings at the Magistrates Court are scheduled for mid April. You have suspended the payment of Mr Duckenfield and Mr Murray’s solicitors bills for work already undertaken and you have advised that any further legal work may be at their own risk. I understand the reasons for these actions but Mr Duckenfield and Mr Murray cannot properly prepare for the judicial review or the committal proceedings until the position is resolved by the Authority. I do hope that everything will be in place to allow the members to reach decisions on 5 February.

Garretts’ letter to Peter Metcalf refers to Messrs Hicks, Duckenfield, Murray and I being required to leave the Authority meeting when it goes into private session. This caused Peter and Ian great concern and I understand that you assured Ian that Garretts were mistaken on that point. On 8 January the members of the Authority discussed Mr Hicks’ application to make representations to them. They passed resolutions on how the procedure should be conducted. They wished Messrs Hicks, Murray and Duckenfield (or their representatives) to have the opportunity to address them. There was no mention of me addressing the members in the public part of the meeting. I am preparing a report for confidential circulation to the members. I will speak to that report in private session and will forward it to you to be circulated to the members before the meeting. I think it would be wrong for me to say some things in the public part of the meeting and to make further points in the private part. I prefer to make all my observations to the members in the

te session and to follow the procedure agreed by the members.Police Headquarters,SnigHill,Sheffield, S3 8LYTel: 0114 220 2020 Fax: 0114 252 3243Direct Line Tel: 0114 252 3400 Direct Line Fax: 0114 252 3481

In summary, I hope the members will be in a position on 5 February to end the uncertainty into which Mr Duckenfield and Mr Murray have been placed and that the previously agreed procedure will be used.

In closing, I find it very disappointing and wasteful of resources that I receive instructions and advice as to how I should deal with the Police Authority coming via two sets of solicitors (yours and mine) rather than the normal way in which you and I communicate (face to face, telephone, letter or fax). I do hope that whenever possible we can communicate direct.

Michael Hedges

EXECUTIVE SUITE Fax Feb ’99 17:1C P.01/01

•_ ■ ;V;.

THE ASSOCIATION OF CHIEF POLICE OFFICERSO f ENGLAND. WALES AND NORTHERN IRELAND

President: John Newing, QPM., BA(H<m$).,*. Chief Constable, Derbyshire Constabulary

M. Hedges Esq.,Chief Constable,South Yorkshire Police, Siug Hill,Sheffield. S3 8LY.

Our Ref:

5th February, 1999

I understand that the South Yorkshire Police Authority have received independent legal advice which informs them that they have no power to grant L tPc“ . “ ppI8rt .o serving or former officers fadng P ; - - ® * “ given in respect of a private prosecution currently faced by former Chief Superintendent Duckenfield and former Superintendent Murray as a result of their

involvement in the tragic events at Hillsborough-

This decision is clearly contrary to current practice and understanding and is a matter of national concern. You have said that you are looking for this to be judicially reviewed. Can I ask you to pursue the review with all diligence and obtain

as early a hearing as possible.

Yours sincerely,

John Newing PRESIDENT

Telephone: (01773) 572790 Fax: (01773) 572146

M U m H I K H c o n s t a b u l a r y h e a d q u a r t e r s . -------------

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H am m ond S uddards

S O L I C I T O R S

FACSIMILE TRANSMISSION

Matter Not

FAOi

Ann Adlington

Date:

11 February 1999

Hints;

Number of Pages (including this sheet):

aIf this transmission is uol fully or legibiy received please telephone

The information in this facsimile (PB«saiissiyn is wmfideiitial. Ils tuiUents ar& uot to be disclosed to anyone other than the ad^essee except with the authority of the addressee. Unauthorised recipients an: nxiucsUal lo iitaiiitaiu tills confide- - ility and immediately to advise ilw sender by tcicphone/fax of any error or misdirection in transmission.

Our Rcf;

PCM. CHI. 5 7-9

To:

HFSG

Fax No;

Telephone No:

Lord.

LS3 lEsTelephone (0il3) 284 7OOfDX No, 26441

Fax <0113) 384 7001

Dear Ms Adlington,Hifisbftruu^h-S^^

R - v - SYFA es .B-CMelCflsatobifcSXB

Thank you for your faxes of 10 and i i February.

It is not my understanding that any party is entitled to make representations against the grant of leave, as opposed to the grant of substantive relief, but if you and your Counsel have a different view then you will wish to know that the application is proceeding in the Crown Office under reference CO 582/99.

If leave were to be granted then I would expect to be instructed to serve you with copies of the papers but it would then be for you Lu decide whether to apply to intervene.

Therefore the answers to the numbered points in your second tax are;

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P A G E . 0 0 4HAMMOND SUDDAKDS ■v,v

11 February 1999 [name]

M

i) Yes.

ii) No, blit subject to para 3 on PI of this lax.

iii) No

I am awaiting my client’s instructions in relation to other points raised in your fax of 10 February

Yours sincerely,

P C Metcalf

11 FEB ’ 99 1 7 : 4 4 FROM LEGRL SERUI CES PAGE. 0 0 6

1 1 / 0 2 ’ 89 1 6 : 3 0 FAX“C

S U P tHillsborough Family Support Group

(A .& -fy 6 n

TO: f.fllefCm M . f y -

FAX NO: _______ _________

FROM: f t run

DATE: l i

FAX NO: 0151 236 1936

TELEPHONE NO: 0151 236 1919

NO OF PAGES TO FOLLOW: /■

MESSAGE: f i t 1™*- a # 0**** ■

The information in this fax is confidential. Its contents are not to be disclosed to anyone other than the addressee except with the authority of the addressee. Unauthorised recipients are requested to maintain this confidentiality stid imfnediately to advise the sender by telephone/fax of any error or misKSfsctioh in transmission.

■es ^

FEB ’ 99 1 7 : 4 4 FROM LEGAL SERUI CES

Hillsborough Family Support Group

PASE.007

Your Ref;

J February 1*399

Hammond Suddards Solicitors2 Park Lane Leeds LS3 1ES

Dear Mr Metcalf

Proposed motion: South Yorkshire Po^c<?^ithority

[ have just been informed of a press release issued by South Yorkshire Police, stating that they hive to the High Court today to ask for a judicial review of the decision reached by the Police Authority last fnday.

Please confirm by return:-

i) You -i in receipt of my letter sent to you by fex yesterday;

ji) You have informed the Crown Office that we want to be heard on any appl>co.uon forleave, and, if leave is granted, on a full hearing of the motion; and

Y ou have lodged all o f the documentation referred to in paragraph 13 of my letter of 10th February,

tit)

Yours sincerely

Ann Adlington Solicitor

cc; Garretts SolicitorsClerk and Treasurer SYPA

J i4• t t TOTAL P A G E . L10 i? t *

Ian Daines, BA(Hons) Dip.Ed.Assistant Chief Constable

Ref: ACC/ID/NMH

11 February 1999

Mr Peter MetcalfHammond Suddards Solicitors2 Park LaneLeedsLS31ES

Dear Peter

Re Fax of 10 February 1999 from Hillsborough Family Support Group Regarding Judicial Review

When we met at your office on the afternoon of 10 February 1999 you passed me a copy of a fax from Ms A ADLINGTON, solicitor to the Hillsborough Family Support Group (HFSG) timed at 13.11 hours, 10 February 1999.

When other commitments permit, please write to Ms Adlington in the following terms;

a) Her letter is inaccurate and misleading.

b) We do not propose to use valuable resources in a lengthy recitation of the truth of the matter about which she writes.

c) Please advise Ms Adlington that the Chief Constable has applied to the High Court for a judicial review of the Police Authority’s decisions and give her my reference numbers of court dates that may be to hand.

Unless you advise me that we are required so to do, I do not think we should be putting Ms Adlington’s views before the court. I think it is up to her to do that.

Yours sincerely

Ian DainesAssistant Chief Constable

SUPVV*


TO: (jif. P. -----

FAX MO:

FROM: 4 & ^ - £ r n

DATE:

FAX NO:

TELEPHONE NO:

NO OF PAGES TO FOLLOW: If.

MESSAGE: P k ^ ^ .

The information in this fax is confidential, its contents are not to be c closed to anyone other than the addressee except with the authority of the addressee. Unauthorised recipients are requested to maintain this confidentiality and immediately to advise the sender by telephone/fax of any error or misdirection in transmission.

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Your Ref: PCM.SB-.CHl.57-9

10 Febaiary 1999

Hammond SuddardsSolicitors2 Park LaneLeedsLS3 IES

Dear Mr Metcalf

Proposed motion: R v. South Yorkshire Police Authority, ex party Chief ('onstghje of SouthYorkshire Police

1 It has been announced that the Chief Constable will seek judicial review of the refusal by the Authority to accede to applications made by the defendants Duckenfield and Murray. They had applied for funds for (a) their own proposed application for judicial review of the decision of the Crown Prosecution Service, made after six months’ consideration, to decline to take over and discontinue the prosecution, and (b) their defence to the criminal charges o f manslaughter, misfeasance, and. in Duckenfieid’s case, attempting to pervert the course of justice.

2 As the prosecutor. 1 have an interest in th$ proposed application for judicial review. The HFSG also has the support of some South Yorkshire rate-payers. I make the following observations.

The interest o f the Chie f Comtahle in the decision

3 ( do not understand why the Chief Constable should be the applicant. Are you satisfied that he has the power to make such an application? He does not appear to have sufficient interest in the matter. The defendants are the unsuccessful applicants for public funds from the South Yorkshire Police Authority, and, if, they cannot afford to pay, they can apply for legal aid if they wish to seek judicial review.

4 The Chief Constable may find himself in the position that, if leave to move is granted.

l

10/02 *’99 13:12 Pg. 03

10

the defendants may have applied successfully for legal aid for the criminal proceedings, and may therefore have no further interest in supporting the application. Even if they wish to support your application, they may be unable to obtain legal aid for that

purpose.

I'he factual and legal basis o f the funding decisions

More fundamentally, we are concerned that this application is being presented by the South Yorkshire police as a general matter of principle, of concern to police forces throughout the country, without reference to the facts of the case. Unfortunately, the Police Authority decided, with, we believe, the encouragement of the Chief Constable, that it would separate the legal argument from the argument as to the facts.

I argue that the matter should only go before the Divisional Court if the Police Authority has decided that it would grant the application on its merits if it had the power to do so. It is not the practice of the Divisional Court to answer theoretical questions, In any judicial review application, the court has a discretion whether to grant relief, and the court will have to look, necessarily, at the tacts o f law week's

decision

This hisiory is obviously relevant to the legality of the decision. Acting on your legal advice, the Chief Constable asked the Authority in February of last year to allow funding for the defence of any officer who might be prosecuted arising out of the “Scrutiny”. Presumably, you advised that any defendant would be entitled in law to funding, whatever offence was alleged, without consideration being given to the particular circumstances of the case, provided that the Authority considered that the officers had acted "in good faith". No doubt you advised them, as the minutes for the 27m February 1998 record, that this finding of “good faith” survived the trenchant support given by Lord Justice Stuart-Smith to the Taylor Report, and his observations

about Duckenfield's “disgraceful lie'’.

I note also that on 21* December 1998, Miss Varty told the magistrate at a remand hearing in the criminal case at Leeds that her client the Chief Constable did not know what the issues in the case were. I assume that you had so instructed her, In these circumstances it is unclear how you can have been advising the Chief Constable that funding was lawful and rational.

Accordingly, I invite the Chief Constable to support us in asking the Authority to consider the merits of the matter, so that the High Court will not simply be asked to decide a theoretical point. The Authority has the facts. We gave them a detailed file, and they can conveniently decide the matter at their next meeting. The approach we suggest is easy, less expensive, and will avoid the prospect of two applications for judicial review of the same decision at great public expense,

You have seen the representations we made on the facts of this matter to the South Yorkshire Police Authority. Our case in summary contains the following, among other, arguments and facts;

2

10/02 *’99 13:13 Pg. 04

a) The case against the defendants is strong:b) The Police Complaints Authority wished to try both these defendants for

neglect of duty, but was thwarted because Duckenfield retired on health grounds, after which the case against Murray was also dropped:

c) The South Yorkshire Police has never contested that the conduct alleged against the defendants was negligent, and that it caused the deaths of 96 people

d) Both the South Yorkshire police and you as their lawyer have a strong interestof your own to protect :

e) The South Yorkshire Police have publicly accepted the findings of the Taylor and Stuart-Smith enquiries, which both included the finding that Duckenfield lied about the circumstances in which the gates were opened:

f) The senior officers of the South Yorkshire police procured the excision from over a hundred statements of South Yorkshire police officers of factual criticisms and assertions of crucial matters relevant to the question of gross negligence;

g) You yourself played a leading part in that editing proccss;h) The South Yorkshire police statements sent to the DPP when a decision was

being taken as to whether to prosecute in 1990 were the edited ones;i) The West Midlands police have never been independent throughout the

enquiries in the case, because many important decisions as to disclosure of material were taken only if South Yorkshire police, acting on your advice and in their own interests, decided whether documents should be disclosed.

11 The argument that it would be inappropriate to pay for the legal costs o f the defendants in the criminal proceedings is a formidable one, and has not been answered by the Chief Constable, The same argument was presented by the prosecution to the CPS in the course of their long and careful review, and it was not answered by the defendants then, either.

12 The additional request that the South Yorkshire taxpayer should fond an argument that the decision of the Crown Prosecution Service was irrational is manifestly absurd. Leading counsel for Murray, and junior counsel for Duckenfield, informed the Leeds Magistrates Court on Monday 21* December that, even though they were expecting a letter from the CPS which would indicate the criteria by reference to which the decision had been taken, a concluded decision had already been taken by the defendants to apply for judicial review. Such a decision must have been taken on the basis that, whatever the reasons, the decision of the CPS must necessarily have been perverse.

13 If the Chief Constable decides, contrary to our request, not to ask the Police Authority for a determination of the application for funding on its merits, please ensure that a copy of this letter, and of our full representations to the Authority, accompany any application for judicial review in the fulfilment of your duty of full disclosure. We invite you further to answer our arguments in the course of your application. We give you formal notice that the HFSG would wish to be heard on.any application for leave, and, if leave is granted, on a full hearing of the motion.

3

14 We have completed our study of the papers disclosed to us voluntarily by the CPS, and will be writing to you shortly about the disclosure of some o f the papers and items held

by the Chief Constable.

15 We shall send a copy of this letter to the South Yorkshire Police Authority and the defendants.

16 I am, of course, drawing all of these matters to the attention of the District Auditor.

Yours sincerely


S o u th Y o rk sh ire


Ian Daines, BA(Hons) Dip.Ed.Assistant Chief Constable

Ref: ACC/ID/NMH

11 February 1999

Mr Peter MetcalfHammond Suddards Solicitors2 Park LaneLeedsLS31ES

•

Dear Peter

Letter of Support from Police Federation Re Judicial Review Application

I attach a letter from Constable Paul MIDDUP, South Yorkshire Police Federation Secretar . It arrived just too late for inclusion in the bundle that was being prepared for the judicial review.

Constable Middup explains that the National Chairman is unwell and therefore unable to write, i suggest that Constable Middup’s letter be forwarded to the High Court as a supplementary item of information. When the National Chairman recovers he may well write and we can then consider forwarding his letter also.

Yours sincerely


Enc

Police Headquarters

Snig Hill Sheffield S3 8LYTel: 0114 220 2020 Fax: 0114 252 3243

Direct Dial No:

SOUTH YORKSHIRE POLICEJ O I N T BRANCH BOARD

POLICE FEDERA TION Federation Office Police Headquarters

Snig HillSheffield S3 8LY

Telephone 0114 220 2020

Fax. No. 0114 272 9126

10 February 1999. YOUR REFERENCE

OUR REFERENCE

Mr. M. 1.1. Hedges, Q.P.M., LL.B., Chief Constable,South Yorkshire Police,Police Headquarters,Snig Hill,SHEFFIELD S3 8LY

Dear Mr. Hedges,

Financial Support for Former Police Officers bv the South Yorkshire Police Authority

I am aware that on 5 February 1999, the South Yorkshire Police Authority - acting on legal advice - decided that they could no longer financially support former Chief Superintendent David Duckenfield and Superintendent Bernard Murray in respect of criminal charges brought against them connected with the Hillsborough tragedy.

I have been the Joint Branch Board Secretary here in South Yorkshire for 23 years and I was a member of the National Executive of the Police Federation of England and Wales for 17 years. It has always been my understanding that the Police Authority did indeed have full authority to support police officers in circumstances such as this and my understanding of Home Office Circular 4/1998 is that it was supposed to strengthen that authority. Indeed, it is perfectly obvious that that was the opinion of the Police Authority for all these years since the tragedy happened because they have supported officers during that time.

I have discussed the decision of the Police Authority with the National Chairman of the Police Federation of England and Wales, Mr. Fred Broughton, and he agrees that the potential morale problems within the Police Service if this decision is upheld are very serious indeed. Fred would have been writing to you himself today expressing the views that I am portraying in this letter but he has been taken ill and is unable to do so.

It is so very important that police officers going about their normal daily duties - never knowing what is going to happen next - can at least feel that they will be financially supported by their Police Authority if, after doing their best in what nowadays is always difficult circumstances, something goes wrong.

Whatever the strict legal interpretation of the law may be I am quite certain that Parliament and the Home Office meant in the drafting and passing of the law that Police Authorities should be able to support officers in such circumstances.

On behalf of all the 3000 + officers here in South Yorkshire who I directly represent and the other 125,000 in England and Wales who I indirectly represent, I ask you please, to take urgent and immediate steps through the courts to have this decision by South Yorkshire Police Authority reversed.

With best wishes.

Paul Middup, B.E.M., M.I.Mgt. Secretary, Joint Branch Board.




Fax: Barnsley


Our ref: MVO/KJE

Your ref:

Date: 11 February 1999

This matter is being dealt with by: M iS S M V O a d e S

Assistant Chief Constable I Daines South Yorkshire Police Police Headquarters Snig HillSHEFFIELD S3 8LY

Dear Ian


AUTHO RITY

HILLSBOROUGH - JUDICIAL REVIEWPROVISION OF LEGAL ADVICE/REPRESENTATION TO THE CHIEF CONSTABLE

I write with reference to my recent discussions with Nigel Hiller concerning the provisions of Standing Order No 34 - Tendering Procedure, and wish to thank you for preparing a report detailing why the invitation of tenders is neither practical or appropriate in the particular circumstances. Bill shares your view on this matter and has discussed the circumstances with the Chairman who is of like mind and is agreeable to the appointment of Hammonds. In the circumstances I consider a specific report seeking approval to the appointment is unnecessary. I have enclosed a copy of the letter sent to the Chairman on the matter for your file. The estimated cost of the services is not such as to require a contract award notice to be published in the Official Journal of the European Communities. Such a notice would be required if the value of the contract exceeded

Bill intends to submit a report to the Authority setting out details of Hillsborough related legal costs to date. For the purposes of that report I shall be grateful if you will provide me with details of Hammond Suddards fees including disbursements.

Yours sincerely

Maureen uades Assistant Clerk and Solicitor

Enc

cc Bill Wilkinson

V




Fax: Barnsley (W.J. Wilkinson, BA(Econ), CPFA. Clerk and Treasurer

Our ref: W JW /VS


AUTHO RITYYour ref:


This matter is being dealt with by: Bill Wilkinson Direct Line:

Councillor C Swindell 23 Swinston Hill Road DinningtonSHEFFIELD S31 7R X

Dear

Last Friday’s resolution set in motion the process for review of the legal powers of the

Authority on funding legal costs.

The Chief Constable is continuing to use Peter Metcalf of Hammond Suddards, who has been advising on Hillsborough for 10 years. In these circumstances, both the Chief Constable and myself agree that it would be entirely inappropriate to invite tenders for the provision of legal advice on this matter from anyone other than Hammond Suddards.

Standing Orders do not require tenders in this situation (S .0 .3 4 (9 ) is the relevant clause) where the Chief Constable, myself and you are of the same opinion. In the circumstances

I assume you would have no objections, but need to check with you first.

Yours sincerely

Bill Wilkinson Clerk and Treasurer

C 3^ <Vcv>v >'•>—




Fax: Barnsley


Our ref: MVO/KJE


A UTHO RITY

Your ref:


This matter is being dealt with by: MiSS M V OadeS Direct Line:

For the attention of the Chief Constable and ACC I Daines

South Yorkshire Police Police Headquarters Snig HillSHEFFIELD S3 8Ly

Dear

HILLSBOROUGH - MEETING OF THE POLICE AUTHORITY 5 FEBRUARY 1999

Just a brief note to inform you that Garretts are advising that the resolutions approved by the Authority should be dealt with as an “exempt minute”. Accordingly, a brief summary of the proceedings will be drafted for public inspection.

Yours sincerely


cc W J WilkinsonS J Lunn

U

•s

V ^ J V

Kings Court, 12 King Street, Leeds, LSI 2HL. Telephone 0113 2832500.Facsimile 0113 2459412. D ocum ent Exchange 12051 Leeds 24. Email [email protected]

Web: http://www.walkermorris.co.uk

ACC Ian Daines South Yorkshire Police Police Headquarters

Our ref RBM/BQW/MURRAY

Your ref ACC/ID/NMHSnig Hill Sheffield S3 8LY 15 February 1999

Dear Assistant Chief Constable Daines

JUDICIAL REVIEW OF POLICE AUTHORITY DECISION REGARDING FINANCIAL ASSISTANCE TO OFFICERS

Thank you very much indeed for your letter of 11 February and I am grateful for not only the advices contained therein, but the actions as have already been taken to ensure this matter has already gone to the High Court.

R B Manning PARTNER

H:\WP\CRIM-MAT\RBM\REVIEW\MURR24.LET\15 February 1999

A list o f the partners names is open to inspection a t the above address. Regulated by The Law Society in the conduct o f investment business.

'Hn 02 '99 16:25 FAX 0113 284 TO01 HAMMOND SUDDARDS 0001

H am m ond Suddards

S O L I C I T O R S

2 Park Lane

Leeds LS3 1ES

Telephone (0113) 284 7000

DX No. 26AA1

fax (0113)284 7001


Our Ref:

PCM. CHI. 57-9

To:

South Yorkshire Police

F a i No:

0114 252 3481

Telephone No:

M atter No:

F A O:

ACC Ian Daines

Date:

15 February 1999

Ttiiic:

N um ber of P ages (including this sheet):

If this transmission is not fully or legibly received please telephone 0113 2SS4 7136.

The information in this facsimile transmission is confidential. Its contents are noi to be disclosed to anyone other

than the addressee except with the authority of the addressee. Unauthorised recipients arc requested lo maintain tliis confidentiality and immediately to advise the sender by telephone/fax of any error or misdirection in transmission.

Dear IanHillsborough Stadium Disaster 1989

J u d ic ia l R e v ie w

Thank you for your two letters of 11 February with enclosure. The HFSG paper factory has been in action again and I enclose copies of their faxes of Friday 12 February and today and my letter to them of Friday. I apologise for anticipating your instructions in relation Lo the supply of court numbers etc. but 1 did not want the court to have grounds for believing the inevitable allegation (now duly made at para 15 of their submissions) that we were trying to prevent HFSG having their say.

In fact I am pleased that they have now put these submissions before the court although very surprised that Alun Jones has put his name to them as, to me, they make no sense al all. Even trying to be objective I do find it difficult to see how any Judge could find anything in them to militate against granting leave.

Offices also at;

7 Devonshire Square Cutiera Gardens London E C 7 .M 4 Y H

T d c p h O d C ( 0 1 7 1 ) 6 5 5 300 0

Fok (0171)655 1001

Trinity Coart 16 fohn Dolton S’.rceV Manehisacfwoo amTelephone (Ci10 1) S30 5oOu

Fas (0)61) *30 5001

Pennine House 5r!■ i? Wtill Strctt! Sr.«:Uor»:l

HDi SMU Telephone (&1374) Tns Cu 127-1) 7 '0 4 £ -

SliiLsOiw f.mVc Sited l.nnrlc.n ECjiM 7HATelephone (o \ 7 1) \27 .viSN-.iAvs

fc,s(ni ?!)<£] 1217

/W'jru.!'.’. I '■'LlitiC 25l.' m.sji brails ki-.lf.mmT«k-Lwi* (M) .12 2 627 7C76

.12 2 627 7636

A IlsI. o f P a r tn e r s f?*" b n vinW Cti i l Ih e SbOVi! ZwJJiciis. Till? JcyulillCCl t v t h e LlsW «5*>cicry ill lllc COIldllCt ‘?l l

15 FEB ’ 99 1 6 : £ 6 0 1 1 3 2 8 4 7 0 0 1 P A G E . 001

Ip/02 99 16:26 FAS 0113 284 7001 HAMMOND SUDDARDS 0002

2

15 February 1999 [name]

[co]

I am copying these documents and the letter from Paul Middop to counsel and, unless you feel Strongly to the contrary, 1 would be inclined to hold off responding further to the letter of 10 February until I have her comments.

Yours sincerely,

P C Metcalf

15 FEB ’ 99 1 6 : £ 7 0 1 1 3 £ 8 4 7001 P AGE. 0 0 £

IS/02 '99 16:2(3 FAX 0113 284 7001 HAMMOND SUDDARDS @003

.SBCtffo


IS February 1999

Hammond Suddards2 Park Lane Leeds LSI IES

Your Ref; PCM SB CHI57-9

Dear Mr Metcalf

Ji r Smith Yorkshire Police Authority, ex parte Chief Cunstahk o f the South Yorkshire Police.

1 enclose fbr your information a copy of submissions sent today to the Crown Office. The letters exhibited to Mr Daines’ affidavit refer to a practice, said by Garretts to have been adopted for some sixty years, by which "‘financial assistance “ has been granted to officers "facing prosecution11.

I would invite you to make good this assertion by evidence. As I understand it, police officers who are accused of criminal offenccs are routinely represented at the expense of either the legal aid fund or the Police Federation. Do you know of any Police Authorities which provide funds either for the prosecution or the defence at a criminal trial, and for any ancillary applications for judicial review'? 1 should be grateful if you could provide details, which are obviously much more easily available to you than us.

I appreciate that the Police Federation does not provide assistance for officers of the rank of Superintendent or above. It may be, however, that the Police Superintendents Association has rules or practices relevant to this question, Have enquiries been made as to whether the Association would provide funds to the defendants? No doubt you can make some simple enquiries so that we can prepare submissions if leave is granted and so that the Divisional Court can have proper information.

Can you also please confirm that neither Mr Newing nor the Superintendents Association wag provided with copies of our material and argument on the facts,

Yours sincerely

rtnn Adiington Solicitor

Phone 0151 236 1SI9. Fax 01512361936. £ Mail [email protected] 1st Floor C entral Buildings 41 N orm John Street L iverpool L2 fiSR

15 FEB ’ 99 1 6 : 2 8 0 1 1 3 £ 8 4 7001 PAGE. 0 0 4

15/02 99 16:27 FAX 0113 284 7001 HAMMOND SUDDARDS 11004

In the High Court of Justice Queen's Bench Division

CO/5S2/99

In the Matter of an Application for Judicial Review by the Chief Constable of the South Yorkshire PoliceAnd in the Mutter of the South Yorkshire Police Authority

Outline of Arsufiipnt for the Prosecution

Inirndnciion

1 Application for leave to appeal was lodged on Thursday 11th February 1999 at the Crown Office by the Chief Constable of the Somh Yorkshire Police ('‘the Applicant") in respect of a decision of the South Yorkshire Police Authority (“the Authority ") to refuse applications made by David Duckenfield and Bernard Murray (“the defendants ') for money to conduct legal proceedings.

2 Criminal proceedings were instituted by Ann Adlington, solicitor to the Hillsborough Family Support Group, on I0,h luly 199S in the Leeds District Magistrates Court, when summonses were issued directed to the defendants in respect of allegations of manslaughter, misfeasance, and (in Duckenfield's case) attempting to pervert the course uf justice, allegedly committed in the Hillsborough stadium disaster in April 1989

It appears that the Applicant has requested that the question of leave be determined on rhe papers and that Ihe Authority supports his application. Although the grounds for granting leave appear therefore to be strong, the prosecution, as an interested party, invites the single judge to take the following matters into account. The prosecution contends that the Divisional Court is being confronted by an essentially theoretical or academic question, the resolution of which should be deferred until other factors have been considered by the Authority. On that basis leave should be refused.

Thu internist ttf ihi> pmsecukir in the application for judicial review

4 The prosecution does not wish in any way to seek deny the defendants access to legal representation in respect of the prosecution. It b, however, conccrncd that the defendants appear to have had, and to have expected, virtually unlimited access to public funds, irrespective of any of the constraints that would apply in the case of other defendants, in respect of matters arising from the prosecution.

After the summonses vmer issued, ihc defendants asked the Crown Prosecution

l

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16 28 FaX 0113 284 7001 HAMMOND SUDDARDS

ii'ii vicM to take over the conduct of the proVscution under section 6 (2) of the Prosecution of Offences Act 1984, discontinue it under section 23 (3) of that Act,

The review was conducted at a his$h level in CPS Headquarters in York and London, and the prosecution and the de^ndants made detailed written submissions in relation to the strength of the evident;.'., the public interest, and the interests of justice.

On 7th December 199g at the Leeds District Magistrate - C before the decision of the CPS was announced, committal proceeding'.:- - ere fixed tor 19lh April T h c _ _ ^ — prosecution asked that the committal be bf-'â February, but theÛncairfnTL^the court through solicitors that each "'I.- *u be rep^s^nted by leading counsel(and, it is believed, junior^cniii5«slj; that the jvoc&cumgs would take at least four weeks; and neither leading counsel was available b e fo re 19“' Apr-'- j i ’ince therewac * police investigation in 1989-90, the case falls to be commit^.- "dcr the pre- 1996 procedures,)

On 18,1‘ December 1998, the CPûjounced, after a review of more than six months, that it would not che prosecution.

On 2IM December 1998, at a remand hearing, leading counsel for Murray, and junior co u n se l for Duckenfield, told the court that an application for judicial review of the CPS decision would defipjt. t; ^ made, and thst it was intended to lodge it in the first two weeks o f Janut -. Leading counsel for Mr Murray told the court that he was not applying +b. date of I9,h April to be adjourned. Counsel for Duckenfield saidT'.-hi.vg about the date. However, the court was also told that the CPS would provide a decision letter, probably before Christinas, explaining its approach lo its decision.

The prosecution, which is not publicly-funded, was concerned that no lawyer subject to the limitations of the legal aid scheme could possibly advise that an application for iudicial revifc. > should be made before he had seen the decision letter. It had been decidcr- ospai -fitly, that ar> application would bs made on the basis that, whatever criteria hac applied, or v hatever reasons might be given, the decision was demonstrably per;-rse. Accordingly, the prosecution thereafter objected to the funding by the A u th o r Jie ,osts of the defence, citing the history of the funding as it understood it, «,>d '»e:y extensive factual reasons why it should not be granted, even if there was powei ,'o so.

The approach of the pros ecution to this issue has been to argue that there is no statutory power to grant Lit.-, func.^g, but the primary and detailed objection has been that the decisions to grant it is; 199\ aad been taken on unlawful, irrational and procedurally improper bases.

In summary, the prosecutor has made the tcJowing allegations, in writing to the CPS and the Authority, and has supported its case c / documents (many of which were made available tor the first lime in 1998 through \he good offices of the Home Secretary);

15/02 99 16:28 FAS 0113 284 7001 HAMMOND SUDD AFC'S 0006

The case against the defendants is strong;

The Police Complaints Authority wished to try both tht.se defendants for neglect of duty, but was thwarted because Duckenfield retired on health grounds, after which the case against Murray was alsi; dropped;

The South Yorkshire Police has never contested that t;.<: conduct alleged

against the defendants was negligent, and that it caused the deaths of 96 people;

The South Yorkshire Police have publicly accepted the findings of the Taylor and Stuart-Smith enquiries, which both included the finding that Duckenfield lied about the circumstances in which the gates were opened;

The senior Officers of the South Yorkshire police procured the excision from over a hundred statements of South Yorkshire police officers of factual criticisms and assertions of crucial matters relevant to the question of gross negligence;

Hammond Suddards, solicitors to the Chief Constable of South Yorkshire Police, played a leading part in that editing process;

The only South Yorkshire police statements sent to the DPP when a decision was being taken as to whether to prosecute in 1990 were the edited ones;

The West Midlands police have never been independent throughout the enquiries in the case, because many important decisions as to disclosure of material to the CPS, Coroner, Police Complaints Authority and Lord Taylor, were taken by them only i f South Yorkshire police, acting in their own interests with the support of Hammond Suddards, decided whether documents should be disclosed.

- The alleged independence of the West Midlands police has been a sham. The West Midlands police has worked throughout with the South Yorkshire police to disguise critical facts relating to the disaster in order to protect the interests of that force.

13 On Is1 February 1999, the prosecutor received a letter from Garretts, solicitors to the Authority, indicating that the Authority proposed that its meeting of 5lh Fehruary would consider only the legal issue whether there was power to grant funding at all. Interested parties, including a member of the Hillsborough Family Support Group, the Applicant and the defendants, had been invited to address the meeting briefly and had submitted arguments in writing beforehand. The letter indicated that the question whether in Fact funding ought to be made available would be considered at a l?ter meeting, but only if the Authority had decided it had the power to grant it.

3

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15 FEB

14 n is believed that the Chief Constable* and Hammond Suddards, advocated this approach. The chief Constable appears to have submitted a tactual reply to the allegations the prosecution had made, but neither that reply, nor the defendants’ replies on this aspect, have been disclosed to the prosecution. The prosecution was not asked whether it consented to the subject-matter of the letter of 1*' February,

15 After it was held on 5,h February that the Authority had no powers to pay thedefendants" costs, the prosecutor argued to the Chief Constable and Authority that the question whether funding should be granted on the ments should be determined before any application for judicial review was made. Otherwise the issue was a theoretical one, A letter to this effect was sent to both solicitors by fax the day before the application was made. Confirmation was later asked, and received, that Hammond Suddards had received this letter on that day. Hammond Suddards were also asked toensure that the single judge was made aware of the prosecution’s submissions on the merits, but to no avail

The importance o f the facts

16 The application for judicial review seeks artificially to divorce the legal issue from itsunderlying facts. By seeking to concentrate on a point of principle, the Applicant wishes the Divisional Court to hear only some of the facts, and to draw inferences from such assertions as '"the way that David Duckenfield and Bernard Murray have been treated” (affidavit of [an Daines), which a study of the tacts would not support,

17 This matter should have been resolved before the Authority first. Should leave to move be granted, the prosecution will seek on the hearing of the motion to make brief submissions on the law, and to present substantial submissions to the effect that, whether or not there is power to make funds available, no reasonable Police Authority could in fact decide in favour of the Applicants in the circumstances of this case,

18 If leave is granted, the prosecution can file affidavit evidence in seven days, and would suggest that any evidence in reply be filed within seven days of receipt.

3 Raymond Buildings.G ray's Inn

London WC1

1S February 1999 Alun Jones QC

4

3 9 1 6 : 3 0 0 1 1 3 £ 0 4 7 0 0 1 P AGE. 0 0 8

1*5/02 ’ 99 16:29 FAX 0113 284 7001 HAMBIOND SUDDARDS

POLICE FEDEBA TIONSOUTH YORKSHIRE POLICEJ O I N T B R A N C H BOARD

Federation Office Police Headquarters Snig HillSheffield S3 SLY

Telephone

Fax, N e.r

10 February 1999. YOUR REFERENCE

OUR kEPERENCE

PM/SJS

Mr. M. 1.1. Hedges, Q.P.M., LLB. -"Chief Constable; "

South Yorkshire Police,Police Headquarters,Snig Hill,SHEFFIELD S3 8LY

Dear Mr. Hedges,

Financial Support, for Former Police Officers b ^ the S o u th Y o ik ^

I am aware that on 5 February 1999, the South Yorkshire Police Authority - acting on legal advice - decided that they' could no longer financially support former Chief Superintendent David Duckenfieid and Superintendent Bernard Murray in respect of criminal charges brought against them connected with the Hillsborough tragedy.

I have been the Joint Branch Board Secretary here in South Yorkshire for 23 years and I was a member of the National Executive of the Police Federation of England and W ales for 17 years, It has always been my understanding that the Police Authority did indeed have M authority to support police officers in circum stances such as this and

my understanding o f Home Office Circular 4/199S is that it was supposed to strengthen that authority Indeed, it is perfectly obvious that that was the opinion of the Police Authority for all these years since the tragedy happened because they have

supported officers during that time

I have discussed the decision of the Police Authority with the National Chairman of the Police Federation of England and Wales, Mr. Fred Broughton, and he agrees that the potential morale problems within the Police Service if this decision is upheld are very serious indeed. Fred would have been writing to you himself today expressing the views that I am portraying in this letter but he has been taken ill and is unable to do so.

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J.o'02 99 18-30 FAX 0113 284 7001 HAMMOND SUDDARDS

- 2 -

It is so very important that police officers going about their normal daily duties - never knowing what is going to happen next - can at least feel that they will be financially supported by their Police Authority if, after doing then besL in what nowadays is always difficult circumstances, something goes wrong.

Whatever the strict legal interpretation of the law may be I am quite certain that Parliament and the Home Office meant in the drafting and passing of the law that Police Authorities should be able to support officers in such circumstances.

On behalf of all the 3000 + officers here in South Yorkshire who I directly represent and the other 125,000 in England and Wales who I indirectly represent, I ask you please, to take urgent and immediate steps through the courts to have this decision bySwuth-YoTkshire^oHc-e-ACTthorrtyTere-ersedr--

With best wishes

Yniir1; smfteretv:

Paul Middup, B.E.M., M.l.Mgt Secretary, Joint Branch Board.

Eioo

15 F l B ’ 99 1 6 : 3 1 0 1 ] 3 £ 8 4 7 f-1 Li 1 Ph GE P 1 0

with compliments

Association of Police Authorities35 Great Smith Street, London SW1P 3BJ

Tel 0171 664 3168 Fax 0171 664 3191

1 . 0 12

in partnership with the Local G overnm ent Association

Mr W WilkinsonClerk and TreasurerSouth Yorkshire Police AuthorityPO Box 37Regent StreetBarnsleySouth Yorkshire S70 2PQ

South Yorkshire Pofice

16 February 199918 FEB 1999

Constable

<f.nFINANCIAL ASSISTANCE TO POLICE OFFICERS IN LEGAL PROCEEDINGS

Thank you for your letter dated 9 February about the provision of financial assistance towards the cost of legal representation of former Chief Superintendent David Duckenfield and Superintendent Bernard Murray in defending the private prosecution proceedings on behalf of the Hillsborough Family Support Group. As you know I did have an opportunity to discuss the advice the authority received from counsel with one of your colleagues last week.

I am now writing to confirm that the Association of Police Authorities does indeed recognise that it is extremely important that the powers of a police authority to provide financial support in situations like this should be clarified as soon as possible. Clearly it would be invidious of me to comment on the various legal arguments that have been put forward: what is important is that police authorities and police officers should know where they stand in respect of their legal powers and we therefore support South Yorkshire in your bid to get the issues brought before the court as a matter of urgency.

I have copied this letter to the Chief Constable.

Catherine Crawford Executive Director

Association of Police Authorities35 Great Smith Street, London SW1P 3BJ

Tel 0171 664 3168 Fax 0171 664 3191

Secretary: Catherine Crawford

F:\POUCE\APA\gen\0235-2-99.doc y n r T T W

in partnership with the Local G overnm ent Association


P.O. Box 37. Regent Street,


Fax: Barnsley


Our ref: W JW

Your ref:


This matter is being dealt with by: Mr W J WilkinSOfl

Ms Catherine Crawford Association of Police Authorities 35 Great Smith Street LONDON S W 1P 3B J

S O U TH Y O R K S H IR E POLICE

AUTHO RITY

Direct Line:

South Yorkshire

15 FEB 1993

Chief Constshte

Dear Catherine

FINANCIAL ASSISTANCE TO POLICE OFFICERS IN LEGAL PROCEEDINGS

You will no doubt be aware that last year decisions were taken on behalf of the Authority to provide financial assistance towards the costs of the legal representation of former Chief Superintendent David Duckenfield and Superintendent Bernard Murray in defending the private prosecution proceedings instituted against them by Ann Adlington, Solicitor, on behalf of the Hillsborough Family Support Group (HFSG).

Those decisions have been challenged by the HFSG as being unlawful on a number of grounds including the lack of powers. In the light of those challenges the Authority instructed independent solicitors to advise them on the challenges made by the HFSG.

Garretts, (the Solicitors appointed by the Authority) last Friday advised the Authority that on balance having taken the advice of leading counsel they did not consider a police authority had any legal power to provide financial assistance to police officers in legal proceedings arising from the execution of their duty other than in the circumstances set out in Section 88 of the Police Act 1996 ie tort proceedings. Garretts rely on a number of grounds in reaching this conclusion but principally they argue that if Parliament had intended there to be such a power it would have said so expressly.

Louise Varty, Counsel instructed by Solicitors acting for the Chief Constable takes a different view on this matter. She considers that a police authority in discharging its broad statutory duty to maintain an effective and efficient police force, does have the power to provide financial assistance to police officers involved in legal proceedings arising from the execution of their duty in appropriate circumstances, provided it is satisfied that the officer concerned acted in good faith. Counsel argues that Section 88 of the Act (and its

predecessor Section 48 of the Police Act 1964) set out to address the specific issue of the

vicarious liability of a chief constable for the torts of the officers under his/her direction and control. Incidentally, under Section 88(4) of the Act, provision is made enabling a police authority to pay any damages or costs awarded against a member of a police force in proceedings for a tort committed by the officer, any costs incurred and not recovered by the officer in such proceedings, and any sum required in connection with the settlement of a claim that has or might have given rise to such proceedings.

Whilst taking cognisance of the arguments made by Counsel instructed on behalf of the Chief Constable, and of those put by the legal representatives of David Duckenfield and Bernard Murray who also consider that police authorities have a discretion to provide financial assistance to police officers facing legal proceedings, the Authority acting on the advice of its legal advisors has reached the view that it does not have a legal power to provide financial assistance to police officers in legal proceedings other than as provided for under Section 88 of the Act. The Chief Constable intends to challenge this conclusion.

The Chief Constable considers it is vital to the morale and good management of the South Yorkshire Police Force that officers should know that if they act in good faith when performing their duties, that the Chief Constable and the Police Authority will do whatever it can to support them. Accordingly, he is of the view that a legal ruling on the powers of the Police Authority to provide financial support should be obtained as soon as possible.A ruling on this issue is quite evidently of more than local interest. If the power does not exist than I have no doubt that nationally forces will wish to lobby for the enactment of relevant statutory powers to enable police authorities to provide such assistance.

The Police Authority intends to co-operate with the Chief Constable in seeking clarification of the issue on powers.

It will greatly assist In bringing this matter before the Court as soon as possible if the national representative bodies for both police authorities and police forces endorse the views of South Yorkshire that this issue is of national and not just local significance, that the absence of such a power will be detrimental to efficient and effective policing, and that the matter needs to be brought before the Court as a matter of urgency. I hope very much that the APA will support the legal proceedings in this respect and as application for leave is to be filed within days rather than weeks a response by the end of this week would be appreciated.

Yours sincerely,

vv j vviiKinson Clerk and Treasurer

cc Chief Constable

*" •m-f • f * »•; r * •••t -i ¥ * • ■ • 1 ' , *Police W of England and Wales

15-17 Langley Road Surbiton Surrey KT6 6LP Telephone 0181 399 2224 (4 lines)

Fax 0181 335 1013

rir?Our Ref: „ FHJB/AM . Your Ref:

> ' ; x . .

Mr. M. Hedges, QPM,Chief Constable,South Yorkshire Police,PO. Box 14, Snig Hill,Sheffield, S3 8LY. ; v. i

^ Dear r

South VdfKShire Ppfice

,1 7 FEB 1999 :

Chief Consfabie

16 February 1999

i*" ■. - , ■ 'tncial Support for Forme

David Duckenfield and Bernard Murray

The decision o f the Sbuth Yorkshire Police Authority on the 5th February, 1999 to discontinueis o f great concern.

Act 1972 Sec 111(1). I am also aware o f Home Office circular 4/1998 which deals with this decision. It states in its introduction; ‘‘It is important that police officers should be able to carry out their duties in the confidence that their police authorities will support them if they act in good

practices o f Police Authorities.1

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l understand , ^ Wesupport your appeal and will follow events

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S o u th Y o rk sh i re

POLICE Ian Daines, BA(Hons) DiP.Ed.Assistant Chief Constable

J U S T I C E w i t h C O U R A G E

Ref: ACC/I D/NMH

17 February 1999

Stuart LunnSouth Yorkshire Joint SecretariatPO Box 37Regent StreetBarnsleyS702PQ

Dear Stuart

Police Authority Decisions of 5 February 1999 Regarding Hillsborough

I refer to our telephone conversation of this morning. I refer also to the letter dated 11 February 1999 from Miss Maureen Oades concerning an “exempt minute”. I refer finally to the letter dated 9 February 1999 from Mr Bill Wilkinson to Mrs Catherine Crawford, Association of Police Authorities.

After the Authority’s meeting on 5 February 1999 ,1 had to move quickly to begin the judicial review process. If I am to convince a High Court judge that the case is urgent, I must take urgent action myself. First thing on the morning of Thursday 11 February 1999 a complete bundle of papers was handed in at the High Court in London. That bundle includes the Authority’s resolutions of 5 February 1999. If I am to ask for judicial review of those resolutions I must quote them in full. Yesterday afternoon, 17 February 1999, I was told that I have leave to begin the judicial review and it will be dealt with urgently.

I then read Maureen’s letter. Please advise Maureen that my bundle of papers handed in to the Court will be copied to all interested parties, including HFSG. That is a requirement of the court. Thus, to minute the Authority’s decision in edited form would serve no purpose.

I then read Bill’s letter to Mrs Crawford. Please advise Bill and Mrs Crawford that the case is already scheduled for hearing.

Yours sincerely

PPIan Dairies ^ Assistant Chief Constable

(Dictated by Ian Daines

and signed in his absence)

Police Headquarters Snig Hill Sheffield S3 8LY

M 0114 220 321§irect Fax: 0! 14 2523481Direct Dial No:

* » . *

* * TX CONFI RMATI ON REPORT * *

DATE TI ME TO/ F ROM

0 1 E / 1 7 1 3 : 3 6 I

AS OF 17 FEB ’ 99 1 3 : 3 7 P A G E . 0 1

MODE

6 3 — S

S . Y . P . C H I E F . D E P T .

M I N / S E C P GS S T A T U S0 0 " 4 6 0 1 OK

W I N C K W O R T H S H E R W O O D

S O L I C I T O R S AND P A R L I A ME N T A R Y A G E N T S

35 Great Peter Street

Westminster

London SW1P 3LR

Our ref: SBE/24332/1Your ref: ACC/ID/NMH

Ian DainesAssistant Chief Constable South Yorkshire Police Police Headquarters, Snig Hill Sheffield S3 8LY

Telephone: 0171 593 5000

Fax: 0171 593 5099

DX: 2312 VICTORIA

Direct Line: 0171 593 5107

Direct Fax: 0171 593 5099

Email: [email protected]

18 February 1999

Dear Mr Daines

Judicial review of Police Authority decision regarding financial assistance to officers

I acknowledge receipt of your letter of 11 February and am grateful for the advice contained therein.

I am now aware that the judicial review application has been lodged, and have received the documents. I will liaise with Hammond Suddards in regard to the further progress of the application.

Yours sincerely

Sftfion Eastwood f i n.

PARTNERSNICH O L A S O W S T O N

B R IA N H O O D

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M IC H A E L T H A T C H E R

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H U G H M AC D O U G A LD

J O H N REES

P E T E R WILLIAMS

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The Chief Police Officers' Staff Association

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IN THE SUPREME COURT br'atiD/cATURE ' Si’’ln* °* 3uigm6nt*d i v i s i o n a l c o u r t

Royal Courts of Justice

July, 1989

Before:

LORD JUSTICE RALPH GIBSON

and MR. JUSTICE NOLAN

R- v . Derbyshire police authority,

EX PARTE WILSON AND DALTON


1 18 FEB 1999

Chief Constable

JUDGMENT

LORD JUSTICE RALPH GIBS0(J:. ... , ls an application forjudicial-review nf hu j .

eC1Si°n of the Derbyshire Police Authority of 26th July 198e t

not to pay any part of the legal

r r lncurred on behaif ° f the appiicMts-nspector „llson and Sergeant of ^

Constabulary. They claim an Qrder Qf ^ ^ ^

e c ^ o n of the Authority not to „eet the expenditure incurred

y he applicants in the costs of legal representation at an

f e t o r ' s l n g u i r y infco a l l e g a t . o n s o f i i i e g a i e x p e n d i t u r e ^

matters, and m particular upon the refurbishment of

6 °f thS th0n Chl0f Constable at Police Headquarters.

The decisions of the jstrict Auditor were given in his

report dated 26th June 1967. He held that no police officer

whose actions had been investigated, had been shown to havl

been guilty of wilful C o n d u c t although the expenditure on

the refurbishment had been sho„n to have been unauthorised and

was therefore i U egal. The amount „as ^

Inspector Wilson and Sergeant Dalton had been represented

throughout the 15 days of the District Auditor’s inquiry by

counsel upon the instructions of a solicitor. The total cost

of their representation was in the region of £17,000. other

parties interested had also been represented, including the

County Council. The services of solicitor and counsel had

been made available for Inspector Wilson and Sergeant Dalton by

the Police Federation without any stipulation that they should

be personally liable to repay the Federation. When the result

of the inquiry was known the Police Federation, on behalf of

the applicants, applied to the Police Authority for the costs

to be paid, or for a payment of a contribution towards them.

It is common ground that the Authority had legal power to make

payment out of police funds. The Authority decided to make no

payment.

That decision is attacked on three main grounds. The

first ground was called by Mr. Underhill the "rubber stamp

submission". it was said that the Police Authority, a

committee of which the full membership was 24, did not make the

decision but wrongly left the making of the decision to a panel

of 5 members appointed by the Authority to do no more ' than to

hear submissions and to report. The second ground, called

"the inadequate report submission", was that if the Authority

made the decision themselves, they did so upon an incomplete

report from the panel. m particular, the panel, appointed to

receive the representations of the officers seeking payment of

their costs, failed to tell the Authority what their

submissions were. The third submission was

"unreasonableness”. Having regard to the outcome of the

- 2 -

4

or s inquiry, and to the terms of his report a d •

ll9ht «* «* Police Authority to exp “

costs incurred by police officers and of the pu " m°ney

that power was given it w , Purposes for whichgiven, was submitted that th. r. • •

reject the application decxsxon to

Authority. In add;tSi00; e — - - e

too, into account various matters t ^ i T * ^

no regard. ” 1C ^ should have had

It is necessary first to d e s c r i h ( . ,

the Police Auth ■«. 6 Ure and P°wers ofce Authority and of the 4.

a reference to t-h 6 °f State with9 6 to these matters.

The Police Authority

The Police Act 1964 by section 9

Authority fot a DO! ■ Ctl°" 2 ^ovides that the Police

county shall b ^ ^ C ° n S l S t i n 9 °f a ^ “Metropolitan

constituted • 6 & COrnrnittee °f the Council of the County

to be k ^ aCC°rdanCe thS Pr°ViSi0nS °f section£o D 6 known as f-h#=*

consists of h 1 0 6 OITUn;Ltt:ee* The Police Committee-t. Of such number of persons as .ay be determined by the

# - c i l O f t h e c o u n ty a n d , o f t h a t n u m b e r, tw o t h i r d s a r e t o be

L i T h T h e COUnty CO“ C i l ^ — and oneth r shall be appointed ^ a m M 9 the ^ ^

oun y by those magistrates.

By section 4 (1 ) Qf the 1 964 Act "it- Qh i i kACt lfc shall be the duty of

the Police Authority hr,secure the maintenance of an

adequate and efficient police force for th.orce for the area, and to

r C 1 S e f°r that PUrp°Se the P ° ^ r s conferred on a PoliceAuthority by this Act".

- 3 -

section 8 deals with financial provisions: all

receipts of the Police Authority ... shall be paid into the

Police fund and all expenditure of any such Police Authority

s all be pald out of that fund." Then by sub-section (3) of

section 8: „ account to be known as the police account

Shall be kept of all expenditure and receipts of the Police

Authority and by sub-section (4) "No sum shall be paid

out Of the Police Fund ... „ ithout th. Qf ^ ^

of the county ..." except in certain ^ ^

case.

°f thS ACt deals with central supervision,

direction and facilities. By section 28 the Secretary of

State "shall exercise his powers under this Act in such manner

to such extent* acas appears to him to be best calculated to

promote the efficiency of the police". By section 3 1 : "The

Secretary of state may make grants in respect of expenses

incurred for police purposes kP s ••• (a) by any Police Authority

•••■«■* ••• “grants under this section shall be of such

amounts, ... and subject to such conditions ... as the

secretary of state may with the approval of the Treasury by

order determine ..." The court ha£. beenfcold ^

substance, under the reflations 51 per cent of the expenditure

Police Authority is provided from central funds as

directed by the Secretary of ^ ,State and 49 per cent by the

County Council out of rates.

The Home Office Circular

Home Office Circular No 7 7 / r i j' dated 4th December 1987,

is the foundation of the caqpcase for the applicants. Section 4

- 4 -

i

o f the 1964 Act, cited above, defines the duty of the Police

Authority and the purposes for which the Authority may spend

the money provided, namely to secure the maintenance of an

adequate and efficient police force. The circular provides

guidance to police authorities with reference to one form of

expenditure. The first two paragraphs must be set out in

full:

pIi • statutory authority in section 48 of thePolice Act 1964 for payments to be made from the police fundto meet expenditure incurred by police officers in defending

OAno^e,in?S, tort- Also, acting in pursuance of its noi / tatutory duty to maintain an adequate and efficient police force for its area, the police authority has discretion o meet expenditure incurred by officers in all kinds of legal

proceedings where the officers have acted in good faith in pursuance of their duties, or the interests of the force as a

ole are involved. The purpose of this circular is to give guidance to police authorities to help them in considering quests on behalf of officers for financial assistance, s guidance has been discussed and agreed with local

authority and with the police staff associations.

2: . JThe central Principle which should guide considerationo individual cases is that, where a police authority considers that an officer has acted in good faith in pursuance of his duties or that the interests of a force as a whole are involved, the officer should have the support of the police

^°ulty t0 ensure that he has the services of a lawyer and that he should not be out of pocket. The followingparagraphs provide general guidance to the different classeso proceedings Payments made to officers in accordance with this guidance will be elegible for police grant".

The remaining five pages of the circular, to some passages

m which detailed attention will be given later in this

judgment, contain passages under the headings: "Criminal

Proceedings, Prosecution by the Crown Prosecution Service and

Private Procecutions; Civil Proceedings: Civil Actions

against the Chief Officer for Wrongful Acts of Constables,

Civil Actions against Individual Police Officers, Civil Actions

under the Data Protection Act 1984, Police Officers bringing

Civil Actions for Defamation; Inquests, Public Inquiries and

- 5 -

I

T r i b e s : Legal Representation for c M e f officgrs_ ^ ^

n^ 1 V 1 Officers; Applications for Financial Assistance-

and Assistance from Police Federation Funds".

No issue has been raised as fo t-v, i ^

thfi 1SWfUl SUth0rity °f ^ e

th f 6 t 0 1SSUe 9Uldance police authorities i„

e for. and in the terms of the circular. The circular is

a regulation and does not have the force of statutory law.

- o c u l a r clearly assures authorities that use of the money

envisaged by the circular „ i n nof Kbe questioned by the

Secretary of state. It is _is also common ground that the

circular contains guidance with reference to a

payments and did not create a • ^ ° makecreate a specific duty to make payments.

The court was referred to C o M c i J „ a r * I197s,

• •*. 1443 (Lord Denning MR, La„ton and Scarman LJJ., where

the :PuPeal; ° nCerned thS Validity - * — - ,uit given by

th °UnCl t0 a t e n a n t o f a council house. Reference wasthere made to two im'nt- iof the F circulars emanating from the Department

* Environment and the Department of Health and Social

Security: Circulars 74/72 and 18/74 Sea

SCarma" at W

authoritierexsrcising^mcUonJ^nd747^ and ' 8/74 that localinvited by the central governm en t t t u H°USin9 ACt are n°W problems of homelessness, ?he altern^ T re?ard to thevarious statutory weapons available I ' L eviction and the the social services legislation snH t-v° Sir such asAct 1971. j do nofc think e Attachment of Earnings

circulars as imposing any direct statu? V ° ^ °n thoseauthority; but I think they a-e * Y UP°n 3 h°USin5purposes to be served bv t h i ho indication as to the

relevant matters wlthS th e L T 1"9 ACtS 3nd as to wh*t areWednesbury case [ 1948] 1 k b L°rd Greene MR in

• • 233, to be taken into

- 6 -

account by a local authority serving a notice to cm-if council tenant in arrears of rent." ^ Up™ a

It was, as I understood it, common ground in this case, and in

my view it is correct, that the court can properly approach the

Home Office Circular No. 77/87 upon the same basis. That is

not to say that, in considering an application for

reimbursement of costs by an officer, a Police Authority is

necessarily limited to factors listed in the Circular. m

this case, however, it has not been suggested that any relevant

matters arose for consideration outside the ambit of the

Circular.

The Police Federation.

It is necessary to return to the Act of 1964 for an

understanding of the role and functions of the Police

Federation. Part III of the Act by section 44 provides for

the continuance of a Police Federation for England and Wales

•••"for the purpose of representing members of the police

forces in England and Wales ... in all matters affecting their

welfare and efficiency, other than questions of discipline

9 affecting individuals, except as provided by sub-section (1)(A)

below, and questions of promotion affecting individuals".

Sub-Section (1)(A), inserted by the Police and Criminal

Evidence Act 1984, permits representation of a member of the

police force at any disciplinary proceedings or on an appeal

from any such proceedings.

The Secretary of State by section 44(3) may by regulations

prescribe the constitution and proceedings of the Police

Federation and, in particular, may make provision with respect

- 7 -

to the raising of funds by the Federation by voluntary

subscription and the use and management of funds derived from

such subscriptions. The court was informed that the funds of

the Police Federation derive only from private gifts and the

subscriptions of policemen.

The Police Federation regulations 1 9 6 9 No. 1787, as

amended, were put before the court. it is necessary to refer

only to Regulation 19: Use of Federation Funds. It is there

provided that Federation funds shall not, without the consent

the Secretary of state, be used otherwise than for the

purposes mentioned in paragraphs (3 ) to (7 ) and,

notwithstanding anything in those paragraphs, shall not be used

•••(c) in connection with the defence of a member or former

member of the Federation against whom civil, criminal or

disciplinary proceedings are brought except as authorised by

paragraphs (4)(h), (5) or (7). The construction of Regulation

19 is not, in my view, free of difficulty. The submission for

the applicants, who are supported by the Police Federation, was

that the decision of the Federation to pay the legal costs of

the applicants incurred in the auditor's inquiry was made under

paragraph 3(3) of Regulation 19 which provides as follows:

incurred1 for b® US6d t0 defray exPenses lawfullyPolTce i r t purp° ^ e sPecified in section 44(1) of the

t 196,, namely for the purpose of representing

Wales in°f 11 3nd P°liCe Cadets in England ando t i l r i" 311 "atters af:Acting their welfare and efficiency,and DromnK subject to paragraph (7) questions of discipline and promotion affecting individuals".

It was not suggested on behalf of the police authority that the

Federation s decision had been made without proper authority.

- 8

we are conscious that no direction was ^ ^ ^

S e c r e t a ^ t 0 SPPly "aS 9rSnted' n°tiCe fc° be ^

^ °f State f°r the H°me DePartment who made the regulations and whose circular ha

U l S r h as b e e n “ d e r e x a m in a t io n i n

is case. Consideration was given by the

desirability of th* • • t 0 ^ty of the giving of such notice upon the application

coming before this court b„t •

hesitati ^ ”aS deCided' n0tesitation, that it was not necessary so to do.

we shall proceea in fchis case upon the

expenditure by the „J the Police Federation of Federation funds upon

the representation of t-ho t-,

' within fh ° appllcants was Properly made| within the regulation

\

The Inquiry by the Auditor

inquiry arose out of an investigation by the County

asurer into the police accounts. Disciplinary proceedings

were taken against the Chief Constable, M r . A , . Parrish but

ey did not proceed to a hearing because of the retirement

upon grounds of i n health of M r . parrish ^ ^ ^

• The Police Committee, which is another name for the Police

Authority, (see section 2 of the 1 9 6 4 Act), resolved on 4 th

ecember 1965 that the accounts and other documents be sent to

the auditor for consideration by him. The auditor was invited

to hold his inquiry in public. The clerk of the Council was

instructed to retain counsel to represent the Police Authority

before the auditor.

The nature of the proceedings thus initiated, and the

powers which the auditor could use, if the facts justified such

- 9 -

action, are sufficiently described by reference to sections 19

and 20 of the Local Government Finance Act 1982. By section

19, where it appears to the auditor ... that any item of

account is contrary to law he may apply to the court for a

declaration. On his application the court may make or refuse

to make the declaration asked for and, where the declaration is

made, then the court may also order that any person responsible

for incurring or authorising any expenditure declared unlawful

shall repay it in whole or in part. Such an order is not to

be made if the court is satisfied that the person responsible

for incurring or authorising any such expenditure acted

reasonably or in the belief that the expenditure was authorised

by law. So far as concerns section 19, the inquiry by the

auditor was thus preliminary to other proceedings which might

be taken. By section 20, however, where it appears to the

auditor that a loss has been incurred or deficiency caused by

the wilful misconduct of any person, he shall certify that the

loss or deficiency is due from that person and, subject to an

appeal, that sum may be recovered from the person responsible.

A right of appeal is provided to the court which may confirm

vary or quash the decision.

It is necessary to describe in some detail the result of

the auditor's inquiry. The applicants say that they were

wholly exonerated by the auditor of any wilful misconduct.

The Police Authority did not share that view. In the sense

that the auditor held that there was no basis on the facts for

any application to the court by him or for exercising his

jurisdiction against the officers to direct them to make any

payment towards the sums unlawfully paid away, the applicants

- 1 0 -

j are right. The question has been raised

was evidence of any other sort of failur “ ° “hether

j Part of the two officers „hich the ” " S h ° r t C ° r a in 9 °n the

properly take into account inccount in considering their application

for reimbursement of their costs. PPl-ations

The inquiry extended over 15 u ^

1986 and 10th March ,987 The

evidence introduced before and d ” 3 ^during the hearing. The ma'

issue wa? m e mainas the refurbishment of the Chi.f .

There were in • Constables''s office.

« issue other small amounts of money which

mainly the concern of the chief rthe Chief Constable only PT-om

examination of the r W an

conducted by off “ * “ “ — ewsed by officers assisting the auditor, it appeared to him

that, m addition to Mr Parrich ^ofh„ the Chief Constable, four

persons were -at risk" of the auditor’s special

under sections 19 and 20 of the 1982 Act They P°MerS

Chief Superintendent Wendy sto c k c h ie f Ad • POliCSp v .i- A d m in is tra t iv e Officer

D a l t o n ^ Z r Z WilS°" S«geante course r>-F

C • o f t h e inquiry PoliceSuperintendent Keeton =icn

eeton also came into that category. chi„ fSuperintendent nief

rePrSSented by seParate counsel and

Mr. Keeton was legally represented on two days of the hearing.

The following is a summary of the findings Qf

Inspector:

(i) In and before the vear l o my ar 1982 consideration had been

given by senior officers at Police Headquarters to the

making of changes in the arrangement and allocation of

es on the executive corridor. chief Superintendent

- 1 1 -

I

Wendy stock proposed to Mr. Parrish, the„ ^ Constable;

that the Chief Constable's lounge should be changed so

that lt might be used as a conference room, and that a new

desk be provided for the chief Constable's office. „ r

Parrish agreed. The „ork involved the installation of a

movable soundproof partition.

(ii) The money was. it wa? uIt was said by them, thought to be

available "by way of virement". That means an authorised

c ange in the purpose for which sums have been allocated

^ 3PPrOVed “ •*“ “ * « • authority's financial

regulations permitted transfers from one estimate head to

another with the approval of the Treasurer. There „as

ever in fact any such approval.

Uii> The money was spent on the refurbishment without

authorisation bv fche»Police Committee and was therefore

contrary to law. The amount was

(iv) Mr. Parrish said that hohe was unaware of the lack

o Proper approval. Miss stock said ^ ^

Yates, the Chief Administration Officer, had told

er, by an oral message conveyed to her by Mr. Wilson (one

of the applicants), that he would arrange for virement

«r. vates denied sending the message. M r . wilson was

uncertain and confused 4-v,the message he gave to Miss

Stock.

(v)Mr. Keeton, Police Superintendent, identified

amounts totaling|__________ |n the 1 9 8 2 / 8 3 ^

been underspent on certain estimates. Mr. Dalton (the

- 12 -

o t t o r applicant) prepared a list of four firns and ^

| with order numbers. In March ^

orders were placed with those four firms for t-h"is tor the supply of

goods to the value of I

. * No goods wer® supplied31 st Mcirch i qq*3 t_ *

1 9 8 3 but ^voices were requested and obtained from the firms Mr n*t4-

Mr. Dalton certified that the

goods had been received and the prices verified. He

P ssed them to the police administrative department where

Hr. Wilson certified the, as authorised for Payment.

Treasurer's Department.

(v i )One set of invoices contained three items totaling

(part of the * , .for which the individual

amounts did not correspond with any actual item to he

supplied. By this means, the total paid was brought to

the amount due for all the goods, delivered over a period

UP to August but supplied under the invoices sent

before 31st March 1983; and the full amount underspent

> - o r e ,983 „as made available for the payments.

Further, Mr. Dalton in the certification slip attached to

the invoices wrote the code symbol for expenditure heads

appropriate to the heaflceads of the unexpended amounts and not

to the heads appropriate for the goods supplied.

( n ) Further orders were placed between April and

September ,983. Mr. Dalton certified related invoices

with a code inserted relating to "house-furniture and

fittings" and not to the purpose for which the goods were

supplied. No application had been made for virement in

- 13 -

1983/84 to alter the purpose for which the money had been

allocated. „iss stock saifl ^ Mr ^ ^ ^

the spending was in the revenue budget. Mr. Keeton saifl

, that he had not said that to Miss stock..

(viii) No one had made any personal monetary gain from

any of the transactions relating to the refurbishment. .

llX ThS aUdit°r c°nsid« e d whether the unauthorised

expenditure had been caused by the wilful misconduct of

any person. He rpfsrra^ierred to section 161 of the 1 9 7 2 Act

and section 20,1>(b, of the 1 982 Act. „e directed

himself that "wilful misconduct" meant "deliberately doing

something Which is wrong knowing it to be wrong or with

reckless indifference as to whether it is wrong or not"-

see v. [ 1 952] 2 A 1 1 E .R . ^ ^ ^

^ " ” C m h 0 n 1 1 9 8 7 1 2 W 'L -«- 821 , 841 per Lawton LJ.

(x) None of the persons concerned, said the auditor

was an accountant. xf the accounting irregularities

which occurred were undertaken in the belief that the

refurbishment had been properly authorised then their

wrongfulness was less serious. There was no evidence

that Mr. Dalton, Mr. Wilson or Mr. Keeton knew at the time

that the refurbishment had not been approved.

Miss Stock, Mr. Keeton, Mr. Wilson and Mr. Dalton

said that they thought it was correct to code expenditure

to the expenditure head which had been underspent. The

practices adopted may well k1 have been an innocent

misunderstanding on the oartpart of the particular police

- 14 -

officers, although it did have the effect of concealing

the expenditure on refurbishment from any one who might

review actual expenditure with estimates.

(Xii) in the view of the auditor none of the officers

had been shown to have been guilty of wilful misconduct.

It was the auditor's opinion that the parties acted in the

belief that their actions were authorised by law for the

reasons explained in the report so that it would not be

proper to seek an order for repayment.

<*iii) AS to Mr. Wilson, he was aware on his own evidence

Of the improper certification by Mr. Dalton on invoices

that goods not yet received had been received. He was

aware that the purpose was to secure the payment of those

invoices before the end of March 1 983 and the debit of the

expenditure to the 1982/83 accounts. Since he was aware

of those irregularities it was his duty to refuse to

certify the invoices and to prevent the purpose of those

acts being achieved. But Mr. Wilson did certify the

invoices and he did not report the irregularities to

anyone. it seemed, however, likely that he acted in the

belief that approval for the expenditure had been or was

in the process of being obtained. it probably never

occurred to him that he was doing anything wrong.

) As to Mr. Dalton, who was a police sergeant, he

said that all his actions were in consequence of general

or specific instructions to him by Miss Stock, a Chief

Superintendent, or Mr. Keeton, a Superintendent. He had

discussions with suppliers and obtained invoices which he

- 15 -

certified, including the irregular invoices. He said

that he questioned the propriety of his actions but was

reassured by Miss stock. „ iss stock denied that she had

reassured him. Mr. Dalton acted wrongly in obtaining

irregular invoices and in certifying them as to goods

received when goods had not been received; and it was no

answer to say that he was acting under instructions. He

had, however, only been in the department for two years

and there was no evidence that he knew the expenditure had

not been properly approved. His_evidence was honest

sounding and convincing. ' J ^

( XV) Additional costs incurred by the County Council

over the question of unauthorised payments including the

disciplinary proceedings were, at the time of the

auditor s inquiry, already in excess of £2 0 0 ,0 0 0 .

(xvi) Even if it were to be decided that there had been

wilful misconduct it could not logically be said that any

loss had been incurred by the charging of expenditure to

the wrong year nor did it seem that it could logically be

| said that the irregular submission of invoices caused

I loss.

The Process of the Decision of 26th July 1988

By letter of 26th February 1988 the Police Federation

requested the Police Authority to meet in full, or contribute

legal costs of the applicants. Reference was made to

the circular No. 77/87 and to those aspects of the inquiry

which justified and required legal representation.

//

- 1 6 -

V

On 12th April 1 Qrr +-u

Police Authority J aPPiCati°n « • considered b y t h eAC this point t-ho

» e Powers of the Pni,'„Authority mnct- k j -Police

y must be described as hr, * ias to delegation of +-v, •

functions «. • theiruiis. By section 107 of )-h0 rLocal Government Act 1972 i h

15 provided that sections 101 ,02

shall apply to a Pol' ’ 1 0 6 °f that Actlice Authority (such aq t-hat- -p

as they apply to a . , that f°r Cerbyshire>local authority Th-io d i ■

therefore could lawful! Authoritya lawfully arrange for t-ho ,* ■ u

its fimof discharge of any ofits functions by a committee or *

officer. ' sub-committee, or an

# the fuTithiSb OCCaSi°n b6f° - “ “ — - « whichfull membership was aq t h =f as I have said, 24 a i.

by the then clerk to th » Preparederk to the Authority rpho

showed that in , - h e report (page 1 30)at, m addition to t-ho i •

, . application of theq<*

PP icants, Chief Superintendent Stock and

Keeton had also applied for • k “Perintendent

reimbursement of their . costs incurred at the inquiry. The report

N0P% / ? 8 1™hiSh‘3 gare gene^al0dguidaCC°r^anCe ”Uh

r r s Ce oSyrr.-~have the support of the Police Authori>°” Wh8re th8y "should the District audit hearing ^ V In the case of

Authority itself had r e f e r r e d ^ h!° f °Ut that the Police Auditor so that it was in Pff ! Tu t0 the ^strictthose circumstances it' was in* complainant and in™ ty to meet the exp - c- = P ~ e e ^ n^ tPohce

Xt was acknowledged by M r . Neuman for ^ ^

ore this court that the last sentence contained a

misdirection as to t-hothS m e a n l n 9 the circular and the

position of the pAi ■:«* * . ,Police Authority in discharging its functions

- 17 -

under the terms of it. It will be necessary to return to that

point later in this judgment.

The Police Authority did not delegate, as it might have

done, the function of deciding the applications but resolved

that "a panel ... be appointed ... (to) ... hear

representations from Miss Stock and/or her representatives and

report back to this committee; and that an opportunity to make

oral representations to the panel also be offered to the other

applicants and/or their representatives".

The panel was duly established. It consisted of t h e ^

Chairman and Vice-Chairman of the Police Authority, Councillor

Barnes and Councillor Dentith, respectively, together with

Councillor D.M. Bookbinder, the Leader of the Council,

Councillor Mellors, and Mr. John JP, a magistrate.

On 8 th July 1988 submissions were made to the panel. The

submissions made for these applicants were presented by Miss '

Blackburn a solicitor. There is at page 3 4 a full account of

her submission. in very brief summary she relied upon the

following matters: (i) the applicants had provided full co-

operation in the investigation at all stages; (ii) the

inquiry posed the risk of grave consequences for the two

officers concerned; (iii) they had both been acting under the

orders of senior officers; (iv) the nature of the inquiry

gave rise to problems of evidence and the handling of a mass of

documents and legal representation was therefore necessary;

(v) both had been totally cleared of misconduct; (vi) their

claim to reimbursement or contribution fell clearly within the

m a m principle of the circular; (vii) it would serve the

- 18 -

Derbyshire Police Force ill if the costs of officers, placed in

such a position at an inquiry, and who had in substance

succeeded, were not paid. it was a matter of the morale of

the police force and the question of future co-operation in

such inquiries.

Mr. Million, Deputy Head of Legal Services for Derbyshire

County Council, was present at the meeting of the panel and by

his second affidavit (page 55) described what happened:

recollection61 thS mattSr in private session. Myminutes Di 1S discussion lasted approximately 20

j * • D u r i n ^ the course of the discussion I recall that I

? h e ep o U c e G C o r n e t 6 iSSUSS ^ ° U t th e ° p t i ° nS ° pen to ( a ) l l a J i ThS three le*al PO^ts werenT. _ f k Pollce Committee were able to pay the costs-

a matter ?orUJ i ° V ° HardS ^ bUt whether °r to do so wasthe decision th1SC7 tl0n °f thS (b) in making

Committee (and the panel in its

circular 77/87 Sh°“»d particular « 9ard to the advice in circular 77/87. He drew specific attention to the central

cases and Sh°“ld c°nsid«ration of individualM ii ' , in response to a question from CouncillorMellors he confirmed that the terms of the circular w e 4 wide enough to cover a District Auditor's hearing.”

Mr. Million continued:

"Tl6. S nel unanimously decided to recommend that the Police Committee not to provide financial assistance either in whole

t0 ^ °f thS aPPlicants- The Panel had not been specifically asked by the Police Committee to make a ecommendation but to hear the representations and report ack Although the point was not raised or discussed the

P|;°ceeded on the basis that making a recommendation was within the remit and formed part of reporting back."

Finally Mr. Million said that he did not know which of

many possible factors caused each of the individual members of

the Panel to reach the conclusion he did. However the

following were among those mentioned or discussed: (a) the

report of the auditor with particular reference to the

conclusions he reached relating to the applicants and to

- 19 -

unlawful expenditure and wilful misconduct; (b) the

provisions of circular 77/87; (c ) the fact that the

application had been made after the event and that there had

been no approach made to the Police Authority earlier,

particularly on the level and scale of representation;

(d) the assistance provided by the Federation; (e ) the fact

that the ratepayers who had originally complained to the

District Auditor had not asked for or been given legal

assistance.

It will be necessary to refer later in this judgment to

the evidence of members of the Panel as to the grounds upon

which each formed his conclusion.

A report was prepared by the Panel and submitted to the

Police Authority. it is at page 46 and consisted of two

sheets of typescript. it was a joint report by the Clerk to

the Police Authority, Mr. Reg Race and the Head of Legal

Services, Mr. David Tysoe. The purpose of the report was "to

report the considerations of the Panel established by the

Committee to hear representations ..." Under "Information and

Analysis" it referred to the setting up of the Panel and to its

meeting on 8 th July to hear representations on behalf of Chief

Superintendent Stock, on behalf of these applicants, and

written representations made by Superintendent Keeton. It was

said that the applications were considered in accordance with

the circular; that consideration was given to the principle of

making payment in full, or contribution and not to the details

of any payment; that detailed submissions were made by the

respective parties; and that the Panel took into account the

findings of the Auditor and the fact that the Auditor concluded

that no one involved in the matter of the refurbishment was

guilty of wilful misconduct albeit the expenditure was declared

to be contrary to law.

There was then reference to the central principle pointed

out in the circular, which should guide consideration of

individual cases, namely that where a Police Authority

considered that an officer had acted in good faith ..., the

officer should have the support of the Police Authority and

should not be out of pocket. There then followed this

statement: "Members considered carefully all of the arguments

which had been put forward ... by the applicants but were not

persuaded that the circumstances of any of the cases were such

as to justify the Police Authority paying the costs or a

contribution towards them".

Next, under the heading "Personnel Considerations", it was

noted that Chief Superintendent Stock and Superintendent Keeton

had incurred their own costs. The Police Federation had

exercised its discretion to represent the applicants, Inspector

Wilson and Sergeant Dalton, and "any reimbursement of costs

would in effect be a reimbursement to the Police Federation of

its costs".

Under "financial considerations" it was noted that Chief

Superintendent Stock's costs were the Police

Federation's costs amounted to and Superintendent

Keeton's costs amounted to

- 21 -

Under "legal considerations" it was said that "if the

Police Authority were so minded the costs, or a contribution

towards them, could legally be paid. However, whether or not

to do so is a matter for the discretion of the Committee".

That was followed by "Panel's unanimous recommendation: that

the Police Authority do not provide any financial assistance

•.. for the applicants".

It is necessary to comment at this point upon this report.

On first looking at these papers it seemed clear to me that the

authors of the report, the Clerk to the Authority and the Head

of Legal Services, neither of whom had been present at the

meeting of the Panel, were unaware of or in a state of some

confusion as to what the Panel had been instructed or

authorised to do. it was set up to hear the representations

and to report. It has not been argued that the Panel was not

entitled to add a recommendation as to its own view. For my

part I think that it was so entitled. All those on the Panel

were, of course, members of the Authority; but, if it was to

do what it had been instructed to do, it was, in my judgment,

essential to report fairly the substance of the representations

which it had heard. it is, for that purpose, useless to

recite that "all the arguments have been carefully considered".

That is not a "report" in the meaning of that word as it was

used in the resolution of the Police Authority in setting up

The apparent explanation for what occurred appears

to be that the five Panel members were led to believe, or

believed without advice, that the Police Authority could

properly act simply on their view of the representations which

had been made. It is clear that there was no intention that

there should be any further report Qr explanation of ^

recommendation upon submission of their report to the Police

Authority nor was anythino of = i.. y t h l n 9 ° f that n*ture done. That seemed

be a mistaken belief and one which they should not

r t advisea or preparea to entertai- - — semed to me to be entitled to have their

their representationsconsi ered by the Police Authority itself c

y cseit- Some of the 19

other members might have seen more force in th.,, ce ln the arguments than

the members of the Panel could see. H r . Newman, for ^

resp d ts, has, houever_ contenaea ^ ^ ^

^ at the Police Authority „as entitled to act as it did.

Little remains to be told as t-o t-v,^ ^ . aS to the P^cess of the making

The report" was considered by the Police

Authority on 26th July 1 9 8 8 and the Authority decided to refuse

e applications. The minute is at page 138. it recites the

fact that the Panel had carefully considered all of the

arguments put forward for the applicants but unanimously

recommended that no payment be made. The resolution not to

provide financial assistance was recorded. Twenty one members

o ' the Police Authority were present at the meeting. It „as

One only of a substantial number of other items of business

It is common ground that there was no discussion and that no

explanation of the representations made for the applicants was

given to the Police Authority.

On 29th July 1988 notice of the decision was sent to the

applicants. No reasons were given. on 2nd September 1988

the applicants by their solicitors asked for the reasons for

the decision. on 23rd September 1988 Mr. Reg Race, County

- 2 3 -

Director, replied, as clerk to the Police Authority (page 41).

The following passage should be noted:

C°nsistfntly r e f e r s to your clients but .. the Federation undertook to meet those costs and therefore

to S tto"" and Inspsct0-- Hilso" not personally liable

Mr. Race then dealt with the allegation put forward on behalf

of the applicants based upon a press release made by the

Chairman of the Police Authority, "that the decision of ' the

Committee was based upon irrelevant and incorrect conclusions

and that the quotations .. . indicate that the decision of the

Committee was ...irrational". M r . Race saw no reason to

Place the matter before the Police Authority for

reconsideration.

The Proceedings for Judicial Review

Application for leave to apply was made on 26th October

and leave was granted by Mr. Justice Webster on 16th December

1988. The affidavit in support was provided by Mr. Webber, a

partner of applicants' solicitors. it included reference to

the public comments made by Mr. Albert Barnes, Chairman of the

Police Authority, to which reference has been made above, in

support of the contention that the decision had been made by

the Panel and not by the Police Authority, and that in making

the decision the Panel had had regard to irrelevant matters.

Mr. Webber referred to a report in the edition of "Police

Review" for 19th August 1988. There is now before the court

copy of a press release, upon which that article was based,

issued by Mr. Barnes after the final decision of the Police

Committee on 26th July 1988 in response, as Mr. Barnes put it,

- 2 4 -

to public comments made by the Police Federation". it is at

page 169 of the bundle and contains the following:

"Although it has been said that the two officers were exonerated at the inquiry, it should be borne in mind that the expenditure on the refurbishment of the Chief Constable's office was found to have been incurred without authority and was contrary to law. The Police Authority's members Panel carefully considered all the facts available before making its decision. I am surprised that the Police Federation, who act in a similar role to a trade union, has chosen to unfairly criticise the Authority through the media. in exceptional circumstances the authority has the discretionary power to pay officers costs but after careful consideration the Panel decided not to make an award. The decision of the Panel, which comprises both elected members and a magistrates representative, was unanimous, was in agreement with the recommendation of the professionals who served the Panel, and was subsequently approved by the full Police Committee.Although the Police Federation have said publicly that their members should not pay these costs, I think it is unfair to expect Derbyshire ratepayers to meet them. One of the benefits of membership is that costs of legal action such as this inquiry can be met from the Police Federation’s funds.It should be remembered that the two ratepayers who brought the matter to the attention of the District Auditor did not ask Derbyshire ratepayers to pay the cost of legal representation neither did others among those stated to be at risk".

The applicants complained that, if the Police Authority is

to be treated as having made the decision by accepting the

decision or recommendation of the Panel, the decision was bad

because the Panel had taken into account irrelevant matters

namely, (i) the ratepayers who had brought the matter to the

attention of the Auditor had not sought the costs of legal

representation; (ii) the refurbishment of the Chief

Constable's office was found by the District Auditor to be

contrary to law; (iii) Mr. Wilson's and Mr. Dalton's costs

had been met by the Police Federation; and (added by amendment

at the hearing) (iv) Mr. Wilson's and Mr. Dalton's

application for reimbursement was a "late" application, made

only after the costs had been incurred, and that the Police

- 2 5 -

Authority had had no prior opportunity of considering the scale

and level of representation.

It was common ground before this court that some of the

matters, to which reference was made by members of the Panel,

were indeed irrelevant but it was contended for the Police

Authority that such matters had formed no real or substantial

part of the basis of decision.

The task given to the Police Authority under the statute

in the context of the guidance given by the circular was, I

think, of considerable difficulty. It is similar to the task

which courts must perform in deciding whether a successful

litigant should, despite his success, not be awarded his costs,

or all of his costs. The validity of the exercise of a

court's discretion in such cases has been frequently examined.

The Panel, if it was going to make a decision, needed guidance

on matters of law relevant to the exercise of its discretion

and the point at which guidance was most required was when the

grounds of application had been put forward and the Authority

was required to make its decision with reference to those

grounds. It is, I think, clear that it did not receive the

advice which was required in a number of respects. Not all of

these matter were put forward by the applicants in their

grounds. I will mention those matters first before dealing

with the points on which the applicants have relied.

Firstly, at the very outset the application was placed

before the Police Authority with a report prepared by the Clerk

to the Authority. I have set out thfe relevant part of the

report above to the effect that since the Police Authority had

- 2 6 -

been in effect the complainant in the audit inquiry it was

inappropriate for the Authority to make any payment towards the

costs. As I have said, Mr. Newman has acknowledged that this

was m error. it is necessary to explain why it was error

and, in my view, a serious error. The expectation of the

applicants to be paid their costs, if they were fairly within

the central principle stated in the circular, cannot sensibly

be affected by the fact that the Police Authority, which has

the task of considering their claim, was, to an extent,

responsible for causing the inquiry, in which the applicants

had been put at risk, to be set up and carried out. The role

of the Police Authority as complainant, in the sense that the

County Council, of which the Police Authority is in form a

committee, had suffered the "loss" which was being

investigated, was, on the contrary, a fact in respect of which

the Police Authority was required, in my judgment, to call upon

' ts powers of objective detachment so that, in considering the

applications for reimbursement of costs, it would have regard

only to matters relevant to the conduct of the individual

applicants, in the light of the guidance in the terms of the

circular, and not to any sense of general indignation based

upon its view of the "loss" suffered by the County Council as

contributor to the police funds. There is nothing to show

that the members of the Police Authority were later told that

that first advice from their Clerk was misconceived but, as I

have said, the point has not beer, relied uocn; if it had been

there might have been further evidence directed to it; and I

therefore put it on one side.

- 2 7 -

Secondly, it is necessary to refer to Mr. Barnes's press

release. It contained the statement that "in exceptional

circumstances the Authority has the discretionary power to pay

officers costs". It is to be hoped that it is exceptional, in

the work of a Police Authority, that consideration has to be

given to an application of this nature. If an application is

made, however, and if the applicant's circumstances fall fairly

within the guiding principle of the circular, no further

question of "exceptional circumstances" then arises and the

discretion, given to the Police Authority, is plainly a

discretion to be exercised properly for the purposes for which

the power was given. This point also forms no part of the

case for the applicants and I lay it on one side also. I will

return to the question whether the Panel had regard to other

irrelevant matters after dealing with the applicants' main case

which was that the Police Authority did not consider their

applications.

The Applicants' first two Submissions

The first two of Mr. Underhill's main submissions can, as

he said, be taken together: they are the "rubber stamping" and

the "inadequate report" submissions. The force of the two

submissions is that there was no proper decision upon the

application for reimbursement of costs by the Police Authority.

The Panel was not given authority to decide the applications,

although the Police Authority had full power to have delegated

the decision to the Panel if it had wished to do so. The

Panel took upon itself to make a decision on the applications

as to what the Panel would do and to report that as a

- 2 8 -

commendation. in reporting back to the Police Authority, as

it had been instructed to do, the Panel did recite the main

according to which their recommendation was made. I

accept Mr. Newman's submission that the report was not a "bare"

recommendation as Mr. Underhill called it. The report made

reference to the fact that there was under consideration the

principle of making any payment and not the question of how

much payment might be made; to the central finding that there

had been no wilful misconduct but with the comment that the

expenditure had been held contrary to law; to the central

principle stated in the circular; to the fact that

• reimbursement would amount to reimbursement of the Police

Federation; and to the fact that there was full legal power to

make payment. But the report did not describe the submissions

made for the applicants or indicate their relevance, or refer

to the availability of an account of them, if any member of the

Polilce Authority wanted to know what they were. The report

was placed before the Police Authority. There was no

discussion. The decision was made. if it was the duty of t

the Police Authority to consider the substance of the

(submissions made for the applicants in deciding their !

application then it is clear that as to 16 of the 21 members of I

the Police Authority, who were present on that occasion, they

failed to do so because they did not know what they were.

Mr. Underhill submitted that the nature of the powers of

the Police Authority, and of the decision required to be made

upon the application, was in each case such that it was the

duty of the Police Authority to consider the applicants'

submissions. He referred to the discussion of discretionary

- 29 -

power in Professor wade's Administrative Law, 6 th Edition, 1 9 8 8

pages 357-367 and to the cases there cited. In particular he

relied upon the passage in the opinion of Viscount Dilhorne,

giving the judgment of the Privy Council in ^

Zealand Board M967J , a .c . 531 at 568-569. Having held

that the Board had under the relevant statute no power to

delegate to a committee the task of hearing evidence and

submissions Viscount Dilhorne continued:

askefthf^oLittifto Sold n0\ ap p ear t h a t the boardthe committee any Jart of ^ °r dele*ated t0provisions of the Act L of duties. Subject to the board can regulate its orn jany regulations thereunder, the fit (1961 Act s 12Mon'cedure such ^nner as it thinks

interested paries oraUv Ar bv ^ ^ heard thefrom them is, as Hamilton L7 Jeceiving written statementsB o a rd , Ex p a r t e A r l i d a e a , , 1 Rex v* L° c a l Government

would h a v e ^ e n a S t a r V t n p r o C e d u re ‘ Equally itappointed a person or oer=;nn=: f Procedure if the board had

submissions from interested p a r S e s " ^ " ^ eViden°e informing the board of ft,a -I purpose ofOsgood v . N elson and R e * evidence and submissions (seeM i d g e . ) ?hlf iOCai Governm ent B o ard , Ex p a r te

credibility of witnesses if J ^ convenient when thefollowed in this case and evolved, and if it had been

reached a decision was t n " * V the b°ard' before ifcand the submissions made ^ S ™ * °f the evidence 9iven

• could not have been sfid i t C°nsidered then itinterested parties and * d had not heard thenatural j u s t S in l i t r * ^ the princi?les «fthe board to have before i t a n d V * * SUffiC6 f°r summary of the relevant ° consider an accurate

summary adequately discloses^the^ SUb™issions if thethe board. discloses the evidence and submissions to

The Urnom°mrtfTately n° SUCh Procedure was followed in this case The Committee was not appointed bv th<= Kn=rH case.by the board to receive evidence for W3S Xt 3Sked

i& s l'ignorance of the evidence. siaeration of and xn

“r r r “ applications.” determination of zoning

- 3 0 -

*r Newman did not contend that the poiice ^

• facts heard or considered the applicants' s u a s i o n s . He

argued that in considering these appeal, the Police Authority

was exercising a purely administrative function and was

entitled to delegate responsibility for hearin „ ■. y nearing submissions and

en to act upon the recommendation of it^ c:, kn 0t lts sub-committee which

ear those submissions. „ „ t . he said. the report of the

ne was a reasoned recommendation". In the case Qf an

administrative discretion -i i-is usually sufficient, and here

was sufficient, to act upon a "bare*bare recommendation"

Reference was made tn .^ ard v. Ministry of Health [ 1 9 5 8 ] 1

— o f WOo i f , , a s h e t h e n „ j inV. Chester Borough Council, ex oart* n ■ t-i

, ex parte Quietlynn Ltd

unreported, H t h October 1983; and to v . ^

« P a r t e S e l v a r a j a n , [ 1 976]1 ftU £ r ^ ^ ^

M a c i n n e s v. O n s l o w F a n e , Megarry VC [1978] 1 w.L.R. 1520.

I am unable to accept this submission. It is true that

case was concerned with an authority which had no power

CO delegate the making of the decision in question. In

^ e l v a r a j a n S case, Lord Denning distinguished Je« s on that

ground: see page 20h. Lord Denning at page 20e said:

blard"d!d nlT^lTlt ±S ^ S ral °£ th-summary of a "clearly predicSie else" °ofthe° had„onl>' the pages and a recommendafi™. . °f °ne and a half

opinion of no unlawful discrimination01™ 1^ 88 Sh°Uld f0rm the inferred that these four were not in * reasonably beopinion of their own Th0 <- u position to form an

the other three „°“ bersT„hS had °Pini°r' °fhad read them. eceived all the papers and

be right^ ^verv^mlmhf b°dy' 1 d° "0t think thl*to all ihe evIdeLa !nd L “ 3 b°d1, mUst have

Si ^ i m ~ i v r ~

exercising administrative functions or which is making an

investigation or conducting preliminary inquiries, especially

when it is a numerous body. The Race Relations Board has 12

members. The Employment Committee has seven members. It is

impossible to suppose that all of them need sit to determine a

matter nor that all of those who sit should have read all the

papers or heard all the evidence. But I do think that two or

three at any rate must have done so. If there is a quorum

o , say, three, I should think a quorum must have done so

That is the ordinary accepted method of carrying on business!It should be applied here also."

The passage from the judgment of Lawton LJ. should also be

noted: page 22h:

For my part I can see no reason at all why the Board should

not delegate to its staff the function of collecting

information it would be impractical for the members of the

Board themselves to make investigations. How the Board does

what Parliament has entrusted it to do is not a matter for the courts to decide as it acts fairly and in good faith. it is

for the Board, not the courts, to decide how much information

each of its members should have when considering a particular

case. As long as the Board, or one of its constituent

committees, has enough information to enable it to make a fair

assessment of the case, the courts will not interfere. How

it gets the information is for the chairman and his advisers

to decide. He may decide in a particular case that each

member of the Board, or the committee, should have a copy of

the whole file. in another case he may consider that the

case can be adequately and fairly dealt with if one member has

the file and reports to the others what is in it. In this

case three members of the employment committee had a copy of

the complete file. This was enough to enable the committee to deal with the applicant's case fairly."

In that case the Board, with a power to delegate as

described in the passages read, dealt with a complaint in

accordance with procedures adopted and operated in the ordinary

conduct of its business. There was, it was there held, a

decision by the Board, with sufficient information upon which

to deal fairly with the case. The Board was not acting as a

judicial body in the sense that would have attracted any need

for the Board as a whole by individual members to have

considered the particular case and submissions made.

- 3 2 -

in this case the Police Authority had, as I have

explained, full power to deleaate- hnf- • ^ js 9 t but it did not choose to

use that power. It was, I agree, exercising an administrative

discretion; but it was not such as to be described properly as

"purely administrative", whatever that may mean. The power to

consider, and if thought fit, to award reimbursement of costs

arose under the general administrative powers given under

statute; but, once a particular claim by an officer is made,

It seems to me that, in dealing with it, the Police Authority

deciding a claim to financial redress based upon a

A ---------- 5_^Pectatipn of having the claim to reimbursement

considered in accordance with the principles set out in the

Home Office circular. it may raise, as it did here, questions

as to the conduct of the applicant. That nature of the

'• decision required the body, to which was entrusted the task of

making it, to hear properly the case made for the applicant.

I do not say that an oral hearing was necessary but it was, in

this case, clearly appropriate as the Police Authority itself

ognised. The Police Authority in this case decided that it

would retain tothe decision upon these applications.

That is not surprising: they had arisen out of an

investigation of the conduct of senior police officers in the

handling of public money which had, inevitably and properly,

received much publicity. Having made that decision, and not

having altered it, the members of the Police Authority present

were required, in my judgment, to decide the applications by

their own decisions. We do not have to consider whether a

retrospective delegation is possible. There was no attempt to

effect such delegation. There was, also, no attempt to

- 33

describe the submissions made for the applicants. There was

not even a summary of them. I have well in mind the fact that

the five members of the Panel were present, and the 16 other

members of the Police Authority present knew that the five

Panel members could, if asked, have reported upon what had been

said. The Police Authority was plainly content to rely upon

the judgment of the five. That is, in my view, no answer • to

the point. I am content to rest my decision upon this ground

°f failure by the Police Authority to consider and to decide

the applications but, since the argument was made, I would add

that this is not, in my view, a merely technical point of legal

analysis. The 16 members did not know upon what matters they

might usefully ask for further information unless they were

given the substance of the submissions made for the applicants.

In particular, they might have asked whether the Auditor had

held that the applicants had acted in good faith, and whether

there was any ground of distinction between Chief

Superintendent Stock and Superintendent Keeton, on the one

hand, and Inspector Wilson and Sergeant Dalton, as junior

officers, or either of them, on the other hand.

I would, therefore, hold that the decision of the Police

Authority must be quashed and the applications remitted to the

Police Authority to be considered in the light of the judgment

of this court.

The Wednesbury Submission

It is now necessary to consider the third ground of

application: the Wednesbury submission. Both sides invited

the court, if the applicants should succeed upon the first two

- 34 -

grounds, to deal with the third ground also so that the opinion

of this court upon the issues raised would be available to the

parties when, as is now necessary, the Police Authority

considers the applications again.

For this purpose, it is necessary to refer to further

parts of the evidence filed for the respondents. It has

been, as I have said, common ground that some of the matters,

to which reference was made by members, of the Panel, were

irrelevant considerations. The main issue has been whether

and to what extent findings of the Auditor amounted to a

complete exoneration" of the applicants and whether there was,

in his findings, any basis upon which the Police Authority

could reasonably conclude that no reimbursement should be

provided for the applicants. The next issue was whether, if

there was such a basis for decision, the decision made was

nevertheless vitiated by the taking into account of irrelevant

matters.

Mr. Allsop is the Committee Administrator of the

Derbyshire County Council. He attended the meeting of the

Panel on 8th July and took notes. There was (page 141) "never

an intention to reproduce the notes but simply to prepare a

report for the full Police Committee giving the Panel's

recommendation". From his notes he was able to summarise what

he called "the main points of the Panel's consideration of the

submissions made" and they were: (a) comparisons with a court

hearing were not fair: the Auditor's hearing was preliminary

to a court hearing; (b) if the County Council were not giving

financial assistance to the ratepayers who made the original

- 3 5 -

Auditor was concerned. The accounting irregularities were

committed, on the Auditor's findings, in the belief that the

methods used represented the proper way to proceed. In

particular Sergeant Dalton had been expressly so told: see

paragraph 57 of the report.

Mr. Newman firstly attacked this submission on the facts:

the report clearly established, he said, lack of good faith on

the part of the applicants in addition to a failure to act "in

pursuance of their duties". He added that the report showed

them to have told lies. I have no hesitation in rejecting

this submission on the facts. The Auditor at paragraph 66 of

his report said this:

"it is my opinion that the parties acted in the belief that

their actions were authorised by law for the reasons given in this (report) ..."

In my judgment that was a finding that these applicants had

acted in good faith. We do not have to consider in this case

whether the Police Authority would have been entitled to act

upon other material with reference to the good faith of the

applicants. For my part I think that they could properly do

so but, if they were going to do so, I have no doubt that they

would, and should from the requirements of procedural fairness,

have told the applicants of the substance of such material and

given them an opportunity of dealing with it. But nothing of

this nature arose. The Panel claimed to decide and did decide

on the findings of the Auditor. Those findings, in my

udgment, exclude both bad faith and lying.

But Mr. Newman's next submission was more formidable. He

argued that, accepting, as he says for this argument the Panel

- 3 8 -

as one of the matters, which "weighed most heavily" with him in

m g as he did. Their evidence can ^ ^

Mr. Barnes, the Chairman, and Hr. Mellors each gave that point

factor which weighed most heavily „ith him. Mr

Dentith gave that point, and the fact that the applicant, costs

a been in fact paid by the PoliCe Federation. Mr. John and

r. Bookbinder each gave as the first fact wh ■ hirsc tact, which weighed most

eavi y Wlth hlm> the faot that the appl.cat.on ^

that the Police Authority had not had opportunity to consider

scale arid 1 pvoi rPresentation, but they each gave the

i no full exoneration" point as the second factor.

Mr. Underhill submitted that the central • • ,central principle stated

« the Circular meant that there is a presumption that, if an

officer is shown to have acted in good faith in pursuance of

his duties, he should be entitled fn • kentitled to reimbursement of his

reasonable costs 4-u j_and that a refusal to reimburse in such

circumstances must be a bad decision unless there is some

relevant factor which could reasonably justify the refusal.

Without such justification the Police Authority must, said Mr

Underhill, be taken to have failed to have had proper regard to

the central principle. For my part, I would accept that

submission.

Mr. Underhill next submitted that the evidence shows that

the members of the Panel did not correctly understand what the

central principle was. The report, said Mr. Underhill, did

that the applicants had acted in good faith and,

moreover, it wholly exonerated them of wilful misconduct which

was the only issue with which, as regards the applicants, the

3 7 -

complaint then no financial assistance should be given to the

other parties: Mr. Million (Deputy Head Qf Legal

| pointed out that therp ua <? j .a distinction between the

complainants and the other individuals who were personally at

risk, (C) the fact that the expenditure had been incurred

contrary to law was not a verdict of exoneration; <d, „hiie

been no positive actions amounting to wilful

misconduct, the officers' actions were not a proper observance

of what was required .particular, the signing of "goods

received" when they had not-en received was not responsible

for any common storekeeper, let alone a law enforcement

officer; (e, the plea that the officers represented by the

Federation were carrying out instructions was some mitigation;

condition (b) m paragraph 13 of the Circular had not been

( s f i i i j .u __ n ,the police Authority considers that

individual offic^-rc; ,icers, Whose interest is involved, required

separate representation").

M r . Newman for the* pni „ > , ,Police Authority submitted that, while

a number of spn^rafom s were taken into account by

different members of the Pane*!nel, the evidence showed that the

ecision of the Panel itself, as opposed to the separate

decisions of the members, was based upon the fact that the

report did not exonerate the applicants and that

set out in the report to the Police Authority which

in brief, referred to the conclusion of the Auditor that therl

was no wilful misconduct albeit-aioeit the expenditure on the

refurbishment was contrary to law" On fhoy lo iaw . on the evidence, I accept

that each of the ^five members of the Panel included in

recognisable form the "no eyon»-?h'nn" • *.exoneration point as the ir.a tter, o-

- 36 -

did, that the applicants had been acting in good faith, the

members of the Panel were entitled within the guidance provided

by the Circular to rely upon the negligence and breaches of

duty of which the applicants had been guilty. For the reasons

which follow, I would accept this part of the respondent's

case. The Circular is not drafted as a set of regulations and

it does not have the force of law of regulations. After

statement of the central principle in paragraph 2 it continues:

"The following paragraphs provide general guidance to the

different classes of proceedings". Paragraph 1 of the

Circular had pointed out that "the Police Authority has

discretion to meet expenditure incurred by officers in all

kinds of legal proceedings where the officers have acted in

good faith in pursuance of their duties". No one of the

following paragraphs was specifically directed to the

particular sort of proceedings under consideration in this

case, namely an investigation by an Auditor. In paragraph 4,

under the heading "Private Prosecutions", it is said: "a

police officer should be able to carry out his duties in the

confidence that, if he acts in good faith and exercises his

judgment reasonably, his Police Authority will support him".

In that particular category, therefore, despite the existence

of good faith, a failure to exercise judgment reasonably would

plainly provide a ground for not awarding reimbursement under

the central principle. Next, under paragraph 7, beneath the

heading "Civil Actions against individual Police Officers",

there is a similar reference: "in considering whether to give

financial assistance the Authority will wish to consider in

particular whether the officer concerned acted in good faith

and exercised his judgment reasonably". Where the Police

Authority is required to consider an application for

reimbursement for costs incurred in proceedings not separately

or specifically considered under any of the paragraphs in the

Circular I see no reason why the Police Authority should be

regarded as required to exclude from its consideration the

question whether the police officer "exercised his judgment

reasonably". if, therefore, there was, on the part of the

officer, negligence, i.e. failure to exercise such care as was

reasonably to be required in the circumstances of an officer of

my view, the Police Authority is entitled to have regard to it

if such negligence was so connected to the subject matter of

the legal proceedings, or to the causing of the legal

proceedings to be taken, that it can fairly be regarded as a

substantial cause of the incurring of the costs. I have no

doubt that a Police Authority, if satisfied of good faith on

the part of the officer, would normally act, and be pleased to

act, on the central principle stated in the Circular; but the

discretion is given to the Authority and it is impossible, in

my view, to hold that, once good faith is established, a Police

Authority must disregard clear evidence of negligence or a

failure to "exercise judgment reasonably". So to hold would

mean that a Police Authority would be required to disregard

acts of substantial negligence, such that it could fairly be

said that, although acquitted of bad faith, the officer had

"brought the proceedings on himself". The decision whether

evidence of such negligence in a particular case justifies

- 4 0 -

withholding reimbursement, „holly or in tis, or course,

entrusted to the Police Authority.

I have set out extensively they the flndings of the Auditor

earlier m this judgment. Those f - * ■. Those findings provide a

sufficient basis for the view of earh m kf 8ach memt>er of the Panel that

tnere held i n 4-K1*this case actions which were "nn+-were not a proper

C servance of what was required": see the affidavit of Mr

Allsop reporting the main points considered: page ,4 ,. The

*,ve Panel members have expressed the point in different terms

P°lnt ^ th0 Same* As members of the Police

• Uth°rity they in - entitled to act upon their

own knowledge of the working of the police force and the

standards of judgment reasonably required from officers in it.

For my part z „ould ^ thereforSj ^ ^ ^ ^ ^

decision had been otherwise valid, it was rendered void on the

ground that, because there had been a finding of good faith,

the findings of the Auditor provided no basis upon which the

olice Authority, acting reasonably, could refuse to grant

reimbursement.

• Before leaving the point I would add only this. Because

the submissions made for these applicants to the Panel were not

summarised in the Panel’s report to the Police Authority, there

was no need for those who drafted the report to deal with those

bmissions or to mention any distinction between these

applicants and the oth^r •other two applicants, chief Superintendent

stock and Superintendent Keeton. The question whether

irregularities in the accounting procedures constituted such

egligence as justified refusing to reimburse costs, wholly or

- 41

in part, despite a finding of good faith, was one to be

answered with reference to each individual applicant and the

position of the junior officers, acting on the instructions of

senior officers, might reasonably be regarded as sufficiently

different to justify consideration of making a different

response to the applications of the junior officers. Whether

it does, of course, is a matter for the judgment of the Police

Authority.

I turn then to the remaining matters of alleged

misdirection. The first is the submission that the Police

Authority could not properly have regard to the fact that the

ratepayers, who had brought the matter to the attention of the

Auditor, had not sought the cost of legal representation. Mr.

Underhill submitted that there was no evidence that the two

ratepayers had incurred costs because they were not represented

at the inquiry. They had attended and had at most incurred

the expense of so attending. in any event, said Mr.

Underhill, the fact that those ratepayers did not seek

reimbursement, assuming there to be some power in the County

Council to pay if a request had been made, cannot reasonably be

a ground for not granting an application for reimbursement made

by a police officer. Mr. Newman, as I understood his

submission, conceded that this would have been an irrelevant

factor, if it had been relied upon, but he contended that it

was not relied upon. I think he was right so to concede: the

absence of any claim from the two ratepayers is, in my

judgment, clearly irrelevant to the merits of the claim by the

applicants. As to whether reliance was placed upon it, Mr.

Barnes, the Chairman of the Police Authority, acknowledged that

- 42 -

he had indeed referred to the matter in M s press ^

which the text has been set out above. „e has said in his

affidavit that it waq no-f- & ±_factor foremost in his mind when

agreeing to the recommendation of the Pane!". An applicant,

whose application has been refused, may be forgiven for

inking that a factor so referred to in a press release,

m e n d e d as justification to the public of the Panel's

ecision, must have played a part in that decision. it

Played, however, no part in the decisions of the other members

according to their affidavits. when the matter was raised,

Mr. Million, the Deputy Head of Legai s_ ice^ ^

that there was a distinction between the complaintants and the

other individuals who were personally at risk. A s t o the

effect of this point on the validity of the decision of the

Panel, had it been otherwise sustainable, I w i n return to that

when the other matters n-F an jmatters of alleged misdirection have been

considered.

- The next matter was the reference to the fact that the

costs of Hr. Wilson and Mr. Dalton had been met by the Police

^Federation. it is not in issue that this factor was taken

into account by the Panel generally. xt appeared in the

report of the Panel's decision: see page 47: "Any

reimbursement of costs would in effect be a reimbursement to

the Police Federation of its costs". Mr. Underhill submitted

that this was wholly irrelevant: the fact that these two

officers had been supported by the Federation did not affect in

any relevant way the merits of their applications, and, if

applications were good, so that they were entitled to

reimbursement in whole or in part, they should be allowed. It

- 43 -

is, of course, a commonplace of the exercise of discretion as

to costs in our courts that, in general, no attention is paid

to the fact that a plaintiff or defendant is entitled, in right

of his membership of a trade union, to legal representation.

His right to an order for costs depends, in the ordinary case,

upon the merits of his claim thereto. The fact that his

union supports him is as irrelevant as the fact, if it should

be the case, that he borrowed the money for his costs from his

parents on terms that he would not be expected to repay it.

Mr. Newman argued that that principle has no application in the

context of the statutory power of the Police Authority and of

the guidance given in the Circular; and that a Police

Authority is entitled to refuse to reimburse the costs on the

ground that the officer is not personally liable for those

costs. For my part, I have no doubt that Mr. Underhill's

primary submission is correct and that, having regard to the

terms of the Circular, the mere fact that an officer has been

provided with legal representation by the Federation is

irrelevant to the question whether an application for

reimbursement should be granted. It is clear that in some

cases the question whether reimbursement should be granted can

only effectively be decided by the Police Authority when the

result of the proceedings is known. Prior application by the

officer to the Police Authority is not in every case made a

condition of reimbursement. It seems clear to me that the

Home Office, in giving the guidance, and the local authority's

association and the police staff associations, with whom the

terms of the Circular were agreed, as is recited in paragraph 1

of it, contemplated that, in some cases, the Federation might

_ 44 _

agree to provide representation in the first place and that the

individual officer would be free to seek reimbursement when the

result is known. That conclusion does not mean that a Police

Authority could in no case whatever have regard to whether the

Federation had provided the legal representation or whether it

had been paid for by the officer personally. An application

might be very finely balanced, having regard to the various

factors requiring to be weighed. If, in a particular case, a

Police Authority was minded to take into account, in support of

a plea based upon severe financial hardship, that an officer

was personally liable for the costs, I consider that the

Authority would be entitled to have such regard to it as it

would think proper in the circumstances. in this case,

however, it is clear on the evidence that the Panel, viewed as

a whole, did take into account the fact that reimbursement in

respect of these applications would "in fact be a reimbursement

to the Police Federation of its costs". It was, accordingly,

in my judgment thus taking into account an irrelevant matter.

One last point should be mentioned. A Police Authority is not

bound to make reimbursement according to the scale and cost of

representation incurred by an officer, or by the Federation on

his behalf, in a case where the Police Authority judges that

reimbursement is proper. A Police Authority may decide to

authorise reimbursement to the extent that was, in its view,

having obtained proper advice and information, reasonable in

the circumstances.

The final point was that added by amendment, namely that

it was a misdirection on the part of the Panel to have regard

to the fact that the application for reimbursement by these

I

applicants was "late"; that-is to say made only after the

costs had been incurred, so that the Police Authority had had

no prior opportunity of considering the scale and level of

representation. Mr. Newman conceded, and rightly in my view,

that this „as a ' "bad" point but he argued that, on the

evidence, only Mr. John and Mr. Bookbinder had had regard to it

before that of negligence and breach of duty. The point was

bad, I think, because it did not matter that the application

was in that sense and to that extent "late". In the first ,

Place it could not effectively have been made before the

inquiry was concluded because the Police Authority did not know

what the outcome would be and any decision on their part would

had to have included provisions preserving the right of

ultimate decision quite unfettered; and, secondly, the Police

Authority had, as explained above, full power in their

discretion to reject a claim if it should appear that

representation was unnecessary, or that, if necessary at all,

at a much reduced level. it could, in such a case, makl

reimbursement only of such costs as should reasonably have been

incurred.

What, then, should be the result having regard to such

attention as was paid to matter which were conceded to be, and

which I have held to be, irrelevant, assuming that the decision

was otherwise valid? The position can be summarised thus.

Mr. Barnes, the Chairman, took into account, and referred in

his press release to, the irrelevant fact that the reporting

ratepayers had not claimed their costs. Next, the Panel

generally took into account the fact, irrelevant in this case,

- 4 6 -

that any reimbursement would be for t h * h *® . e benefit of the P n n .ederation although it was for all the k 8

a-L-L the members of the p3noi subordinate reason. Finallv „ Pa"el a

in. y ' tWO out °f five members tookm t o account the i.

irrelevant fact fhat- _ t • that the applicant-^ 1application was "late" m

ir„ , . - Mr. Newman submitted that these

sh°u W be ignored: there was

sufficient ground for the d ■ • 3 ^ ^mi P vision, which was foremost in the

°f all members of the Panel and the „ ■ •that- ' decision should onthat ground be upheld. No authority on this ,•

was Cited to us „ t Particular point

' ln my :>ud9ment, in each case be a f matter of decrr^ ^ a '

depending upon all the circumstances of the

I 336' — - apparent weight of thre I ors, and ^ the uhoie

facto " b°dy " thOSS “h° P a W *- those

of thoS ' ^ ^ Pr0b3ble WSi9ht 3nd inflUSnCe °f the decisions e m s . „ t h e a t t e n t i o n ^ th e

P a r t T n * ^ ^ ^ Pl^ «e making of the decision then, in my judgment, it is

sufficient to render the decision bad. on the facts of this

case X would have held, if the decision had been otherwise

valid, that it was rendered void on this ground also.

MR. JUSTICE NOLAN: I alsoagree.

- 4 7 -

H amm ond S uddards

Ian Daines Esq Assistant Chief Constable South Yorkshire Police Police Headquarters Snig Hill Sheffield S3 8LY

2 Park Lane

Leeds

LS3 1ES

Telephone (0113) 284 7000

DX No. 26441

Fax (0113) 284 7001

[email protected]

i - y \ .

Our Ref:

PCM. SB. CHI. 5 7-9Your Ref:

ACC ID NMHDate:

18 February 1999

Bv Fax & Bv Post

Dear Ian

Hillsborough Stadium Disaster 1989 - Judicial Review

Further to our telephone conversation I enclose a copy of the latest letter (17 February 1999) from the HFSG and my draft response.

The only point not addressed specifically is the final sentence of the latest letter which refers to “serious allegations against the Force”. I assume this is a reference back to the list of submissions in the letter of 10 February 1999 which I have in turn covered by reference to the outcome of the Stuart Smith enquiry. I had thought of asking them to set out what they say these allegations are if they are different to those made to Lord Justice Stuart Smith but on reflection I thought this might simply tempt them to come out with a new round of nonsense.

I think it would be a good idea to get a response off before the end of the week and I look forward to hearing from you.

Yours sincerely

P C METCALF

O ffices a]

7 D evonshire Square Cutlers Gardens

London E C 2M 4Y HTelephone (0171) 655 1000 Fax (0171) 655 1001

Trinity Court 16 John D alton .street

M anchester M 60 8HSTelephone (0161) 830 5000

Fax (0161) 830 5001

Pennine House

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Fax (01274) 307239

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London EC3M 7HATelephone (0171) 327 338S/3399

Fax (0171) 621 1217

chi .0 57-0009.syp.1802.pcm.doc

Avenue Louise 250 1050 Brussels

BelgiumTelephone (00) 32 2 627 7676 Fax (00) 32 2 627 7686

A lis t o f Partners can be view ed a t the above address. This firm is regulated by the Law Society in the conduct ot investm ent business.


Your Ref; PCM.SB.CHI.57-9

17 February 1999


Dear Mr Metcalf,

« v . M

We have been told by the Crawn Office that leave was February, i . relation to ^ ap^eationthat your papers, copies of which we received after the grant oi lea e, r p _ is of the utmost urgency and even “national importance .

In those circumstances, we ask you .o

In spite of the 2 1 day stipulation. 1 shall * * * * * todays of receipt of the notice of motion an \ ' J“ * '* t rep|y ,0 my letter o f 15*

police officers’ defences.

. . . ^ it is likelv in view of the issues arising in this applicationHowever soon the evidence is lodged, y will allow for athat the hearing will not take place for several wee . P „ ^ nds made by the determination of the factual issues arising from t e app defendants may well clarifydefendants Duckenfidd gi^lffication o^jj1® 'S80®*'

X T . « g a in st the,all. 1 hope you are in a position to deal with t is ma ’ In view of the urgent tone andYou have told me you are awaiting insttuctions on lh®“ bJ“ *• hjve receivedcontent of Mr Daines' affidavit, it is reasonable to expect that you will by now

—- —

those instructions.

- I -

Phone 015 1 2 3 6 1 9 1 9 . Fax 01512361936. E M ailm fo@ h fs& ot| 1* Floor Central B u n d in g 41 North John Street Ijrverpool L2 6RR

'99 11:32 01512361936 H F S G -->0113284700:: •

'nderstand that there is a meeting of the Police Authority on Friday, at which, no doubt, Mr Daines could persuade the members to hold an early examination of the factual merits and procedural difficulties of the applications for funding, at which he will have, in addition, the opportunity to answer the serious allegations we have made against his force.

Yours sincerely


DRAFT LETTER AS FROM P C METCALF TO A ADLINGTON

A Adlington - Solicitor Hillsborough Family Support Group 1st Floor Central Buildings 41 North John Street Liverpool L2 6RR

Dear Miss Adlington

Hillsborough

You will by now have received the Order of Mr Justice Latham and the Notice of Motion. I

await your Affidavit in reply in due course.

Many of the points made in your various letters over the last week have effectively been

overtaken by events but there are some comments which I think ought to be made namely

1. The need for the present Application has been at the least prompted and it might be

said caused by your letters of 22 December 1998 and 5 January 1999 to the Police

Authority. This provoked the Police Authority into obtaining its own advice which, in

my view incorrectly, was to the effect that there was no power to grant funding.

2. It is entirely a matter for the Police Authority as to whether they hold a hypothetical

hearing as to the merits of an Application which they have already decided they have

no power to grant. If this was proposed by the Authority and I was asked to advise -

which has not happened - 1 would advise that it was inappropriate.

3. In the circumstances I do not agree with your view that the Divisional Court should

not consider the matter until such a hypothetical hearing has been held.

4. There are a number of other points made in your letter of 10 February 1999 which are

at best arguable and at worst misleading. Others fly in the face of the conclusions of

Lord Justice Stuart Smith. However, in the end it is a matter for you what points you

choose to put before the Court. I suggest you try and avoid direct falsehoods of the

type contained in paragraphs 7 and 8 of your letter of 10 February 1999 where you

state that I or my firm have been involved (prior to your letters of 22 December 1998

and 5 January 1999 in giving advice about the validity, lawfulness or otherwise of

decisions to grant financial assistance.

5. The assertions in Mr Dames’ Affidavit, supported by his long policing experience and

the letter received from the President of the ACPO and the President of the Police

Superintendents Association themselves represent evidence and no doubt if you have

evidence which you believe contradicts this you will produce it. It is certainly not for

me to research the matter on your behalf. You might however be guided by references

to the matter in the Royal Commission report of 1962 and to the precise terms of the

Home Office Circular of 1987.

There does not appear to be anything of relevance in your various letters which is not covered

by the foregoing.

Yours sincerely

P C METCALF

chi.057-0009.adlington.1802.pcm.doc

H ammond Suddards

S O L I C I T O R S

2 Park Lane Leeds LS3 1ES Telephone (0113) 284 7000 D.X. No. 26441 Fax (0113) 284 7001

Our Ref:

PCM. SB. CHI. 5 7-9

ACC Ian Daines South Yorkshire Police Police Headquarters Snig HillSheffield, S3 8LY

This firm is regulated by the Law Society in the conduct o f investment business.

Your Ref:

ACC Ian DainesDate:

22 February 1999

^ WithCompliments

P e t e r M e t c a l f

H am m ond Suddards2 Park Lane

Leeds

LS3 1ES

Telephone (0113) 284 7000

DX No. 26441

Fax (0113) 284 7001

[email protected]

A Adlington - Solicitor Hillsborough Family Support Group 1st Floor Central Buildings 41 North John Street Liverpool L2 6RR

Our Ref: Your Ref: Date:

PCM.SB.CHI.57-9 19 February 1999

Dear Miss Adlington

Hillsborough

You will by now have received the Order of Mr Justice Latham and the Notice of Motion. I await your Affidavit in reply in due course.

Many o f the points made in your various letters over the last week have effectively been overtaken by events but there are some comments which I think ought to be made namely: -

1. The need for the present Application has been at the least prompted and it might be said caused by your letters of 22 December 1998 and 5 January 1999 to the Police Authority. This provoked the Police Authority into obtaining its own advice which, in my view incorrectly, was to the effect that there was no power to grant funding.

2. It is entirely a matter for the Police Authority as to whether they hold a hypothetical hearing as to the merits of an Application which they have already decided they have no power to grant. If this was proposed by the Authority and I was asked to advise - which has not happened - 1 would advise that it was inappropriate.

3. In the circumstances I do not agree with your view that the Divisional Court should not consider the matter until such a hypothetical hearing has been held.

4. There are a number of other points made in your letter of 10 February 1999 which are at best arguable and at worst misleading. Others fly in the face of the conclusions of Lord Justice Stuart Smith. However, in the end it is a matter for you what points you choose to put before the Court. I suggest you try and avoid direct falsehoods of the type contained in paragraphs 7 and 8 of your letter of 10 February 1999 where you state, quite incorrectly, thatI or my firm have been involved (prior to your letters of 22 December 1998 and 5 January

Offices abo at:

7 D evonshire Square C utlers Gardens

London E C 2M 4Y HTelephone (0171) 655 1000

F ax (0171) 655 1001

Trinity Court 16 John D alton Street

M anchester

M 60 8HSTelephone (0161) 830 5000 Fax (0161) 830 5001

Pennine House 39-45 W ell Street

Bradford

BD1 5NUTelephone (01274) 734700 Fax (01274) 307239

Suite 688 Lloyd’s

One Lim e Street London E C 3M 7H ATelephone (0171) 327 3388/3399

Fax (0171) 621 1217

Avenue Louise 250 1050 Brussels

BelgiumTelephone (00) 32 2 627 7676 Fax (00) 32 2 627 7686

A list o f Partners can be view ed at the above address. This firm is regulated by the Law Society in the conduct o f investm ent business.

2

19 February 1999 Miss A Adlington


1999 in giving advice about the validity, lawfulness or otherwise of decisions to grant financial assistance.

5. The assertions in Mr Dames’ Affidavit, supported by his long policing experience and the letter received from the President of the ACPO and the President of the Police Superintendents Association themselves represent evidence and our client has since received a similar letter on behalf of the Police Federation. No doubt if you have evidence which you believe contradicts this you will produce it. It is certainly not for us to research the matter on your behalf. You might however be guided by references to the matter in the Royal Commission report of 1962 and to the precise terms of the Home Office Circular of 1987.

There does not appear to be anything of relevance in your various letters which is not covered by theforegoing.

Yours sincerely

P C METCALF

PS With reference to your letter of today now received:

1. Copy order enclosed.

2. No representations were made to the Judge about further evidence. Our counsel does not believe that this will be a matter of controversy but no doubt if further evidence is submitted you will have the opportunity of objecting if you wish to do so.

3. Although, on counsel’s advice, we did serve the former officers’ representatives with copy bundles I have not been told that they intend to take part in the proceedings and indeed I am not sure what the procedural position is if they wish to do so. I think that it hardly be denied that they have an interest although the Judge did not order that they be joined.

chi.057-0009.adlingtai.1902.pcin.doc

Hillsborough Family Support Groupsgpf#

Your Ref: PCM.SB.CHI.57-9

19 February 1999


Dear Mr Metcalf

R v SYPA ax parte ( ’hief ( 'unstable South Yorkshire Police

1 thank you for your letter of 17,h February 1999 enclosing Form 86, Form 86A and Affidavit of lan Daines, Could you also please forward copy Order of Latham J. t note your comment reserving the right to serve further Affidavit evidence and should be grateful if you would inform me as to what, if any, representations were made to the Judge in your leave Application as to service of an Affidavit in Reply. If no representations were made I suggest that' you should seek Directions in respect of the same.

i understand from my Counsel’s clerk that both Mr Murray and Mr Duckenfield will be represented by leading and junior counsel at the substantive hearing. Have either ot the former officers indicated that they are an interested party in this matter? Will they be making

any written representations?

Finally, I still await a reply to my letter of 10A February inviting the Chief Constable to _ _support us in asking the Police Authority to consider the merits of the defendants’ applications at this stage. 1 refer also to my request of 15"’ February seeking details of precedents inthe last sixty years whereby financial assistance has been granted to officers facing prosecution, should be grateful for an immediate response.

Yours sincerely

Ann A rlington

Solicitor

Phone 0X512361919. Fax 0151234 193S.EM aflm fo@ hfsg.oi? 1* F l o o r Central Bandings 41 North John Street Liverpool LZ 6KK

* * TX C O N F I R M A T I O N REPORT * *

DATE f T l7 lE ~ 'N\ 0 1 3 / 1 ® 1 6 : 2 1

T O/ F ROM 0 1 1 3 2 8 4 7 0 0 1

(

h S OF 10 MAR ’ 3 9 1 6 : 2 4 PAGE

MODE

EC — S

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M I N S E C P GS S T A T U S0 2 " 1 0 0 4 OK

QUEEN ANNE’S GATE LONDON SW1H 9AT

- I m 1999

M I I Hedges QPM LLB Chief ConstableSouth Yorkshire Police Headquarters Snig Hill SHEFFIELD S3 8LY


0 2 MAR 1999

Chief Constable

J U D I C I A L R E V I E W O F P O L I C E A U T H O R I T Y D E C I S I O N

R E G A R D I N G F U N D I N G T H E D E F E N C E C O S T S O F P O L I C E O F F I C E R S

F A C I N G P R I V A T E P R O S E C U T I O N

Thank you fo r your letter of 16 February.

I fu lly recognise the sensitivities of th is case and I am grateful to you for drawing the present issues to my attention. I have noted your decision to apply fo r leave to challenge the police authority 's decision tha t it has no powers to fund the legal costs of the tw o form er officers.

Home O ffice Circular 4 /1998 on financial assistance to police officers involved in legal proceedings was issued after fu ll consultation w ith ACPO, the Police Superintendents' Association, the Police Federation, and w ith the APA. If ACPO, the other s ta ff associations, or the APA believe tha t the legislation needs to be changed or the guidance needs to be reviewed, I would of course consider any points which they m ight w ish me to address. For the present, I have nothing further to add to the advice in HO Circular 4 /1998 and I am afraid tha t I cannot find grounds to ju s tify providing financial assistance to help meet the legal costs of the judicial review which you and the police authority w ill incur. It was entirely a local decision to seek judicial review. It seems reasonable tha t the costs should be borne locally.

JACK STRAW



16 February 1999

The Rt Hon Jack Straw MPSecretary of StateHome Office50 Queen Anne’s GateLondonSW1H9AT

J u d i c i a l R e v i e w o f P o l i c e A u t h o r i t y D e c i s i o n R e g a r d i n g F u n d i n g t h e D e f e n c e o f P o l i c e

O f f i c e r s F a c i n g P r i v a t e P r o s e c u t i o n

On 5 February 1999 the South Yorkshire Police Authority resolved that it does not have the power to fund the legal costs of two retired police officers who face private prosecutions for matters arising in the performance of their duties over nine years ago. The Authority acted upon legal advice which differs from the legal advice I have received. I have applied to the High Court in London for a judicial review of the Authority’s decision but unfortunately this will cost both the Authority and the Force a substantial sum of money. This is a matter of national importance and some urgency and I write to ask for central government financial assistance to meet the legal costs involved. I will provide a little more detail in order to give you a fuller picture.

Home Office Circulars have for many years provided advice and guidance to Police Authorities on the way in which they should consider requests from police officers, serving or retired, for financial assistance to pay for their defence against prosecutions, whether they be brought by the Crown Prosecution Service or by private individuals. The very existence of circulars implies that the Home Office perceive that the Police Authorities have the power to pay these costs. That has always been my understanding and I am supported in that view by the President of the Association of Chief Police Officers, Mr John Newing, the Secretary of the Police Superintendents’ Association, Mr Des Parkinson, and the Secretary of the South Yorkshire Federation, Mr Paul Middup (please see copy letters).

In 1998 the South Yorkshire Police Authority resolved to pay the legal costs incurred by retired Chief Superintendent David Duckenfield and retired Superintendent Bernard Murray in defending themselves against private prosecutions brought by Miss Ann Adlington, solicitor to the Hillsborough Family Support Group (HFSG) for alleged offences arising from the Hillsborough Stadium disaster of 15 April 1989. Miss Adlington wrote to the Police Authority questioning the legality of such payments. The Authority took independent legal advice which, in summary, said that the power was unclear and that, therefore, the Authority should resolve to cease payments. If the Authority’s legal advice is correct then many Police Authorities have been acting illegally and police officers have all been under a misapprehension about this crucial piece of legislation.

Police Headquarters

Snig Hill Sheffield S3 8LYTtel: 0114 220 2020 Fax: 0114 252 3243

Direct Dial No:

I attach a copy of the affidavit affirmed by Assistant Chief Constable Ian Daines in support of my application to the High Court. In that affidavit ACC Daines explains the impact upon the efficient functioning of the police service if the Police Authority's interpretation of the law were to be upheld. My disagreement with the Police Authority is amicable and in good spirit and the members only came to their decision with great reluctance.

My solicitor (Peter Metcalf of Hammond Suddards) advises me that the cost of the High Court action may be as much a s [ o r my legal costs and for the PoliceAuthority. If the High Court rules that the Police Authority is correct in its interpretation of the law then I anticipate that the three police staff associations will all press you for an urgent amendment to legislation. They would seek retrospective legalisation of payments that have been made in many cases over the years and legal power to make payments in future cases.

The legal advice received by the South Yorkshire Police Authority focuses upon Section 88 (Police Act 1996) which deals with awards and damages in civil actions caused by the acts or omissions of police officers. The Act contains no reference to funding the cost of defending criminal prosecutions brought against police officers. The Authority’s legal advice is that the omission from the Act of specific reference to defence costs for criminal actions must be construed as deliberate when read alongside the inclusion of paying the cost of civil actions.

Because this matter is so much more important than the specific problems faced by Messrs Duckenfield and Murray or the problems faced by South Yorkshire Police, I ask that you favourably consider making a special payment toward the cost of these legal actions.

M 11 Hedges



M il Hedges QPM LLB

Chief Constable

F A C S I M I L E T R A N S M I S S I O N

Da'®

P JburTo

For the attention of

Comments

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Police Headquarters,Snig Hill,Sheffield, S3 8LYTel: 0114 220 2020 Fax: 0114 252 3243 Direct Line Tel: 0114 252 3400 Direct Line Fax: 0114 252 3481

M I I Hedges QPM LLB Chief ConstableSouth Yorkshire Police Headquarters Snig Hill SHEFFIELD S3 8LY

South Yorkshire Police J

02 MAR 1999

Chief Constable

W .W . k

J U D I C I A L R E V I E W O F P O L I C E A U T H O R I T Y D E C I S I O N

R E G A R D I N G F U N D I N G T H E D E F E N C E C O S T S O F P O L I C E O F F I C E R S

F A C I N G P R I V A T E P R O S E C U T I O N

Thank you for your letter of 16 February.

I fully recognise the sensitivities of this case and I am grateful to you for drawing the present issues to my attention. I have noted your decision to apply for leave to challenge the police authority's decision that it has no powers to fund the legal costs of the tw o former officers.

Home Office Circular 4 /1 9 9 8 on financial assistance to police officers involved in legal proceedings was issued after full consultation with ACPO, the Police Superintendents' Association, the Police Federation, and with the APA. If ACPO, the other staff associations, or the APA believe that the legislation needs to be changed or the guidance needs to be reviewed, I would of course consider any points which they might wish me to address. For the present, I have nothing further to add to the advice in HO Circular 4 /1 9 9 8 and I am afraid that I cannot find grounds to justify providing financial assistance to help meet the legal costs of the judicial review which you and the police authority will incur. It was entirely a local decision to seek judicial review. It seems reasonable that the costs should be borne locally.

JACK STRAW

Corporate Design Specialists Presentation Literature

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Your Ref: DMK/CXB

17 March l W

Garretts l City Square Leeds L$ 1

Dear Mr Hartock

p „ CVPA and Ad l i n g f f l n ^ ^

1 refer to your telephone call10 m® pote i^ th r C terfS M table 's application,o confirm that we intend to take the ,m ,“ £ we wiu be suggesting, in onio« * week. As to the order in » tach P ^ ^ / c o ^ b i c will be heard * the mat,* t.rsl,,o facilitate proper case * * * = Ctae ^ ^ ^ ^ wlll n0, be takm*

* - k as part of ,he " e a,8U

On the question of costs. «e shall «evitab.y appl> for co«s against any party who has

presented arguments agwmt us.

I,- t« rnnnect the issue of costs in some way ^ lth It seemed to me that you were seeking to “ ,, is puWjc knowledge that thissecondment from Uverpool Cuy Council to the Coundl and the other touiarrangement has existed sines August 1 >97 , M avaitable. The decisions were takenMerseyside District Councils re “ t* ^ ™ d blic responsibilities extend toopenly at meetings wh.ch were open to press an v

offering advice in a number of areas.

My sahny ispaid by Uverpool w"‘o L c t ^ o - s a n d c e — " G— A « .9 7 , authorises such

n ote that the provisions Of Section

arr .gem ents. . ,r*™,r.r-u makes a financial contribution -c

For the avoidance of doubt I would point oul: that n o ^ ^ Cou(lse,.s ftes ^ allthe HFSG. The costs o f running tins office, q from ,imc IO time the HFSG. at its

met by HFSG from mome5 talH^ onv . J t .t<lr5 to deal with “ ™ ‘“ a5p6“ s of th® ‘ own expense, has called u p o , l awyer on a week to week b as, over Futlher, the HFSG has utilised the seM «sthe last five months.

Phone 0 1 3 1 2 3 6 19» . lrtS loor C entral B uilding! 41 Norm Jonn a

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costs in the unlikely evert that w e “ “ " d t my t a t letter o f 12* March to Hammond

to costs, it is difficult for me to sym pathise

• - h sensitive issues involved here. I think it preferable that remarks beBearing in mind the .sensitive i»sutt» te leohonft calls,confined to fo rm al co rresp o n d en ce rather than telepnon

Yours sincerely

Ann AdUngton Solicitor

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19 MAR ’ 9 9 9 : 4 8 u 3 2 8 4 7001 P p f ' E . 0 0 ‘3

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M 11 Hedges QPM LLBChief Constable

F A C S I M I L E T R A N S M I S S I O N

Date I 5 I2 I Oft

Pefer ttoradbT o

For the attention of

^ Comments

From

$Telephone no.

No. of pages (including this page) *~j

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Police Headquarters,Snig Hill,Sheffield, S3 8LYTel: 0114 220 2020 Fax: 0114 252 3243Direct Line Tel: 0114 252 3400 Direct Line Fax: 0114 252 3481

Police Resources Unit50 Queen Anne's Gate, London SW1H 9ATSwitchboard: Q171 273 4000 Fax: 273 3742 Direct Line: 0171 273 2996

1 l v ^ i v i n v y r r i ^ j D

T q - M i l Hedges QPM, Chief Constable, South Yorkshire Police

From:

Date: 11 March 1999 Time: 09:55:44

Fax Ns: 0114 252 3481

Number of pages (including this one) 6

Message

Subject: R V SOUTH YORKSHIRE POLICE AUTHORITY -AND- ANN ADLINGTON, EX PARTE THE CHIEF CONSTABLE OF SOUTH YORKSHIRE

I am sending you for information a copy of correspondence between the Home Office and Garretts, Solicitors, and a copy of a Home Office letter of 8 March to the Solicitor for theHillsborough Family Support Group,

IF ANY PART OF THIS FAX IS UNCLEAR PLEASE TELEPHONE: 0171 273 2996

11 MAR ’ 93 1 0 : 0 2 0 1 7 1 2 7 3 3 7 4 2 P A G E . 001

H o m e O ffic ePolice Resources Unit50 Queen Anne's Gate, London SW1H 9A TSwitchboard: 0171 273 4000 Fax: 273 3742 Direct Line: 0171 273 2996

Our njcrmcc:

Your n jcrvnw . DMH-CXB-SB

Messrs Garrctls Solicitors I, City Square

Date: 11 March 1999

LEEDS LSI 2AL

R V SOUTH YORKSHIRE POLICE AUTHORITY - AND- ANN ADLINGTON EX PARTE THE CHIEF CONSTABLE OF SOUTH YORKSHIRE

Thank you tor your letter of 5 March and enclosures.

The Home Office guidance which was in effect at the time when the police authority passed both the relevant resolutions was Circular 4/1998. The Circular makes it clear that section 88 ot the Police Act 19% does not apply to criminal proceedings and that police authorities should seek their own legal advice on their powers to assist financially in such eases.

In the circumstances the Home Office position remains as set out in my letter to you of 4 February. Moreover there is nothing we would wish to add to the reply of 8 March which I sent to Ms Adlington of the Hillsborough Family Support Group. eopy enclosed for information.

i am sending a copy of this reply and enclosure to the Chief Constable ol South Yorkshire.

11 MAR ’ 99 1 0 : 0 2 0171 2 7 3 3 7 4 2 PAGE. 0 0 2

G arretts

5 March 1999

) City Square Leed* Lri I :AL 0113 207 Toicpivne Oil? 207 40m Facsimile P \ 2^444 Leeds Park Square

Police Resources Unit Home Office 50 Queen Anne's Gate London SW1H 9AT

O ur ref DMH.CXB.SB

Your ref

Direct line 0113 3996136

FAO Jim Bradley

7

Dear Sirs

R v South Yorkshire Police Authority - and -Ann Adlington ex-oarte The Chief Constable of South Yorkshire Police

Thank you for your letter of 4 February 1999 in response to ours of 1 February 1999 regarding Home Office circulars 4/1998 and 77/87.

As you may be aware, leave was granted on 12 February 1999 to the Chief Constable of South Yorkshire Police to make an application to the Crown Court for Judicial Review of the South Yorkshire Police Authority's decision not to provide financial assistance to Messrs Duckenfield and Murray in respect of the criminal proceedings brought against them. The application is due to be heard between 22-24 March 1999.

We enclose William James Wilkinson's affidavit which has been submitted to the Court on behalf of South Yorkshire Police Authority. You will note that Mr Wilkinson's affidavit considers inter alia the terms of two Home Office circulars and the Parliamentary Questions and Answers relating to this matter.

We think that the Court will be interested to know the Home Office's view on its circulars regarding financial assistance in criminal proceedings.

In the circumstances, we wonder whether the Home Office may wish to reconsider its decision not to be involved in any legal proceedings as previously intimated.

We look forward to receiving your response. Should you wish to discuss the matter further, please contact Mr David Harlock on 0113 399 6136.

Yours faithfully

H o m e O fficePol ice Resources U n i t

>0 Queen Anne's Gate, London SW111 9ATSwitchboard: 0171 273 40 0 0 Fax: 273 3742 Direct t.ino: 0 1 7 1 J73 2 m _______________ ___

( )nr tv /a ru cc ;

) ot n n /vrci/ic:

AnnAdlington f)Mr 8 March 1999SolictorH i l l s b o r o u g h F a m i ly Supprt G r o u p

1st Floor, Centra l Bu i ld ing

41 N o r t h J o h n Street

L I V E R P O O L L2 6 R R

R V SOUTH YORKSHIRE POLICE AUTHORITY AND A D LIN G TO N , EX PARTE CHIEF CONSTABLE O F SOUTH YORKSHIRE POLICE

T h a n k y o u lo r y o u r letter o f 4 March and enc losures .

Y o u asked w h e t h e r th e H o m e O f f i c e can su pply any in f o r m a t io n about po l ice author it ie s practice

of p r o v id in g f inancial assistance t o pol ice oi l iters in cr im in al p roced in gs . I his i n l o r m a t i o n is not

col lected b y th e D e p a r t m e n t . I am enc lo s ing tor in f o r m a t io n a c o p y o l a W rit te n A n s w e r g iv e n by

Mr Boateng, H o m e O f f i c e Minister , o n 13 February in response to a Par l ia mentary Q u e s t i o n from

C h r i s t o p h e r C h o p e M P ab ou t this issue. ! am also e n c l o s i n g a c o p y o f Mr f toatcng's reply of V

February t o a Q u e s t i o n Irom the same Ml* m relat ion t o the pract ice of i h e M e t r o p o l i t a n Pol ice .

F o l l o w i n g that A n s w e r ,Kate H o e v , H o m e O f f i c e Minis ter , w r o t e t o Mr ( .h o p e t o say that the

M etro p o l i t a n P o l i c c have p r o v id e d legal assistance to e ight off icers facing cr im ina l charges in the

current f inancial vear and that f u n d in g is c o n t i n u i n g to three ol i h e m .

W’i lh regard t o H o m e 1 ) l h c e Circu lar 199S. the fact that it was i ssued m i the dav b e lo re the

publ icat ion ol the Stuart -Smith S c m n m wa-. I’MiircIv fortui tous . 1 lit- ( arcular had b een m

preparat ion for 3 vc .ns in .c o n su l ta t io n wi ih the po l ice service , il w.ts p r o m p t e d not bv c o i k e n i > n \ v r

c n n t m a l p r o c e e d in g s hut because ol a i|iic>tioii relating to f o r m e r officers.

I ur iinig to paragraph 1 t >J v ou r lencr, -ill p1 >hce siall associations and t lie \s-i >cialion oi I 'o lu v

Authorit ies were consulted about ihe c i u u I.h it w as printed tor publicat ion and sent to all *. Inel

nilicers of police, all clerks to p<>hce .mih> >i nu and i lie Recei ' er !< >r i In Mvi t opo lnan I ‘o ln c

I )(si i i d . m i I 7 F e b r i i .m iVVN.

'\ - ■ ‘ V » ,1 1 ______

i ’l i! K I Kl m 'I KV | s l \ i I

i i MflR ’ 9 9 1 0 : 0 3 0171 £ 7 3 3 7 4 2 PAGE. 0 0 4

(it-

SIJ 15 (CIIUUAHY I'WV 11 u t l t n i m

winch lie i> rvt|H»Hsibltr and ihcir location m (U London. I ■■ I Wale*. (m i Soitliiiul iinij iiv i each ol the English v.^stins. |?tu»)|

M r . Slm w: I refer my hon Friend tii "Civil Service Statistics I99R". a copy of which is tn the Library.

M r . Chaytor: Tit ask the Secretary of State for the Home Department what steps lie hut taken to relocate staff in On his Department, and lt>l ihc agencies Tor which Ik* is responsible in the regions of the Untied Kingdom wiih the highest levels of unemployment; and what plans he has further m decentralise the location of his Dcpanmeni and its ajjenocs. p n w i

M r. Straw: Thirty-su posts were relocated from central London 10 Merseyside over the period January to August 1997.

The new Criminal Records Bureau will be established in Merseyside in 2000-2001 under the management of the United Kingdom Passport Agcncy and w ill employ up to 1.200 staff.

A total of 31.574 Home Office staff (59.7 per cent.) are located outside London and the South East (including .'0.2*14 (66.5 per cent.) Agency staff).

Cassini

M r . Chuylor: To ask the Secretary of State lor the Home Department what contingency plans he has for dealing with the effects of premature re-entry of the space probe Cassini.

M r . George How arih: The Home Office is the lead government department for saiclliic incidents Arrangements arc in place to track satellites and advise local authorities and emergency services ol any possible impact in the United Kingdom so that local response arrangements can be activated.

Current advice t*. iliai the spate probe Ciissim ii unlikely to collide with Earth and is Mill less likely to hit ihi<. country

My ofliciaK will, however, continue to monitor ilu‘ Miuation

Immigration and Nationality Cases

M r. Chopt: T*- ,» k iltc Secretary ol State for the 1 lome Department lm« m.iny immigration and ri.tiinnality c,im> .iri- currently luiing held m a vi-otk m progress More, and Iti'w m.iny ul iIh’m; li.ive been o ii!\itiruhii£ lor more ili.m M t m* mtnilhv H ‘ i otic ) i ‘;n ami f* * ycat' I

M r. M ike O 'ltr iv ii: Sum- ' Uvwnilicr l ‘>*»situlxl.iiutiiii! iniiiii'.:r.iiniii Im m ' I'ccii liiovcil 1“ >iiciiir.il Wttfk in l'i...'i.av Sl-nc Ki<i|i «ln'fc Mu-v will |i|-. i l l . , i U ’ i l i . m ’ t t i ' i t i ’ i ' \ i « i . i ' C . i i i i i ! o l i l i ’ i i - t ' V

w l t l l l l I ' C I V l l f l ' I H f i l l ‘ ‘ I f . J l l l l C f . i l K V t M t v t i l c i i l l l ^ l l . I I I -

x l t ' l f ' t I I I .1 l . l ' l ' .*11- >\ .<1 I t M < I M I l l . t U . i l l 1 1 | . l l l l ^ . l l l l H I | t f

, , t . ( U t ’ l l f l .

1 l i i 11 f . i i f * i i i 11 t i t I . l i t ] i m , , , . 11, ! ■ I i n I l i i - V \ i >t I i < i

1 11 * - i i . . S i i » i t I H t l i .* ■ I ' t v l i t t I ' » | i i t u t

I . ' I I l t > * 1 t 11 l . t t I - l i H i l l I ■ ■ 1 I I I ’ I * I I I l . t t v I < ».

, . , ( 1 , 1 i i i j t u . " | , . t , , , , t l ( . ' J . t i n t i . | < h

, | i J "I , ■ V ' I I I I I ' I \ ■ > ' l ' l I i , I • I ’ I l l * I • I I . . .

11 MOP >qq 1 pt : (34

There are currently I2.?V» caM.,> held in ii|L. c , ,x ,x All<K.'4ti<Mi Unit, ill which *.(>70 were ;iw.nlni;.' action .ii -1 December IW X

In addition, there are approximately l)2.0(XJ cm /uK in^ applications. O f these, approximately 70.1XX) have been outstanding lor more than six motilhv of these. 46.1XK) have been outstanding (or more than one year; and ,ij these. .1.000 have been miiMaiuJinji liif mure than iwn years

(Wnfk in Progress iv a broad term winch may include work to be completed more easily and expeditiouNly ih.m the more intractable claims |

M r . Chope: To ask the Setrciary of State for the Home Department what i> the latest date by which immigration and nationality cases currently in a work in progress store are planned to be passed to a case management unit. |?r<r«si

M r . M ik e O 'O rtcti: Our plans for dealing with Immigration and Nationality Directorate casework backlogs are set out in the Government’s White Paper "Fairer. Faster and Firmer— A Modern Approach 10

Immigration and Asylum". Cases in the Work in Progress Store will be actioned consistent with those commitments.

c Police Authorities (Legal Costs)

M r. CUopc: To ask the Secretary ol' Siaic lor »hc Home Department which policc authorities in England Wales are currently funding in whole or in part the legal costs ot Nerving or former policc officers facing criminal charges

I» n ; ti

M r. Uoatenp; This information iv not collected tcentrally, The funding of legal costs ol police officers \involved in criminal proceedings is entirely a matter for J polite authorities ■*

Racial Crim e (Police Kesponscl

M r, Cohen: To .■'.k ilic Secretary ol State for the Home Department what .iw cw incn l lie Iiun made o l the i ‘ lta .'t i\c iK ’-.s ol the p o lite re\pon>e u> crimes w ith a raci.il I'lcmcul Ki'O ,Ji

M r . K o atc i ig : Sc'-cf.il ;i\\C\srnvui*> have been m;nle

u i i ’ iitly *it ilnv vital arc.i ul polic ing

I In’ l ld in i ’ O l l i c c I ’i ' Ik c k e ^ c a t t l i ClroMp ' repoit

I 'o tu m i; H,ti.i.illy M u liv . i lcd l iH u l r n t ' |ull>li'bcil in

''.l i n tnl'i.1 I Mt)7 Imiiiit v .iiialiuM’. in fctitivlitl'-' ii11

I’M tn ’ " ii i '. : (in ii i ’i I i ik ' t t*etviccn ln ( u ' ' Oi t t i i ’H It ic ' 111,t]iji|l tllV llji' l Olll I ’J't lit I.K'I.ll llllill t .it I. 'II .lilt! (1(M'■

1111. 1. i •I.KhImi; . ’ lit K’k i .M t l U;.’ lv|.itHHt f i t 11 i f 1 , .1- f ' "I".'1'tin u " i ' | 'i >li, n ti . iM i n I i i i it ic i .ii I i t ' i t ' |ti^t i i ' t ’f ■'

I f ,11 I l f * I III ,1 , 11.II • I 1II v . m i l l t|i

111. iJi.iij.iii. 11, 11' >i t ,i ||\i M.iji u Iti'i" ' " " ll'I I' ll* tl . ( I I M I * ' .-II l l n l l l f / i ..................‘ “ l' 1 11 '

.. I .11i i i. I-, i ! > • .. I . i . i i, j .... a ...in •* " 1. I f II " ■ H I M l : l . | . , , I . ' I i t t> • ' 1 '

I. ..I I ' tt t. .... • 'I. !. ' ' '

I I \ i 1 ■ . . i i i , . . . , | , , . . ’ " ■ 11 *

R 1 7 1 ‘? 7 r V 3 7 4 2 P P R E . 0 0 5

141 Written Answers 9 FEBRUARY 1999 Written Answers i 4 l

16 casinos arc in the north west o f England, (Lancashire. Greater Manchester and Merseyside: Cumbria and Cheshire have none). One more is due to open in May or June this year.

Amusement Arcades

M r. Fcarn: To ask the Secretary o f State Tor the Home Department how many licensed amusement arcades there are in (of England, (h i Wales and (c) the North-West or England. |W.'7J|

M r. George Ho wart It; The Government do not collect figures on the numbers o f amusement arcades.

However. BACTA (the trade association for the amusement machine industry) estimate that there arc between 1.800 and 2,000 amusement arcades in Great Britain. They have no geographical breakdown.

Prison Statistics

M r . Garnicr; To ask the Secretary of State for the Home Department how many convicted prisoners are housed in cells designed for (wo people but housing in excess of that number.

M r . George Howarth: There is no ccntrally held data

available on the number of convicted prisoners housed in cells designed for two people but housing in excess of that number. This information could be provided only at a disproportionate cost.

The Prison Service does record the numbers of prisoners housed in cells designed for single occupancy but housing two prisoners. Separate figures for convicted or unconvicted prisoners arc not available. The average number of prisoners held two to a ccll designed for one for the 1998-99 year to Dccembcr is 12.080- No prisoners have been held three to a cell designed for one since

larch 1994.f Metropolitan Policc (Legal Costs)

M r . Chopo: To ask the Secretary of State tor the Home Department in how many eases in each of the last live years ilie Metropolitan Police has funded in whole nr m part I he legal costs of serving or former polite officers facing criminal charges, and in how many e.i-es funding is Mil! continuing |w s ii|

M r , Itoatcnj* {holding ou.\ut-r K I i‘h tuw \ /vv«/ ,-\i my rc<|ucst. die Commissioner ol Police ol (lie Metropolis is lor inliirntiiiioit ;ibi*m the number t>l c.i*e-ihere are being limited tit the current litiitnci.il yv.u to Iv collated, .md I will write to the hon Mcnibei Mien tti.ii i ;iv.nl.ihle Relevant irtlorrtutlioM lor llic ptexiotis tom year* i ' tioi iccorded centrally .nut could In- ohMmed ,u iliv(Hot>oiiuiii.ue coil The C o m m ithhilt ifiU tin i Imi i fie M lIm 'I'h I i i .ih Police ,ne cuneniK tci k-« m;-' then

svslein lor n-fofdnij; 'ttd l iiitorm.ilion

Nu-plieit I ,:i“ i eiKT

M r.S iuum I I u ^Ik".: I o ,iA Hk V m -i.n i .-t m .,kH.-mc I K i '.i iOi h iH when In- I'I.iii' I 'I > ' -i.iiii!'."1 ciiiin- i.i.imt* in .. il..,-<l.'..i»> W|.t>l » I ...... 11 '

M r . Straw /h o ld in g o u x w t r 8 Feb rua ry 19991■ The Inquiry info the death o f Stephen Lawrcncc is expccted to report shortly, I will make a statement when i pubtisfi

the report.

Public Consultations

D r. Lynne Jones; To ask the Secretary of State for the Home Department if he w ill publish his Department's collation and assessment o f responses to all the Government’s public consultations. 1697*71

M r . Straw: The Home Office issues publish consultation documents from time to time- It usually publishes a synopsis o f views when it gives a Government response to such consultation and these arc made available in the Library. It would be o f disproportionate cost to give a collation and assessment o f all such documents.

C ivil Servicc Pay Awards

D r. David C lark ; To ask the Secretary o f State for the Home Department what was the average percentage increase in salaries o f non-industrial civil servants, excluding members o f the senior civil servicc, in his Department for 1998-99; and to what extent the pay awards were staged. 1605I4|

M r . Straw; In the non-agency Home Office, the headline pay settlement was 2.7 per ccnt. on the paybill. Together with the additional funds from staff turnover, staff in post received performance related increases averaging 4 per cent. 0 ,5 per ccnt. o f these increases was staged and will be paid with effect from 1 April 1999,

Back Beat C lub Raid

M r . Flynn; To ask the Secretary of State for the Home Department how much was spent on (a t the surveillance

operation and (h) the raid on the Back Beat Club in December 1998; how many police officers were involved; and what was the value and types of controlled drugs

seized. IW '" I

M r . Boalcng: This is an operational matter for the Commissioner of Policc o f the Metropolis Me tells me ilutl a number of people have now been charged following this police operation. As the mauer is now he lore «hc conn. I cannot comment further at this stage on matter^

winch may Ik material to the case

General Pinochet

M rs. Gillfin: To ask the Secretary of Sl.ite lot ihc Home Department lor what reason- he w;is uoi informed ol die contacts on 14 Ociobcr l*ciween die Metropolitan I ’.ilite inn! In- Department rel.iims; , i> the tormei ■* lOMl.iCt-' witii the f'lli Ocitll.i! M.i^i'H-ne ' ( oml in M.utnd .mil wlut w;i\ the ii.tliin *’l the mlonti.ilioii

i I "‘i ’'11p.it-ed on 1

M f . S t r a w ; I i n f o r m e d o n I n i l . i \ l<> O c l o t n ' i '*•

t l i e ( .o i i i . i c k K - i ^ e e n d i e M e t i o p o l n . i i i C i . l i n m i l d i e

‘- i l l ( i n i f . i l S1 . i i i - - u . i l V ' - r . u m I In -” s * m i i . ik i ' " ' c

i t ic p c i n « l 1 ‘ I f ' < K i o l v i r i ' t . n c i t m i i i i . i H s i ' 1 i K i | i u ' l I "

in lii in 'ii Vcii.ii*'! I'nm ilid Suvli ic il'i '- i- t" 1 ii'icmcw.Hi- . i 1- .i i n . i l l i ’ i ’ ’ t H ' l M i t u - i - m ' i | i l i i ! d m 1 ll*'-

, .r m l n ‘ 1 I - o ' ' " I " ! ' d i ' i ' i l . i v i I I I i i - ^ I l i ' i i " , ' tl 11 t ( in ' -

,..i- m . n l i ' i!i i« - i n I In' I I . . i n i ' ( 111., i I ' " ' ' • I. U n i



Ia n D a ilie s , BA(Hons) oip.Kd.Assistant Chief Constable

Ref: ACC/IDA/E

20 April 1999

Mr D Duckenfield

Dorset

Dear Mr Duckenfield

Thank you for your letter of 16 April 1999, concerning financial assistance for legal costs in connection with the private prosecution for alleged offences arising out of the Hillsborough Stadium Disaster of 1989. I see that you have also written to the Clerk to the Police Authority. No doubt the Clerk will reply in due course.

Yours sincerely


K J - ?

22 APR 1 9 9 9

V jf£ ■4i •' V ‘3? #; j.iy* t. . C‘

Police Headquarters Snig Hill Sheffield S3 8LY Tfel: 0114 220 2020 Fax: 0114 252 3243

Direct Dial No: 0114 2523405 Direct Fax: 0114 2523481


19 APR 1999

Chief Constable L " Dorset

16th April, 1999

The Chief Constable South Yorkshire Police Police Headquarters Snig Hill Sheffield S3 8LY

Dear Sir

HILLSBOROUGH DISASTER - FINANCIAL ASSISTANCE FOR LEGAL COSTS

I attach hereto a copy of a letter I have sent to the Clerk to the Police Authority asking that financial assistance provided previously be reinstated.

Yours faithfully

u uucKenneia

Dorset

16th April, 1999

W.J. WilkinsonClerk & TreasurerSouth Yorkshire Joint SecretariatP.O. Box 37Regent StreetBarnsleyS70 2PQ

Dear Mr Wilkinson,

HILLSBOROUGH DISASTER - FINANCIAL ASSISTANCE FOR LEGAL COSTS

In February, 1998 I made application to the Police Authority for financial assistance with legal costs in respect of the above and this was approved and communicated to me in a letter dated 5th March. (Copy attached plus a letter of thanks to the authority)

During the early part of this year representations were made to the Police Authority that they may not have the power to provide financial assistance under Home Office Circular 4/98 and legal advice suggested the position was unclear. On the 5th February, 1999 the Police Authority, with some reluctance decided to seek clarification and temporarily suspended payment of legal costs pending the outcome of a Judicial Review. On 31st March the High Court ruled that the Police Authority do have the power to provide financial assistance to police officers facing legal proceedings.

I therefore request that the financial assistance provided previously be reinstated, with confirmation of continuing assistance with regard to private prosecution. In addition, as requested previously by my solicitors, I am seeking reimbursement of my costs in maintaining the judicial review against the Director of Public Prosecutions which was partially successful, insofar as the decision by the Director in relation to the perverting the course of justice charge was quashed. Further, if necessary, financial assistance for the judicial review in regard to South Sefton Chief Clerks refusal to tax the costs of those previous proceedings.

In addition, an order for costs was made in the judicial review against the DPP because the main decision was not overturned and I have been ordered to pay two thirds of the DPP’s costs in that regard. On the basis of Counsel’s advice, considering the previous decisions of the Director, the inquest verdict, the result of Lord Justice

Stuart-Smith’s Scrutiny and the comments of the judge, I understand that it was appropriate for this challenge to be made.

Indeed this was borne out by the fact that as a result of the High Court decision the DPP has discontinued the charge of attempting to pervert the course of justice on the basis that there was no case to answer. This was the only charge alleging mala fides against me. The remaining charges concern matters amounting to gross negligence which will be vigorously defended. The High Court observed that the overall challenge was highly arguable and had it been successful in all probability the whole private prosecution with its obvious implications both personally and cost wise would have been avoided.

I was employed as a police officer for 28 years rising to the rank of Chief Superintendent until my retirement on medical grounds on the 10th November, 1991. I had an unblemished disciplinary record and was commended for good police work on three occasions. I only left the police service after the Police Surgeon had certified I was medically unfit to perform the duties of a police officer and this was accepted by the Chief Constable who approved of my medical retirement.

At the time of leaving the Police Service it was indicated I may face disciplinary proceedings for alleged irregularities arising from my conduct at the football stadium but these allegations would have been vigorously contested. I shall also contest the present criminal allegations with the same determination.

I ask that the financial provision made previously be reinstated and the further assistance be given as requested and would be grateful if you would consider this matter at your earliest opportunity. The next hearing the the criminal case is on the 26th April when the magistrates will review the progress of the prosecution.

Yours sincerely

u uucKentieia

South Yorkshire Joint SecretariatP.O. Box 37, Regent Street,


Fax: Barnsley


Our ref: W JW /VS

Your ref:

Date: 5 March 1998

This matter Is being dealt with by:

Mr D Duckenfield

DORSET

Dear Mr Ducken f ie ld

HILLSBOROUGH DISASTERHOME OFFICE CIRCULAR 4/98 - FINANCIAL ASSISTANCE FOR LEGAL COSTS

I write with reference ACC I Dairies letter to yourself dated the 27 February 199$ and the application which you have made for financial assistance towards the costs of legal representation in the event of a private prosecution being brought against you in connection with the Hillsborough Disaster. Acting on behalf of the Authority I wish to inform you that the Authority will meet your reasonable expenses in connection with this matter. Details of any expenses incurred may be directed to ACC I Daines.

Yours sincerely,

T rS O U T H Y O R K S H IR E

POLICE AUTHORITY

Direct Line:

W J Wilkinson Clerk and Treasurer

Dorset

17th March, 1998

W.J. WilkinsonClerk & TreasurerSouth Yorkshire Joint SecretariatP.O. Box 37Regent StreetBarnsleyS70 2PQ

Dear Mr Wilkinson

HILLSBOROUGH DISASTER - FINANCIAL ASSISTANCE FO R LEGAL COSTS

I am in receipt of your letter dated 5th March, 1998 informing me that the Police Authority will meet my reasonable expenses in connection with the above.

Will you please convey my thanks to those concerned for their kindness and consideration in this matter which is greatly appreciated

Yours sincerely

D. G. Duckenfield

C o/y


POLICES o u th Y orksh i re

Ia n D a ilie s , BA(Hons> DiP.Ed.Assistant Chief Constable

Our Ref: ACC/IDA/E

Your Ref: RBM/MT/MURRAY

28 April 1999

Mr R B Manning Walker Morris Solicitors Kings Court 12 King Street LEEDS LS1 2HL

Dear Richard

A d l i n g t o n v M u r r a y a n d D u c k e n f i e l d

Thank you for your letter of 23 April 1999, on the above subject. I understand that the South Yorkshire Police Authority will consider these issues in May. The Clerk will contact you shortly.

Yours sincerely


Police Headquarters Snig Hill Sheffield S3 8LYTtel: 0114 220 2020 9i i4C0Q2Ba88 3243Direct Fax: 0114 2523481

Direct Dial No:

Kings Court, 12 King Street, Leeds, LSI 2HL. Telephone 0113 2832500.Facsimile 0113 2459412. Document Exchange 12051 Leeds 24. Email [email protected]

Web: http://www.walkermorris.co.uk

I.Daines, Esq.,Assistant Chief Constable South Yorkshire Police Snigg Hill SHEFFIELD S3 8LY

Our ref RBM/MT/MURRAY

Your ref

23 April 1999

Dear Ian

ADLINGTON -V- MURRAY AND DUCKENFIELD

I enclose herewith a copy of the letter which was sent by Bernard to the Clerk to the Police Authority on the 22nd April.

Y m i r g g in r p r f - l v ___________

Richard B.Manning P artner ^

Enel:

H:\WP\CRIM-MAT\RBM\REVIEWWURRAY24.LET\23 A p ril 1999

A list o f the partners names is open to inspection a t the above address. Regulated by The Law Society in the conduct o f investment business.

West Yorkshire

W J WilkinsonClerk to the South Yorkshire Police AuthorityPO Box 37Regent StreetBarnsleySouth YorkshireS70 2PQ

*** April 1999

Dear Mr Wilkinson

I write as one of the two former South Yorkshire Police Officers facing a private prosecution over the 1989 Hillsborough disaster.

At all times I have carried out my duties as a Police Officer to the best of my ability. I served the Police for 27 years and I have an unblemished record. Like every Police Officer I believe that I am entitled to expect the support of my Chief Constable and the Police Authority.

When it became known that HFSG were going to initiate these private prosecutions, I was promised financial support. On 28 June I wrote to the Chief Constable asking that the Police Authority be approached with a view to then reimbursing any legal expenses that I may incur in defending myself. By letter of 29 June 1998 the Authority referring to my request confirmed that it would meet such reasonable expenses as I may incur in defending the proceedings instituted. I have relied upon that support. It is a matter or record that:

a. with reluctance the Police Authority sought to revoke the decision to grant funding;

b. that the decision was solely based upon the legal advice that the position as to the power to grant funding was unclear at law;

c. that consequent upon a Judicial Review, the law has been clarified and it has been confirmed that the Police Authority does have the power to fund the defence for private prosecutions for Police Officers in Judicial Review;

d. that HFSG were told that as the prosecution they should not be seeking to

interfere in the way in which the Defendants costs were being met.

Shortly before the 1988 FA Cup semi-final I was promoted and appointed Superintendent of Hammerton Road Sub-division. I performed duty at the semi-final in charge of the Police Control Room and the event was seen as a successful event. When the 1989 semi-final between identical teams was arranged, similar plans and preparations were made. Everyone is aware of the terrible events of that day and despite my best efforts on the day I am sorry that I personally could not do more to minimise the deaths and the injuries that occurred.

I cooperated fully with the public enquiry that followed, the inquest and the criminal enquiry. I answered all questions put to me. I accepted responsibility for the officers under my command. I accepted the criticism in the Taylor report, the decision of accidental death of the Coroner’s Jury at the inquest and the decisions in 1990 and subsequently of the Director of Public Prosecutions that there was to be no prosecution against any person.

I had upon my promotion to the rank of Superintendent followed the recommendation of taking out and paying for a Legal Expenses Insurance Policy. This is recommended because Superintendents are not eligible to any assistance through the Police Federation. A claim, under this policy, was made to meet my private legal costs for representation at the Coroner’s inquest. The inquest lasted much longer than anyone had anticipated so that the total legal expenses cover became exhausted. Application was made to the South Yorkshire Police Authority who agreed to indemnify me in relation to the remainder of my legal costs.

A charge was laid against me by the Police Complaints Authority. I was absolutely confident that I could successfully defend this. I would refute any suggestion that these charges would have been proved and led to my dismissal. In January 1992 whilst serving as a Superintendent I was informed that the charge against me had been withdrawn. Although I was relieved that there were to be no disciplinary proceedings I felt that I was also being denied the opportunity of being able to clear my name. This was particularly important to me as a Supervisory Officer who placed great importance on maintaining the respect of the Officers under my command. I refute any suggestion that I took early retirement simply so as to avoid having to meet the disciplinary charges. I was denied the opportunity of clearing my name because the charge was withdrawn.

Throughout this whole period of time I continued my employment and remained on duty. From the day of the disaster and throughout the whole of the period of time when the various investigations were taking place I continued my employment andremained on duty.

I have nothing but sadness and sympathy for the families and friends of people who lost their lives on that day particularly as so many were young people loved by those around them and I can understand their anguish and determination. I can understand their disappointment when the further scrutiny of evidence completed reaffirmed previous decisions. It was following the Stuart-Smith scrutiny and the Home Secretary’s acceptance that no further enquiry was called for nor any prosecution justified that these private prosecutions were commenced. Notwithstanding the decision of the Director of Public Prosecutions not to take over and discontinue the charges against me, it is still the position of the Crown Prosecution Service and Director of Public Prosecutions that there is no realistic prospect of a conviction. This confirms advices by two eminent QC’s in 1990 and the various other reviews and comes after they have reviewed every bit of information and “new evidence” which is suggested by HFSG.

From the outset the prosecution has been led by Mr Alun Jones QC, a leading and high profile Queen’s Counsel. He has been assisted by Junior Counsel. Mr Jones has appeared at every hearing and indeed he was the person that prepared the submissions to which bundles of documents were annexed which led to the grant of summonses. The Solicitor acting for HFSG is called Ann Adlington. She is a full time paid employee of Liverpool City Council. That Council has approved her secondment for the duration of the case to HFSG Jo conduct the proceedings with her wage being met by Liverpool City Council. HFSG held a pop concert at Anfield Stadium, Liverpool which is said to have raised half a million pounds to fund the prosecution. They continue to invite subscriptions and donations and have announced that they are embarking on a further fund raising campaign.

HFSG have suggested that in reliance upon the agreement of the South Yorkshire Police Authority to grant me financial support, I have been profligate with the amount of legal costs incurred. That is wholly untrue.

I do not believe that it is unreasonable to hope to be defended against these serious charges with a similar level of legal expertise as the prosecution. Following my

application in June 1998 for financial support from the South Yorkshire Police Authority and the approval of that support, I contacted the Solicitor who represented me at the inquest. He was aware of my own personal feelings, the previous issues and the background to the events. He has done everything to bring matters to a swift conclusion, but it now appears that a trial is to go ahead. My Solicitor has dealt with many of the issues himself, but equally it became obvious that Counsel were going to have to be retained. This was also done in consultation with and the approval of the South Yorkshire Police Authority. In pursuance of the attempt to bring the matter to a swift conclusion and as advised by Leading Counsel, application was made to the Director of Public Prosecutions for him to exercise his power under Section 6 (2) of the Prosecution of Offences Act 1985 to take over the private prosecution and then to discontinue the prosecution under Section 23 (3) of the Prosecution of Offences Act 1985. My Solicitors and Counsel effectively managed to hold the Magistrates’ Court proceedings in abeyance pending the decision of the Director of Public Prosecutions. It came as a great disappointment to me and to my legal advisors that the Director of Public Prosecutions decided not to intervene and to allow the case to continue. It was the strong view of Leading Counsel that this decision of the DPP was unreasonable and perverse and he recommended that there should be an application for Judicial Review. That decision was not crystallised until reasons had been obtained from the Crown Prosecution Service as to the basis of their decision. In simple, every effort was made to avoid any unnecessary costs. The result of the Judicial Review was that a charge against former Chief Superintendent David Duckenfield of perverting the course of justice was quashed. The remaining charges, however, were left untouched by the Court albeit that they said that it was appropriate for the challenge to have been made and the case was highly arguable. Expressed another way, if the decision of the Director o f Public Prosecutions had been to intervene and to have quashed the proceedings, the Court would not have interfered with that decision.

I therefore seek as part of the financial assistance, an indemnity for payment of my costs in relation to the application to seek Judicial Review of the decision of the Director of Public Prosecutions and including that part of the Order for Costs made against me in favour of the Director of Public Prosecutions because the main decision was not overturned. No Order for Costs was made in favour of HFSG.

At the very outset of the attempt by HFSG to prosecute me. Summonses were issued in the South Sefton Magistrates’ Court. Ultimately those summonses were withdrawn because they had in the view of my Solicitors been the subject of an ill conceived attempt to bring me before a Magistrates’ Court in Liverpool which did not have jurisdiction. An Order for Costs, was made for payment of my lawyer’s fees out of Central Funds. The Clerk to the Justices at South Sefton has refused to tax the bill of costs submitted. I seek financial assistance in relation to an application for Judicial Review of the decision of the Clerk to the Justices at South Sefton. This application is absolutely fundamental because if, as I hope, I am acquitted of the charges against me an Order could be made for payment of all or part of my defence costs out of Central Funds, from which I could then reimburse the Police Authority. If the South Sefton decision is left unchallenged it would almost certainly preclude an ability to have a bill of costs taxed for payment out o f Central Funds in relation to the proceedings presently in the Leeds Magistrates’ Court.

In summary therefore, I request:

1. That financial assistance provided previously be reinstated and with confirmation of continuing assistance without interruption from the date of initial authorisation in relation to all works in defending the prosecutions, those works to include the applications for Judicial Review and my part of the liability for costs made in favour of the Director of Public Prosecutions in the Judicial Review proceedings.

2. If so advised by Leading Counsel to make an application for Judicial Review in relation to a refusal of the Clerk to the Justices of South Sefton to tax the bill o f costs for payment out of Central Funds.

Although of course this request for financial assistance is made by me personally, I feel that Mr Duckenfield and myself have been singled out as easily identifiable representatives of South Yorkshire Police, effectively making it the South Yorkshire Police that is on trial. The HFSG are using my presence in a Court of Law to raise issues such as conspiracy and suppression of evidence against the South Yorkshire Police and they also include the West Midlands Police in this. There is a major public relations onslaught continuously mounted through me at the Police. Thus for example, in covering the proceedings in the High Court, the reporter who interviewed Assistant Chief Constable Daines started his report with “the fight for justice goes on”. I believe that there is a campaign to discredit the Police through me and to apportion guilt before any trial or even any evidence has been heard, ignoring all other factors which combined to culminate in this awful tragedy. By their efforts to remove financial support for me from the South Yorkshire Police Authority, HFSG continue their tactics to try to weaken my defence and in any event failing a conviction being recorded, to ruin me financially and to have completely destroyed my health.

On that terrible day I was doing my duty as an Officer of the South Yorkshire Police in good faith and to the best of my ability. I am innocent of the charges levelled against me. I would hope and expect to continue to be supported by the South Yorkshire Police Authority and in particular by the provision of funding to meet my defence costs incurred hitherto and on a continuing basis.

Yours sincerely

Mr B D Murray

Encs - Copy letter 28 June 1998 to Chief ConstableCopy letter 29 June 1998 from Police Authority

B. D. Murray

West Yorks.

28* June 1998

Dear Mr Wells,

On 15th April 19891 was a superintendent of the South Yorkshire Police, stationed at Hammerton Road Police Station and was on duty in charge of thecontrol room atthetF,A,eug semt-fmalatHillsborou^ foori>all <starHinn before and during the tet-nble eveats that obcaned on feat day. I have always maintained that I acted in good taith and to the best of my ability. I gave evidence at the pubhc enquiry that followed the tragedy, and gave evidence at the subsequent Inquest, which resulted in a verdict of accidental death on those who lost their lives. Atthe inquest 1 was legally represented by Mr Richard Manning, of Walker Morris^ solicitors o f T .perk After representation, the legal costs incurred were met by South

Yorkshire Police Authority.

On 26th June 1998, my wife accepted a summons on my behal^ a copy of which is attached I deny all the allegations a id it is my intention to contact Mr. M an n in g and seek his advice, but in order to seek proper representation! would request that the Police Authority is approached, with a view to reimbursing-m e any legal expenses that I may incur in

defending myself.

Yours sincerely

B.D. Murray

Fax: Barnsley




South Yorkshire Joint Secretariat E V F f l Y -

Our ref: MVO/FL

S O U T H Y O R K S H I R E P O L IC E

A U T H O R IT Y

Your ref:

Date: 29 June 1998

This matter Is being dealt with by: MiSS M V OadeS Direct Line:

Dear Mr Murray

R e : H i l l s b o r o u g h D i s a s t e r

H o m e O f f i c e C i r c u l a r 4 / 9 8 - F i n a n c i a l A s s i s t a n c e f o r L e g a l C o s t s

I write with reference to your letter dated 28th June 1998 addressed to the Chief Constable, Mr R Wells, requesting that the Authority be approached with a view to reimbursing any legal expenses that you may incur in defending the criminal proceedings that have recently been instituted against you arising out of the Hillsborough Disaster. Acting on behalf of the Authority I wish to inform you that the Authority will meet such reasonable expenses as you may incur in defending the said proceedings.

Yours sincerely f.

W J Wilkinson Clerk & Treasurer

F I R S T C L A S S

Mr B.D. Murray

West Yorkshire

WHMMSouth Yorkshire Joint Secretariat



Fax: Barnsley

W.J. Wilkinson, BAfEcon), CPFA. Clerk and Treasurer

Our ref: WJW/FS

Your ref:

This matter is being dealt with by: Bill WilkillSOn

Date: 1 July 1999

Direct Line:

TO: All South Yorkshire Police Authority Members

Dear

H i l l s b o r o u g h

1 am writing to update members on progress since the last report to the Authority on 18 June.

The committal hearing is due to commence on 5 July at Leeds. As far as we know, up to2 weeks has been allotted. The matter could be resolved, or the magistrate might refer it to a full trial at a later date.

I reported on 18 June that Garretts had been progressing the various costs issues. A costs draftsman has been engaged and has begun the process of reviewing costs incurred up to 5 February. With the proviso that we reserve our right to recover any excess following completion of the costs draftsman’s work, I have agreed to pay on account 50% of the sums claimed for work between July 1998 and February 5th 1999 on the proceedings in the Leeds Magistrates Court.

On the work since 6 February leading up to the current hearing, Garretts set out the basis on which the Authority was recommended to agree any support in the papers to the 21 May meeting, and as I reported on 18 June both officers’ solicitors had accepted that basis in principle. Further detail has been confirmed since 18 June, so that we now have in position a framework constructed around:

(a) a maximum cost estimate(b) an hourly rate for solicitors, leading and junior counsel(c) limits on the numbers of fee-earners who will be paid for by the Authority at meetings,

conferences, and hearings

The formal terms go into much more detail on fee levels and the level of legal support. These have been negotiated between Garretts and the two solicitors over the last few weeks, and the position is that formal letters confirming the basis agreed will shortly be sent by the Authority to the two former officers.

4

The terms also require the officers to take steps to recover costs and disbursements from other sources, and provide protection for the Authority in the event of the case being conducted unreasonably. Finally the Authority reserves the right to have its contribution reviewed by a legal costs draftsman.

Taken as a whole, the package provides the Authority with a high degree of control over its financial commitment. However, given the way in which the case is proceeding, it is inevitable that there will be some uncertainty about the final figures i.e. while we can specify precisely the number and seniority of legal advisers that we will fund and the respective hourly rates, the actual hours worked will be influenced by the way in which the prosecution develops. The Authority’s protection in that respect is through the quoted maximum cost figure, and the subsequent right to bring in the costs draftsman.

A substantial part of the work was undertaken before the Authority agreed to make support available, and work in connection with the committal has been ongoing while the detailed terms have been under discussion. The solicitors for all parties have recognised the situation, and the officer’s solicitors agreed in principle to the terms several weeks ago. Unless anything unexpected occurs, therefore, the letters which finally pass between the Authority and the former officers will be a formal statement of what has previously been agreed.

The letter will however advise the officers that the terms on which the Authority will contribute to the costs incurred are subject to the final approval of members. I want to arrange that stage as early as possible. W e have an Authority meeting on 30 July, but if Garretts and the solicitors have agreed the paperwork earlier, I may ask the Chairman to call a special meeting of the Authority,

This letter is at this stage for information. I will incorporate the contents in my formal report to the Authority.

Yours sincerely


MARIA EAGLE M.P.LABOUR MEMBER OF PARLIAMENT FOR LIVERPOOL GARSTON

London Office:House of CommonsLondonSW1A OAAPhone: 0171 219 5288Facsimile: 0171 219 1157Email: [email protected]

W J Wilkinson Clerk and Treasurer South Yorkshire Police Authority PO Box 37 Regent Street Barnsley South Yorkshire S70 2PQ

%o'

Constituency Office:Unit House Speke Boulevard Liverpool L24 9HZ Phone: 0151 448 1167 Facsimile: 0151 448 0976 Our Ref: am /SYPA/fdg

D&M(please quote in all correspondence)

Reply to House of Commons

23 August 1999

Dear Mr Wilkinson,

Re; SOUTH YORKSHIRE POLICE AUTHORITY Funding for the defence to crim inal charges o f David Godfrey Duckenfield & Bernard Dean Murray

I write further to my letter, dated 27 January 1999, and your reply of 1 February 1999 in respect of the above.

I note that, despite failing to answer most of my questions, in particular in relation to controlling the likely expenditure of the set aside funds and ensuring value-for-money, the Authority has again decided to fund substantial elements of the defence costs in these cases. I know that this followed upon the decision of a judicial review which established vires, but I am stilt concerned that this expenditure will not be subject to vigorous control and scrutiny - as it would be if the Legal Aid fund were providing it.

I see from your minutes, dated 21 May 1999, that following legal advice from Garretts, some controls on the expenditure have been adopted, but in my view these raise more questions than they settle. I wonder tnerefore if I mignt have the answer to the following?

1. What is the fixed overall budget for maximum costs and what happens if it is breached?2. What limits have been placed, if any, on the number of seniority and hourly rate of each

fee earner and what are those limits?

3. What limits, if any, have been set on the numbers of legal advisers attending hearings? I understand that 10 (ten) were present at the committal.

4. What rules have been set in relation to Counsel and leading Counsels attendance and fees both in respect of when they are required and what rates are to be paid?

5. How regularly are the costs reported to the Authority and monitored? Is this done prior to the disbursement of moneys?

6. Are payments made on account of likely costs or paid in arrears after they are incurred and how quickly are they paid when a bill is presented?

Representing:A llerton, G rassendale, N etherley, St. M ary’s, Speke, Valley and W ool ton Wards. '

7. Does the requirement to use reasonable endeavours to recover costs from other sources require the recipients of funding to : a) apply for legal aid and b) apply for assistance from the Police Superintendents' Association (PSA) or other professional association?

8. If not, what meaning does 'reasonable endeavours' have?9. What experience does a costs draftsman have in the normal course of his duties for

determining the reasonableness of costs incurred or the proper conduct of an action? His job is to draw up the bill for his client - it is for a district judge to determine what you are asking a costs draftsman to determine.

10. Why is there not a requirement for taxation rather than an option for it in order that value-for-money can be ascertained independently of the cosy and secret arrangement you have established?

11. Has any application been made for legal aid by Messrs Duckenfield and Murray or for assistance from the PSA to date? Will you require these steps to be taken?

I look forward to hearing from you as soon as possible.

You Vs siricerelv.

MARIA EAGLE MP




Fax: Barnsley


S O U T H Y O R K S H I R EOur ref: WJW/VS POLICE

AUTHORITY

Your ref:

Date: 26 August 1999

This matter is being dealt with by: Bill WilkiflSOn Direct Line:

Nick Painter/David HarlockGarretts1 City SquareLEEDSLS1 2AL

Dear

HILLSBOROUGH: FUNDING OF DEFENCE COSTS

I enclose a copy of a further letter from Maria Eagle MP. It obviously requires some response, but I do not intend to do so in detail. However the points listed in the letter give an indication of the sort of issues which are going to be raised by the HFSG, and I would value your views, particularly on items 7 to 11. Perhaps we could have a word when we meet on 3 September.

Yours sincerely


Enc

Copies to: ChairmanMaureen Oades, Assistant Clerk Ian Daines, Assistant Chief Constable

MARIA EAGLE M.P.LABOUR MEMBER OF PARLIAMENT FOR LIVERPOOL GARSTON

London Office:House of CommonsLondonSW1A OAAPhone: 0171 219 5288Facsimile: 0171 219 1157Email: [email protected]

W J Wilkinson Clerk and Treasurer South Yorkshire Police Authority PO Box 37 Regent Street Barnsley South Yorkshire S70 2PQ

Dear Mr Wilkinson,

Re: SOUTH YORKSHIRE POLICE AUTHORITY Funding for the defence to crim inal charges o f David Godfrey Duckenfield & Bernard Dean Murray

I write further to my letter, dated 27 January 1999, and your reply of 1 February 1999 in respect of the above.

I note that, despite failing to answer most of my questions, in particular in relation to controlling the likely expenditure of the set aside funds and ensuring value-for-money, the Authority has again decided to fund substantial elements of the defence costs in these cases. I know that this followed upon the decision of a judicial review which established vires, but I am still concerned that this expenditure will not be subject to vigorous control and scrutiny - as it would be if the Legal Aid fund were providing it.

I see from your minutes, dated 21 May 1999, that following legal advice from Garretts, some controls on the expenditure have been adopted, but in my view these raise more questions than they settle. I wonder tnerefore if I mignt have the answer to the following?

1. What is the fixed overall budget for maximum costs and what happens if it is breached?2. What limits have been placed, if any, on the number of seniority and hourly rate of each

fee earner and what are those limits?3. What limits, if any, have been set on the numbers of legal advisers attending hearings? I

understand that 10 (ten) were present at the committal.4. What rules have been set in relation to Counsel and leading Counsels attendance and

fees both in respect of when they are required and what rates are to be paid?5. How regularly are the costs reported to the Authority and monitored? Is this done prior

to the disbursement of moneys?6. Are payments made on account of likely costs or paid in arrears after they are incurred

and how quickly are they paid when a bill is presented?Representing:

Allerton, G rassendale, N etherley, St. M ary’s, Speke, Valley and W oolton Wards.

/ « 2 , X . \ D&MV* (please quote in all correspondence)

Constituency Office:Unit House Speke Boulevard Liverpool L24 9HZ Phone: 0151 448 1167 Facsimile: 0151 448 0976 Our Ref: am/SYPA/fdg

^ t |CP r ' Reply to House of Commons

23 August 1999

7. Does the requirement to use reasonable endeavours to recover costs from other sources require the recipients of funding to : a) apply for legal aid and b) apply for assistance from the Police Superintendents' Association (PSA) or other professional association?

8. If not, what meaning does 'reasonable endeavours' have?9. What experience does a costs draftsman have in the normal course of his duties for

determining the reasonableness of costs incurred or the proper conduct of an action? His job is to draw up the bill for his client - it is for a district judge to determine what you are asking a costs draftsman to determine.

10. Why is there not a requirement for taxation rather than an option for it in order that value-for-money can be ascertained independently of the cosy and secret arrangement you have established?

1 1 .Has any application been made for legal aid by Messrs Duckenfield and Murray or for assistance from the PSA to date? Will you require these steps to be taken?

I look forward to hearing from you as soon as possible.

M A R IA E A G L E M P

South YorkVhire Joint Secretariat

P.O. Box 37,'Ret|ent Street,


Fax: Barnsley


Our ref: MVO/SB

Your ref:

Date: 10 September 1999

This matter is being dealt with by:

Dear Ms Eagle

RE

COM

SoutiTVorkshire Police

| 13 SEP 1999 JChief Constable

S O U TH Y O R K S H IR E POLICE

A UTHO RITY

Miss M V Oades Direct Line:

FUNDING BY SOUTH YORKSHIRE POLICE AUTHORITY(“THE AUTHORITY” FOR THE COSTS OF DEFENCE TO CRIMINAL CHARGES OF MESSRS DUCKENFIELD AND MURRAY

Thank you for your letter dated 23 August 1999.

Before responding to the specific issues you raise, it may be helpful if I summarise the current position of the Authority with regard to reimbursing the former officer’s costs of the j criminal proceedings:- '

1. In so far as costs from 27 February 1998 to 5 February 1999 are concerned, we have engaged a costs draftsman to review the former officers’ legal costs to assist our solicitors to advise us whether they were reasonably incurred, before making an offer to the former officers’ solicitors to settle those costs. If the costs cannot be agreed, they will be referred to the court for assessment.

2. As a result of the decision of the Authority on 21 May 1999, an offer has been made to the former officers to reimburse their costs from 5 February 1999 to the end of the committal proceedings (20 July 1999), subject to detailed terms about the conduct of the matter and the maximum amount payable by the Authority by way of reimbursement. The agreement has not been formally concluded, although the terms have been agreed in principle.

3. So far as the former officers’ costs of defending the action after committal are concerned no further support has to date been approved by the Authority and no application is currently under consideration.

Cont’d ...

Maria Eagle MP House of Commons LONDONSW 1A0AA

The specific issues which you raise relate to costs incurred by the former officers between 5 February 1999 and the end of the committal proceedings. In so far as your questions relate to precise charges or charge out rates of individual firms, that information has been provided to us on a confidential basis, and I am therefore not at liberty to disclose that information. Details of the precise resources available to the defence are similarly regarded as confidential.

In relation to reimbursement of legal costs incurred by the two former officers between 5 February 1999 and the close of committal, given the constraints on disclosure referred to above, I would therefore respond as follows:-

1. There is a maximum budget set for both former officers’ legal costs and the Authority has not obligation to meet the former officers’ costs or disbursements above the set budget.

2. The terms on which the former officers have been offered support for their legal expenses specifies the seniority of each member of the legal team engaged on the assignment, and hourly rates for each of them. Our advisers have confirmed that, in their opinion, these hourly rates represent a fair charge for a case of this type and complexity.

3. There are also controls on the number of legal advisers whose costs will be met by the Authority for attending meetings, consultations, conferences with Counsel and court hearings. You should not assume that the number is 5 for each former officer.

4. Both the level of representation by Counsel at hearings, and the rate to be paid to them for hearings and refreshers are controlled by the terms of which funding has been offered to the former officers.

5&6. Costs are required to be reported to the Authority regularly but no precise time periods for reporting were specified as the regularity required depended on the level of activity over any particular period. No payments are made prior to reporting or prior to the costs being incurred. Bills presented for payment of the costs incurred have been considered by our legal advisors and costs draftsman. Interim payments of part of the cost claimed have been made following receipt of bills pending final determination.

7&8. The direct answer to your question 7 is no. The issue of Legal Aid and possible support from the Police Superintendent’s Association was specifically raised at the meeting of the Authority on 21 May 1999, when support for the former officer’s legal expenses up to committal was approved. The Authority took its decision having regard to the level of contributions which would be required from the former officers, were they to rely on Legal Aid, the fact that any support from the Authority would be included by the Legal Aid Board in assessing the former officer’s resources and would therefore correspondingly reduce the level of net funding

Cont’d

available to the officers from Legal Aid, and evidence of the limited ability of the Police Superintendent’s Association to support the former officers’ legal expenses. The ultimate decision to support the former officers’ costs was therefore taken in the knowledge that this was likely to make them ineligible for Legal Aid and that further support from the Police Superintendent’s Association was unlikely.

The obligation to use reasonable endeavours to recover costs and disbursements incurred from other sources, at the end of the proceedings, was therefore directed principally at possible costs awarded from central funds or against the prosecution, if the former officers were found not guilty.

9&10 It is within the normal duties of a costs draftsman not only to prepare bills of cost for the Court, but to review bills of costs prepared to support claims against his/her client and advise on the extent to which these should be challenged as well as representing clients at costs hearing. The Authority took the view that experience of having bills of costs he/she has prepared assessed by the court, challenging the reasonableness and legitimacy of expenditure incurred by other parties and appearing at costs hearing is directly relevant to the tasks the Authority would require the costs draftsman to perform in this case. Whilst the right to have a solicitor’s bill assessed by the High Court is always open to the Authority, the Authority will decide whether to pursue this right in the light of advice from the costs draftsman it has retained and its legal advisers. Apart from the issue of whether it is consistent with court rules, particularly in the light of the recent Woolf reforms, to require the High Court to assess a bill which is not in dispute, or which could be resolved between the parties by discussion, the Authority would also need to take into account exposure to court fees and costs on the taxation itself, before pursuing this course of action.

11. This is a question which should really be addressed to Mr Duckenfield and Mr Murray’s legal advisers. My understanding, however, from the evidence disclosed in the course of the judicial reviews is that limited financial support was sought and made available by the Police Superintendent’s Association for the former officers to be represented in the Judicial Review of the decision of the Authority to revoke funding, but that no support has been made available for the criminal proceedings.

In relation to Legal Aid, I understand an application to the Clerk to the Justices was made on behalf of Mr Murray, and a preliminary means determination conducted by the Legal Aid Board to indicate the contribution from income and from capital which would be required from him, were the application to be granted. The Clerk to the Justices refused to approve funding, however, until the Authority had reached a decision on providing support to the former officers and the application was therefore left in abeyance. In the light of this, I understand that no formal application was made by Mr Duckenfield.

Cont’d .

The Legal Aid Board regard themselves as funders of last resort, and accordingly will not determine a legal aid application whilst the possibility of alternative funding remains outstanding. Furthermore, any funding made available by the Authority would be treated as part of the applicant’s resources, and accordingly would not reduce the contribution from income and capital required by the Legal Aid Board from the applicant. As the size of the potential contribution, and the likely financial effects on Mr Duckenfield and Mr Murray, was one of the factors leading the Authority to provide the support offered up to committal, then it would not be the Authority’s intention to require the former officers to seek Legal Aid in respect of this period.

I hope that this is of assistance to you.

Yours sincerely

W J Wilkinson Clerk and Treasurer

\ i COPY FOR CHIEF CONSTABLE




Fax: Barnsley


Our ref: WJWA/S

Your ref:


This matter is being dealt with by: Bill Wilkinson

Yorkshire

Direct Line:

S O U TH Y O R K S H IR E PO LICE

AU TH OR ITY

To: South Yorkshire MPs

FINANCIAL IMPLICATIONS OF HILLSBOROUGH

At the request of members of the Authority I enclose two papers. The first is a copy of a letter from the Chairman of the Authority to the Home Secretary, seeking a meeting with the Home Office to consider an application from the Authority for financial support. The second is a briefing paper setting out the background to the issue.

Yours sincerely

ii l lBill Wilkinson Clerk and Treasurer

Copies to: Chair of Authority Chief Constable Garretts, Solicitors

Encs

%




Tel: Barnsley

Fax: B arnsley______________

Clarence Swindell, Chair

Our ref: CS/WJW/VS

Your ref:


The Rt Hon Jack Straw MP Home Office Queen Anne’s Gate Westminster LONDON SW 1H 9A T

Dear

HILLSBOROUGH

I am following up a matter raised with you earlier this year by David Blunkett MP. He wrote in the context of the private criminal prosecutions brought by the HFSG, and the South Yorkshire Police Authority’s decision that, given the circumstances of this incident, it should properly meet the defence costs of the two former officers out of Police Authority funds. He suggested that there might be a case for Home Office to provide funding to support the Authority’s costs.

The Authority’s present decision to fund was restricted to the proceedings up to committal stage - July 1999. In view of the outcome, I envisage that the Authority will receive within the next month or so a further application for the two former officers to fund the defence costs for the trial itself, which is scheduled for June 2000.

The case has implications extending beyond South Yorkshire. This was a central issue in the Judicial Review earlier this year which established that Police Authorities do have the necessary powers. The morale of the South Yorkshire force is at stake. However, as Chief Constable Mike Hedges has said publicly, it is vital that all police officers know, when they are faced with split second decisions to make in pressured circumstances, that their Police Authority will stand behind them and provide support if they act in good faith but things go wrong, as happened in April 1989.

While the Authority was unanimous in its decision to support the officers in the committal proceedings, it was at the same time mindful of the financial implications. Expenditure to date has been met from reserves, but ultimately the costs will impact directly on policing budgets or indirectly through the need to reinstate reserves.

The Authority’s budgets are also being squeezed by Hillsborough costs from another direction. The public liability insurance limit of £8.5m was reached many years ago, but there remains a number of outstanding claims. So far the Authority has set aside in its accounts nearly £5m for additional liabilities which are likely to arise when claims are

settled. Recently, our insurance advisers have informed us of reassessment of life expectancies for two permanently incapacitated victims. These cases alone will require the Authority to set aside a further £2.6m to meet potential liabilities. If this is raised via the precept it could add around 13% to Council Tax.

I have given you the broad background to our situation. My purpose in writing personally to you is to request a meeting with Home Office to discuss an application from this Authority for financial support towards the costs it is facing on Hillsborough related matters.

On hearing from you, I will arrange for a more detailed paper to be prepared by the Clerk and Treasurer and the Chief Constable.

Yours sincerely

Clarence SwindellChair, South Yorkshire Police Authority

HILLSBOROUGH : BACKGROUND BRIEFING

1 Key dates

• Disaster 15 April 1989• August 1989 - Taylor Interim Report published; January 1990 - Final Report published• DPP - no criminal proceedings to be instigated against officers• Inquest 19 November 1990 - 28 March 1991 - Verdict "Accidental Death”• December 1996 TV dramatisation by Jimmy McGovern• 30 June 1997 - Announcement by Home Secretary of decision to commence further scrutiny

of evidence by Lord Justice Stuart Smith• August 1997 - South Yorkshire Police Authority sets aside £0.5m for costs in connection with

the Scrutiny• February 1998 - Report of Scrutiny published - Iho new evidence on which to initiate criminal

prosecutions”. DPP takes no further action• February 1998 - Announcement by Hillsborough Family Support Group of intention to take out

private criminal prosecutions• February 1998 - South Yorkshire Police Authority agrees in principle to make financial support

available in connection with defence costs of two former officers• Private criminal prosecutions of Messrs Duckenfield and Murray taken out by HFSG in June

1998

• December 1998 - DPP declines to take over the private prosecution• February 1999 - South Yorkshire Police Authority suspends support payments pending

clarification of legal position on powers to pay• March 1999 - High Court rules that Police Authorities do have the necessary powers• 21 May 1999 - Police Authority reviews the position, confirms previous decisions and payment

of support to 5 February 1999; also agreed to pay support to the conclusion of the committal proceedings subject to a detailed agreement on hourly rates, level of support, total costs etc

• July 1999 - Committal hearing at Leeds Magistrates’ Court concludes that there is a case to answer, and that the proceedings are not an £buse of process” despite the length of time which has elapsed and the publicity given to the case

• September 1999/January 2000 - Further Court consideration of “abuse of process” issue• June 2000 - Date set for trial

2 F i n a n c i a l I m p a c t o n S o u t h Y o r k s h i r e

There are four elements:

(a) Costs in connection with the initial enquiries in 1989/1990. The Home Office paid the bulk of these costs, leaving South Yorkshire to find approximately £1m.

(b) Ongoing costs in connection with public enquiries, insurance claims, and scrutinies between 1989 and 1999.

(c) Costs in connection with providing legal support to former officers. Support was provided by the Authority at the inquest in 1990. It was made available again in 1998 when HFSG announced its intention to take out private prosecutions.

(d) Public liability insurance costs arising out of claims of victims of the disaster. The Authority’s insurers were responsible for the first £8.5m, and have met associated legal costs in connection with the settling of claims.

3 Former Officers’ Defence Costs

3.1 Powers

The March 1999 Court case considered whether Police Authorities had powers under the Police Act and the Local Government Act to meet such costs. Three High Court judges, led by Lord Justice Laws, ruled that they did, but that each case must be considered on its merits.

The two main considerations which the Authority has taken into account are as follows:

(a) In the light of its duty to secure the provision of an effective and efficient police force, the extent of its obligation to defend former officers in a situation where the Authority believes that they acted in good faith.

(b) Following from that, the impact on morale, confidence and operational effectiveness of police officers in South Yorkshire and other forces across the country if they do not have the knowledge that their Authority and Force will support them if they act in good faith but things go wrong.

A number of other Forces and Authorities - including the Met Police, have provided financial support to officers. The implications of the March 1999 ruling affected every Police Authority.

3.2 Costs

The Authority set aside £0.5m in its reserves in 1997 to cover costs arising out of the Scrutiny. This was subsequently earmarked to meet the defence costs and the Authority’s costs. Following the 21 May decision to provide support up to the end of the Committal proceedings, this sum was expected to be committed. A report to the Authority on 10 September provided a revised estimate of £0.95m. This includes nearly £0.3m costs incurred by the Authority and the Chief Constable. Of the remainder, approximately £0.1m is expected to be recovered from the VAT inspector, and negotiations with the solicitors could produce further reductions. In the light of the forecasts, the Authority agreed to set aside a further £0.5m.

The Authority has not entered into any committments beyond July 1999. Further applications from the two former officers are awaited and will be considered in detail if and when they are received.

4 I n s u r a n c e C o s t s

The Authority’s Public Liability insurance cover was £8.5m in 1989. Insurance cover ran out in the mid 1990’s, and the Authority has been forced to make separate provision in its accounts for uninsured costs, a sum of £4.5m has already been set aside. Recent advice from insurers suggests that this sum will need to be increased by a further £2.6m following medical review of life expectancies of severely disabled victims.

5 H o m e O f f i c e S u p p o r t

Support was provided to the Authority in the initial enquiries in 1989/1990. No applications have been made since. The Home Secretary has powers to provide specific assistance to Police Forces and Authorities. He has recently exercised this power on issues such as the cost of policing the Eclipse Celebrations in Devon and Cornwall.

H elen Jackson M .P. Sheffield H illsborough HOUSE OF COMMONS

LONDON SW1A0AA

020 7219 4587/6895 FAX 020 7219 2442

Cllr Clarence SwindellChair of South Yorkshire Police AuthorityPO Box 37Regent StreetBarnsleySouth Yorkshire

23/09/99

I am writing with reference to the letter to the Home Office of 10th September requesting a meeting with the authority to discuss financial assistance from the Home Office to support the defence costs of former Officers Duckenfield and Murray in their private prosecution over their role in the Hillsborough disaster.

As you will be aware I have been concerned for some time over the impact these costs are having in draining reserves - which could otherwise have gone to useful improvements to policing in the area, and now as you point out in your letter, impacting directly on policing budgets.

From the minutes of the SYPA meeting on 21st May, and your letter I gather that as things stand at present, the costs of the present legal proceedings will be met either by the already bereaved families in Merseyside, if Duckenfield and Murray are exonerated, or by the public of South Yorkshire through their precept to the Police Authority.

I am not at all clear as to the financial exposure of Mr Duckenfield and Mr Murray, either for preparing their case, or in the event of the charges against them being upheld. Have any applications been made for financial assistance - either to the Police Superintendents Association or to the Legal Aid Board.

CONSTITUENCY OFFICE: Julie Berrisford and Harry Harpham HILLSBOROUGH LIBRARY, MIDDLEWOOD ROAD, SHEFFIELD S6 4HD

Tel: 0114 232 2439 Fax: 0114 285 5808

I suspect that the public would not support the whole costs falling on the public purse.

Finally I am unclear, and somewhat sceptical that the South Yorkshire Police Authority is in the best position to control the legal costs of defending the officers in the case, because of it’s agreed policy at present to fund Duckenfield and Murray’s defence at all costs.

If there is any suggestion of financial assistance from main stream Home Office funds, (Now that an application has been made to Jack Straw to assist with the funding from the Home Office budget) I believe that an independent arbitrator should be brought in to monitor both the level of costs, how they are controlled, and how and from whom they are met both during and following judgement.

Yours sincerely

Helen Jackson MP Sheffield Hillsborough


Fax: Barnsley



Barnsley, South Yorkshire S70 2PQ.South Yorkshire Police

0 8 OCT 1999Our ref: WJW/FS

C h i s K V ^ l ^ J s Q U T H Y O R K S H IR EYour ref: PO LICE

AUTH ORITYDate: 6 October 1999

This matter is being dealt with by: Bill WilkinSOn Direct Line:

Mrs H Jackson MP House of Commons Westminster LONDON SW1AOAA

Dear Mrs Jackson

HILLSBOROUGH

Councillor Swindell has asked me to reply to your letter of 23 September. The position at present is that the Authority agreed on 21 May to fund the defence costs to the conclusion of the committal proceedings in July. With the advice of Garretts and the costs draftsman appointed by them, a tightly prescribed format was drawn up which limits the Authority’s commitment on the number of legal advisers, hourly rates and so on. Both officers accepted those terms.

In the original offer of support the Authority reserved the right to review the reasonableness of costs. The cost draftsman has been employed also to reassure the Authority on that issue. Full information has been provided by the officers’ solicitors, and following completion of the cost draftsman’s work, the Authority will be seeking reductions in claims where appropriate.

As you will know, the committal hearing ruled that there was a case for the officers to answer. This is scheduled for June 2000. The officers are pursuing the issue of abuse of process. The Authority may receive further applications for funding to the trial. They will have to be considered afresh, with full advice on legal and financial implications. At this stage the Authority’s commitment does not extend beyond July 1999.

It is inevitable that there will be financial implications. Subject to resolving outstanding queries arising from the cost draftsman’s work, expenditure to date is expected to approach £1m. This includes the Police Authority’s and the Chief Constable’s costs, which together amount to nearly £0.3m. While that is covered by reserves, and there is no direct affect on policing, reserves can only be used once.

Turning to the other points raised in your letter, Mr Duckenfield and Mr Murray have at various stages approached the Legal Aid Board, to cover themselves in the situation that the Police Authority declined to make support available. It is in their interest to do so. If legal aid had been made available at any point it would have required substantial financial contributions by the two former officers from their capital and their income; legal aid rules do not for instance allow the Authority simply to meet the legal aid contribution - it is all or nothing.

It is of course open to the officers to meet the costs of additional hearings or extra specialist support over and above the limits supported by the Police Authority. I am not aware of any discussions between the officers and the Superintendents’ Association, though I believe the Association is small and does not have access to substantial funds. The Authority is itself discussing the whole position with the Association at the same time as we are approaching the Home Secretary. On the latter point you will see from my briefing note that we have a second - more substantial - concern on Hillsborough, which is the insurance liabilities. W e are discussing this with the Home Secretary at the forthcoming meeting which is being arranged with Charles Clarke.

Your comments on control of costs are very relevant. This was one of the issues which took considerable time at the 21 May meeting. The Authority was in fact seeking not to make a commitment “at all costs”. The agreement drawn up makes clear the Authority’s commitment. I don’t pretend it is easy - legal cases are to some extent open ended; it is possible to control numbers of advisers and hourly rates, but not the hours, which are dependent on the way that the case proceeds and the tactics of the prosecution.However, we have since January 1999 appointed Garretts, who are a leading national firm of lawyers, to provide independent advice to the Authority. They in turn have appointed legal draftsmen. The Authority is acting specifically on the advice of those two professional advisers. In that respect I believe there is a necessary degree of independence.

I hope this is helpful. I will let MPs know the outcome of the discussions between the Authority and the Home Secretary.

Yours sincerely


Copies to: Councillor C Swindell, ChairmanCouncillor Jan Fiore Mr M Hedges, Chief Constable M V Oades, Assistant Clerk Councillor P Moore Councillor G Smith

Mr

Informationi

---- [ ^ j Action

------- [ ^ j Comment


AUTHORITY

With Compliments


P.O. Box 37, Regent Street

Barnsley, South Yorkshire, S70 2PQ

Switchboard: Barnsley

Fax: Barnsle)




Fax: Barnsley


n f w u , ™ S O U T H Y O R K S H I R EOur ref: WJWA/S _ _ ,

POLICEAUTHO RITY

Your ref:

Date: 6 October 1999

This matter is being dealt with by: Bill WilkinSOfl Direct Line:

PYHILLSBOROUGH PROSECUTIONS

As I explained briefly when we spoke, I am writing to the Association on behalf of the Chairman of the Authority, Clarence Swindell.

I think you will be familiar with the background. Following the Divisional Court ruling on Police Authority powers earlier this year, the Authority reconfirmed its previous support and agreed to make further financial support available to ex-Chief Superintendent David Duckenfield and ex-Superintendent Bernard Murray for the committal hearing in July 1999. The Authority has not yet met to consider whether it is in a position to make further support available, and awaits further applications from the two former officers in connection with the trial which is scheduled for June 2000.

In making its original decision, the Authority took into account that the former officers were on operational duty at the time of the incident. The Authority also took into account the conclusions of the inquest and the various reviews of evidence, none of which have caused the DPP at any time between 1989 and 1998 to instigate criminal proceedings. The issue, however, goes wider than South Yorkshire. While the Divisional Court’s deliberations earlier this year related to a decision by South Yorkshire Police Authority, the issue which was at stake was the powers of all Police Authorities to provide support to officers and former officers facing private criminal prosecutions in relation to their actions while on duty. We were aware of a number of Police Authorities who had provided or were in the process of providing support in similar circumstances. Had the Court not confirmed that the necessary powers existed, it would have had potential implications for every police officer in the country.

Attempts are being made by the two former officers’ solicitors to have the proceedings quashed as an ‘kbuse of process” on the grounds that 10 years has elapsed since the incident, and that the level of public comment on the matter precludes a fair trial. If those

Chief Superintendent P WilliamsNational SecretaryThe Superintendents’ AssociationReading RoadPangbourne

Dear

attempts fail, South Yorkshire Police Authority will almost certainly be asked to make further support available. In considering such an application, members of the Authority will be conscious that this issue has ramifications for the Police service as a whole, and whether that might provide a basis for other parties with an interest in the principle at stake to consider a degree of joint funding.

I have made an approach to the Home Secretary, and am making contact with the Police Federation as well as yourself. The Chairman would be grateful if you would agree to meet with him informally to explore whether there is any scope for a co-ordinated approach.

Yours sincerely


Copies to: Councillor C Swindell, ChairmanMr M Hedges, Chief Constable Ms M Oades, Assistant Clerk

ClA l e ja e s

( Z o A

l A h l k t M w s f '*| | Action

Information0

S O U T H Y O R K S H I R E POLICE

AUTHORITY

With Compliments




| | Comment


Fax: Barnsley

♦South Yorkshire Joint SecretariatP.O. Box 37, Regent Street,


Fax: Barnsley


S O U T H Y O R K S H I R EOur ref: W JW A/S POLICE

AUTHO RITYYour ref:

Date: 6 October 1999

This matter is being dealt with by: Bill Wilkinson DirectLine:

Mr J Moseley General Secretary Police Federation 15-17 Langley Road SURBITON Surrey KT6 6LP

Dear

HILLSBOROUGH PROSECUTIONS

I am writing to the Federation on behalf of the Chairman of the Authority, Clarence Swindell. I would have liked to have had a word with you before sending the ietter. However, your secretary explained that you would be at the Conference for much of this week so I am sending the letter and will speak to you at the earliest opportunity.

I think you will be familiar with the background. Following the Divisional Court ruling on Police Authority powers earlier this year, the Authority reconfirmed its previous support and agreed to make further financial support available to ex-Chief Superintendent David Duckenfield and ex-Superintendent Bernard Murray for the committal hearing in July 1999. The Authority has not yet met to consider whether it is in a position to make further support available, and awaits further applications from the two former officers in connection with the trial which is scheduled for June 2000.

In making its original decision, the Authority took into account that the former officers were on operational duty at the time of the incident. The Authority also took into account the conclusions of the inquest and the various reviews of evidence, none of which have caused the DPP at any time between 1989 and 1998 to instigate criminal proceedings. The issue, however, goes wider than South Yorkshire. While the Divisional Court’s deliberations earlier this year related to a decision by South Yorkshire Police Authority, the issue which was at stake was the powers of all Police Authorities to provide support to officers and former officers facing private criminal prosecutions in relation to their actions while on duty. We were aware of a number of Police Authorities who had provided or were in the process of providing support in similar circumstances. Had the Court not confirmed that the necessary powers existed, it would have had potential implications for every police officer in the country.

Attempts are being made by the two former officers’ solicitors to have the proceedings quashed as an ‘kbuse of process” on the grounds that 10 years has elapsed since the incident, and that the level of public comment on the matter precludes a fair trial. If those attempts fail, South Yorkshire Police Authority will almost certainly be asked to make further support available. In considering such an application, members of the Authority will be conscious that this issue has ramifications for the Police service as a whole, and whether that might provide a basis for other parties with an interest in the principle at stake to consider a degree of joint funding.

I have made an approach to the Home Secretary, and am making contact with the Superintendents’ Association as well as yourself. The Chairman would be grateful if you would agree to meet with him informally to explore whether there is any scope for a coordinated approach.

Yours sincerely

Bill W ilkinson Clerk and Treasurer


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Telephone: 0207 593 S000

DX: 2312 VICTORIA

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Direct Fax: 0207 593 5044

Email: sbcastwood@wincicwoiths-£c> ,u k

2 November 1999

Please note our direct fax number above

Dear David

South Yorkshire Police Asthority

Further to my letter of 1 November 1 think it would be helpful for you to see the previous advice provided by Bill Clegg subsequent to the committal, supporting the foreshadowed further approach on behalf of Mr Duckenfield, We had intended to make this available in the context of a full submission in regard to future conduct but clearly it is important for your client to be aware of this advice now.

*

Yours sincerely

Our ref: SBE/24332/1Your ref: • DMH/CXB

BY FAXDavid Harlock Garretts 1 City Square Leeds LSI 2AL

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REGINA v DtlCKENFlELD

NOTE

1

$his note is written for the benefit of the South

Yorkshire Police Authority and represents my views on

the merits of the defence of Mr. Duckenfield to the-f

two charges he has been committed for trial on.

It was obviously a disappointment that the

magistrate found that a prima facie case existed and

furthermore declined to stay the proceedings on the

ground that the continued prosecution of the defendant

amounted to an abuse of the process of the court. I

propose to consider each of these separate submissions

in turn. Annexed to this note is a copy of the

• skeleton submissions submitted to the magistrates

1

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court to support the application to stay and a copy of

the judgement of tne court. i have no doufct that -f

these submissions ought to be refined and advanced

afresh before the trial judge. As can be seen from

the skeleton the submissions are advanced under a

number of separate heads of which I believe two

warrant some further explanation in this note.

The submission advanced on behalf of Hr.

Duckenfield that the prosecution contravened Article

6 of the European Convention of Human Rights requires

further explanation. This submission was dealt with » *

at page 24 - 25 of the judgement when the magistrate

held having reviewed some of the European authorities

"The principles laid, down in these authorities

therefore are no different, in my view, to the

principles 1 have to decide in the abuse of

process application according to U.K. laws."

With due respect to the magistrate this is not a

correct statement of the law. One fundamental

difference exists between the domestic law on abuse of

process and the protection a citizen receives from

2

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Article 6.

Under domestic law the burden is on the accused

to prove on the balance of probabilities that he has

suffered prejudice by reason of the delay. Under

Article 6 no evidential burden is placed on a

defendant at all and the existence of prejudice is not •

a necessary ingredient of a "breach". The Convention

) provides

"in the determination of hie civil rights and

obligations or of any criminal charge against

him, everyone is. entitled to a fair and public

hearing within a reasonable time by an

independent and impartial tribunal established by

law."

\

The Convention does not require a defendant to

prove prejudice to his case by reason of the delay as

U.K. Domestic law does and this crucial distinction

was not recognised by the magistrate.

The second submission that attention ought to be *

focused on in this note relates to the impact of

3

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publicity in the case. It wa6 submitted that the

effect of the media coverage was such that a fair ;

trial of the defendants is not possible. Although

rejecting this submission the magistrate did describe

the coverage as

"widespread/ extremely voluminous and

unrelenting"

and concluded that,

1 "I do accept that the media coverage in this case

ie bound to create some prejudice against these

two defendants/ more so against Mr. Duckenfield

than Mr. Murray."f *

The assessment of the degree of prejudice is

obviously a personal one and the trial judge would be

I perfectly entitled to conclude that the prejudice

found by the magistrate was such that no fair .trial

was possible.

I have no doubt that a strong case exists that

this prosecution amounts to an abuse of the process of

the court, whether in fact the trial judge will come

to the same conclusion is difficult to assess. He

4

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will need to balance the fight to bring a private

prosecution in circumstances where the state has

declined to prosecute against the rights of an

individual to a fair trial not brought in .

circumstances of oppression and not prejudiced by pre-

trial publicity.

it is clearly impossible to predict the decision

of the trial judge/ grounds certainly exist that could

justify a decision in favour of Mr. Duckenfield while

in one sense the high profile nature of the case may

be a subconscious influence in favour of ai _

prosecution.

I am certain that grounds exist to support an

l application to stay, many cases in the past have been

stayed on grounds less strong than those in this case.

Whether in fact the trial judge will actually order

the proceedings be stayed is a matter of speculation

but must be evenly balanced.

In one sense I am more confident that the trial• t

judge will direct verdicts of not guilty at the close

5

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of the prosecution case. This is a decision that does

not depend on the exercise of judicial judgement as ;

does the decision whether to stay but mere on an

analytical assessment of whether the Crown have proved

the necessary legal ingredients which make up a priina

facie case.

In ray judgement the Crown at committal failed to

prove a prima facie case against Mr. Duckenfield and

the magistrate erred in law in committing them for

trial.

*

i

The charge is one of involuntary manslaughter and

as was stated in the leading case of R. v. A4oroako_99

C.A.R. 362

, "in my opinion the ordinary principles of the law

of negligence apply to ascertain whether or not

the defendant has been in breach of a duty of

care.u

per Mackay L.C. # p.369

It follows that in order to establish whether the

prosecution can prove a prima facie case you need to

6

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apply the principlss of Che law of negligence to the

facte of this case.*

Arguably Mr. Duckenfield owed a duty of care

feo all those who attended the match and the standard

of care that he owed was that of a "reasonably

competent commander". The important question is

whether the Crown can prove a breach of the standard

of eare owed.

The causes of the disaster were many and

included a dangerous build-up of supporters in the

area outside the stadium prior to #the match, poor

crowd control in Leppings Lane itself, insufficient

police/stewards to control the queue at the

turnBtiles, poor or non-existent signs inside the

ground, a dangerous crash barrier on the terrace, no

0 separate monitoring of the individual pens and

^ insufficient egress from the pens either, laterally

or onto the pitch.

While in no sense a complete list of the causes of

the disaster these are all causes that are not

suggested by the prosecution to be a result of a

failure of Mr. Duckenfield to provide a "reasonable"

7

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standard of care to the supporters.

With hindsight it is easy to see how the police

plan for the match was defective and it may have

fallen below the necessary standard required under our

civil law. If it did thia was a fault of the plan

generally and was not the responsibility of Mr.

Duckenfield. A person in command is entitled in law

to delegate responsibility to someone he reasonably

assumes is competent. Here the plan was prepared by

others and Mr. Duckenfield acted reasonably in law in

accepting the plan as a basis for policing the match.

/

Indeed it was not suggested at committal by the

prosecution that he had been negligent in following

the plan or allowing the build-up of fans outside to

reach a dangerous level. This area was the

responsibility of another senior officer who had been

delegated the task of policing that area.

The immediate cause of the disaster was the

decision by Mr. Duckenfield to open Gate C which

resulted in an influx of supporters most of who went

t

down a tunnel leading to pens 3 and 4 causing gross

8

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overcrowding and consequent, deaths in each pen«

The order to open the gates was made following

the receipt of a radio message by the control room

stating that unless the gates were opened someone

would die. Against this background the prosecution

did not suggest that the opening of the gates was

negligent and based the case against Mr. Duckenfield

on the proposition that he ought to have prevented the

supporters from entering the tunnel after the gate had

been opened and that it was negligent of him not to

have done so./

This raises the issue of whether a reasonably

competent commander ought to have foreseen that by

opening the gate he would cause gross overcrowding int

the central pens. It must be emphasised that it was

never suggested that he foresaw any danger to anyone

(this is not/ of course, a defence to the charge, the

relevant question is whether a reasonably competent

commander ought to have foreseen the risk and taken

action accordingly).

9

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Normally in a case of involuntary manslaughter

the court will be assisted by expert evidence, from .

for example a doctor, who will give evidence of whatp

in certain circumstances a reasonably competent doctor

ought to do. In this case no expert evidence is being

called by the prosecution. It follows that the

assessment of whether the hypothetical reasonably

competent commander ought to have foreseen the danger

must be based on the other evidence in the case. This

all points one way and in favour of Mr. Duckenfield.

Not only did he not foresee the danger but none of the

other officers in the control box did who all had more♦

experience of the stadium than him, 'nor did the

officer requesting the opening of the gate6, nor the

officer who opened them, nor any of the officers who

had the responsibility of policing that area of the

►ground and could hear the radio transmissions

requesting the opening of the gate and latter

complying with the request.

In my opinion there is no evidence that can prove

that a reasonably competent police commander ought to

have foreseen danger to those in the central pens when

10

p. 12/13

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lta -o w l-irun W1NUKWUKIH bHLKUUUD TO 9 0 1 1 3 2 0 7 3 0 0 1

giving the order to open the gate, if that is correct

then Mr. Duckenfield cannot be convicted on t ms .

indictment and the trial judge will inevitably direct

a verdict of not guilty at the close of the case for

the Crown.

%

»

I consider that Mr* Duckenfield acted reasonably

on the day of the disaster, the tragic consequences of

opening the gate cannot legally {or in my view

morally) be hit responsibility and the causes of the

disaster are far more complex and far-reaching than

him.•»

/

In this advice I have sought succinctly to

explain my reasoning for the confidence that l feel at

the eventual outcome of this trial. It is a

confidence consequent upon almost thirty years

experience at the criminal bar •________________ ^

WILLIAM CLEGG Q.C

1st August 1999

11

P .13/13

alfl I P 0 'ON— —

AA82AA922T06 «- 3fefcT«DS-AlIDT 62: AT i 6 6 /TT/S0

M r /VICM

l / i i i 4


2 DEC 1999

Chief Constable _

\AJ I { VaAA' M [ Information| | Action

------------------------------ Comment

S O U T H Y O R K S H I R E POLICE

AUTHORITY

With Compliments





Fax: Barnsley

Internet: www.southyorks.org.uk


Fax: Barnsley





2 DEC 1999

Chief ConstableOur ref: W JW /FS

Your ref:


This matter is being dealt with by: Bill Wilkinson


AUTHORITY

Direct Line:

David Harlock Garretts Solicitors 1 City Square LEEDS LS1 2AL

Dear i

Many thanks again for handling things on Friday so efficiently. Looking ahead, there are a few matters relating to costs:-

(i) it might not be a problem in future as there will possibly not be any further hearings after January and before June, but if the Solicitors incur extra costs that they haven’t informed us of, can they be asked to supply a regular schedule, not just when we put together the next application (I think this was the problem last week - the figures that the Chairman had first looked at related just to the direct cost of the2 hearings. When the totals were put together, of course, it brought in all the other preparatory work from July up to now.)

(ii) Is it possible to tighten up the costs agreement any more? Members didn’t go for any sort of cash limit on Friday but nevertheless I am wary of HFSG’s constant references to outspending them, and it’s in our interest to keep a very tight rein. Is it feasible to pay strictly in line with Legal Aid limits, or is that what it already provides?

(iii) I assume we are retaining the costs draftsman. Can he look very closely at July - December costs, as they do look high, especially as they have largely all been incurred by the solicitors with no guarantee (until Friday) of funding.

I don’t need a reply. Could we follow up next time we have a progress meeting, but could you keep the options open when you write to the Solicitors.

Yours sincerely



■PilEF POV

THE ASSOCIATION OF CHIEF POLICE OFFICERSOF ENGLAND, WALES AND NORTHERN IRELAND

President: John-S-Evans-QPMLLB. Sir John Evans QPMLL.B Chief Constable, Devon & Cornwall Constabulary

A/A6153

M 11 Hedges Esq. QPM LL.BChief ConstableSouth Yorkshire PoliceSnig HillSheffieldS3 8LY

^ " f a

d o 0,

| | Ja n u a ry 2000


13 JAN 20OB

Chief Constable

Hillsborough D isaster Issues

I write in response to your letter of 4 Ja n u a ry 2000 which the General Secretary briefed me on la s t week. I am entirely seized of the issue and shall take every opportunity to raise the m atte r w ith the M inister on appropriate occasions. Indeed, if I sense there is a lack of progress on the m atte r then I will have no hesitation in taking forward the issue w ith the Home Secretary himself.

I very m uch appreciate being kept in touch with the issue and your correspondence w as entirely the so rt th a t is so helpful in allowing me to support you in issues you are w anting to take forward on the national scene.

X4*1A

UC '►

*,-J» iXc w

) i f '

DEVON & CORNWALL CONSTABULARY, POLICE HEADQUARTERS, MIDDLEMOOR, EXETER, DEVON, EX2 7HQ ________________________________TEL 01392 452041 FAX 01392 452100_________________ ______________

The A ssociation of Chief Police O fficers of England, W ales an d N o rth ern Ire land is reg istered in E ngland an d W ales as a p riv a te com pany lim ited b y guarantee . R egistered n u m b er : 3344583. R egistered Office : 25 Victoria S treet, L ondon, S W IH OEX. C om pany Secretary : M iss M arcia Barton.

H O U S E O F C O M M O N S

L O N D O N SW1A OAA

27 January 2000

Ref: /990037/PC

Mr Bill WilkinsonClerk and TreasurerSouth Yorkshire Police AuthorityPO Box 37Regent Street

Dear Mr Wilkinson

Re: Hillsborough compensation payments

Further to your letter concerning, I enclose the reply from Home Office Minister, Charles Clarke.

My apologies for the delay in forwarding this. However, I am pleased to see that Ministers recognise the excessive nature of your situation and Mr Clarke is considering some form of financial assistance.

Please keep me informed of any progress.

Many thanks for bringing this important matter to my attention.

Yours sincerely

Barnsley S70 2PQ

COPY

Caroline Flint IMPApproved by Caroline Flint and signed in her absence

Enc.

Working for Don Valley

Charles Clarke MP RECEIVED 3 0 DEC 1999

MINISTER OF STATE

Caroline Flint MP House of Commons London SW1A OAA

Our Ref:

Your Ref:

H o m e O ffice

QUEEN ANNE’S GATE

LONDON SWIH 9AT

PF 99 110/238/6 PO 22860/99 990037/PC

20 Dtu (999

Thank you for your letter of 11 November enclosing the letter of 3 November from the Clerk of the South Yorkshire Police Authority about the escalating costs of compensation payments fo r victim s of the Hillsborough tragedy.

As you know, I met representatives of the police authority and the Chief Constable on 2 November to discuss the costs the police authority continue to face in respect o f the Hillsborough disaster and their request tha t we consider providing them w ith some additional financial assistance.

I have looked at the A uthority 's request fo r support in respect of the personal injury claims from victim s, which it is estimated could be as much as £8 million. Given the circumstances of the costs involved, which are in excess of the A uthority 's insurance lim it, I have indicated to the Authority tha t I would be prepared to consider whether we may be able to offer some limited form of financial assistance.

I have asked my officia ls to obtain further information from the police authority on the breakdown of the costs to enable me to reach a decision. I hope to be able to let the Authority know our decision early in the New Year.

LEGAL SERVICES DEPARTMENT

1 6 MAR 2000

15 March 2000

The Chief ConstableSouth Yorkshire Police ’ f Police headquarters Snig Hill SOUTH YORKS. POLlUtSheffield S3 8LY

k20 M R 2000

Dear Mr Hedges «" H £ A O Q U A R T £ ^ (

D!SC;r: ?•' CC;.:

Hillsborough Funding - Mr David Duckenfield

I have been informed of the decision of the Police Authority on Friday last to continue to pay for my legal expenses.

May I thank you and your officers for their continued support. I have written separately to the Chairman of the Police Authority

Yours sincerely

D G Duckenfield

c 1 t> A jt£ ? f f /A '4 '

■r^ f)/M

.

H o m e O f f i c ePolice Resources Unit50 Queen Anne's Gate, London SWIH 9ATSwitchboard: 0171 273 4000 Fax: 3742 Direct Line: 0171 273 2996

W J Wilkinson Esq.Clerk to the South Yorkshire Police Authority PO Box 37

Our reference:

Your reference:

Date: 30 March 2000

Regent Street BARNSLEY S70 2PQ


3 APR 2000

Chief Constable

SPECIAL PAYMENT FOR HILLSBOROUGH ADDITIONAL COSTS

The Police Authority and the Chief Constable met Mr Clarke on 2 November 1999 to discuss how the additional costs of the Hillsborough disaster were beginning to affect the ability of the South Yorkshire Police to maintain policing at a level they would like. Mr Clarke undertook to consider what could be done to assist the force.

Following this meeting and the additional information you have since provided, the Home Secretary and Mr Clarke have considered very carefully the issue of the additional costs the force has already incurred and potentially may still incur in the next year or so. I am pleased to inform you that the Home Secretary has approved a special payment of grant of £1 million. This is being made to the South Yorkshire Police Authority in respect of the extra expenditure that is being incurred for compensation payments to victims of the disaster.

This payment will be made by the Home Office under the general provisions of the Appropriation Act on 31 March and should be in the bank account of the South Yorkshire Police Authority on Monday 3 April. In the course o f2000 you wiii be asked to complete a special grant claim form to show that the payment has been used for the purpose for which it has been made.

This payment does not commit the Home Secretary to further special payments. However, over the next few months we will be asking Her Majesty's Inspectorate of Constabulary to assess the impact on the force of the need to set aside part of its budget to accommodate the potential for further compensation payments of around £6 million, as and when they may arise.

On the specific issue of the Home Office providing financial assistance to the Authority in support of the two former officers' defence costs I should like to remind you of the Minister's previous decision on this. He is not prepared to provide any support for these costs. It was the Authority's decision to meet the officers' legal costs, and while we fully understand your reasons for reaching such a decision it is the Department's position that having made the decision it should be for the Authority to find the money.

Mr Clarke was pleased that his discussions with Ms Primarolo (HM Paymaster General) obtained a change of heart by the Inland Revenue in respect of their pre-transaction ruling about the payment of tax on the two officers' defence costs.

A copy of this letter has been sent to the Chief Constable.


POLICES o u th Y o rk sh i re

M il Hedges QPM LLB Chief Constable

3 April 2000

Mr D Burge Home Office Police Resources Unit 50 Queen Anne’s Gate London SWIH 9AT

SPECIAL PAYMENT FOR HILLSBOROUGH ADDITIONAL COSTS

I am in receipt o f a copy o f your letter dated 30 March addressed to the Clerk to the South Yorkshire Police Authority.

I just wanted to put on record my personal thanks for the support the Home Secretary and Mr Clarke have given to this Force in this particular case. The money will be of significant value in meeting the claims of the victims o f the Hillsborough disaster.

Michael Hedges

Police Headquarters

Snig Hill

Sheffield S3 8LY

Tel: 0114 220 2020 Fax: 0114 252 3243

Direct Dial no. 0114 2523400 Fax: 0114 2523481 E-mail: [email protected]

)-v i - hillsborough independent...

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