Secretary of State for the Home Department, R (on the application of) v Humberside Police Authority & Anor [2004] EWHC 1642 (Admin)

Case No CO/3140/2004[2004] EWHC 1642 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 2 July 2004
Strand
London WC2A 2LL
B E F O R E:
MR JUSTICE STANLEY BURNTON
Between
THE QUEEN ON THE APPLICATION OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENTClaimant-v-
Between
HUMBERSIDE POLICE AUTHORITYDefendantDAVID WESTWOOD
Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR JONATHAN CROW AND MISS N LIEVEN (instructed by Treasury Solicitor, London, SW1H 9JS) appeared for CLAIMANTMS ELIZABETH APPLEBY QC (instructed by Messrs Sharpe Pritchard) appeared for DEFENDANTMR RABINDER SINGH QC AND MR P WALLINGTON (instructed by Messrs Kingsley Napley, London, EC14 4A1) appeared for Interested Party.
J U D G M E N T
[1]MR JUSTICE STANLEY BURNTON: The question in this case is whether the Secretary of State for the Home Department has established that he has exercised the power conferred on him by section 42(1A)of the Police Act 1996, as amended, by requiring the Humberside Police Authority to suspend the Chief Constable of Humberside. The Home Secretary purported to do so by letter dated 22 June 2004 giving instruction, in terms, of the statutory power. He said in that letter:
"In the meantime [having referred to other matters] I have decided that the findings and conclusions in Sir Michael [Bichard]'s report are so damaging to the Chief Constable that I must take immediate steps to maintain public confidence in the force. I therefore require the Humberside Police Authority to suspend the Chief Constable under section 42(1A) of the Police Act with immediate effect."
[2]The action taken by the Home Secretary does not involve the termination of the appointment of the Chief Constable. It is, as is accepted, an interim step which may only be taken in circumstances where the Home Secretary is considering the exercise of a power to require the Police Authority to itself require the Chief Constable to retire or to resign. Before any such action can be taken, there must be an inquiry and other steps taken as specified in the legislation and the Protocol to which I have referred.[3]The occasion for the exercise by the Secretary of State, or the purported exercise, of the powers under section 42(1A) was the publication of the Bichard report which, as is well-known, followed the tragic events of the murders of Jessica Chapman and Holly Wells. It followed the conviction of Ian Huntley for their murder in December 2003.[4]As has been referred to, the report contains strong criticism of the Humberside Police and of its senior management. It is not suggested that, provided the appropriate considerations are taken into account by the Home Secretary and/or others, the criticisms made in the Bichard Inquiry Report were not sufficient to give reasonable grounds for the Secretary of State to exercise the power conferred by section 42(1A), notwithstanding that a requirement that a Chief Constable be suspended is one which will generally be exercised only in exceptional circumstances. The criticisms in the Bichard Inquiry Report were extremely strong.[5]The question that has been raised is, whether in deciding to require the suspension of the Chief Constable of Humberside, the Secretary of State correctly took into account the confidence of the public at large in the Humberside Police Force or whether, on the true construction of the Act, he was required to confine his attention to the public within the area of the Humberside Police Authority. It is accepted by the Secretary of State that when he exercised his power under section 42(1A), if he did so validly, he had in mind the confidence of the public at large in the force in question.[6]The Police Authority and the Chief Constable objected to the validity of this exercise of the power on the basis that, in seeking to exercise his power, he applied an incorrect test. They submit that section 42(1A) requires the Secretary of State to have regard for the maintenance of public confidence in the area in question in the force in question. It is accepted that, subject to one point to which I shall refer, if that is an incorrect construction of the statutory power, the Secretary of State did validly exercise the power conferred by section 42(1A) and the Police Authority is under an unqualified duty, and has been since it received the requirement of the Home Secretary, to suspend the Chief Constable.[7]The first point I should address has not been pressed on the part of the Chief Constable. It is that there is a disjunction between public opinion and public confidence, and that to take into account public opinion is not the same as deciding whether it is necessary for the maintenance of public confidence for a step to be taken. In my judgment Mr Rabinder Singh was entirely correct not to press that point. There is no such distinction between public opinion and public confidence as would enable the court to say that, if the effect of the findings of the Bichard Inquiry on public opinion was taken into account by the Home Secretary, the exercise of his power under section 42(1A) was in any way invalidated.[8]The central point is whether the public confidence referred to in section 42(1A) is that within Humberside alone or is that of the public at large. On that point I am quite clear that section 42(1A) requires the Home Secretary to consider the maintenance of public confidence in the force in question in the sense of the confidence of the public at large. It is not restricted to an examination of public confidence within the area in question.[9]I say that for a number of reasons. First, the submission of the Police Authority and the Chief Constable require there to be read into the Act the words "in the area in question" immediately after "public confidence". Those words do not appear. Secondly, there would be practical difficulties in considering what was necessary for the maintenance of public confidence in a particular area as opposed to the maintenance of public confidence in the sense of the public at large. Thirdly, the power that is exercised by the Home Secretary is a default power exercised by national authority. One would expect that national authority would have regard to national considerations rather than local considerations. That is relevant in a number of respects.[10]As one knows from the tragic events of this case, the effectiveness of one Police Authority has effects outside the area of that Police Authority. It is important that the public generally have confidence in each police force in this country. That is the consideration which Parliament had in mind in enacting section 42(1A) and that is born out by the words of the section.[11]It would be somewhat surprising if the real question for the Home Secretary were whether there were local public confidence in the force in question given that Parliament has conferred a power on Central Government, or a Minister of Central Government, rather than only the Police Authority in question which, of course, is local. It is difficult to see why there is an overriding power conferred in the Home Secretary if Parliament envisaged that it would he exercised only when there was a danger to public confidence in the area in question, in the force in question. In those circumstances, the Police Authority, which is a local authority and part of a large local electorate, would be expected itself to exercise the power.[12]The power of a Home Secretary, in a sense, is a default power. It is exercised on a national basis having regard to the need for the maintenance of public confidence at large in all the police forces in this country. The wording of the statute confers a large element of discretion on the part of the Secretary of State. The question is whether he considers it is necessary for the maintenance of public confidence in the force in question that the Chief Constable be suspended. As I have indicated, it cannot be suggested that the Bichard Inquiry Report, which was before the Home Secretary, could not justify his coming to that conclusion.[13]In my judgment, it is clear that the Secretary of State validly exercised his power under section 42(1A). It follows that the Police Authority has been in default of its statutory duty in either refusing to suspend the police constable or deferring any action on the instruction of the Home Secretary.[14]In conclusion, I do say that in a case such as this, it is not for the court to reach any conclusion as to whether or not it is right or wrong for the Home Secretary to exercise the power he did, or whether the particular criticisms in the Bichard Inquiry Report which have been referred to are right or wrong. The only question is whether the Home Secretary validly came to the conclusion he did, which is that he considered it necessary for the maintenance of public confidence in the force in question for the Chief Constable to be suspended, by applying the test stipulated by Parliament. In my judgment he did so. He therefore exercised the statutory power validly in the terms which Parliament conferred on him.[15]I am clear that he was right in his interpretation of the statutory power, and that there is no arguable issue as to the validity of his exercise of that power.[16]MR CROW: Could I hand up to your Lordship a proposed order and take your Lordship briefly through that. Just to pick up one point, I do not know if you remember, Mr Westwood and his acknowledgement of service -- I do not ask you to go into it, it merely explains one part of the draft order. In paragraph 7 of his acknowledgement of service, Mr Westwood said "In the alternative the declaration claimed is too wide in its terms since it makes no provision as to the duration of or lifting of the suspension". Paragraph 22 of the Protocol states that, "Suspension will be reviewed on a monthly (inferentially by the Police Authority as the body suspending) to ensure its continuation is still appropriate)". We want to be clear about this. The instruction for the suspension comes from the Home Secretary.[17]MR JUSTICE STANLEY BURNTON: That makes no sense at all because it would mean that the Police Authority can decide not to lift the suspension and the Home Secretary could, if he remained of the view that it was necessary in order to maintain public confidence, give another direction immediately.[18]MR CROW: An even less edifying ping pong match. What we have done in the draft order in order to avoid anything approaching that, is to recite before the substantive parts of the order that the Home Secretary, through me, states that he, Home Secretary, will conduct monthly reviews contemplated by paragraph 22 of the Protocol to ensure the continued suspension of the interested party is still appropriate. On that basis we ask for two declarations. First, that the defendant is, and has since instructions issued on 22 June 2004 been, under a legal duty pursuant to section 11(3)(a) to suspend the interested party from his position as Chief Constable as soon as reasonably practicable, after receipt of the requirement issued pursuant section 42(1A). That, I hope, reflects the effect of your Lordship's judgment. Paragraph 2 is designed in order to avoid any further----

MR JUSTICE STANLEY BURNTON: Is paragraph 2 necessary?

[20]MR CROW: In order to avoid exactly the situation that your Lordship just contemplated that, having suspended, what we do not want is for the Police Authority to lift the suspension. They do seem to be obdurate in this, and they revert in their most recent letter to the Home Secretary's requests. They do not appear, after taking advice, to acknowledge that they are bound. So for the avoidance of doubt, we do ask your Lordship to declare that they remain bound by legal duty and that, is in a sense, the point of putting in the recital that it is for the Home Secretary to do the reconsideration and, as a result, the Police Authority itself is not in a position unilaterally to decide to lift the suspension. My Lord, paragraph 3 is just the effect of the injunction. In paragraph 4 we ask for costs which we will come back to.[21]I do urge on your Lordship the need for paragraph 2 because there has simply been a very open defiance from the Police Authority. It appears that, at least in Mr Westwood's hopes from paragraph 7 of his acknowledgement of service, that the Police Authority would be doing the reviewing with a view to take their own decision whether to lift the suspension. That clearly would run entirely counter to the way the statutory regime is intended. If there is a risk of that rather than having more legal proceedings at public expense, it would in our submission be preferable for the court simply to make clear that, given that the suspension was instigated by the Secretary of State, the suspension can only be withdrawn either by the Secretary of State or by the actual resignation in due course of the Mr Westwood.[22]MR JUSTICE STANLEY BURNTON: It would not be a suspension in those circumstances would it, if he were to resign or to retire?[23]MR CROW: No, indeed.[24]MR JUSTICE STANLEY BURNTON: You are concerned about the language of (2) is reinstatement. You are not concerned with reinstatement, he remains Chief Constable but he is suspended. Is that not the position?[25]MR CROW: Sorry. The concern in paragraph (2) is the word "reinstate". It was the lifting of the suspension we were trying to get at. If that is not clear, I apologise. I do not know if my learned friends have any objections to any part of that?[26]MISS APPLEBY: It is the position that the Chief Constable remains Chief Constable, save that he is suspended and there are no new appointments.[27]MR JUSTICE STANLEY BURNTON: I do not like the word "reinstate". It seems to me clear that you review the suspension. A review of the suspension is done by the Secretary of State.[28]MISS APPLEBY: If it was not, my Lord, I would be in difficulties arguing a different interpretation. My Lord, I have no knowledge that they would not do anything other than act properly but, in relation to paragraph (2), I do see the need to change the word "reinstate".[29]MR JUSTICE STANLEY BURNTON: It is bound by a said legal duty not to terminate the suspension of the interested party unless----[30]MISS APPLEBY: I do accept that, in relation to the review, we would be driving a coach and horses through the statute, if each month it was reviewed.

MR JUSTICE STANLEY BURNTON: Why wait a month?

[32]MISS APPLEBY: I do not think I will argue anything about that.[33]MR SINGH: There is nothing I would like to add.[34]MR CROW: My Lord, that is subject to changing the word "reinstate" in paragraph (2) to "terminate the suspension of", I ask my Lord for an order in those terms with costs. I do not know whether my learned friends have anything to say on costs.

MR JUSTICE STANLEY BURNTON: We have not got to costs.

[36]MISS APPLEBY: All I can say is that it was a question on the interpretation of the statute. This is a new statute. It is the first time it has been put into operation and therefore your Lordship's judgment does assist for the future. That is, I think, the only point I can say in the light of your Lordship's judgment. The only alternative is that there should be no order.[37]MR JUSTICE STANLEY BURNTON: I think you have said everything that could be said on the defendant's behalf. The defendant will pay the Home Secretary's costs. There is no order sought for the costs against Mr Westwood.[38]MISS APPLEBY: The only other point I would raise, so there is no confusion, before the suspension of the interested party, I am not hundred per cent certain of the mechanics of the authority of putting that into practice; whether in fact the resolution that was commented by my learned friend would have meant that the clerk could, in consultation with the Chair, carry out the suspension rather than there be a full meeting.[39]MR JUSTICE STANLEY BURNTON: That is what paragraph (2) of the letter of 25 June suggests. It does not happen, no doubt I shall see you again.[40]MISS APPLEBY: I do have instructions to ask for leave to appeal.[41]MR CROW: So far as leave to appeal is concerned, it is entirely a matter for your Lordship. The point is so short and so clear I would clearly resist. There is no real prospect of success and no wider reason in maintaining uncertainty over a very unhappy affair.[42]MR JUSTICE STANLEY BURNTON: I reached a clear view. I do not think this is a case for leave to appeal.[43]MR CROW: Would it assist your Lordship if we produced a revised version of this draft order with permission to appeal being refused as well?[44]MR JUSTICE STANLEY BURNTON: That is unnecessary. Thank you for the efficiency of your submissions.