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Dismissing senior public servants

Redundancy iStock 000006411338XSmall 146x219Susan Belgrave sets out the lessons to be learned from a judicial review of the dismissal of a chief constable.

In today’s social media fevered atmosphere it is easy for politicians and senior decision makers to seek to head off criticism by dismissing a senior public servant or officer on the basis of perceived culpability. The judicial review of the dismissal of the Chief Constable of South Yorkshire, Mr David Crompton, is a salutary reminder of the need for due process and an evidence based approach to such high profile sackings.

The facts

The facts of the Hillsborough disaster and inquest are well known as is the culpability of Hillsborough police which was uncovered following a second inquest. That inquest led to a full apology being issued by the South Yorkshire police for failings identified. It is important to note that Mr. Crompton was not the Chief Constable at the time that the disaster occurred and took up his post in January 2012. It was widely known in early 2016 that he intended to retire in November 2016.

The results of the inquest were announced in April 2016. It was apparent that senior politicians were planning to make a statement in the House of Commons and that there would be a debate in relation to the findings of the inquest. The Police and Crime Commissioner (PCC) visited Mr Crompton to discuss the possibility of him issuing an apology and then resigning. The Chief Constable declined to offer his resignation.

The following day a strongly-worded, highly critical statement was issued on behalf of the Labour Party and Mr. Andy Burnham criticising South Yorkshire police and individual police officers who had been represented at the inquest and who it was thought had sought to undermine the apology given by the police. In particular it stated that "the current leadership should explain why it went back on its 2012 apology at the inquest prolonging the agony for the families".

That day, Mr. Crompton issued a statement repeating the apology made previously. The PCC stated that immediately after this statement criticism of South Yorkshire Police and the Chief Constable intensified because of the way his legal team had asked questions at the inquest. Mr Cromption argued, contrary to a previously agreed position, in the light of Mr. Burnham’s comments he needed to issue a second statement which he drafted and sent to the PCC that evening around 6 pm for their consideration.

The PCC was not happy that a second statement should be issued even after some changes were made. The PCC informed Mr. Crompton that it was not their job to advise him on the wording of any further statement. Mr. Crompton was insistent on issuing a statement which he duly did around 12 pm, posting it on South Yorkshire Police’s website. The statement repeated the apologies made and noted that the inquest was about establishing facts and not liability or guilt saying "We have never sought, at any stage, to defend the failures of SYP or its officers. Nevertheless, these failures had to be put in the context of other contributory factors. In other words, where do the failings of SYP stand in the overall picture? We are sorry if our approach has been perceived as at odds with our earlier apology, this was certainly not our intention."

Later that day there was criticism by Mr. Burnham and a debate in Parliament where it was said that based on comments and statements on their website it seemed that South Yorkshire Police had not learned the lessons of the tragedy. In the hours that followed the PCC asked Mr. Crampton to resign and he asked for time overnight to consider his position which was refused. He was given an hour which he considered unreasonable. He was then suspended at 14.50 pm. Over the coming weeks views were received from Her Majesty’s Chief Inspector of Constabulary and from the South Yorkshire Police and Crime Panel (PCP). Mr. Crompton’s solicitors sent a letter before action. The PCP recommended that the Police and Crime Commissioner should call on Mr. Crompton to resign or retire. Her Majesty’s Inspector of Constabulary disagreed. On 29 Sept 2016 Mr. Crompton’s resignation was formally requested and he resigned that same day.

The law

The relevant provisions are set out in the Police Reform and Social Responsibility Act 2011 which requires the Police and Crime Commissioner to hold the Chief Constable to account for the exercise of his duties. The Police and Crime Panel must make reports and recommendations to the Police and Crime Commissioner with respect to the discharge of his functions. The Police and Crime Commissioner under section 38 of the Act may suspend the Chief Constable and call for him to resign or retire. When called upon to do so, the Commissioner must comply. The Secretary of State is required by section 79 to issue a Policing Protocol which sets out the respective roles of the parties including the fact that the Police and Crime Commissioner must not fetter the Chief Constable’s operational independence and that the Chief Constable must at all time remain politically independent of the PCC. The Protocol emphasises the need for the establishment and maintenance of an effective working relationship by the parties. "It is expected that the principles of goodwill, professionalism, openness and trust will underpin the relationship between them and all parties will do their utmost to make the relationship work". The two parties are required to work together and where differences occur they should be resolved locally. Professional advice can also be offered by HMIC.

In their analysis, the High Court (Lady Justice Sharp and Mr Justice Garnham) emphasised that the Act introduces both the importance of operational independence and an important competing imperative, namely democratic oversight of the police. Mr. Justice Garnham, giving the judgment of the court in Crompton, R (on the application of) v Police and Crime Commissioner for South Yorkshire & Ors [2017] EWHC 1349 (Admin), rejected arguments advanced by the PCC that there were no restrictions on circumstances which may prompt the PCC to suspend the Chief Constable. It was argued that that decision was subject only to the procedural regime set out and the constraints of public law. The court concluded that the nature of judicial review depends on the context: "the court must be entitled to subject an administrative decision to more rigorous examination to ensure it is in no way flawed according to the gravity of the issue which the decision determines." The court emphasised that the Chief Constable had a margin of appreciation and the PCC had to recognise and respect his professional judgment. There was a difference between scrutiny of his actions and control of those actions. The Chief Constable was not an employee of the PCC and it could not be reasonable to suspend a Chief Constable for taking a decision which was itself reasonable.

The Court also concluded that it was easy to see that article 8 ECHR would be engaged in such a context. The public suspension of the Claimant from his role of Chief Constable inevitably impacted on his right to private and family life and therefore the court would be required to consider whether the actions of the PCC were proportionate.

Decision

Mr. Crompton challenged the decision to suspend in April 2016 and other decisions culminating in the request that he resign in September 2016. The first decision was out of time but as later decisions were in time and the court admitted the earlier decision as no prejudice was suffered by other parties and it had been sensible on the part of the Chief Constable to await further development or decisions by the PCC.

The court concluded that no fair minded reader could have read the Chief Constable’s statement as undermining the apologies which had been given previously and the reference to ‘other failings’ did not mean behaviour of fans who had died but rather other failings identified by the jury at the inquest. The approach by the police force at the inquest should be distinguished from the approach taken by former police officers who continued to blame football supporters for what had happened at Hillsborough. While the PCC relied on ‘public reaction to the statement’ it had moved with undue haste in suspending the Chief Constable (just under two hours having elapsed). The court concluded that the decision to suspend was perverse. The decision of the Chief Constable to issue a second statement was "comfortably within the range of reasonable responses to the jury’s verdict and the call by the Shadow Home Secretary for a further statement from the force".   The PCC had, in particular, rejected the views of Her Majesty’s Inspector of Constabulary and had not given adequate reasons for so doing; the decision to press on in the light of that advice was irrational. The decision to require the Chief Constable’s resignation was also irrational. The second statement had been described by the PCP as a ‘catastrophic error of judgment’ when there was a need for confidence in the police. The court concluded that this was based on a flawed interpretation of the second statement. The court noted that in any event, the Chief Constable was due to retire in November 2016 and requiring his resignation was disproportionate. He had enjoyed a 30-year umblemished record and had issued apologies for the conduct of officers at Hillsborough. He had not been warned of the risk of suspension nor had he been advised on his statement in keeping with the need to maintain trust and a professional relationship between the Chief Constable and the PCC. The decision to require his resignation was also disproportionate as, if necessary, he could have be required to retire slightly earlier than his planned date. Retirement carried less opprobium than resignation.

Individuals tasked with taking decisions in such charged emotional situations must resist the clamour for ‘heads to roll’ without considering the need to meet procedural requirements, fairness and proportionality. Senior employees and public servants have rights which need to be balanced with those of the public requesting accountability and apportionment of blame.

Susan L Belgrave is a barrister at 7BR.

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