R v DPP, ex parte Duckenfield and Another ; R v South Yorkshire Police Authority and Another, ex parte Chief Constable of South Yorkshire and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,MR JUSTICE CRESSWELL,MR JUSTICE LATHAM |
| Judgment Date | 31 March 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0331-10 |
| Docket Number | Case Nos: CO/ 856/99, CO/0934,99, CO/1070/99, CO/1071/99, CO/0582/99 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 March 1999 |
[1999] EWCA Civ J0331-10
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(DIVISIONAL COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Mr Justice Cresswell
and
Mr Justice Latham
Case Nos: CO/ 856/99, CO/0934,99, CO/1070/99, CO/1071/99, CO/0582/99
and
Ex Parte
Mr Michael Harrison QC and Mr Simon Myerson (for Duckenfield & Murray) (instructed by Winkworth Sherwood for Duckenfield and Walker Morris for Murray)
Mr Alun Jones QC and Mr James Lewis (for the Hillsborough Family Support Group)
Ms Presiley Baxendale QC and Mark Shaw (for the South Yorkshire Police) (instructed by Garretts for the Respondents)
Mr P Havers QC (for the Director of Public Prosecutions) (instructed by the Treasury Solicitors)
Nigel Baker QC and Ms Louise Varty (for the Chief Constable)
These are linked applications for judicial review which require the court to revisit the terrible disaster which took place at the Hillsborough Football Ground at Sheffield on 15 April 1989. In what I will call the first case the applicants Mr Duckenfield and Mr Murray (to whom I will refer as "D" and "M"), who are retired police officers, seek leave to move for judicial review of the decision of the Director of Public Prosecutions ("the DPP") to refuse to take over and discontinue private prosecutions which have been instituted against them by Ann Adlington ("AA") on behalf of the Hillsborough Family Support Group ("the HFSG"). The decision was communicated by letter of 18 December 1998. On 15 March 1999 Latham J adjourned the leave application to 22 March 1999 and directed that the parties should then be ready to proceed with the substantive application if leave were granted. On 22 March this court granted leave and proceeded at once to hear the inter partes application. In the second case the Chief Constable of South Yorkshire ("the CCSY") seeks to challenge a decision of the South Yorkshire Police Authority ("the SYPA") made on 5 February 1999 to the effect that it lacked the legal power to fund the defences of D and M to the private prosecutions brought by AA, or to fund their prospective judicial review applications against the DPP. On 12 February 1999 Latham J granted leave to the CCSY, joined AA as second respondent, abridged time and ordered expedition. On 24 March 1999 this court (having reserved judgment in the first case the previous day) granted leave to D and M to challenge the same decision and, again, proceeded at once to hear the inter partes application. We now deliver our judgments in both cases.
I will first set out the facts material to the first case, which also form the necessary background to the second. I will later describe the further facts which are specifically relevant to the second case.
The football match at Hillsborough on Saturday 15 April 1989 was the FA Cup semi-final between Liverpool Football Club and Nottingham Forest Football Club. In the events which happened 96 people lost their lives. The Divisional Commander in charge of police operations at the match was D, then holding the rank of Chief Superintendent in the South Yorkshire Police Force. The second applicant, then Superintendent Murray, held the position of Sub-Divisional Commander and was also on duty at the match.
On 17 April 1989 Taylor LJ, as he then was, was appointed by the government to conduct a public inquiry into the disaster. He heard the oral testimony of 174 witnesses between 15 May and 29 June 1989, and presented an interim report on 4 August 1989. He found that the immediate cause of the gross overcrowding which had taken place, and thus of the disaster, had been the failure to cut off access to the central pens behind the goal (which were already overfull) when Gate C was opened. He found also a number of contributing factors including the condition of the ground, police planning, police operations on the day, and the interaction of parties responsible for safety issues. Lord Taylor's final report was delivered on 18 January 1990 and included a number of recommendations relating to crowd control and safety at sporting events.
Meanwhile, immediately after the disaster, the West Midlands Police had been appointed to conduct a review of the policing operations of the South Yorkshire Police. In March 1990 the West Midlands Police reported to the DPP. After taking the opinion of two experienced leading counsel the DPP announced on 30 August 1990 that in his view there was insufficient evidence to justify any prosecution for a criminal offence, relating to the disaster, against any member of the South Yorkshire Police Force. Then from November 1990 to March 1991 HM Coroner for South Yorkshire conducted an inquest into the deaths in the course of which 230 witnesses gave evidence. On 28 March 1991 the Coroner's jury returned verdicts of accidental death.
Disciplinary proceedings for neglect of duty were instituted against D and M by the Police Complaints Authority ("the PCA"). But D retired from the Force on 10 November 1991 on medical grounds, and so the proceedings against him fell away. On 13 January 1992 the PCA decided not to proceed with the case against M. On 27 August 1992 he too retired on medical grounds. Then on 5 November 1993 the Divisional Court dismissed an application for judicial review brought by family members of those who had died, refusing orders of certiorari to quash the inquest verdict and to require a fresh inquest to be convened.
On 5 December 1996 a documentary programme called "Hillsborough" was broadcast on ITV. The programme suggested that fresh evidence about the disaster had come to light. The allegations made in the broadcast were investigated by the Crown Prosecution Service between March and May 1997. At length on 30 June 1997 the Home Secretary announced in Parliament that an independent scrutiny would be undertaken by Stuart-Smith LJ in order to ascertain inter alia whether there was evidence relating to the disaster which had not been available to Lord Taylor, or to the DPP or the Attorney General for the purposes of their discharge of their statutory responsibilities. Stuart-Smith LJ's report was presented to the House of Commons on 18 February 1998. Chapter 1 paras 55–57 state:
"55. From my meetings with the bereaved families and their representatives, I am left in no doubt that there was widespread disappointment at the DPP's decision not to prosecute. They find it difficult to understand in the light of Lord Taylor's trenchant criticisms of the South Yorkshire police and the fact that the force had been paying compensation.
56. What the Director of Public Prosecutions had to bear in mind, however, is the significantly different and greater degree of culpability which is involved in manslaughter, or culpable misfeasance in public office, as against the degree of negligence which gives rise to liability, and compensation payments, under civil law. Any prosecution of an individual police officer would have to establish his individual responsibility. It would not be enough simply to prove the composite failure of the police operation.
57. The causes of the disaster were many and complex. So far as these two officers [sc D and M] were concerned, the prosecution would have to prove to the high standard required for a criminal conviction that the failure to give the order to close off the tunnel when Gate C was opened amounted to the serious degree of recklessness necessary to constitute manslaughter."
Para 5 of Chapter 7 ("Summary") stated:
"… I have come to the clear conclusion that there is no basis upon which there should be a further judicial inquiry or a re-opening of Lord Taylor's inquiry… I do not consider that there is any material which should be placed before the Director of Public Prosecutions or the Police Complaints Authority which might cause them to re-consider the decisions they have already taken."
On the same day, 18 February 1998, the Home Secretary announced in the House that he, the Attorney General and the DPP had very carefully considered Stuart-Smith LJ's report, and said: "We have no reason to doubt his conclusions".
The HFSG was clearly not satisfied with this result. There was first an abortive attempt on 26 June 1998 by AA to institute criminal proceedings against D and M in the South Sefton Petty Sessional Division. That was given its quietus on technical or jurisdictional grounds into which it is unnecessary to go. Then on 13 July 1998 Miss Adlington laid informations against them before the Leeds Petty Sessional Division, and summonses were accordingly issued by the Stipendiary Magistrate. The charges accuse D and M of the manslaughter of two of those who died at Hillsborough, John anderson and James Aspinall. They also allege against both an offence of "wilful neglect to perform a public duty"; and in the case of D, a further offence of attempting to pervert the course of justice, said to consist in his having lied about the circumstances in which Gate C at the football ground became open.
Both D and M made representations to the DPP that he should exercise his power under s.6(2) of the Prosecution of Offences Act 1985 ("the POA") to take over the conduct of the proceedings initiated against them, and then discontinue the proceedings under s.23(3). In order to appreciate the contrary positions being taken and the issues in the case, it is convenient to set out the relevant...
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