R v Secretary of State for the Home Department, ex parte Northumbria Police Authority
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CROOM-JOHNSON,LORD JUSTICE PURCHAS,LORD JUSTICE NOURSE |
| Judgment Date | 18 November 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J1118-10 |
| Docket Number | 87/1160 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 November 1987 |
[1987] EWCA Civ J1118-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Croom-Johnson
and
Lord Justice Nourse
87/1160
MR. ROBERT CARNWATH, Q.C., MR. CHRISTOPHER KATKOWSKI and MR. DAVID ELVIN (instructed by the Treasury Solicitor) appeared on behalf of the Respondent/Respondent.
MR. DAVID KEENE, Q.C. and MR. DAVID PANNICK (instructed by Messrs Sharpe Pritchard & Co., London Agents for P. Parkes, Esq., Gateshead) appeared on behalf of the Appellant/Appellant.
The Northumbria Police Authority appeal from the decision of the Queen's Bench Divisional Court refusing its application for judicial review. The occasion of the application was a circular letter no. 40/1986 sent by the Home Secretary on 19th May 1986 to the Chief Officer of Police of Northumbria and to the Police Authority headed "Plastic Baton Rounds/CS: Central Facilities".
HOME OFFICE CIRCULAR NO. 40/1986
PLASTIC BATON ROUNDS/CS: CENTRAL FACILITIES
In July 1981 the Home Secretary announced that plastic baton rounds and CS would be made available to chief officers of police for use in the last resort, and under strict conditions, in situations of serious public disorder. It is now proposed that all police requirements for this equipment should be met from a central store. These arrangements will also extend to the provision of equipment in cases where a chief officer has been unable to obtain his police authority's agreement to purchase, and the chief officer's assessment of need is endorsed by HM Inspector of Constabulary.
2. The store will contain stocks of plastic baton rounds, plastic baton round dischargers, CS canisters and CS launchers. The stock holdings will be replenished as they are used.
OBTAINING EQUIPMENT FROM THE CENTRAL STORE
3. The equipment held in the central store will be the property of the Home Office. Forces wishing to acquire equipment from the store will be able to purchase it, with the financial approval of their police authorities in the usual way. In these cases, on purchase the equipment will become the property of the police authority (or, in the case of the Metropolitan Police, the Receiver). Forces wishing to purchase equipment in this way, and having the necessary approval, should contact the Home Office Police Department, F8 Division, 50 Queen Anne's Gate, London SW1H 9AT (Tel 01–213 4517).
4. Where a chief officer decides that he needs plastic baton round or CS equipment and anticipates that he will have difficulty in obtaining the approval of his police authority, he should consult HM Inspector of Constabulary. The chief officer should report the views of the HMI to the police authority. If the HMI endorses the chief officer's assessment of need but nonetheless the police authority withholds approval for such equipment, the HMI will make arrangements with the Home Office for equipment to be supplied from the central store. The chief officer should inform the police authority that this is being done. The HMI will also make arrangements, through the Home Office, for further supplies to be provided, as required. The police authority should also be notified by the Chief Officer whenever this is done. Where baton rounds are supplied to a police force under the arrangements set out in this paragraph, the stock of baton rounds held by the force at any one time will normally be limited to 1,000 rounds. This will include rounds used for training purposes.
5. Equipment supplied to forces in the circumstances set out in the preceding paragraph will remain the property of the Home Office.
EMERGENCY SUPPLIES
6. Any police force requiring equipment for a particular operational emergency (and having officers trained in its use) should contact the Home Office direct. If the request is agreed appropriate stocks of equipment will be made available immediately from the central store.
TRAINING
7. Baton rounds and CS may only be used by officers who have been trained in the equipment and who know its characteristics. All police forces which hold this equipment, or which are intending to acquire it, should ensure they have sufficient numbers of officers trained in its use. To assist in this, central training facilities (for trained firearms instructors) will be made available to all police forces by the Metropolitan Police, at economic cost. Police forces which need to train officers in the use of the equipment (and whose police authorities are prepared to bear the cost) should contact the Deputy Assistant Commissioner (Training) Aerodrome Road, London NW9 5JE.
8. A police authority which refuses to approve the purchase of baton rounds and CS may also be unwilling to pay the Costs of training officers in their use. In such cases the Home Office will be prepared to meet the costs of training firearms instructors in the use of the equipment, provided that HM Inspectorate of Constabulary has endorsed the need for this to be done.
9. The arrangements set out in this circular have been agreed with the Association of Chief Police Officers of England and Wales. The circular does not alter in any way the guidelines for the police on the use of baton rounds and CS.
ENQUIRIES
10. Any enquiries about this circular should be addressed to Mr. PRC Storr, F8 Division, Home Office (Tel No 01 213 3633).
Yours faithfully,
D J BELFALL
In an affidavit sworn by Mr. Elton, the Clerk to the Police Authority, it is stated:
"Following incidents of serious public disorder in 1981, the Home Office took steps to make available to police authorities plastic baton rounds (popularly known as 'plastic bullets') and CS Gas for use in dealing with such riots. I am advised and I believe that plastic baton rounds have never been used by police forces in Great Britain. The Northumbria Police, like some other police forces, have used CS Gas to disarm and detain dangerous criminals, notably during sieges carried out by such criminals. However, the Authority is very concerned that such weapons should not be used to quell public demonstrations or riots because of the likelihood of serious personal injury or death thereby resulting to individuals."
The Home Secretary declined to withdraw his circular and the Authority sought judicial review. In its application the relief sought was—
-
1. A declaration that Home Office Circular No. 40/1986 (or material parts of that Circular) is ultra vires the powers of the Secretary of State for Home Affairs.
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2. Certiorari to quash the decision to issue and apply the said Circular (or material parts of the said Circular).
At the hearing before the Divisional Court the Authority amended the relief sought to -
"A declaration that the Secretary of State for Home Affairs has no legal power to issue plastic baton rounds or CS Gas to a Chief Constable without the consent of the local police authority, save in a situation of grave emergency."
The other forms of relief were not pursued. At the close of the hearing in this court, the police authority again asked, and was granted, leave to reamend the relief sought. The only relief now asked for is -
"A declaration that paragraph 4 of the Home Office Circular No. 40/1986 is ultra vires the powers of the Secretary of State for the Home Department."
The legal background is the Police Act 1964, which replaced a large number of Acts of Parliament which until then had governed the police forces in England and Wales. Section 1 provides that a police force shall be maintained in each police area in these countries. The Northumbria police area in its present form was delimited by Local Government Act 1985 section 25 and Schedule 11.
Section 2 established a police authority for each police area, and also its composition. Section 4 deals with the general functions of police authorities. Section 4(1) reads:
"It shall be the duty of the police authority for every police area for which a police force is required to be maintained by section 1 of this Act to secure the maintenance of an adequate and efficient police force for the area, and to exercise for that purpose the powers conferred on a police authority by this Act."
Section 4(2) places on the police authority the duty of appointing the chief constable, subject to the approval of the Secretary of State. Section 4(3) reads:
"The police authority for any such police area may, subject to the consent of the Secretary of State, provide and maintain such buildings, structures and premises….. as may be required…..".
Section 4(4) reads:
"The police authority for any such police area may, subject to any regulations under Part 11 of this Act, provide and maintain such vehicles, apparatus, clothing and other equipment as may be required for police purposes of the area."
It will be noticed that section 4(1) imposes a duty, while section 4(3) and (4) gives powers which may or may not be used.
Section 5 lays down the duties of the Chief Constable. The only part relevant for present purposes is subsection 5(1) which provides:
"The police force maintained for a police area under section 1 of this Act shall be under the direction and control of the Chief Constable appointed under section 4(2) of this Act."
It is common ground that the Chief Constable has complete operational control of his force. Neither the police authority nor the Home Secretary may give him any directions about that. The relationship between police forces and their appropriate local...
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