Funding of legal assistance for police officers

Report: 15
Date: 25 March 2004
By: Deputy Clerk and Solicitor

Summary

The Co-ordination and Policing Committee (COP) on 15 March decided that the legal costs incurred by 8 police officers in connection with a judicial review of the findings of the Inquest into the death of Roger Sylvester should be paid from the police authority fund. The Minutes of that meeting are submitted to the Authority today (see Minute 84).

A number of Members have intimated that they will propose that the Authority should call in and reconsider the decision made by COP.

This paper gives information and legal advice, to assist the Authority in making a determination whether or not to call in the COP Committee decision, and in relation to the substantive issue for decision.

By letter dated 17 March and received today (24 March), Solicitors for the family of Roger Sylvester deceased have asked, amongst other things, whether the Authority is able and willing to meet the legal costs of the family as an interested party in the judicial review. It will be necessary to prepare a separate report on that

A. Recommendation

1. That the Authority determine whether the decision made by the COP Committee on 15 March should be called in by the Authority pursuant to Standing Order 3.1.2.
2. That in the event that the decision is called in, the Authority proceeds to consider the Minute of Coordination and Policing Committee as a recommendation for decision by the Authority and itself to determine whether or not to approve the request for the funding of legal costs to be met by the Authority.
3. That the Clerk should present a further report on the request for funding received from the family.

B. Supporting information

(1) Procedural issues

1. At the Co-ordination and Policing Committee on 15 March, the Chair agreed to accept, as urgent, a report by the Commissioner in connection with a judicial review claim lodged by Reynolds Dawson solicitors on the instructions of the Federation and eight of its members which challenged the decision of the inquest into the death of Roger Sylvester. The Commissioner's report advised that the eight officers were all Claimants in the judicial review claim. (The defendant is H M Coroner. The interested parties are Mr and Mrs Sylvester, the commissioner, and the local Mental Health NHS Trust.) The Committee was asked to consider whether to fund the officers' legal costs. The Clerk informed the Committee of the relevant Home Office Guidance and it was noted that there was a presumption in favour of granting funding. Following discussion, the matter was put to the vote and it was decided (by a majority of five votes to one, with two abstentions) that the legal costs incurred by the officers in the judicial review proceedings should be paid from the police authority fund.

2. The matter of funding of legal assistance to officers is not expressly delegated to any Committee. This matter was referred to and decided by the COP Committee pursuant to the general power given to that committee to make decisions “where an issue is not included in the terms of reference of any other committee and does not require a decision by the full Authority”. Standing Orders state that the Authority reserves to itself “major policy and financial decisions and any other decisions which cannot be delegated”.

3. Standing Order 3.1.2 provides that “the Authority shall retain the ability to call in any committee decision irrespective of the extent and terms of delegation of functions to committees”. It is for the Authority to determine, after debate if required, whether to call in the decision. The Authority has complete discretion whether or not to call in the decision. If it does so determine, the subject of the decision must then be considered and decided afresh by the Authority. In effect, the decision of the Committee has the status of a recommendation to the Authority, which may be approved, rejected or amended. The Authority may request further information if it feels that is necessary to enable it to reach a proper and considered decision. If the Authority does not call in the decision, then the decision made by COP Committee will stand as an effective decision on behalf of the Authority.

4. If the decision of the COP Committee is called in, the Authority must consider the issues and reach its own decision.

(2) The Substantive decision on funding for officers

5. Members will be familiar with the circumstances surrounding the death of Roger Sylvester and the inquest.

6. The Authority agreed in 2002 to provide funding for legal assistance to the eight officers for their representation at the inquest.

7. The request for funding of the officers’ legal representation in the judicial review of the inquest was made by their Solicitors in letters dated 9 October 2003 and 4 March 2004. On behalf of the Officers they stated in October 2003 that “a gesture of support from the MPA would be greatly appreciated in view of the totally unexpected developments at the inquest, and thereafter. Given that it was considered appropriate to fund the officers representation at the Inquest, it is a natural and logical extension of applying appropriate consideration to that issue to now grant authority for funding in relation to overturning” the inquest verdict. Consideration of that request was not taken forward until the Administrative court gave permission for judicial review, at which stage the Solicitors wrote, on 4 March 2004, requesting that the Authority consider the request for funding as quickly as possible.

8. The Commissioner has indicated his support for the request for funding. His reasoned recommendation is set out in the appendix to this report.

9. The Authority has the power to provide financial assistance to officers in connection with legal proceedings. It was settled by the cases following the Hillsborough disaster that a police authority has power by virtue of Section 6(1) of the Police Act 1996 and Section 111(1) of the Local Government Act 1972 to fund officers in judicial review proceedings. The exercise of the power involves the exercise of a discretion by the Authority. The Authority must exercise its discretion reasonably, in public law terms, and the Authority’s decision may itself be the subject of legal challenge by way of judicial review.

10. Section 6(1) of the 1996 Act provides that a police authority shall secure the maintenance of an efficient and effective police force for its area. Section 111(1) of the 1972 Act provides that a local authority (and the MPA is a local authority for this purpose) “shall have power to do anything (whether or not involving expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of their functions.”

11. In March 1999, a Divisional Court Judgment in one of the Hillsborough Cases confirmed that the police authority’s functions allow the use of s111(1) to fund officers “in the defence of private prosecutions and in judicial review proceedings”. In the light of that judgment, the Home Office revised and amended previous Guidance to Police Authorities on financial assistance to officers in legal proceedings. The current Guidance is set out in Circular 43/2001. The Circular is attached. Members will note that the Circular states that

“police officers must be confident that Police Authorities will provide financial support for officers in legal proceedings where they have acted in good faith and have exercised their judgement reasonably. Police Authorities will need to decide each case on its own merits, but subject to that there should be a strong presumption in favour of payment where these criteria are met.”

12. The “strong presumption” is a matter of policy rather than law. As a matter of law, the Authority has a discretion to fund or not to fund, according to its assessment of the merits of the request and its judgment whether funding will facilitate, or be conducive or incidental to, the discharge of the functions of securing an effective and efficient police service for the area.

13. In the main, the Home Office Guidance contemplates cases in which police officers are defending themselves in proceedings rather than initiating them. However, the Hillsborough case referred to above, the request for funding related to costs associated with a judicial review initiated by officers against the DPP, and the Court held that it was within the powers of the Police Authority to fund such costs. In the present case the costs are associated with the review of an inquest verdict which is adverse the officers. The Authority funded their representation at the inquest and it would appear to me to be reasonable as a matter of law to extend funding to allow them to challenge the outcome of the inquest. So, in my opinion it is within the powers of the authority to fund the officers’ costs in the present circumstances but it remains a matter for the Authority to exercise its discretion whether to provide funds.

14. It is conceivable that if funding is not approved, the officers might seek to challenge the decision on the ground, amongst any others, that the Home Office Circular, the long standing practice of MPS in respect of financial assistance, and the fact that the Authority provided funding for the inquest itself give rise to a legitimate expectation on their part of continued funding. In this case, there is nothing to suggest that there was any express or implied assurance of continued funding, and moreover the request for funding is in terms which appear to appreciate that funding is not automatic. In my view it would be difficult for the officers to succeed with a contention that the Authority was bound to extend funding for the judicial review proceedings.

15. Before deciding to fund the officers legal assistance, the Authority has to be satisfied in all the circumstances that funding the officers in the judicial review proceedings will facilitate, or be conducive or incidental to, the discharge of its functions of securing an effective and efficient police service for the area, and that such funding is appropriate and reasonable.

16. In considering this matter, as with all of its functions, the Authority is required under the Greater London Authority Act 1999 and the Race Relations (Amendment) Act 2000 to have due regard to the need to promote equality of opportunity, to eliminate unlawful discrimination and to promote equality of opportunity and good relations between persons of different racial groups. In this case, Members should assess and weigh carefully how each potential course of action – funding officers or not funding them – may serve the need to promote equality of opportunity and good race relations.

Funding the family in the J R proceeding

17. Solicitors acting for the family have asked, in a letter dated 17 March and received on 24 March, if the Authority is able and willing to meet the costs of the family as interested parties in the proceedings. They suggest that in exercising its functions, the Authority should be seen to be even handed in the expenditure of public funds. They say that there is a disparity of resources available to their clients compared with the officers and all other parties in the case, especially as they fall outside the eligibility limits for public funding.

18. A letter dated 24th March from the Roger Sylvester Justice Campaign – attached – sets out the objections on the part of the family and community to the decision taken by COP Committee, and also invites the Authority to level the playing field. I also attach a letter from INQUEST, also received today.

19. The request for funding for the family in circumstances such as this is unprecedented, in my experience. There is a question whether the Authority’s powers under Sections 6 and 111 extend to the funding of third parties in proceedings of this nature. The policy and legal considerations are complex. If the Authority wishes to consider this request fully then I would want to take advice from Counsel. There is no time to do that before your meeting and so I would propose to report to a further meeting, as soon as advice can be obtained.

C. Equality and diversity implications

The case involves real and intense community sensitivities and concerns. The death of Roger Sylvester, who was black, and the inquest, undoubtedly, caused distress to his family and friends. The Authority should be particularly mindful of its positive duties under the Race Relations (Amendment) Act – see para 16 above.

D. Financial implications

The cost of the legal assistance to officers is estimated at £30,000. If the request for funding the family was entertained, their costs are likely to be at least equivalent to those of the officers, but it is not possible to give any more precise estimate at this stage.

E. Background papers

• None other than those referred to.

F. Contact details

Report author: David Riddle, MPA.

For more information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

Appendix 1

Funding of officers in judicial review of inquest

Recommendation of the Commissioner

1. The detailed facts of the death of Mr Roger Sylvester are well known to the Chairman and members of the MPA. Suffice to say that this is a matter which arises out of the detention of Roger Sylvester on the 11 January 1999 under Section 136 of the Mental Health Act. Given that it was a freezing January night and that Mr Sylvester was naked, it appeared reasonable that the officers deemed him in need of immediate psychiatric help. In accordance with protocols that were in place on the Borough of Haringey at that time, he was taken to the nearest hospital that had a psychiatric facility. At the hospital whilst awaiting medical assessment of his needs, and whilst being restrained by police, Mr Sylvester became very ill. Despite attempts at resuscitation, that were of such a standard that no medical intervention was required despite the presence of a doctor, Mr Sylvester died eight days later. Pathologists have been unable to agree on the exact cause of death.

2. An Inquest took place under Coroner Dr Andrew Reid at St Pancras Coroner’s Court. All of the eight officers gave evidence and were represented by Counsel. The Metropolitan Police Authority had previously agreed to fund the officers’ preparation and their legal representation at this Inquest. At the conclusion of the Inquest, and completely unexpectedly, the Jury entered a verdict of unlawful killing. As a consequence of the handing down of this verdict the Directorate of Professional Standards immediately suspended the eight officers who had been involved in this matter.

3. The Chairman of the Metropolitan Police Federation, Mr Glen Smythe, indicated that the Federation would be pursuing a Judicial Review into this Inquest result, which was regarded as a perverse verdict. Meanwhile, the MPS appointed Mr Ian Burnett QC, a leading authority on Judicial Reviews, to examine this case and provide the Commissioner with advice. To enable Counsel to attend to this instruction, a transcript of the Inquest, especially the directions given by Dr Andrew Reid to the Jury, had to be obtained. On the 15 December 2003 the MPS Federation formally entered their application for a Judicial Review. Acting on the advice of Counsel, Management Board made the decision that it would be appropriate to join with the Police Federation as an interested party in the pursuit of this Judicial Review.

4. Summary of legal advice

The legal advice received from Mr Ian Burnett QC, was reflected in the application for a Judicial Review which was lodged with the Administrative Court on Wednesday the 7 January 2004. The grounds for the Commissioner supporting the Claimants in their application for Judicial Review are threefold:

4.1 That there was no evidence, or insufficient evidence, to justify the Coroner leaving to the Jury the option of the verdict of unlawful killing, and as a result his decision to do so was wrong in law.

4.2 The summing up by Dr Andrew Reid in this matter was both inadequate in fact and law. As a consequence, the Jury could not properly consider the ingredients of ‘unlawful and dangerous act’ or manslaughter by reference to evidence.

4.3 Significant findings of the Jury as recorded on the Inquisition are incapable of representing an unlawful and dangerous act for the purposes of a verdict of unlawful killing. In particular, it is significant that no evidence of any practical safer alternative to continued restraint was given or suggested and no evidence was given by any witness that more force was applied than was reasonably necessary.

5 The Judicial Review

The Police Federation, with the Commissioner acting as an interested party, invited the Administrative Court to accept that this is a case that merits a Judicial Review. On the 18 February 2004 the application to apply for Judicial Review was granted by the Honourable Mr Justice Mitting. When giving his permission His Honour made the following observations:

5.1 It is reasonably arguable that the jury’s reasoning was deeply flawed and its verdict irrational. The detention of the deceased and the use of physical force to restrain him while detained were both lawful: section 137(1) & (2) Mental Health Act 1983. It is arguable that the express findings in paragraph 3 do not amount to a finding of excessive, and so unlawful force, was used.

5.2 It is arguable that findings 2 and 3 reveal confusion in the jury’s reasoning. Even taken as a whole, the findings are arguably more consistent with negligence than an unlawful and dangerous act.

5.3 It is also arguable that the Coroner’s directions were inadequate.

5.4 Although I am not persuaded that it is arguable that the Coroner should not have left unlawful killing to the jury, no good purpose would be served by refusing permission on that ground, and I do not do so.

6. Reynolds Dawson Solicitors, who are acting for the officers, have made requests for a continuance of funding in the attached letters dated 9 January and 1 March 2004. For the reasons mentioned above, this request for a continuance of funding has the support of the MPS and is submitted for consideration. The estimate of cost is £30,000.

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