Funding of legal assistance – the family of Roger Sylvester and police officers

Report: 5
Date: 07 May 2004
By: Deputy Clerk and Solicitor

Summary

The Authority at its meeting on 25 March decided to fund the legal costs of the Sylvester family and the police officers concerned in relation to the judicial review of the inquest into the death of Roger Sylvester, subject to legal advice that it was within the Authority’s powers to fund the family (with the proviso that if it was not possible to fund the family then neither would the Authority fund the officers).

Leading Counsel has advised that it is within the Authority’s power to fund the family in the special circumstances of this case. The Committee is therefore asked to authorise the Clerk to make the necessary and proper arrangements to fund the family and the officers, by way of implementation of the Authority’s earlier decision.

A. Recommendations

That the Committee authorises the Clerk to notify the family of Roger Sylvester, and the police officers concerned, that the Authority will fund their respective legal costs in connection with the judicial review proceedings, and to make all necessary arrangements to give effect to the decision of the Authority at its meeting on 25 March 2004.

B. Supporting information

1. Members will recall the background to this case, and the lengthy debate at the Authority meeting on 25 March 2004, when it was decided to fund the legal costs of the Sylvester family and the police officers concerned in relation to the judicial review of the inquest into the death of Roger Sylvester, subject to legal advice that it was within the Authority’s powers to fund the family (with the proviso that if it was not possible to fund the family then neither would the Authority fund the officers).

2. Advice has now been obtained from Mark Shaw QC on the question whether the Authority has the legal power to fund the family’s legal costs. All relevant parties were shown the draft Instructions to Counsel; they were all invited to comment on the issues; and their comments were made available to Leading Counsel for him to consider.

3. Leading Counsel has now advised that in his view, the MPA does have power to fund the costs of those other than serving or former officers. This is by virtue of Section 6 of the Police Act 1996 and Section 111 of the Local Government Act 1972 and by reference to the judgement of the High Court in a case arising out of the Hillsborough disaster (referred to as the Duckenfield case). He advises that although such a power should be exercised only in exceptional circumstances, the MPA is entitled to treat the present case as exceptional.

4. I set out the pertinent extracts from his written advice in the Appendix to this report.

5. Leading Counsel emphasises that the MPA has a discretion (power) to fund, not a duty. He advises that in considering whether the discretion should be exercised in any particular case the key question is whether such funding would be genuinely calculated to facilitate, or is conducive or incidental to, the maintenance of an efficient and effective police force in the area. In his view, it is (and was, on 25 March 2004) open to the MPA to answer that question in the affirmative as regards the Sylvester family’s legal costs. He doubts, however, that an affirmative answer could often be justified. His instinct, although it is a matter for the MPA, is that the present case displays an exceptional combination of circumstances.

6. It appears to me, in the light of this advice, that the decision made by the Authority on 25 March 2004 was within the Authority’s powers and a reasonable and proper exercise of its discretion.

7. I recommend therefore that the family of Roger Sylvester, and the police officers concerned, should now be informed that the Authority agrees to fund their respective legal costs in the judicial review proceedings. In each case, it will be necessary to agree the rates of charge for legal services so that, as Counsel says, there can be seen to be fair and equal treatment of all. I recommend that the Clerk be authorised to settle these matters with the parties and make the necessary arrangements to implement the funding decision.

C. Race and equality impact

8. The depth and intensity of the equality and diversity implications of this matter were acknowledged in the debate at Authority meeting. The Authority was particularly mindful of its positive duties under the Race Relations (Amendment) Act. Leading Counsel underlines, in his advice, the potential, important in the present case, for the grant or refusal of funding to boost or undermine harmonious race relations and equal opportunities across racial groups within the local community.

D. Financial implications

9. The cost of the legal assistance to officers was previously estimated at £30,000. It is reasonable to assume that the cost of assistance to the family will be at a similar level, but it is not possible to give a more precise estimate until rates have been agreed with the parties’ lawyers.

E. Background papers

• Written Opinion of Mark Shaw QC (exempt)

F. Contact details

Report author: David Riddle, Deputy Clerk, MPA.

For more information contact:

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

Appendix 1

Funding of Legal costs for the family of Roger Sylvester

Extracts from advice of Mark Shaw QC

In relation to the existence of the power to fund the Sylvester family’s legal costs, Mark Shaw QC advises is in the following terms:

“19. In the Duckenfield case the Divisional Court’s reasoning fell into two parts.

1. Primarily, it ruled that even if section 6(1) of the 1996 Act was irrelevant (because it was concerned merely to state objects, purposes, policies and functions rather than to confer any specific powers), the power to fund the officers’ legal costs could derive from section 111(1) of the 1972 Act. In other words, section 111(1) authorised the incurring of expenditure not just for the performance of the express duties and powers set out elsewhere in the 1996 Act but also for the furtherance of the general, over-arching aim set out in section 6(1).
2. Secondarily and in any event, it ruled that section 6(1) of the 1996 Act probably did confer power on police authorities to do things which reasonably supported the objects, purposes, policies and functions set out in section 6(1).

20. In principle, the same reasoning can be applied to requests to fund the legal costs of non-officers.

1. The MPA’s function is broad not narrow. It is not to promote the sectional interests of police officers. That is the role of the Police Federation. Rather, under section 6(1) of the 1996 Act, the MPA’s task is to promote the wider public interest by securing the maintenance of an efficient and effective police force for its area.
2. At the heart of this task is the maintenance of local accountability and local public confidence in the force. Such confidence is capable, rationally, of being maintained by supporting non-officers in legal proceedings; especially when a main aim of such proceedings is to reveal the legality of police practice and especially where such support is essential to ensure even-handed participation such proceedings. Clarification, through the proceedings, of the parameters of the doctrine of lawful restraint by police officers could also be said to help maintain an efficient and effective police force. The more sensitive and high profile the proceedings, the closer the causal link between the MPA’s task and the provision of funding.
3. Importantly, where the incident underlying the proceedings has a racial element such funding, especially if provided equally to officers and non-officers, will also help the MPA to fulfil its functions under the race legislation since it will assist in fostering good race relations.
4. The Circular confirms, and the Duckenfield case illustrates, that the funding power can be applied to both the initiation and the defence of legal proceedings: criminal and civil. I see no reason in principle why it should not also be applied to participation in legal proceedings as an interested party especially where, as here, the interested party will alone resist the claim.”

He has identified the main considerations that should inform the exercise of the discretion, as follows:

(1) The potential, important in the present case, for the grant or refusal of funding to boost or undermine harmonious race relations and unequal opportunities across racial groups within the local community.

(2) The disparity of resources (as between the officers and the Sylvester family) and the availability of funding from some other public source. MPA funding should be the last resort. In the present case, no such funding is available and Mr Justice Mitting refused to make an anticipatory costs order in the family’s favour when granting the officers permission to proceed with their judicial review claim.

(3) The extent to which the interests of those seeking funding will be protected, and/or their arguments will be advanced, by some other party or parties in the proceedings. The less likely this is to happen, the more powerful will be the request for funding. In the present case, the defendant (the Coroner) will not be resisting the judicial review claim either in writing or orally. No advocate of the court has been appointed. Even the NHS Trust disagrees with the Sylvester family on the type of remedy which would be appropriate. This unusual combination of circumstances means that only the Sylvester family would advance any contrary argument. Their absence would not only disadvantage them but also hamper the court’s own assessment of the claims weaknesses.

(4) The extent to which those (non-officers) seeking funding have acted reasonably and in good faith at all material times. This consideration echoes that set out in the Circular as guiding the exercise of the power to fund officers. I see no reason why it should not equally apply to non-officers. Similarly, any procedures and mechanisms typically used under the Circular for officers should, unless there is good reason to the contrary, also be applied to non-officers. For example, if officers must complete a questionnaire eliciting certain information before being entitled to funding, a kindred questionnaire should be applied to non-officers. Equally the rates of funding, and any duty to repay funding after a favourable costs order, should be applied fairly and equally to all.

(5) Whether the Commissioner (chief officer) has made any recommendation giving his view on the effect on efficient and effective policing of the grant or refusal of funding for non-officers. This stems from the statement of the Divisional Court in the Duckenfield case that

“The authority may in principle decide to fund officers’ legal representation in proceedings no less than they may fund any other activity which the chief constable might propose as being conducive to ‘the maintenance of an efficient and effective police force for its area.’”

This does not, in my view, mean that a recommendation from the Commissioner supporting the Sylvester family is a prerequisite to the grant of its request.

(6) The importance and potential impact of the proceedings to the parties requesting funding. In the present case, for example, the inquest verdict and the outcome of the judicial review challenge could have a direct bearing on the officers’ liberty and livelihood: they could face imprisonment and dismissal from the police force. The interests of the Sylvester family are very different.

(7) The importance and potential impact of the proceedings for the police force locally and nationally. In the present case, the proceedings might help to define the parameters of the doctrine of legal restraint: principally, when and how it can lawfully be used.

(8) Whether, and the extent to which, human rights are engaged. The MPA should have regard to its duty as a public body under the Human Rights Act 1998 to act compatibly with rights arising under the European Convention on Human Rights.

(9) In extreme cases, the means of those seeking funding will be relevant. Suppose, for example, that there is reason to believe that the person or group seeking funding is very wealthy and well able to pay legal costs from their own resources. It might be unreasonable, and generate a public outcry, if scarce MPA resources were relinquished in such circumstances.

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