Duckenfield & Anor, R (on the application of) v Director Of Public Prosecutions

Factual and Procedural Background

This opinion concerns two linked applications for judicial review relating to the Hillsborough Football Ground disaster on 15 April 1989, in which 96 people lost their lives. The first case involves retired police officers, Applicant D and Applicant M, seeking leave to judicially review the Director of Public Prosecutions’ (DPP) decision to refuse to take over and discontinue private prosecutions against them initiated by Ann Adlington on behalf of the Hillsborough Family Support Group (HFSG). The second case involves the Chief Constable of South Yorkshire (CCSY) challenging the South Yorkshire Police Authority’s (SYPA) decision that it lacked legal power to fund the defence of D and M in the private prosecutions and their prospective judicial review applications.

The disaster occurred during an FA Cup semi-final match. Applicant D was the Divisional Commander in charge of police operations, and Applicant M was the Sub-Divisional Commander on duty. Following the disaster, a public inquiry led by Lord Taylor found that gross overcrowding caused the tragedy, identifying multiple contributing factors including police planning and operations.

Subsequent investigations included a West Midlands Police review, a decision by the DPP in 1990 not to prosecute, and an inquest returning verdicts of accidental death. Disciplinary proceedings against D and M were discontinued following their retirements. A 1996 documentary led to further scrutiny by Stuart-Smith LJ, who reported in 1998 that no new evidence justified prosecution. Despite this, private prosecutions were initiated against D and M alleging manslaughter, wilful neglect of duty, and, for D, attempting to pervert the course of justice.

D and M requested the DPP to take over and discontinue these private prosecutions under statutory powers, but the DPP declined. Judicial review applications were made challenging this refusal. The SYPA initially funded D and M’s legal representation but later resolved it lacked legal power to continue such funding, prompting the CCSY’s judicial review challenge.

Legal Issues Presented

1. Whether the DPP lawfully exercised his discretion in refusing to take over and discontinue the private prosecutions against Applicants D and M under sections 6(2) and 23(3) of the Prosecution of Offences Act 1985.
2. Whether the South Yorkshire Police Authority had the legal power under section 6(1) of the Police Act 1996 and section 111(1) of the Local Government Act 1972 to fund the legal defences of D and M in the private prosecutions and judicial review proceedings.

Arguments of the Parties

Applicants D and M's Arguments

• The DPP’s decision failed to consider his duty under s.3(2)(b) to institute proceedings in cases of importance or difficulty.
• The right to maintain private prosecutions serves as a constitutional safeguard against inertia or improper action by public prosecutors, implying the DPP should intervene only in such cases.
• The DPP erroneously treated the evidential Code of Practice as irrelevant to his discretion to take over and discontinue private prosecutions.
• The DPP’s “reasonable prospect of conviction” test was unlawfully rigid and fettered his discretion.
• The public interest test was incorrectly formulated and applied, particularly by placing overriding weight on the seriousness of the allegations.
• The refusal to discontinue the prosecution was perverse given the overwhelming public interest factors favouring discontinuance.
• The decision to allow the charge of attempting to pervert the course of justice against D to proceed breached legitimate expectation arising from the DPP’s policy.
• The SYPA unlawfully decided it lacked power to fund their legal defences, contrary to statutory provisions and established practice.

Respondent (DPP) and SYPA's Arguments

• The DPP’s duty under s.3(2)(b) relates only to instituting proceedings, not to taking over private prosecutions under s.6(2).
• The private prosecution right is preserved by statute and is not qualified by s.3(2)(b) or the DPP’s discretion to discontinue under s.23(3).
• The DPP’s policy, including the evidential and public interest tests, is lawful and properly balances the right of private prosecution with prosecutorial discretion.
• The DPP lawfully applied his policy to the facts, including weighing the seriousness of charges and the likelihood of conviction.
• The decision to allow the charge of attempting to pervert the course of justice to proceed was consistent with the policy.
• The SYPA argued that the general function in s.6(1) of the Police Act 1996 does not confer an open-ended power to fund legal defences and that specific statutory provisions limit such powers.
• The SYPA contended that the express powers conferred on police authorities exclude any implied powers to fund private prosecutions or judicial review defences.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first examined the statutory framework governing the DPP’s discretion to take over and discontinue private prosecutions under the Prosecution of Offences Act 1985. It rejected the argument that the DPP’s duty to institute proceedings in important or difficult cases (s.3(2)(b)) imposed a heightened obligation when considering taking over private prosecutions. The court distinguished between instituting proceedings and taking over existing private prosecutions, concluding that the right of private prosecution is preserved and not undermined by the DPP’s discretion to intervene.

The court found the DPP’s policy lawful, including the evidential and public interest tests, which allow the DPP to discontinue prosecutions only when there is clearly no case to answer or when public interest factors outweigh those in favour of prosecution. The policy was not an unlawful fetter of discretion but a proper exercise balancing competing interests.

Regarding the application of the policy to the facts, the court held that the DPP properly considered the public interest factors and the likelihood of conviction. It rejected submissions that the DPP gave overriding weight to the seriousness of the allegations or failed to balance factors appropriately. The court found no basis to interfere with the DPP’s discretion except in relation to one charge against Applicant D (attempting to pervert the course of justice), where the DPP’s decision was inconsistent with the policy and thus breached legitimate expectation. The court quashed that part of the decision but otherwise dismissed the application.

On the SYPA’s power to fund legal defences, the court analysed relevant statutory provisions, including s.6(1) of the Police Act 1996 and s.111(1) of the Local Government Act 1972. It rejected the SYPA’s narrow construction that only expressly conferred powers could be exercised, finding that s.111(1) empowers the police authority to incur expenditure conducive to maintaining an efficient and effective police force, which includes funding legal representation in proceedings related to police duties.

The court emphasized the interlocking roles of the Chief Constable, Secretary of State, and police authority, and held that the police authority’s powers are symbiotic with the Chief Constable’s operational role. The authority’s power to fund legal defences is not unlimited but is a legitimate ancillary power supporting its general functions. The court found no legislative barrier to the SYPA’s funding decision and allowed the application.

Holding and Implications

Holding: The court granted leave for judicial review in both cases. It dismissed the application challenging the DPP’s refusal to take over and discontinue the private prosecutions except insofar as it related to the charge against Applicant D of attempting to pervert the course of justice, which was quashed. It allowed the CCSY’s application challenging the SYPA’s decision, holding that the SYPA has the legal power to fund the legal defences of Applicants D and M in relation to the private prosecutions and judicial review proceedings.

Implications: The decision clarifies the scope of the DPP’s discretion in relation to private prosecutions, affirming the preservation of the right to private prosecution and the lawful application of the DPP’s policy balancing evidential and public interest considerations. It also establishes that police authorities have statutory power to fund legal representation for officers in proceedings connected to their duties, as part of their function to maintain an effective police force. The ruling affects the parties directly by allowing the prosecutions (except for the quashed charge) to proceed and confirming funding support, but it does not set new precedent beyond the statutory interpretation and application of established principles.