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Update 2: Essential Law and Practical Guidance for Police and Crime Commissioners- 5 Essex Court.
Following the end of the Hillsborough Inquest, the Chief Constable of South Yorkshire (Mr David Crompton) was suspended by the Police and Crime Commissioner for South Yorkshire (Dr Alan Billings) - Announcement by the Commissioner. It is an interesting question as to whether the Police and Crime Commissioner should also carry some responsibility for the way in which the South Yorkshire Police conducted themselves at the inquest. The answer is not entirely clear.
PCCs and Chief Constables:
Elections are in progress in 41 Police areas for Police and Crime Commissioners (PCC) with voting on 5th May. This elected office was created by the Police Reform and Social Responsibility Act 2011. Section 1 states - "There is to be a police and crime commissioner for each police area listed in Schedule 1 to the Police Act 1996 (police areas outside London)." Section 2 states - "Each police force is to have a chief constable."
The Commissioners have important responsibilities and powers including the power to either suspend a Chief Constable or request a Chief Constable to resign. - section 38 of the 2011 Act. (The procedure set out in Schedule 8 Part 2 must be applied). The PCC has to secure the maintenance of the Police Force for the Police area and ensure that it is efficient and effective. The Commissioner holds the Chief Constable to account for (a) the exercise of the functions of the Chief Constable and (b) the functions of persons under the direction and control of the Chief Constable.
The Chief Constable is appointed and holds office in accordance with section 38 and the terms and conditions of the appointment. The Police Force (and its civilian staff) are under the direction and control of the Chief Constable. The Chief Constable must exercise the power of direction and control in such a way as is reasonable to assist the Commissioner to exercise the commissioner's functions.
Whilst those roles are in the legislation, the office of Commissioner is relatively new and the interplay between Commissioners and Chief Constables will inevitably have to be worked out through practical experience. Much will depend on the personalities involved. Quite clearly, a good working relationship of mutual respect is essential.
The responsibility for all operational decisions on policing clearly rests, as it always has, with the Chief Constable. For example, how the police choose to police a public event is a matter for the Chief Constable and the officers who act under his direction. As Sir Thomas Winsor (HM Chief Inspector of Constabulary) pointed out in this speech there was clearly no intention by parliament, when introducing Commissioners to replace the former Police Authorities, to alter or diminish the operational role of the Chief Constable.
Legal actions etc:
When legal action is taken against the police it is usually the Chief Constable who is the defendant. This is only to be expected since most legal action is concerned with matters arising from the operational actions of the police.
At the Hillsborough inquest the Chief Constable of South Yorkshire police was represented by counsel - List of Legal representatives. Certain former South Yorkshire police officers were also represented separately. The involvement of the police at the inquest arose from their operational duties at Hillsborough (15th April 1989) and from their subsequent conduct. The Police and Crime Commissioner for South Yorkshire was not a party to the inquest.
The present Chief Constable had nothing to do with the Hillsborough tragedy but he was the face of the force that did and he was responsible for how he conducted his case at the inquest. The Chief Constable issued an apology in 2012:
“On that day South Yorkshire Police failed the victims and families. The police lost control. In the immediate aftermath senior officers sought to change the record of events. Disgraceful lies were told which blamed the Liverpool fans for the disaster. Statements were altered which sought to minimise police blame. These actions have caused untold pain and distress for over 23 years. I am profoundly sorry for the way the force failed on 15th April 1989 and I am doubly sorry for the injustice that followed and I apologise to the families of the 96 and Liverpool fans.”
After the conclusion of the Inquest a further apology was issued:
“On 15th April 1989 the South Yorkshire Police got the policing of the FA Cup semi-final at Hillsborough catastrophically wrong. The force failed the victims and failed their families….Today, as I have said before, I want to apologise unreservedly to the families and all those affected.”
As pointed out on the blog of Mark George QC (When saying "Sorry" again is not enough), questions put at the inquest to witnesses piggybacked "on the loathsome and repellent assertions repeatedly made by counsel for the match commanders, Mr Duckenfield and his sidekicks Marshall and Greenwood that the disaster was all the fault of drunken, hostile, ticketless fans most of whom turned up late expecting to gain entry to the stadium."
Such a line of questioning was clearly totally out of kilter with the apologies issued by the Chief Constable.
The case being put by the Chief Constable was, in effect, the case being put for the South Yorkshire Police. Whether the Police and Crime Commissioner had any involvement in how the case was presented is unclear. However one views it, the insincerity of the apologies is plain for all to see.
Hillsborough families are reported as being unhappy that the South Yorkshire Police and Crime Commissioner appears to escape any censure over the way in which the South Yorkshire Police conducted the inquest - The Guardian 3rd May - Hillsborough families criticise South Yorkshire Police and Crime Commissioner over inquest tactics
Pete Weatherby QC, representing 22 families whose relatives were killed in the crush on the Leppings Lane terrace at Hillsborough, said it was not enough for Alan Billings to have suspended the chief constable, David Crompton, following the inquest because the commissioner had supported the force’s adversarial strategy during the coroners hearing.
“It appears that the PCC failed in his primary job of holding the force to account, including to ask why the case, which he was funding, was taking so long and costing so much,” Weatherby said. “The families called for David Crompton’s resignation because he ran a case contrary to public admissions he made in 2012. It is difficult to imagine how the PCC failed to notice this, and take appropriate action.”
Considerable time at the inquest was taken with events subsequent to the actual day of the tragedy. It hardly needs stating that much on-going upset could have been avoided had the authorities come clean from the outset about what happened and their involvement.
All too often, a factor in the failure to admit responsibility is fear of either criminal or civil proceedings. The latter can result in considerable sums in damages and these have to be found from public funds. In the face of such liabilities there is a tendency to seek to minimise involvement or to deflect blame rather than squarely face responsibility.
It is far from easy to think of some way in which an incentive to "come clean" could be introduced. One incentive might be for Parliament to revisit the idea of exemplary damages. At common law these were damages intended to punish the defendant and to seek retribution, as well as being concerned to deter the defendant from repeating the outrageously wrongful conduct and others from acting similarly, and to convey the disapproval of the jury or court. Since the case of Rookes v Barnard  UKHL 1, the cases where exemplary damages are possible have been regarded as limited to certain categories of case - e.g. oppressive, arbitrary or unconstitutional action by the servants of the government.
Another possibility might be to impose a duty of candour on public authorities. Action on those lines has been taken in relation to the National Health Service where the duty of candour is set out in regulation 20 of the Health and Social Care 2008 (Regulated Activities) Regulations 2014 (2014 regulations), amended by the Health and Social Care Act 2008 (Regulated Activities)(Amendment) Regulations 2015 (2015 regulations). See the National Health Executive guidance.
No doubt there may be other possibilities but it is particularly sad that it took 27 years for the truth of Hillsborough to be formally revealed at an inquest lasting 2 years. Even today, neither criminal nor civil liability has been established at law since they are not the function of an inquest. Investigations are continuing but the eventual outcome remains to be seen. The Guardian 28th April - Hillsborough Families commence legal action.
The Guardian 3rd May - Hillsborough families criticise South Yorkshire Police and Crime Commissioner over inquest tactics
Update 6th May - Dr Alan Billings was re-elected in South Yorkshire - BBC Election results