R v Secretary of State for the Home Department, Ex parte Northumbria Police Authority (Northumbria Police Authority, Ex parte)

The Home Secretary may provide police forces directly with equipment from a central store under section 41 of the Police Act 1964, without the police authority’s consent, where he considers that service necessary or expedient for police efficiency. A police authority’s power to provide equipment does not confer an exclusive power or permit interference with a chief constable’s operational independence.

The Crown also retains a prerogative to take reasonable and anticipatory steps to preserve the peace. That prerogative includes supplying reasonably required police equipment. It is displaced where legislation regulates the same subject incompatibly, but the 1964 Act did not do so.

The Northumbria Police Authority sought judicial review of paragraph 4 of Home Office Circular No 40/1986. The circular allowed plastic baton rounds and CS equipment to be supplied without charge from a central Home Office store where a chief officer’s assessment of need was endorsed by an inspector of constabulary, despite the police authority withholding approval.

The Divisional Court refused relief. It held that section 41 of the Police Act 1964 did not authorise the supply, but that the Crown’s prerogative power to preserve the peace did. The Police Authority appealed on the prerogative issue. The Home Secretary cross-appealed on the construction of section 41.

The Court of Appeal considered whether section 41 authorised direct supply without the authority’s consent and, alternatively, whether the supply fell within the Crown’s prerogative powers.

1. Disposition. The Court of Appeal unanimously dismissed the Police Authority’s appeal and allowed the Home Secretary’s cross-appeal. The application for a declaration that paragraph 4 of the circular was ultra vires was refused. The appeal was dismissed with costs, and leave to appeal to the House of Lords was refused.
2. Statutory power. Croom-Johnson LJ held that the central store was an organisation and that supplying equipment from it was a service within section 41 of the Police Act 1964. The section contained no requirement for police-authority consent. Nor could such a requirement, with an additional exception for emergencies, properly be implied. Purchas and Nourse LJJ agreed.
3. Sections 4(1) and 4(4) imposed a maintenance duty and conferred an equipment-provision power on the police authority, but they did not confer an exclusive right to obtain equipment. They did not authorise the authority to control the operational equipment used by a chief constable. The chief constable’s direction and control of the force under section 5(1), and the established constitutional independence of constables, were inconsistent with such control.
4. The Home Secretary could therefore make equipment available without charge where he considered that doing so was necessary or expedient to promote police efficiency. Endorsement by an inspector of constabulary provided assurance that the statutory criterion was met.
5. Prerogative power. Although unnecessary to the statutory disposition, all three Lord Justices concluded that the Crown retained a prerogative to preserve the peace. Croom-Johnson LJ regarded it as connected with the Crown’s responsibility for preventing crime and administering justice. Purchas LJ described it as a power to take all reasonable steps to preserve the peace. Nourse LJ characterised it at least as a general supportive power. It included supplying police equipment reasonably required for the efficient discharge of police duties.
6. A prerogative cannot be exercised incompatibly with legislation regulating the same subject. The 1964 Act neither gave police authorities a monopoly over equipment nor expressly and unequivocally curtailed the relevant prerogative. The power was not confined to an actual emergency. Reasonable preparations could be made against apprehended riots or serious civil disorder before the ultimate crisis arose.

1. Court of Appeal: The Police Authority’s appeal was dismissed with costs, and the Home Secretary’s cross-appeal was allowed. The court held that section 41 of the Police Act 1964 authorised the supply and that, alternatively, the supply fell within the Crown’s prerogative. Leave to appeal to the House of Lords was refused.
2. Divisional Court: The application for judicial review was refused. The court held that section 41 did not authorise the supply but accepted that it was authorised by the Royal prerogative. A complete citation for that decision is not stated in the judgment.