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Arguably the most serious miscarriage of justice of our times – lessons must be learned from the iconic Hillsborough proceedings, writes Pete Weatherby QC
Hillsborough is arguably the most serious miscarriage of justice in our history.
It took 27 years for the families to rectify a historic wrong: the original verdict that their loved ones had died accidentally. Whilst many miscarriages of justice relate to those wrongly convicted by error or malice, this was different. Hillsborough involved hundreds of innocent bereaved relatives pitted against official bodies and public servants peddling false narratives – that football supporters caused the disaster by forcing gates then urinating on rescuers and stealing from the dead – to avoid personal and institutional responsibility. The disaster was no accident and neither was the aftermath.
The breakthrough
Apart from the horror of the catastrophe itself, with its appalling loss of life, there are two striking things about the Hillsborough saga which should cause alarm to all those involved in the law.
The first is that the Hillsborough lie endured for so long, through legal procedures too numerous to count: a judicial inquiry and judicial scrutiny, a number of judicial reviews and applications to Strasbourg, civil claims and a private prosecution.
The second is that it was not lawyers or officialdom that brought an end to that lie, but ordinary citizens. There can be no doubt that the breakthrough came in 2010 when the bereaved and their supporters finally forced the government to set up an ad hoc independent inquiry: the Hillsborough Independent Panel (HIP). Thereafter, through proper disclosure and full investigation, the truth began to emerge. But even after the exhortations of the Lord Chief Justice in ordering new inquests – that they should not descend into the adversarial mire – the institutions and their ex-senior officers refused to bow to the evidence and fought tooth and nail to maintain that the supporters were responsible and not them. Or indeed, that there had been no cover-up. Only through another set of ordinary citizens, the jury, did the truth finally emerge and justice prevail.
What the jury found
The evidence showed that the police had failed to heed near misses of the past. There had been previous crushes where fans had been hospitalised and one senior officer described the bottleneck area outside the Leppings Lane terraces as a ‘deathtrap’. The jury found that:
Identifying the failures
Three key things can be identified from the original inquests that allowed them to fail. First, there was very limited disclosure of evidence to the families. Secondly, there was no public funding for the families which meant their lawyers were completely outgunned by the multiple teams representing official interests. Thirdly, coronial law pre-Human Rights Act 1998 (HRA 1998) gave the investigation and the verdicts a far too narrow ambit.
The disclosure exercises conducted by HIP in 2010, followed by the inquest process from 2013 onwards, meant that suddenly the raw materials were available to determine what had really happened and what had been done to cover it up, such as the campaign to denigrate supporters and the widespread amendment of statements to remove embarrassing evidence.
The provision of an ad hoc central government scheme to fund properly the families’ legal teams, in the absence of general provision for bereaved families in inquests and inquiries, meant that for the first time the victims of Hillsborough were on a level playing field with the public bodies and ex-officials involved.
However, the scandal of the general failure to fund legal representation for bereaved families can be witnessed in every coroner’s court in the land. The scandal is not simply that families, at their most vulnerable time, are effectively cut out of the process, but that public authorities and officials have the opposite experience and are invariably fully represented – at public expense. It is right and proper for public authorities and officials to defend their position but there arguably needs to be an urgent and sharp rebalancing as regards families. To those who say this is not a time to be advocating public spending, we must say: look at the cost of Hillsborough, not simply the human cost which is palpable, but the financial cost of putting the thing right. In particular, look at the huge cost of providing a phalanx of lawyers to the public authorities and ex-senior officials who were then instructed to obfuscate and avoid the reckoning at whatever reputational and financial cost.
Following the coming into force of HRA 1998, the inquiry’s ambit was changed beyond recognition. Pre-HRA 1998, the original inquest jury had the choice between ‘accident’ and ‘unlawful killing’. The evidential investigation was restricted mainly to the day of the disaster and, famously, to a 3:15pm cut-off point which precluded investigation of the emergency response. Domestic and European Convention jurisprudence regarding Art 2, the right to life, changed all that and the new jury was able to receive evidence of near misses in previous years, stadium safety, planning, emergency response, as well as what happened on the day. They returned meaningful conclusions on all of those issues aided by a questionnaire.
What next…
As the dust settles, the police and IPCC investigations continue. We are told that they are investigating offences including manslaughter, misconduct in public office, perverting the course of justice and health and safety offences. The families have belatedly achieved truth and justice, but only time will tell whether accountability will follow. Investigations are due to conclude by the end of 2016, with CPS charging decisions in the first half of 2017. The families called for the removal of the Chief Constable of South Yorkshire Police, given his conduct during the inquest proceedings, which contradicted his 2012 admissions and apologies. He was suspended the following day and subsequently replaced.
Lessons learned: the Hillsborough Law
The families have called for a new ‘Hillsborough Law’ which is being advanced as the draft Public Authorities Accountability Bill. The Bill would codify and strengthen existing common law that requires public authorities and officials to tell the truth and act in the public interest. It would codify a positive requirement to assist investigations, inquiries, inquests and other court proceedings and, critically, it would provide enforcement tools for individuals affected by lack of candour or institutional defensiveness in public life. It would require all public bodies to publish codes of ethical behaviour, building on the statutory ‘duty of candour’ legislation recently brought in for the healthcare sector. It would create new criminal offences where public officials willfully mislead the public and new duties on ex-public officials to cooperate and provide disclosure and statements in investigations and inquiries into matters relating to their public service. It is designed to empower public officials to stand up to institutional defensiveness and the culture of denial.
In criminal cases state prosecutors have to assume the mantle of ‘ministers of justice’, albeit on one side of the adversarial divide. The prosecution is under a duty to ensure full disclosure and that only fair points are taken, to root out any corruption within the investigation even to the extent of dropping cases where exacting standards are not met. Why do the same standards not apparently apply where the public authority is facing criticism? Why did Hillsborough families have to listen to lawyers for ex-public servants invoking irrelevant issues of hooliganism, lawyers for public authorities trying to shift blame onto each other and the unrepresented supporters? Why did lawyers for the families have to spend weeks examining witnesses to establish a cover-up which had already been publicly admitted. The answer to that one is that some of the public authorities and ex-police officers sought to see what they could get away with rather than act in the public interest and help the inquiry.
New legislation will not, on its own, change prevailing culture or solve the problems that allowed the false Hillsborough narrative to prevail for 27 years, but it will be a substantial step forward. It would provide effective tools to rectify a problem where adherence to the rule of law has been lacking, and would be a fitting legacy to the 96.
Contributor Pete Weatherby QC, Garden Court North
Hillsborough in numbers
Pete is a human rights barrister at Garden Court North, Manchester. He specialises in inquests, inquiries, public and European Convention law, prison and criminal defence cases, in this jurisdiction and internationally. He led the counsel team (Mark George KC, Henrietta Hill KC, Kate Stone and Andy Fitzpatrick, instructed by Elkan Abrahamson, BJC, and EAD and B&B) who represented 22 of the bereaved families in the Hillsborough proceedings.
It took 27 years for the families to rectify a historic wrong: the original verdict that their loved ones had died accidentally. Whilst many miscarriages of justice relate to those wrongly convicted by error or malice, this was different. Hillsborough involved hundreds of innocent bereaved relatives pitted against official bodies and public servants peddling false narratives – that football supporters caused the disaster by forcing gates then urinating on rescuers and stealing from the dead – to avoid personal and institutional responsibility. The disaster was no accident and neither was the aftermath.
The breakthrough
Apart from the horror of the catastrophe itself, with its appalling loss of life, there are two striking things about the Hillsborough saga which should cause alarm to all those involved in the law.
The first is that the Hillsborough lie endured for so long, through legal procedures too numerous to count: a judicial inquiry and judicial scrutiny, a number of judicial reviews and applications to Strasbourg, civil claims and a private prosecution.
The second is that it was not lawyers or officialdom that brought an end to that lie, but ordinary citizens. There can be no doubt that the breakthrough came in 2010 when the bereaved and their supporters finally forced the government to set up an ad hoc independent inquiry: the Hillsborough Independent Panel (HIP). Thereafter, through proper disclosure and full investigation, the truth began to emerge. But even after the exhortations of the Lord Chief Justice in ordering new inquests – that they should not descend into the adversarial mire – the institutions and their ex-senior officers refused to bow to the evidence and fought tooth and nail to maintain that the supporters were responsible and not them. Or indeed, that there had been no cover-up. Only through another set of ordinary citizens, the jury, did the truth finally emerge and justice prevail.
What the jury found
The evidence showed that the police had failed to heed near misses of the past. There had been previous crushes where fans had been hospitalised and one senior officer described the bottleneck area outside the Leppings Lane terraces as a ‘deathtrap’. The jury found that:
Identifying the failures
Three key things can be identified from the original inquests that allowed them to fail. First, there was very limited disclosure of evidence to the families. Secondly, there was no public funding for the families which meant their lawyers were completely outgunned by the multiple teams representing official interests. Thirdly, coronial law pre-Human Rights Act 1998 (HRA 1998) gave the investigation and the verdicts a far too narrow ambit.
The disclosure exercises conducted by HIP in 2010, followed by the inquest process from 2013 onwards, meant that suddenly the raw materials were available to determine what had really happened and what had been done to cover it up, such as the campaign to denigrate supporters and the widespread amendment of statements to remove embarrassing evidence.
The provision of an ad hoc central government scheme to fund properly the families’ legal teams, in the absence of general provision for bereaved families in inquests and inquiries, meant that for the first time the victims of Hillsborough were on a level playing field with the public bodies and ex-officials involved.
However, the scandal of the general failure to fund legal representation for bereaved families can be witnessed in every coroner’s court in the land. The scandal is not simply that families, at their most vulnerable time, are effectively cut out of the process, but that public authorities and officials have the opposite experience and are invariably fully represented – at public expense. It is right and proper for public authorities and officials to defend their position but there arguably needs to be an urgent and sharp rebalancing as regards families. To those who say this is not a time to be advocating public spending, we must say: look at the cost of Hillsborough, not simply the human cost which is palpable, but the financial cost of putting the thing right. In particular, look at the huge cost of providing a phalanx of lawyers to the public authorities and ex-senior officials who were then instructed to obfuscate and avoid the reckoning at whatever reputational and financial cost.
Following the coming into force of HRA 1998, the inquiry’s ambit was changed beyond recognition. Pre-HRA 1998, the original inquest jury had the choice between ‘accident’ and ‘unlawful killing’. The evidential investigation was restricted mainly to the day of the disaster and, famously, to a 3:15pm cut-off point which precluded investigation of the emergency response. Domestic and European Convention jurisprudence regarding Art 2, the right to life, changed all that and the new jury was able to receive evidence of near misses in previous years, stadium safety, planning, emergency response, as well as what happened on the day. They returned meaningful conclusions on all of those issues aided by a questionnaire.
What next…
As the dust settles, the police and IPCC investigations continue. We are told that they are investigating offences including manslaughter, misconduct in public office, perverting the course of justice and health and safety offences. The families have belatedly achieved truth and justice, but only time will tell whether accountability will follow. Investigations are due to conclude by the end of 2016, with CPS charging decisions in the first half of 2017. The families called for the removal of the Chief Constable of South Yorkshire Police, given his conduct during the inquest proceedings, which contradicted his 2012 admissions and apologies. He was suspended the following day and subsequently replaced.
Lessons learned: the Hillsborough Law
The families have called for a new ‘Hillsborough Law’ which is being advanced as the draft Public Authorities Accountability Bill. The Bill would codify and strengthen existing common law that requires public authorities and officials to tell the truth and act in the public interest. It would codify a positive requirement to assist investigations, inquiries, inquests and other court proceedings and, critically, it would provide enforcement tools for individuals affected by lack of candour or institutional defensiveness in public life. It would require all public bodies to publish codes of ethical behaviour, building on the statutory ‘duty of candour’ legislation recently brought in for the healthcare sector. It would create new criminal offences where public officials willfully mislead the public and new duties on ex-public officials to cooperate and provide disclosure and statements in investigations and inquiries into matters relating to their public service. It is designed to empower public officials to stand up to institutional defensiveness and the culture of denial.
In criminal cases state prosecutors have to assume the mantle of ‘ministers of justice’, albeit on one side of the adversarial divide. The prosecution is under a duty to ensure full disclosure and that only fair points are taken, to root out any corruption within the investigation even to the extent of dropping cases where exacting standards are not met. Why do the same standards not apparently apply where the public authority is facing criticism? Why did Hillsborough families have to listen to lawyers for ex-public servants invoking irrelevant issues of hooliganism, lawyers for public authorities trying to shift blame onto each other and the unrepresented supporters? Why did lawyers for the families have to spend weeks examining witnesses to establish a cover-up which had already been publicly admitted. The answer to that one is that some of the public authorities and ex-police officers sought to see what they could get away with rather than act in the public interest and help the inquiry.
New legislation will not, on its own, change prevailing culture or solve the problems that allowed the false Hillsborough narrative to prevail for 27 years, but it will be a substantial step forward. It would provide effective tools to rectify a problem where adherence to the rule of law has been lacking, and would be a fitting legacy to the 96.
Contributor Pete Weatherby QC, Garden Court North
Hillsborough in numbers
Arguably the most serious miscarriage of justice of our times – lessons must be learned from the iconic Hillsborough proceedings, writes Pete Weatherby QC
Hillsborough is arguably the most serious miscarriage of justice in our history.
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