The legal options for the Hillsborough families
Published 30 September 2012 By: John Shea
Following the recent publication of the Hillsborough Independent Panel's report into the Hillsborough disaster, the Hillsborough Family Support Group ("HFSG") are now considering escalating their quest for justice by pursuing three possible legal avenues namely, asking the Attorney General to apply for a new inquest into the disaster, demanding the Director of Public Prosecutions to launch an immediate investigation into criminal prosecutions and applying for civil proceedings to be reopened.
The HFSG issued a statement following disclosure of the report confirming that they "will be petitioning the government, the Attorney General and the Director of Public Prosecutions on all these various matters and these letters will be going out tomorrow. We believe if wrongdoing, civil or criminal, has happened people should be held accountable."
The three legal avenues that the HFSG are looking to pursue are considered below:
A Fresh Public Inquest
In 1991, a coroner's inquest jury returned a majority verdict of accidental death following the disaster. One of the HFSG's primary objectives has always been to overturn this original verdict of accidental death and to replace it with a verdict of unlawful killing.
This has not been the first time the HFSG have attempted to overturn the original finding. Whilst a request was made in 1992 for a new inquest on the basis of new evidence, this was rejected by the Attorney General at the time. A request for a judicial review of the verdict in 1993 was also rejected by the High Court on the basis that there were no grounds to order a fresh inquest. Following the Taylor Inquiry in 1997, Lord Justice Stuart-Smith was appointed to "ascertain whether any evidence exists relating to the disaster at the Hillsborough Stadium on 15 April 1989 which was not available:
- to the Inquiry conducted by the late Lord Taylor; or
- to the Director of Public Prosecutions or the Attorney General for the purpose of discharging their respective statutory responsibilities; or
- to the Chief Officer of South Yorkshire Police in relation to police disciplinary matters;
And in relation to (a) to advise whether any evidence previously not available is of such significance as to justify establishment ... of a further public inquiry; and in relation to (b) and (c) to draw to their attention any evidence not previously considered by them which may be relevant to their respective duties; and to advise whether there is any other action which should be taken in the public interest."
Lord Justice Stuart-Smith's report was published in February 1998 where he concluded:
"that there is no basis upon which there should be a further Judicial Inquiry or a reopening of Lord Taylor's Inquiry. There is no basis for a renewed application to the Divisional Court or for the Attorney General to exercise his powers under the Coroners Act 1988. I do not consider that there is any material which should be put before the Director of Public Prosecutions or the Police Complaints Authority which might cause them to reconsider the decisions they have already taken. Nor do I consider that there is any justification for setting up any further inquiry into the performance of the emergency and hospital services. I have carefully considered the circumstances in which alterations were made to some of the self-written statements of South Yorkshire Police officers, but I do not consider that there is any occasion for any further investigation."
In order for the original verdict to be quashed and a fresh inquest held, the Attorney General, Dominic Grieve, will need to apply to the High Court for a fresh inquiry on the basis that "it is necessary or desirable in the interests of justice that another inquest should be held." (Section 13 of the Coroners Act 1988). The decision to order a new inquest is, therefore, to be determined by the High Court and "the discovery of new facts or evidence" is a factor the Court will consider when making its decision.
As an alternative, or in addition, to a new coroner's inquest, the HFSG may seek a new public inquiry following the Taylor Inquiry in 1997. Such an inquiry would mirror the current Leveson Inquiry into the British Press and would be managed by a Judge. As with a coroner's inquest, a public inquiry would investigate the causes and reasons of the victims' deaths however, in contrast to a coroner's inquest, the Judge can express opinion and make recommendations for future policies.
The Attorney General has confirmed that he is now considering "whether there is sufficient evidence to support an application to the High Court to quash the original inquest and start a new inquest process." Whilst the families' lawyer, Michael Mansfield QC, feels that it should not "take the Attorney General any longer than four to six weeks to make a decision," the Attorney General warns that the process "will inevitably take some time." Also, in order to avoid prejudicing any possible criminal proceedings (see below), a new inquest would have to take place after any criminal trials take place so any new inquest is likely to take years rather than months.
The DPP initially ruled in 1990 that there was insufficient evidence to mount any criminal prosecutions following the disaster. However, the HFSG did commence private prosecutions against former Chief Superintendent Duckenfield and Superintendent Murray in 1998, alleging unlawful killing and wilful misfeasance in public office. Both officers stood Trial in 2000. Superintendent Bernard Murray was acquitted of any wrongdoing while the jury failed to reach a verdict on Chief Superintendent David Duckenfield.
In light of the new findings within the report, the HFSG hope that the Director of Public Prosecutions ("DPP"), Keir Starmer QC, will consider whether the new evidence disclosed within the report could lead to potential criminal offences and Michael Mansfield QC has urged the DPP to "look at the conspiracy as there was an attempted cover-up and a smear campaign against the victims." Saunders Law, a law firm who previously worked on the high profile murder case of the Norfolk farmer Tony Martin, have confirmed that they are looking at potential criminal prosecutions. Any charges brought following the report could include manslaughter, by way of gross negligence, attempts to pervert the course of justice and misconduct in public office. Action could potentially be taken against police officers for their actions on the day and for the subsequent doctoring of statements as well as authorities such as The Football Association, Sheffield City Council and Sheffield Wednesday Football Club for allowing the FA Cup semi-final to go ahead despite apparent safety concerns over the Hillsborough ground. According to Michael Mansfield QC, "the DPP has to look at everybody's role in this because it was a massive smear that they hoped would stick. There was a flawed investigation that was driven by deceit and an attempt to pervert the course of justice."
In order for criminal charges to be brought, the relevant police force will have to re-open the case and The Independent Police Complaints Commission has confirmed that it is considering the fresh evidence disclosed within the report and will contact the relevant police force if there are matters which were not fully investigated originally. A file of evidence will ultimately be passed to the Crown Prosecution Service via the DPP who will consider whether there is enough evidence to justify any criminal charges.
Numerous civil cases were brought following the disaster for damages on behalf of the bereaved and the injured as well as by police officers who were present on the day. Claims were mainly brought for psychological injury and post-traumatic stress disorder and settlements for such claims, which were based on various categories, were offered to Claimants by South Yorkshire Police's insurers without making any admission of liability in order to avoid the risk of prejudicing the on-going criminal investigations at the time. The total amount eventually paid out in compensation to over 1,500 Claimants was approximately £19.8 million. Following legal action by South Yorkshire Police ("SYP"), the following agreed to contribute to the payment of compensation:
- Sheffield Wednesday Football Club - £1.5 million
- The Club's engineers Eastwood & Partners - £1.5 million
- Sheffield City Council - £1 million
Some claims were, however, defended by SYP and their insurers, which resulted in two House of Lords cases. The first case was Alcock and others v Chief Constable of South Yorkshire Police, which was brought on behalf of 16 Claimants who alleged they had suffered psychiatric illness due to the shock and fear of what had or might have happened to their friends or relatives at the stadium. Two of the Claimants were spectators in the ground at the time but not in the pens where the disaster occurred. The other Claimants became aware of the disaster through radio or television broadcasts. SYP argued that they should not be required to pay compensation to Claimants who were too distant from what happened, either by relationship to those killed or injured or in time and space. The Court had to, therefore, decide whether the Claimants were entitled to compensation.
The House of Lords ruled that in order "to establish a claim for psychiatric illness resulting from shock, it was necessary to show that the injury was a reasonably foreseeable result of the events at the stadium, and that the claimant was sufficiently proximate or close to what had happened" (Chapter 7 Paragraph 2.7.31 Hillsborough Independent Panel Report). In order for proximity to be established, the Claimants had to be within sight and hearing of the event or its immediate aftermath and, in addition, there had to be a sufficient degree of closeness between the Claimants and those injured e.g. husband and wife or parent and child. The House of Lords held that whilst there was sufficient closeness between one of the Claimants who lost her son and one of the Claimants who lost her fiancé, the other Claimants had failed to establish sufficient closeness with the victims and, in any event, "the viewing of the television scenes did not create the necessary degree of proximity." The claims, therefore, failed.
The second case was Hicks v Chief Constable of South Yorkshire Police. In this case, the House of Lords was asked to determine whether the estate of the deceased victims were entitled to recover compensation for the pain and suffering the victims endured prior to their deaths. SYP argued that the victims did not sustain any pain or suffering as the medical evidence concluded that the victims would have lost consciousness within a matter of seconds before they died. Based on the medical evidence, the High Court and Court of Appeal held that the Claimants had failed to prove that the victims suffered any pain or suffering before their death and so the claims were dismissed. Following a further appeal, the House of Lords concluded that the decisions of the High Court and Court of Appeal were based on factual medical evidence so, in the absence of any medical evidence establishing that the victims had suffered physical injury prior to the fatal crushing injury, it was "impossible to say that they were wrong."
Michael Mansfield QC believes that the civil actions may "need to be revisited as they were based on false information" and the former Lord Chancellor, Charles Falconer, and his team from law firm Gibson Dunn, are considering the civil implications of the evidence disclosed within the report. Depending on the terms of settlement, it will be difficult for families who agreed to settle claims out of Court to now set those settlements aside as a result of the new evidence disclosed within the report. Similarly, any appeal of the decision in Alcock and others v Chief Constable of South Yorkshire Police or fresh claims made on the same basis are unlikely to be successful as there does not appear to be any new evidence disclosed within the report, which might affect the Court's decision on the crucial proximity point. However, fresh claims for injury like in Hicks v Chief Constable of South Yorkshire Police are a different prospect. The decision in Hicks was based on the medical evidence before the Court at the time, which concluded that the victims did not suffer from physical injury prior to the fatal crushing injury. The original inquests concluded that the effects of asphyxia were irreversible by 3:15pm. However, the evidence disclosed within the report casts significant doubts over the medical evidence before the Courts at the time and suggests that:
- asphyxia may have taken significantly longer to be fatal;
- in 31 cases the heart and lungs had continued to function after the crush and, in 16 of these cases, this was for a prolonged period; and
- individuals could have had potentially reversible asphyxia.
As a result of the fresh evidence disclosed within the report, "the conclusion reached by the Courts remains open to question" (Chapter 7 Paragraph 2.7.31 Hillsborough Independent Panel Report) and so it is possible that the families may seek to bring fresh claims on the basis of this fresh evidence.
The Hillsborough Independent Panel's report is clearly a significant step in the HFSG's ongoing pursuit for accountability following the disaster. However, it is evident that there are many legal hurdles for the HFSG to overcome before justice can ultimately be realised.
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