Attorney General v Coroner of South Yorkshire (West) & Anor [2012] EWHC 3783 (Admin)

Case No CO/13246/2012[2012] EWHC 3783 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday 19 December 2012
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
LORD JUSTICE BURNETT
and
HIS HONOUR JUDGE PETER THORNTON QC
Between
HER MAJESTY'S ATTORNEY GENERALApplicant(1) HER MAJESTY'S CORONER OF SOUTH YORKSHIRE (WEST)Respondents(2) HER MAJESTY'S CORONER OF WEST YORKSHIRE (WEST)
B E T W E E N:
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone No: 020 7421 4040(Official Shorthand Writers to the Court)
The Attorney General (Mr Dominic Grieve QC) and Mr Jonathan Glasson (instructed by the Treasury Solicitor)appeared for ApplicantMiss Alison Hewitt(appeared for First Defendant) for The Second Defendant was not representedMr Michael Mansfield QC and Mr Patrick Roach (instructed by Messrs Birnberg and Partners, London NW1 7HJ)(appeared on behalf of 63 families)Mr Peter Weatherby QC (instructed by Broudie Jackson Canter Solicitors, Liverpool(appeared on behalf of 14 families)Miss Fiona Barton QC (instructed by Chief Officer, Legal Advice Team, Sheffield S3 8LY)(appeared on behalf of South Yorkshire Police)Mr Paul Greaney QC (instructed by Messrs Russell Jones & Walker, Manchester M1 4DZ)(appeared for Police Federation)
Judgment

THE LORD CHIEF JUSTICE:

[1]Just about everyone in this country remembers the catastrophe that took place at the Hillsborough Stadium in Sheffield on 15 April 1989. Over 50,000 fans made their different ways to watch the football match between Liverpool and Nottingham Forest, who were competing for a place in the FA Cup Final. In the words of Lord Justice Taylor, written less than four months later, "The prevailing mood was one of carnival, good humour and expectation". Yet, within a few short minutes of the start of the match disaster struck. Ninety five spectators died that afternoon: one, Anthony Bland, having been left as a result of his injuries in a persistent vegetative state, died a few years later in March 1993. Eighty eight of the ninety six victims of the disaster were male. The youngest of them was but 10 years old, and the oldest 67. Thirty eight of them were under 20, and three were over 50. In addition to the appalling toll of the dead, many more spectators were injured but fortunately they survived.[2]The death of each victim was and remains the source of anguish and grief to those to whom they were precious. For a number of different reasons there is, however, more to their suffering than the natural and inevitable grief which follows every untimely death.[3]We shall identify some of them. Perhaps the first is that within a very short time it was being peddled about that this disaster was one more consequence of the kind of hooliganism which had manifested itself at and around football matches during the 1980s. There was therefore fertile ground for the acceptance of rumour, gossip and deliberate misinformation. In short the disaster was attributed to the drunken misbehaviour of the fans, and the Liverpool fans in particular. Yet in August 1989, in a Report which the then Prime Minister, Margaret Thatcher described as a "devastating criticism of the police", Taylor LJ stated in quite unequivocal terms that: "the main reason for the disaster was the failure of police control".[4]That should have been that. Unfortunately the culpability of the police was not acknowledged, and indeed a campaign was mounted to undermine confidence in Taylor LJ's conclusions. These were developed at the inquest which took place in the winter of 1990/1991 and continued thereafter. Notwithstanding its falsity the tendency to blame the fans was disappointingly tenacious and it lingered on for many years.[5]This aspect of the problem was typified by the decision that the blood alcohol levels of every one of the deceased should be checked. Whatever the reason for it in the immediate proximity of the disaster -– and we do not underestimate the enormous burden suddenly thrust on the Coroner of the district in its immediate aftermath -- this decision conveyed the impression to the suffering families that it was expressly or impliedly being suggested that the victims themselves, who were, by definition, football supporters, had somehow caused or contributed to the disaster. In fact not only had many of the deceased consumed no alcohol whatsoever, but those who had done so had consumed minimal or at most normal social amounts. Taylor LJ expressed himself satisfied that the great majority of the fans were not drunk or even the worse for drink, and he effectively exonerated each of the deceased from the slightest culpability or any criticism, whether express or implied. Each was the helpless victim of these terrible events.[6]That is the background to this application by Her Majesty's Attorney General under section 13 of The Coroners Act 1988 to quash the inquisitions into the deaths of the ninety six individuals who died as a consequence of the disaster. The inquests were opened on 19 April 1989. Following the publication of Lord Justice Taylor's Interim Report in August 1989, the opening session of what were described as "mini-inquests" were started. The jury were informed that they would inquire into the identity of the deceased, and "when" and "where" each deceased had died. The coroner added that the jury would not be concerned with the question of "how" they had died because of an ongoing investigation into possible criminal proceedings then being conducted by the Director of Public Prosecutions. Crucially, he imposed a "cut off" period so that the inquiry into events on that afternoon never extended beyond 3.15pm. After the "mini-inquests" were concluded, the full inquests resumed on 19 November 1990. The jury retired on 26 March 1991. The coroner left alternative verdicts of unlawful killing, accidental death, and an open verdict to the jury. On 28 March the longest inquest then known to English legal history ended. The verdict of the jury in each case was "accidental death". The later inquest at Bradford into the death of Tony Bland returned the same verdict.[7]The families of the victims did not regard the process which culminated in this verdict as satisfactory. Indeed they believed that it was wholly inadequate. Over the next years there were further inquiries and repeated attempts, some involving the judicial process, to overturn or set aside or simply to question the verdicts. None was successful. These are all matters of public record. Throughout there has been a profound, almost palpable, belief that justice has not been done and that it cannot be done without and until the full truth is revealed. We must record our admiration and respect for this determined search for the truth about the causes of the disaster, and why and how it had occurred, which, despite disappointments and set-backs, has continued for nearly a quarter of a century, and simultaneously express our regret that the process has been so unbearably dispiriting and prolonged.[8]The jurisdiction to hold a second or further inquest is created by section 13 of the Coroners Act 1988. Section 13(1) provides:
"This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner .... either –- (a) .... (b) where an inquest has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held."
Section 13(2) vests the High Court with jurisdiction to quash an earlier inquest, and to order that another inquest should be held. We shall use the singular, "inquest", rather than the more accurate, "inquests", for convenience.[9]In carefully prepared written submissions by the Attorney General, but also by other counsel representing different members of the family of the victims, our attention has been drawn to a number of authorities which bear on these provisions. They include R v Divine ex p Walton [1930] 2 KB 29, Re Rapier [1988] 1 QB 26, R (Sutovic) v HM Coroner for Northern District of Greater London [2006] EWHC 1095 (Admin), R v HM Coroner for Derbyshire (Scarsdale) ex p Fletcher [1992] 156 JP 522, Re Maddison [2002] EWHC 2567 (Admin), Re Tabarn, (unreported, 20th January 1989 (DC)), R v Manchester Coroner ex p Tal [1985] 1 QB 67, R (Amin) v Home Secretary [2004] 1 QC 653, R (George Francis) v HM Deputy Coroner for Inner South London [2005] EWHC 980 (Admin), HM Coroner for Wiltshire and Swindon v Ministry of Defence [2002] EWHC 2567 (Admin), R (Takoushis) v HM Coroner for Inner North London [2006] 1 WLR 461, and Duggan v HM Coroner for North London [2010] EWHC 1263 (Admin). We need not cite any passages from any of these judgments.[10]We shall focus on the statutory language, as interpreted in the authorities, to identify the principle appropriate to this application. The single question is whether the interests of justice make a further inquest either necessary or desirable. The interests of justice, as they arise in the coronial process, are undefined, but, dealing with it broadly, it seems to us elementary that the emergence of fresh evidence which may reasonably lead to the conclusion that the substantial truth about how an individual met his death was not revealed at the first inquest, will normally make it both desirable and necessary in the interests of justice for a fresh inquest to be ordered. The decision is not based on problems with process, unless the process adopted at the original inquest has caused justice to be diverted or for the inquiry to be insufficient. What is more, it is not a pre-condition to an order for a further inquest that this court should anticipate that a different verdict to the one already reached will be returned. If a different verdict is likely, then the interests of justice will make it necessary for a fresh inquest to be ordered, but even when significant fresh evidence may serve to confirm the correctness of the earlier verdict, it may sometimes nevertheless be desirable for the full extent of the evidence which tends to confirm the correctness of the verdict to be publicly revealed. Without minimising the importance of a proper inquest into every death, where a national disaster of the magnitude of the catastrophe which occurred at Hillsborough on 15 April 1989 has occurred, quite apart from the pressing entitlement of the families of the victims of the disaster to the public revelation of the facts, there is a distinct and separate imperative that the community as a whole should be satisfied that, even if belatedly, the truth should emerge.[11]With these principles in mind, we can turn to the basis of the present application. In 2009 it was decided that the normal 30-year rule, prohibiting the publication of documents in the possession of government departments, should be waived. In January 2010 the Hillsborough Independent Panel, chaired by the Right Reverend James Jones, Bishop of Liverpool, was appointed. All the documents relating to the disaster were made available to it. In total the Panel reviewed over 450,000 pages of documentation. This came from eighty four different organisations and individuals. The mammoth task of examining all this material began in February 2010, and the report of the Hillsborough Independent Panel was published two and a half years later on 12 September 2012. We have each studied the Report in full.[12]We immediately acknowledge our indebtedness and gratitude to the Independent Panel for the commitment and dedication necessary to examine and evaluate such a massive body of material, and to the Attorney General and those who assist him for analysing that material and reducing it to manageable proportions for the purpose of the application. That has enabled the case to be listed very rapidly. It is clear that there are sound grounds for the present application, and that there are a number of features of the evidence which cast new light on the circumstances in which the deceased came to meet their deaths. We shall summarise them briefly.

The cut-off point

[13]In our judgment the 3.15pm cut-off point provides not only the most dramatic but perhaps the most distressing aspect revealed by the new material. It was a critical feature of the original inquest, based on the evidence of distinguished pathologists, that the deceased had all suffered the injuries which caused their deaths before 3.15pm. In other words, by that time their deaths were inevitable.[14]The unchallenged evidence before Taylor LJ was that "in virtually every case, the cause of death was basically compression of the chest wall -– against the bodies of the person immediately around the deceased or against fixed structures such as the walls of the stadium and the crash barriers. In the vast majority of the cases, this pressure caused the condition of traumatic or crush asphyxia -– the two terms are synonymous .... If the impediment to breathing is not removed in four to six minutes -– perhaps less if the victim is struggling and thus using up oxygen at a higher rate -– then the brain cells cease to function, unconsciousness supervenes and ultimately the vital centres in the hind brain are damaged and die and then life is no longer possible".[15]With the same evidence before the inquest, the coroner rejected the concern expressed by counsel instructed on behalf of some of the families of the deceased that "to ignore concerns as to the adequacy of the attention and the rescue efforts after 3.15" would constitute a failure to "investigate what could well have been a major reason for why somebody died and did not survive". The coroner ruled that no evidence relating to events beyond 3.15pm on the day of the disaster would be heard. That was the time when the first ambulance arrived on the pitch. The inquest therefore proceeded on the basis that the injuries sustained by those who died were already fatal, and that anything that happened after that time was irrelevant.[16]The report of every single post-mortem examination has now been examined. In brief, no single unvarying pattern of death "irreversibly established at the outset of the injury" has been established. In short, the unchallenged evidence from the pathologists given at the Taylor Inquiry and indeed at the original inquest is no longer accepted. The State Pathologist for Northern Ireland, Professor Crane, accepts that while "crushing in the enclosures undoubtedly was responsible for the development of asphyxia in the victims", there was no simple uniform rapid mechanism of death in all cases. The pathological findings indicate a number of mechanisms leading to death some of which, particularly the development of cerebral oedema, would indicate that death was not as rapid as initially suggested. Furthermore it is unclear if all the victims were dead when removed from the enclosures, with some evidence indicating that in fact some might still have been alive. Whilst in a number of instances attempts at resuscitation were made, these attempts would appear to have been uncoordinated, sporadic and inadequate. A number of victims, having been removed from the enclosures, were found by police personnel and others simply lying on the pitch, presumably on the initial assumption that they were dead. If this assumption was erroneous, or if they had suffered a cardio-respiratory arrest, the potential for survival could have been compromised by "(i) inappropriate prone posture and (ii) a lack of rapid effective resuscitation and early transfer to hospital".[17]Dr Kirkup, the medical member of the Hillsborough Independent Panel, concluded that there was "clear evidence that in some cases there had been partial asphyxiation for a prolonged period, certainly more than the four to six minutes presented in evidence at the inquests, and extending beyond 3.15pm". After a close examination of the material, he concluded that there was clear evidence of prolonged survival and what he describes as "susceptibility to events post 3.15pm" in forty one of the deceased, and in a further seventeen cases some, but less conclusive, evidence to the same effect. In short, therefore, events after 3.15pm were potentially at any rate, of major significance.[18]The Independent Panel therefore rejected the evidence which had formed the basis for the conclusions of the coroner, the High Court in the judicial review proceedings and the Stuart-Smith Scrutiny, which depended on the evidence of the pathologists offered when the inquest began "that the effects of asphyxia were irreversible by the time each of those who died was removed from the pens". Rather the Panel's view was that "individuals in each of the groups now identified could have had potentially reversible asphyxia. .... It is not possible to establish with certainty that any one individual would or could have survived under different circumstances. It is clear, however, that some people who were partially asphyxiated survived, while others did not. It is highly likely that what happened to these individuals after 3.15pm was significant in determining the outcome. On the basis of this disclosed evidence, it cannot be concluded that life or death was inevitably determined by events prior to 3.15pm, or that no new fatal event could have occurred after that time".[19]The material now available is sufficient to enable Professor Crane to confirm that forensic pathologists could even now provide the necessary advice and assistance to enable a coroner to carry out what he describes as "effective inquests" in relation to the victims.[20]In short, therefore, there is ample evidence to suggest that the 3.15pm cut-off was seriously flawed. The decision had several linked troublesome consequences. We shall identify four. First, there was no investigation as to whether, contrary to the evidence of the pathologists at the inquest, some of those who died might well have survived if they had been rescued and quickly and properly treated. The importance of this consideration is self-evident. Second, none of the activities, or omissions, of those involved in the co-ordination of the rescue process, and the rescue process itself after the first ambulance arrived on the scene, were examined to see whether their actions or omissions may have made a causal contribution to any of the deaths of those who might have survived. Third, if with proper rescue facilities some of the deceased might have survived, then the question arises whether deficiencies in the police control of this part of the rescue operation may have aggravated the level of police culpability found by Taylor LJ. Fourth, if the rescue facilities were inadequate or disorganised, then there may have been a level of culpability in the emergency services extending beyond the police which contributed to at least some of the deaths. Any such considerations (and others may occur) were precluded by the imposition of the cut off period.[21]In our judgment this area of credible evidence is sufficient on its own to justify the quashing of the original inquest. As to the delay, it is worth remembering that although the evidence of the pathologists was not challenged at the original inquest, the decision to adopt the 3.15pm cut-off was taken in the face of legitimate objection by counsel acting on behalf of the families. In short, this issue has always seemed to be important to the families, and the new evidence demonstrates that their concerns were justified. We also note that within a relatively short period of the original inquest, the question whether one of the young victims was still alive after 3.15pm was raised in a letter from Dr Iain West, a highly respected pathologist, dated 29 October 1993. The letter was not sufficient to persuade the court that it could form the basis of a successful application for the original inquest to be quashed, but it was undoubtedly reflective of the constant complaint that the 3.15pm cut-off imposed artificial limitations on the inquiry process. It is not suggested that an order for a new inquest would cause disproportionate prejudice to any one or anybody which might be open to criticism if the 3.15pm limitation were removed for the purposes of a full investigation of events after that time. Finally, the evidence on these issues is not merely available, it is much more complete than it was when the original inquest took place.

Further considerations

[22]There are a number of further considerations which reinforce the conclusion that the original inquest should be quashed.

Alcohol

[23]At the inquest, by contrast with the Taylor Report, the relevant findings of which we have already described, evidence relating to alcohol levels among the football fans was given prominent importance. Plainly, the greater the level of drunkenness and hooliganism among the fans, the more difficult the crowd control would become from the point of view of the police. Accordingly, evidence about drunkenness among the fans might have had a bearing on the level of culpability involved in the loss of police control identified by Taylor LJ. Therefore, any purported mitigation for police failures may have been much less persuasive than the coroner appeared to suggest in his summing-up.

Amendments and alterations to police statements

[24]The inquest jury was ignorant of the full extent of the amendments and alterations to police statements. The process of alteration was not confined to the South Yorkshire Police. It appears to have extended to the South Yorkshire Metropolitan Ambulance Service and the South Yorkshire Fire Service. Of 164 police statements, something like 116 were amended or altered. Of course, some of the amendments related to the removal of expletives and matters which might cause distress. Alterations of that kind are not, in the present context, important. But alterations which were designed to conceal evidence which was critical of any part of the police operation -- and indeed the rescue operation as a whole -- fall into a quite different category.[25]A few examples will suffice for the purposes of this judgment. One observation deleted from the original statement of a police constable was:
"Sergeants and Inspectors appeared to be aimlessly milling about and direct radio control appeared to be lost. There did not appear to be any leadership"
. Another statement initially read:
"It was noticeable that the only supervisory officers above the rank of Inspector on the pitch were Chief Inspectors Beale and Sumner and Superintendent Greenwood. Certain supervisory officers were conspicuous by their absence. It was utter chaos"
. After the alterations this statement read:
"On the pitch were Chief Inspectors Beale and Sumner and Superintendent Greenwood"
. The rest had been excised. Another example was that references to "chaos", "fear", "panic" and "confusion" made by no less than 23 officers were altered or deleted from their original statements when their new statements were produced.[26]In fact only one of the police witnesses whose statements were analysed by the Independent Panel for this purpose gave evidence at the generic hearing. Reprehensible as any alteration or amendment (save for the purposes of removing expletives and the like) seems to us, the relevance of these alterations to the cause of death is not immediately obvious and does not necessarily follow, and indeed whether or not these events will give rise to a criminal prosecution will involve a completely separate examination and decision by the Director of Public Prosecutions. It may also be that to some extent the nature and extent of the alteration to the statements has been sufficiently established and made public by the Independent Panel. In other words, what was concealed for very many years on this aspect of the inquiry has now been revealed. Nevertheless, it seems to us open to the new inquest to reflect whether the efforts made by some of the authorities to conceal evidence relating to neglect and breach of duty may have some relevant bearing on the cause of death.

Safety concerns at the stadium

[27]Finally, the material available to the Independent Panel has raised serious concerns about the safety of Hillsborough as the venue for such an important football match, inevitably likely to draw a very heavy crowd of spectators, and whether this stadium was safe for the use to which it was put. What Taylor LJ spoke of as the "culture of complacency" is now highlighted by the section of the Report by the Independent Panel, "1981-1989: Unheeded Warnings, the Seeds of Disaster". We are told that yet more documentary evidence relevant to these issues may be available; but whether they are or not, the safety issue now highlighted by the Independent Panel merits close consideration both for its own importance and for its possible impact on issues relating to the response of all the authorities.

Conclusion

[28]It will be for the coroner conducting the new inquest to decide what evidence bears on the questions which the inquest is required to answer. The inquest will take place in public, but it will not be a public inquiry. It will be a coronial process. The inquest will be conducted in accordance with those processes and with the objectives of the inquest in mind. The coroner will have to decide the format of the inquest and whether Article 2 of the European Convention on Human Rights is engaged in this inquest, and, if so, the form that it should take to address these issues. (See R (Middleton) v HM Coroner for Somerset [2004] 1 AC 182). Finally, like the Independent Panel, we should deprecate this new inquest degenerating into the kind of adversarial battle which, looking back on it, scarred the original inquest.[29]This combination of circumstances, as we have narrated, makes inevitable the order for a new inquest. The interests of justice must be served. Within the limits of the coronial system, the facts must be investigated and reanalysed in a fresh inquest when, however distressing or unpalatable, the truth will be brought to light. In this way the families of those who died in this disaster will be vindicated and the memory of each victim will be properly respected.[30]All the inquisitions will be quashed. There will be new inquests in each and every case. The legislation relating to venue is, as we have said in argument, problematic. The inquests will be remitted to another coroner for the same administrative area as the original inquests: in relation to the 95 victims the South Yorkshire (East) area at Doncaster; and in relation to the inquest into Anthony Bland, to the West Yorkshire (West) Coroner at Bradford.[31]An assistant deputy coroner will be appointed in accordance with the appropriate processes, and pre-inquest hearings will then be organised. One of the features which will have to be addressed at a very early stage is the state of any investigation being made into possible criminal offences and whether or not that investigation might be prejudiced or held back by the order for an inquest. Our earnest wish is that the new inquests shall not be delayed for a moment longer than necessary. ______________________________

Cited in 22 later judgments

and 13 more of the most senior