For the families of the 96 people unlawfully killed at Hillsborough due to police gross negligence, a nightmare 32-year ordeal through the British legal system has ended with an outcome that feels like a final insult.
The result is that nobody has been held accountable for the needless deaths, injuries and enduring trauma suffered at a showpiece event, the FA Cup semi-final between Liverpool and Nottingham Forest, due to be broadcast to the nation by the BBC on a sunny day in April 1989. After the bizarre conclusion this week of the latest failed case brought by the Crown Prosecution Service, nobody has been held accountable either for the lies of the South Yorkshire police, which started even as people were dying, and attempted to blame the victims rather than take responsibility for what had happened.
Mr Justice William Davis’s ruling on Wednesday acquitted two ex-South Yorkshire police officers and the force’s former lawyer of perverting the course of justice by amending police statements, using the logic that as Lord Justice Taylor’s official inquiry into the stadium disaster in 1989 had been “non-statutory”, it was not a course of justice that could have been perverted.
But before picking into the dry bones of that, it is crucial to recognise the further trauma that all these years of legal proceedings have caused. For relatives to still be dragged through the performance of courtrooms, 32 years after the day that devastated their lives, itself encapsulates a failure to provide justice. Yet there is no official recompense or much recognition from the legal establishment, beyond a few words in rulings such as Davis’s, for the toll the ordeal is still taking on families, and their psychological, emotional and physical health.
Every legal case has been re-traumatising for bereaved families, and for the many thousands of people who were at Hillsborough and suffered injuries or trauma in the hell of the terrace crush and the added torture of the police blaming them for it. The families had to fight for 21 years against the miscarriage of justice that was the first inquest, with its relentless false narrative from the police and verdict of accidental death, and where their lone barrister was outnumbered by teams of publicly funded lawyers. They did accept the necessity of going through it all again at the new 2014-16 inquests, which turned into the longest-running case heard by a jury in British legal history, largely because their barristers – a battalion this one time, due to “exceptional funding” from the Home Office – still had to fight the police lies, a quarter of a century on. They succeeded, and the families’ extraordinary dedication and courage to establish the truth and seek justice for the 96 was vindicated, with the verdicts of unlawful killing and the exoneration of Liverpool supporters from any blame.
But it still took a terrible toll. People who got on with their lives as well as they could, while campaigning for justice, had to repeatedly revisit the horrifying details. Many who were parents in their 40s when their beloved children were killed – 37 Hillsborough victims were teenagers, the youngest was 10 – were now in their 70s; some were ailing, some had passed away before seeing justice. And a new generation of family members, who were young or even not yet born in 1989, were now confronted by the horrors, the unbearable details, of how their relatives died – and the brutality of the adversarial legal system.
After that, there was a requirement to consider very carefully if prosecutions should be brought at all. The 2014-16 inquests jury determined that the 96 victims had been unlawfully killed due to gross negligence manslaughter by the officer in command, Ch Supt David Duckenfield. Clearly the jury disbelieved the police stories, made in statements and in the witness box, of misbehaviour by the victims.
However, more years of court proceedings would pile on the trauma, so if the CPS was going to bring charges, it had a duty to select the right charges, and to prosecute them with total commitment. The families felt very quickly during the manslaughter trial of Duckenfield in 2019 that the CPS lawyers and barristers were not conducting the case with the necessary determination, and didn’t possess the encyclopaedic knowledge that their own lawyers had displayed at the inquests. Duckenfield’s acquittal, and the lame failure of the latest prosecution, means that after their landmark vindication in 2016, the families have now suffered the worst outcome. They were forced to relive it all again, being dragged through courts for four more years after charges were brought in 2017, yet are now left with a renewed feeling of injustice. The painful sight of bereaved people trying to make points to CPS barristers outside the courtrooms presented a compelling argument for victims in serious criminal trials to have legal representation themselves.
As for the ruling and the case itself, the families were left bewildered and outraged, and believe the CPS should have appealed against it. Justice Davis’s view, apparently, is that police officers and their solicitor could in principle, legally, withhold crucial evidence from the Taylor inquiry.
But many of the amended statements also went to the first inquest, which began in November 1990 after the director of public prosecutions had decided that no criminal charges would be brought against anybody for the deaths.
The extent of those amendments was not publicly known until years later, when they were discovered by the diligence of Prof Phil Scraton, who later played a central role on the Hillsborough Independent Panel, which in 2012 finally turned the tide of justice.
Davis, while accepting that the inquest was a “course of justice”, ruled that the then South Yorkshire police solicitor, Peter Metcalf, did not have a “duty of candour” to tell the whole truth to it. The judge also appeared to favour the view that the amended statements could not have perverted the inquest anyway, because inquests back then had a narrower focus than today. “Even if Mr Metcalf’s acts were aimed at masking failings of South Yorkshire police, these would not have the tendency to pervert coronial proceedings,” Davis wrote, citing a witness for the defence.
Some of these arguments were glaringly unattractive for the law. Davis noted of solicitors’ duties that they must not “positively” mislead a court, yet if they realise a court is “acting on a false basis”, they still have “no duty to correct the court or to draw the court’s attention to the true position.”
Metcalf’s barrister, Jonathan Goldberg QC, making the point that legal duty is all that counts in courts, said to Davis in a hearing: “This court is not a court of morals. This court is not a court of common decency.”
Up in the public seats, and at a live broadcast in Liverpool, bereaved families had to listen to all of this again from the justice system, fully 32 years after their loved ones had gone to a football match, with hope in their hearts, and had never come home.
David Conn writes for the Guardian on investigations, sport, the Hillsborough disaster, Brexit and other issues. He is the author of The Fall of the House of Fifa