The events of 15th April 1989 at Hillsborough were a terrible tragedy, in which 96 people lost their lives. What followed in the immediate aftermath was an attempt to blame the Liverpool supporters for what happened, and to exonerate the police of all wrongdoing. Eventually, in 2016, a new inquest found that the 96 had been unlawfully killed and a series of criminal prosecutions began. The latest, and probably last of those, has just concluded.
Alan Foster, Donald Denton and Peter Metcalf were charged with perverting the course of justice, accused of altering the statements of 68 police officers following the Hillsborough disaster in 1989. Denton and Foster were former senior police officers, Metcalf was the former police force solicitor for South Yorkshire.
Their trial has been halted following a ruling by the trial judge that the offences could not have been committed. The reasoning behind this is that the amendments made were to prepare the statements for the public inquiry.
The force solicitor and the police agreed that the evidence to be given to the inquiry had to be factual, without comment or feelings. As many of the officer’s statements contained both comment and feeling it was decided that editing was required. The process agreed was for the Metcalf to advise on editing, that advice to be passed to Denton (a Chief Superintendent) then for the editing to be carried out by Foster (a Chief Inspector).
The prosecution argued that the editing was intended to pervert the course of justice as passages were removed that referred to failings in the part of the police. Metcalf also produced a draft statement for four senior police officers in relation to whose responsibility it was to monitor the standing pens. The production of the statement was also argued by the prosecution as intending to pervert the course of justice.
At the inquests in 2014-2016, it was argued by the victims’ families that the amendments to the statements removed references to the police practice of closing a particular tunnel when the ‘pens’ were full.
On the day in question, it was said that the commanding officer had not ordered that the tunnel be closed after a high volume of supporters had been allowed entry via a wide exit gate.
The first inquiry concluded that the failure to close the tunnel gate was a “blunder of the first magnitude”. The police were seemingly aware of this error before the inquiry, which is perhaps why the references to the previous policy were removed. Arguably, it would have made the police look worse if a policy was in place showing they were aware that closing the tunnel would have an impact.
The first inquiry was a short one led by Lord Justice Taylor into what happened on the day and took place a few months after the disaster. The purpose was to set out new safety recommendations for football grounds before the start of the new season.
Why it took so long
The Crown Prosecution Service were aware of this issue, as it had also been raised during proceedings in 2018. The prosecution proceeded with the charges on the basis that although the statements were prepared for the Taylor inquiry, those involved would have known that other formal proceedings would follow. Proceedings such as inquests, criminal investigations and claims for damages.
The offence of perverting the course of justice refers to a “course of justice”, such as criminal proceedings. The public inquiry was a non-statutory inquiry, an administrative exercise rather than a “course of justice.” The prosecution had to show that there was a judicial process involved, and they couldn’t.
It was not, therefore, a full public inquiry and the type of review that took place is not included within the meaning of a “course of justice”. For example, Lord Justice Taylor did not have any powers to make witnesses attend court to give evidence.
Although a course of justice can relate to cases where proceedings have not yet commenced the ruling was that the prosecution could not demonstrate how the defendants’’ acts had the tendency to pervert any investigation.
The draft statements that were prepared came with a clear indication that the officers should not adopt the statement unless it represented their recollection. In those circumstances it could not be said to have a tendency to pervert the course of justice.
At the conclusion of the prosecution case there was a submission made that there was no case for the defendants to answer. That submission was upheld, and the jury was directed to acquit. In doing so the trial judge said;
“The problem is that there is little or no evidence about those proceedings and/or there is no basis upon which to say that anything done by any of these defendants had a tendency to pervert the course of justice in relation to other proceedings … I have concluded that there is no case fit for the jury’s consideration.”
In 1991 a jury at the first inquest produced a verdict of accidental death. The victims’ families campaigned against that finding, resulting in a new inquest in 2016 that found that all 96 victims had been unlawfully killed due to the commanding officer’s gross negligence. However, a ruling at an inquest is not a criminal conviction, and the officer, Duckenfield, was acquitted of gross negligence at his criminal trial in 2019.
Only one person has ever been convicted of an offence in respect of the Hillsborough disaster. Graham Mackrell, then secretary of Sheffield Wednesday, was fined £6,500 for a safety offence.
Following the trial judge’s decision, the Crown Prosecution Service said that many would find the ruling surprising. The CPS legal director commented that the ruling suggested a publicly funded authority “can lawfully withhold information from a public inquiry, without sanction of any sort”.
There have been calls for a “Hillsborough law” to compel public institutions, and those working there, to tell the whole truth in any inquiry or proceedings. If that had been the law at the time, the prosecution might not have failed. If it is a law passed in the future, it would not apply retrospectively, so it would not mean that a further prosecution could be brought against these three men.
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If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email email@example.com. Let us help.[Image credit: “Soccer Stadium” by martha_chapa95 is licensed under CC BY 2.0 ] Read More
What lies ahead for the EAW after Brexit?
The European Arrest Warrant is a tool used very often by Governments within the EU to secure the arrest and extradition of people who have committed or are accused of committing crimes in their own country.
Some countries confine their use of the EAW to very serious offences such as people trafficking or murder. Others adopt a hard-line approach and will issue an EAW for what may seem trivial such as shoplifting or a simple possession of cannabis.
Notwithstanding the difference in approaches, the UK government accepts that the EAW is instrumental in fighting cross-border crime and presently at least, is keen to remain part of the EAW post-Brexit.
If the UK is not part of the EAW, then any requests for a extradition to and from the UK will most likely follow the system we currently have for non-EU countries; this is a more onerous and costly route than the EAW.
If the UK continues to be part of the EAW, in all likelihood, they will have to submit to the jurisdiction of the European Court of Justice (“ECJ”). This will no doubt prove unpopular with those seeking a clean break from the EU, or ‘hard-Brexit’.
Some interpretations of the EAW
The ECJ has made important interpretations on the framework decision relating to the EAW. Kovalkovas [C-477/16 PPU] is a case brought by the Government of the Netherlands and decided by the ECJ in November 2016. The ECJ concluded that a Ministry of Justice was not a Judicial Authority for the purposes of an EAW and therefore cannot issue a valid EAW. This contradicted the UK Supreme Court’s decision in 2013 (case of Bucnys v Ministry of Justice Lithuania  UKSC 71. As a result of the ECJ’s decision, it was binding on all EU countries including the UK. The UK Courts and the CPS had to disregard Bucnys.
It is unworkable for the UK to remain part of the EAW after Brexit, yet be excluded from the jurisdiction of the ECJ. The UK will have to choose.Read More