The Hillsborough disaster and its legal legacy
(Written April 2009)
Hillsborough – the legal legacy – Part 1
April 2009 marked the 20th anniversary of the disaster at
Hillsborough Stadium, Sheffield. The tragic events of that day have been
compounded by an ever growing sense of injustice within the families of the
victims and one wonders whether this will ever be resolved –Independent
15th April 2009. At a memorial service held at Anfield
Stadium on 15th April 2009 the crowd reacted to a speech by Mr Andy Burnham MP by demanding “Justice for the
96” who died as a result of the events in 1989 – see The
Times 16th April 2009.
1989, Lord Justice Taylor
(later Lord Taylor of Gosforth – Lord Chief Justice) had completed his "Interim Report" .
Taylor was appointed to lead the inquiry by Mr Douglas Hurd (Home
Secretary). The terms of reference were – “To inquire into the events at
Sheffield Wednesday football ground on 15 April 1989 and to make
recommendations about the needs of crowd control and safety at sports
events.” Evidence was taken over 31 days and there were 174
witnesses. Interestingly, Lord Taylor noted that he could have heard many
more witnesses (see para 14) but he was satisfied that:-
“they were sufficient in number and
reliability to enable me to reach the necessary conclusions. To have called
more would have prevented me from presenting an interim report in the required
time and would not have added significantly to the relevant evidence. I have,
however, been able to take into account many written statements in addition to
Taylor’s inquiry was a “departmental inquiry” instigated by the Home Office
and, as such, did not have power to administer an oath to witnesses though Lord
Taylor noted that “there was no instance of any witness giving evidence which I
considered might have been different had he or she been sworn” – (para 13).
time of Hillsborough there were media reports of very drunken football
supporters seeking to enter the ground. Lord Taylor deals with this at
paragraph 196 of his interim report when he concluded that the great majority
were “not drunk nor even the worse for
drink.” The toxicology tests are referred at paragraph 110 and
entirely support his conclusion. It is therefore difficult to see any
good reason for the particular emphasis placed on blood samples at the
subsequent inquests. It is also
regrettable that, whenever Hillsborough is mentioned, many people still refer
to the drunken supporters trying to gain late access to the ground.
Taylor’s final report was
completed by January 1990 and was concerned with recommendations aimed at
safety and crowd control. [By now, the Home Secretary had become Mr David
Waddington]. As Taylor himself pointed out, his was the 9th
official report covering crowd safety and control at football grounds (see para
19 of the final report). The 8 previous reports dated from 1924 to 1984.
Even a cursory reading of Taylor’s final report recreates in the mind images of
the depressingly drab grounds which prevailed at all levels of the game.
after the general election held in June, Mr Jack Straw MP became
Home Secretary. He asked Lord Justice Stuart-Smith
to “scrutinise” evidence relating to the disaster – see Hansard 30th June 1997.
This “scrutiny” did not amount to a further thorough inquiry into the entire
matter. Stuart-Smith’s remit was constrained by terms of reference which
may be read at paragraph 3 of his report – see Stuart-Smith Scrutiny Report .
Essentially, he was confined to “fresh evidence which might have a bearing on
the various legal procedures and decisions that have been taken.”
Stuart-Smith concluded (Scrutiny Report – Summary para. 5):
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 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
of the Scrutiny Report deals with allegations of improper interference with
either specific witnesses or with witness statements. Stuart-Smith
concluded that “Lord Taylor's Inquiry Team were in no way inhibited or impeded
by the exclusion of material from the original statements. They were well aware
of the criticisms that were being raised by junior officers. All the questions
on which comments were made and excluded were matters which Lord Taylor
investigated and made findings - on the basis of the facts - which were adverse
to the police.”
Stuart-Smith said – “I have not found anything in the material excluded … that
might have influenced the jury at the Inquests to bring in a different verdict.
The legal representatives of the families at the Inquest were well aware of
Lord Taylor's conclusions on the points at issue. Equally I am quite satisfied
that the exclusion of these comments could not possibly have affected the
Director of Public Prosecutions. As I have already stated, Counsel advising the
Director proceeded on the basis that the evidence before them supported Lord
therefore found (para 106) that the allegation of irregularity and malpractice
(paragraph 77) was not substantiated.
that is where the “inquiry” matter has rested now for over 10 years despite the
continual fight for “justice” by the families of the victims - see Hillsborough Justice Campaign.
a Coroner’s Inquest jury returned a majority (9:2) verdict that 95 of the
victims had suffered “accidental death” – see BBC. A
Coroner’s jury could comprise 7 to 11 persons (Coroners
Act 1988 s.8) and a majority verdict could be taken under section
12. (An inquest into a further victim – Tony Bland – was held much later).
Controversially, the Coroner had ruled that all the deaths had occurred by 3.15
pm. Further information on the handling of matters by the Coroner may be
read at Hillsborough Inquests. In
1993, there was a judicial review of the Inquest but the judges decided that
there were no grounds to order a fresh inquest.
pm ruling is open to question in the light of some evidence that one victim – Kevin Williams – was
able to speak at a later time. The 3.15 ruling also prevented
consideration of matters such as ambulances not being allowed on to the pitch
once they had reached the stadium – see The Independent 12th
November 2000. [Lord Taylor’s interim report – para. 106 –
states that the ambulances did not arrive at the stadium in significant numbers
until 3.13 pm].
the Director of Public Prosecutions ruled that there was insufficient evidence
to mount any prosecutions. However, private prosecutions were brought
against Chief Superintendent David Duckenfield and his colleague Superintendent
Bernard Murray. The two men lost a judicial review of the decision of the
DPP to allow the private prosecution to proceed – (BBC). There was also a full committal
hearing at the magistrates’ court – (BBC) – though, in 1990, this was the right of any
defendant. The right has now been replaced by new procedure under the Crime and Disorder Act 1998 section 51.
When this concluded in 2000, the latter was acquitted while the jury failed to
reach a verdict on Duckenfield. The judge (Hooper J) refused a
retrial. [Article about the trial].
See also The Independent 26th
Williams, a lady whose son died at Hillsborough, had her application to the
European Court of Human Rights ruled inadmissible Liverpool Echo 30th
March 2009. Mrs Williams sought a fresh inquest into the death
of her son. The European Court's judgment is reported at Ann Williams v United Kingdom 2009
The court’s judgment contains a useful review of the history of the case and
considers in some detail the inquests. However, Mrs Williams’ case was
ruled to be inadmissible because the application was brought too late and had
to be rejected under Article 35 §§ 1 and 4 of the Convention.
relation to new inquests the power under the Coroners Act 1988 section 13
may be important. This empowers the Attorney-General to ask the High
Court to order a new inquest where it is necessary or desirable in the
interests of justice that another inquest should be held. The
desirability of a new inquest has to be determined by the court and not the Attorney-General.
appears that the government and South Yorkshire Police are now considering
allowing publication of documents relating to the disaster – see Sky News 19th April
2009 and The Guardian 20th April.
It appears that these documents are subjected to the "30 year rule"
but early release is under consideration. The 30 year rule has itself
been reviewed recently - see the “Dacre Review” which
reported in January 2009.
law, any new Inquiry might be held under the controversial Inquiries Act 2005 – see 2005 Act. Whilst
a Minister may convene an inquiry (section 1) the inquiry may not “rule on, and
has no power to determine, any person’s civil or criminal liability” – section
regard to inquests, George Howarth (MP for
Knowsley North and Sefton East) pressed Jack Straw to alter the law with a view
to preventing future "batch inquests." He argues that even in
the case of multiple death tragedies each victim should be treated as an
Joynes – the father of a victim – has stated his wish to hear an apology from
official lips – The Independent 9th
we hear that," said Mr Joynes, "we cannot put this down. We do not
want to see police officers thrown into jail. We're not hunting down
scapegoats. But we do know how we would feel if we agreed finally that it was
time to put Hillsborough into the past, and make what we can of the rest of our
lives, even though there have been no admissions of responsibility. We would
feel as though we had betrayed our son – and I know this is how everyone else
who lost loved ones that day feels. It is why we cannot walk away."
appears to be enormous official resistance to the idea of holding any new
inquiry into Hillsborough. The reasons for such resistance are not
entirely clear. Do they arise from reluctance to admit to past mistakes
or from fear of further litigation? Whatever the reasons, the present
state of affairs does not show the English legal system in a good light and
leaves a marked sense of injustice leading to a diminution of respect for the
rule of law. Perhaps we should recall the words of Earl Warren (Chief
Justice of the USA 1953-1969) – “It is the spirit and not the form of law that
keeps justice alive.”
Hillsborough disaster also had a number of other legal legacies relating to
actions in negligence for causing “psychiatric illness” and also the tragic
“withdrawal of medical treatment case” of Tony Bland.
Addendum to Part 1 - September 2012
An Independent Panel Report exonerated the Liverpool fans from blame for these events. See the website
Independent Panel – Disclosed Material and Report
The legal legacy of Hillsborough – No. 2
Psychiatric illness caused by negligence
for damages arising from negligent conduct are, in English law, dealt with
under the law of tort (or “civil wrong”). The Hillsborough tragedy
contributed markedly to development of the law of negligence in relation to
claims for compensation for psychiatric illness arising from the negligent
conduct of another party.
claims typically arise where a person has seen some horrific event which has
arisen from the negligence of another – e.g. a mother sees her child knocked
down by a careless driver and, as a result, the mother suffers psychiatric
basis of the law as understood in the late 1980s and early 1990s, a considerable number of
persons who had witnessed the Hillsborough tragedy were advised that they had
valid claims against the South Yorkshire Police for psychiatric illness arising
from the Hillsborough tragedy. Some of the claimants had seen the event
because they were present at the stadium. Others had seen reports of the
events on television. Similarly, there was some legal authority that a
person involved in rescue efforts at the scene of an accident might have a
possible claim (Chadwick v British Transport Board  1 WLR 912) and a case
was brought by a number of Police Officers who were involved at Hillsborough
and who had administered first aid or who had moved the bodies of the deceased
to a temporary mortuary.
major cases arising from Hillsborough, both of which reached the House of
Lords, were Alcock v Chief Constable of South Yorkshire  1 AC 310 and
White v Chief Constable of South Yorkshire. 2 AC 455.
resulting from those and other cases is generally regarded as unsatisfactory,
complex and inconsistent.
possibility of claiming in negligence was originally recognised in Dulieu v
White and Sons  2 KB 669. A man (employed by White and Sons)
negligently drove a horse and cart into a public house and the female claimant,
working therein, feared for her safety. She was badly frightened and
suffered a miscarriage.
has developed entirely as a result of the cases brought to the courts. It
is a good example of how case-law develops within the English legal system.
Shock: Psychiatric Illness:
years the lawyers referred to these cases as “nervous shock” cases but the term
was misleading. The cases are concerned with those situations where
genuine medically recognised psychiatric illness has arisen and that is more
McLoughlin v O’Brien  1 AC 410 a mother was told that her husband and
children had been involved in an accident. She rushed to the hospital and
saw her family. She suffered psychiatric illness as a result and her claim
was successful in the House of Lords. In Page v Smith  AC 155 a man
was involved in an accident and, although not physically injured, he later
began to again suffer the symptoms of myalgic encephalomyelitis (ME) which,
prior to the accident, had been in remission. He suffered psychiatric
illness as a result.
illness alone is insufficient:
where a potential claimant has developed psychiatric illness, a number of other
factors come into play before liability on the part of the defendant can be
established. The case law divides claimants into 3 categories:
- Those physically injured at
the event and who also suffer psychological illness
- Those who are put in danger
of physical harm but who do not suffer physical injury but do suffer
- Those who were not in
physical danger but who suffer psychiatric illness as a result of what
they have witnessed or been involved in.
long established that those in category 1 will be able to claim for both their
physical and psychological injuries/illness.
2 claimants are, since the case of Page v Smith  AC 155 referred to as
PRIMARY VICTIMS. Category 3 claimants are referred to as SECONDARY
VICTIMS. The rules differ between the classes of claimant.
In Page v
Smith the House of Lords held that where it was reasonably foreseeable that the
defendant’s conduct would expose the claimant to the risk of physical injury
there was a duty of care with regard to any injury suffered (including psychiatric
illness). It was not necessary to show that psychiatric injury was in
itself reasonably foreseeable.
Smith was confirmed on this point by the House of Lords in Simmons v British Steel plc 
interesting if somewhat complex development in relation to primary victims was
the CJD litigation.
Further litigation occurred in relation to what are known as “pleural plaques”
arising from exposure to asbestos – see Simpson Millar and Rothwell v Chemical and Insulating
Company Co. Ltd.  UKHL 39.
much more difficult for this category of victim to successfully claim for
psychiatric illness. Various classes of case have arisen such as cases
brought by relatives (or friends or work colleagues) of those killed or injured
during some sudden and horrifying event. Another category of claimant has
been the person involved in the rescue of others (whether acting voluntarily or
out of duty arising from employment).
etc. as secondary victims:
limited situations can a secondary victim’s claim succeed. The case of White v Chief Constable of South
Yorkshire. 2 AC 455 decides that all secondary victims are
subject to the same principles as established in the earlier cases of
McLoughlin v O’Brien  1 AC 410 and Alcock v Chief Constable of South
Yorkshire  1 AC 310. These cases establish that, for secondary
victims, psychiatric illness must have been reasonably foreseeable AND also the
secondary victim must come within a number of other restrictive requirements.
Alcock case arose from Hillsborough. 2 claimants were spectators in the
ground, but not in the pens where the disaster occurred. The other
claimants learned of the disaster through radio or television broadcasts.
All the claimants feared that feared they might have lost, a relative or fiance
in the disaster. The House of Lords was particularly keen to severely
limit claims in this area and all the claimants lost their cases because they
did not meet one or other of the “control mechanisms” set down by the Law
"1. There must be a close tie of
love and affection between the plaintiff and the victim. 2. The
plaintiff must have been present at the accident or its immediate aftermath.
3. The psychiatric injury must have been caused by direct perception
of the accident or its immediate aftermath and not by hearing about it from
Close ties of love and affection:
no set list of relationships amounting to close ties and affection. It
depends on the facts of the case. In the Alcock case one claimant lost
because he could not show as a fact that there were such ties
between him and his brother.
Present at the scene or immediate
the psychiatric illness must have arisen from witnessing a sudden and horrific
event (or its immediate aftermath). This mechanism excludes those who,
for example, suffer as a result of seeing a relative slowly die in intensive
care needed because of negligent medical treatment: see Sion v Hampstead Health
Authority  5 Med LR 170.
interesting case is North Glamorgan NHS Trust v
Walters  EWCA Civ 1792 where the Court of Appeal took a
sensible approach and thereby enabled a mother to succeed in her claim.
Proximity in time and space:
Alcock case establishes that a witness must have been at the scene or at the
immediate aftermath. Learning of an event on radio or television will not
suffice. Being told by a 3rd party will not suffice: Tan v
East London and City Health Authority  Lloyd’s Rep Med 389.
the control mechanisms combine to prevent successful actions in many (if not
most) secondary victim cases.
In White v Chief Constable of South
Yorkshire. 2 AC 455 the claimants were Police Officers who had
been at Hillsborough. The House of Lords held that rescuers were not a
special category (as previously thought) but were subject to the same rules as
any other secondary victims. A further argument brought by the Police
Officers was that they were owed a duty of care by their employer (taken for
the purposes of the case to be the Chief Constable) given that it was their
employer who ultimately had been negligent in causing the tragedy. The House of
Lords rejected this. Where a type of injury was subject to special rules,
those rules applied where the injury arose from the employer’s negligence.
the later case of French v Chief Constable of Sussex
 EWCA Civ 312
It is a
major understatement to say that the law here is unsatisfactory. It has
been examined by the Law Commission which reported in 1998 and included a Bill to enable the law to be reformed. No
action has been taken.
Comments about the Law Commission’s Consultation Paper No
PTSD legacy of Hillsborough
Psychiatric Injury - FAQs -
The legal legacy of Hillsborough – No. 3
Withdrawal of Medical Treatment
Tony bland was a
17-year-old Liverpool FC football supporter, severely injured at the
Hillsborough Stadium disaster in 1989. He suffered crush injuries, was
resuscitated on the pitch, and was then taken to the A&E department in
Sheffield. He was intubated and ventilated. He survived. He was later taken off
the ventilator but extensive damage to the cerebral cortex was confirmed and he
was diagnosed as being in PVS. In 1992 his
medical team approached UK Courts seeking permission to stop giving him food
and fluids through a nasogastric tube. The Family Division of the High Court,
the Appeal Court and then the Law Lords all agreed that it would be lawful to
stop tube-delivered food and fluids. Tony Bland died of dehydration in March
1993, nine days after the tube was removed – see The Independent 5th
March 1993. In December 1993 an inquest concluded that
Tony Bland’s death was accidental. On the 20th Anniversary of
Hillsborough, Tony Bland’s sister, in a poignant article, recalled her brother
– see Liverpool Echo.
litigation relating to Tony Bland commenced because the hospital, with the
agreement of the Bland family, applied for a declaration that they could
lawfully discontinue artificial nutrition and hydration. Ultimately, the
House of Lords unanimously granted the declaration – see Airedale NHS Trust v Bland  AC 789.
reaching their decision, the law lords fell back on their earlier decision in Re. F. (Mental Patient: Sterilisation)  2 A.C. 1. In that case it had been held
that it would be lawful to sterilise a female mental patient who was incapable
of giving consent to the procedure. The ground of the decision was that
sterilisation would be in the patient's best interests because her life
would be fuller and more agreeable if she were sterilised than if she were not.
Bland case it was decided in the House of Lords that when a patient was
incapable of deciding whether to continue medical treatment, what could
lawfully be done depended on what constituted treatment in the best
interests of the patient and in conformity with responsible medical advice.
The law lords recognised the dangers inherent in this and stated that before
treatment could be withdrawn the doctors had to seek a declaration from the
courts. Anxious to try to prevent a slide down slippery slopes the law
lords indicated that:
effort should be made at rehabilitation for at least six months after the
injury; (2) The diagnosis of irreversible PVS should not be considered
confirmed until at least twelve months after the injury, with the effect that
any decision to withhold life-prolonging treatment will be delayed for that
period; (3) The diagnosis should be agreed by two other independent doctors;
and (4) Generally, the wishes of the patient's immediate family will be given
decision in Tony Bland’s case raised a vast number of ethical issues – (see
links below). So far as the law is concerned the safeguards which the law
lords tried to build into their decision have been gradually eroded.
example, Frenchay Healthcare Trust v S the Court of Appeal  2 All ER 403
saw the end of the requirement for “other independent doctors.” S was
said to have been in PVS for over 2 years following a drug overdose. His
feeding tube was accidentally disconnected. The hospital was granted a
declaration that they need not reconnect the tube. The Court of Appeal
made the declaration without any independent medical opinion that S was irreversibly
(Medical Treatment)  1 FLR 411 was another case where a feeding tube had
become disconnected. D’s condition did not fully conform to guidelines
for diagnosis of PVS as laid down by the Royal College of Physicians.
However, the court accepted that “there was no evidence of any meaningful life
whatseoever” and held that it was lawful not to reconnect the tube. A
similar case is Re H  2 FLR 36.
little doubt that the ultimate effect of the Bland case and subsequent
decisions is that the judges have taken it up themselves to decide whether a
life is worth saving or not. Each case turns on the “best interests of
judges like it or not, the effect of the long series of judicial decisions relating
to withdrawal of treatment is that judges are making life or death decisions” –
(see Brazier and Cave “Medicine, Patients and the Law” – 4th Edition
at para 20.11). There is little doubt that Tony Bland’s case moved
English law towards an ethic which does not seek to preserve human life as such
but only a life that is considered by the decision-maker to be “worth living.”
development in the law has been the Mental Capacity Act 2005
which provides for Lasting Powers of Attorney (see sections 9 to 14) and
Advance Decisions to Refuse Treatment (see sections 24-26). The Act is
accompanied by a Statutory Code of Practice. See Department of Health
UK Clinical Ethics Network – website includes material
about the Mental Capacity Act 2005
Legal and ethical aspects of the vegetative state
– S A McLean, 1999