Hillsborough and its legacy

15^th April 2009 marked the 20^th 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 15^th April 2009. At a memorial service held at Anfield Stadium on 15^th 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 16^th April 2009.

By August 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 oral testimony.”

Lord 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).

At the 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.

Lord 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 9^th 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.

In 1997, 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 30^th 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 investigation.”

Chapter 4 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.”

Further, 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 Taylor's findings.”

Stuart-Smith therefore found (para 106) that the allegation of irregularity and malpractice (paragraph 77) was not substantiated.

Essentially, 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.

In 1991, 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.

The 3.15 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 12^th 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].

In 1990 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 26^th July 2000.

Mrs Ann Williams, a lady whose son died at Hillsborough, had her application to the European Court of Human Rights ruled inadmissible Liverpool Echo 30^th 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.

In 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.

It also appears that the government and South Yorkshire Police are now considering allowing publication of documents relating to the disaster – see Sky News 19^th April 2009 and The Guardian 20^th 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.

Under modern 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 2.

With 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 individual case.

Mr Peter Joynes – the father of a victim – has stated his wish to hear an apology from official lips – The Independent 9^th April.

"Until 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."

There 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.”

The 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.

An Independent Panel Report exonerated the Liverpool fans from blame for these events. See the website

Claims 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.

Such 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 illness.

On the 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 [1967] 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.

The two major cases arising from Hillsborough, both of which reached the House of Lords, were Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 and White v Chief Constable of South Yorkshire.[1999] 2 AC 455.

The law resulting from those and other cases is generally regarded as unsatisfactory, complex and inconsistent.

The possibility of claiming in negligence was originally recognised in Dulieu v White and Sons [1901] 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.

The law 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.

For many 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 then grief.

In McLoughlin v O’Brien [1983] 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 [1996] 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.

Even 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:

It is long established that those in category 1 will be able to claim for both their physical and psychological injuries/illness.

Category 2 claimants are, since the case of Page v Smith [1996] 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.

An interesting if somewhat complex development in relation to primary victims was the CJD litigation.

It is 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).

Only in limited situations can a secondary victim’s claim succeed. The case of White v Chief Constable of South Yorkshire.[1999] 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 [1983] 1 AC 410 and Alcock v Chief Constable of South Yorkshire [1992] 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.

The 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 Lords:

"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 somebody else."

There is 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.

Generally 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 [1994] 5 Med LR 170.

The 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 3^rd party will not suffice: Tan v East London and City Health Authority [1999] Lloyd’s Rep Med 389.

Clearly, the control mechanisms combine to prevent successful actions in many (if not most) secondary victim cases.

In White v Chief Constable of South Yorkshire.[1999] 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.

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.

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 5^th March 1993. In December 1993 an inquest concluded that Tony Bland’s death was accidental. On the 20^th Anniversary of Hillsborough, Tony Bland’s sister, in a poignant article, recalled her brother – see Liverpool Echo.

The 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 [1993] AC 789.

In reaching their decision, the law lords fell back on their earlier decision in Re. F. (Mental Patient: Sterilisation) [1990] 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.

In the 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:

(1) Every 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 great weight.

The 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.

For example, Frenchay Healthcare Trust v S the Court of Appeal [1994] 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 in PVS.

Re D (Medical Treatment) [1998] 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 [1998] 2 FLR 36.

There is 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 the patient.”

“Whether 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” – 4^th 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.”

A further 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 and Mind.