HM Attorney General v HM Coroner of South Yorkshire (west) and Another

Wednesday 19 November 2012

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.

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.

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".

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.

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.

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.

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.

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.

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.

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...