Civil actions and criminal prosecution

¶1.146 Civil actions for damages commenced within days of the disaster. The issue was liability for the fatalities and for those who had sustained physical injuries and/or psychological distress while in the pens.

¶1.147 By 26 July 1989 there had been an appearance before Mr Justice Steyn in the High Court for his directions on the progress of the litigation. Neither SYP nor the Club were prepared to make a formal admission of liability, nor were they prepared to make any compensation payments.

¶1.148 While denial of liability is not unusual, insurers often settle civil claims in an attempt to mitigate their loss. Following publication of LJ Taylor's Interim Report in August 1989, SYP and SWFC blamed each other for different elements of the disaster and each refused to accept liability.

¶1.149 However, by 30 November 1989, the SYP Chief Constable and the South Yorkshire Police Authority had offered an out-of-court damages settlement to some of the bereaved and injured. In conjunction with their insurers, Municipal Mutual Insurance, they issued a press statement committing 'to open negotiations with the aim of resolving all bona fide claims against [the Chief Constable] for compensation arising out of the Hillsborough disaster'.

¶1.150 Other parties – SWFC, the safety engineers Eastwood & Partners and Sheffield City Council – who were named as defendants in the civil proceedings declined the invitation to join SYP in the settlement. SYP made it clear that they would 'pursue legal action against those parties to recover moneys paid out to the claimants'.

¶1.151 In due course, SYP commenced 'contribution' or 'third party' proceedings against SWFC and Eastwood & Partners to reclaim an appropriate proportion of the costs of the out-of-court settlements.

¶1.152 At the eventual trial of these proceedings in the High Court in October 1990, Counsel for SYP argued that SWFC and Eastwoods were liable because there were four key factors which created an inherently 'unsafe system' at Hillsborough:

no means of controlling the capacity of pens 3 and 4 - 'the main cause of the disaster'
an 'unsafe system' of management by SWFC
an 'unsafe system' of escape
an 'unsafe system' of inspection and testing of barriers.

¶1.153 Mid-way through the trial, however, following private negotiations, a confidential deal was struck between the parties, each of whom agreed not to disclose details to the public. By doing so, the parties avoided a court ruling.

¶1.154 In the months and years that followed, SYP made numerous compensation payments. They also settled a number of claims brought by police officers who had been active as 'rescuers' in the immediate vicinity where the deaths and injuries occurred. The settlements of these cases were mired in controversy, given that many of the bereaved and injured were denied compensation.

¶1.155 Settlements were made 'without admission of liability', drawing criticism from bereaved families and survivors. They had wanted SYP and SWFC to accept, without ambiguity, their respective responsibilities in causing death and injury.

¶1.156 Yet, in November 1991, in a House of Lords ruling on a different but related group of claims, Lord Keith of Kinkel stated that the 'Chief Constable of South Yorkshire has admitted liability in negligence in respect of the deaths and physical injuries'.²² Alcock and others v Chief Constable of South Yorkshire Police [1992] 1 A.C. 310, at 392.

¶1.157 His remarks were made in the context of one of three different sets of claims against SYP, each pursued all the way to the House of Lords on behalf of those whose claims were not settled.

¶1.158 The first involved those who sought to claim compensation for trauma as 'secondary' victims insofar as they were not directly affected or injured in the events. The second involved those who claimed compensation for the pre-death pain and suffering of their loved ones.

¶1.159 The third set involved police officers who sought to claim compensation for trauma as 'secondary' victims in circumstances where they had not been active in the immediate area where the deaths and injuries occurred. Each set of claims was ultimately unsuccessful before the House of Lords, for different reasons concerning public policy.

¶1.160 On 30 August 1990 the Head of the Police Complaints Division of the Crown Prosecution Service wrote a brief letter to the SYP Chief Constable. Following the 'most careful consideration' of 'all the evidence and documentation', the DPP had 'decided that there is no evidence to justify any criminal proceedings' against SYP, SWFC, Sheffield City Council or Eastwoods. Further, there was 'insufficient evidence to justify proceedings against any officer of the South Yorkshire Police or any other person for any offence'.

¶1.161 The decision not to prosecute senior police officers had been taken by the DPP in consultation with two independent senior Counsel. While senior police officers could still face internal Force disciplinary charges, there would be no criminal prosecution. Given the DPP's decision and the prohibitive costs involved, the families and their lawyers discounted a private prosecution.

¶1.162 Once the DPP decided against the prosecution of senior officers or any corporate body, the 17 complaints made to the Police Complaints Authority (PCA) by members of the public were considered for disciplinary action. The PCA examined the material gathered by the WMP investigators, considering each complaint on its merits.

¶1.163 In the cases of C/Supt Duckenfield and Supt Murray, the PCA concluded that there was sufficient evidence to pursue disciplinary action for 'neglect of duty'. There followed a protracted dispute between the PCA and SYP. It was resolved on 11 July 1991 when the PCA directed that C/Supt Duckenfield and Supt Murray should face a disciplinary hearing charged with 'neglect of duty'. While the SYP Chief Constable opposed the action, it was later revealed that he 'wanted the discipline process to be worked through' given the 'significance of the disaster'.

¶1.164 While this process was progressing, C/Supt Duckenfield was on sick leave, 'too ill to be amenable to the disciplinary process, let alone face the necessary tribunal'. On 10 November 1991 he retired early on medical grounds. Following judicial advice the PCA decided against proceeding against Supt Murray alone. This decision ended the disciplinary proceedings.