Private prosecution

¶1.254 In August 1998 the Hillsborough Family Support Group initiated a private prosecution against David Duckenfield and Bernard Murray. It was the culmination of a decade's campaigning to establish criminal liability and to access key documents, witness statements and personal 'body files' on each of the deceased compiled by the police investigators.

¶1.255 On 16 February 2000 the former officers were committed for trial, charged with manslaughter and misconduct in a public office. Mr Duckenfield was also charged with misconduct 'arising from an admitted lie told by him to the effect that the [exit] gates had been forced open by Liverpool fans'.

¶1.256 The judge, Mr Justice Hooper, summarised the prosecution case for manslaughter as the failure by the officers to prevent a crush on the terraces and to divert fans from the tunnel. The risk of serious injury, therefore, had been foreseeable. The 'apparent' defence case was that neither officer 'in the situation in which they found themselves, thought about closing off the tunnel or foresaw the risk of serious injury in the pen if they did not do so'.

¶1.257 The judge noted the 'enduring grief' suffered by the bereaved. It was compounded by 'a deep seated and obviously genuine grievance that those thought responsible' had not been prosecuted or 'even disciplined'. Both defendants, however, 'must be suffering a considerable amount of strain'.

¶1.258 While committing Mr Duckenfield and Mr Murray for trial he took a 'highly unusual course' to 'reduce to a significant extent the anguish being suffered'. He stated that if the former officers were found to be guilty of manslaughter, neither would face a prison sentence. This extraordinary assurance could not be disclosed until after the trial.

¶1.259 The trial opened on 6 June 2000 at Leeds Crown Court and ran for seven weeks. The prosecution's case was that fans died because they could not breathe in a crush due to overcrowding 'caused by the criminal negligence of the two defendants'.

¶1.260 Both had been 'grossly negligent, wilfully neglecting to ensure the safety of supporters'. Their negligence was not the sole cause of the disaster as the ground was 'old, shabby, badly arranged, with confusing and unhelpful sign-posting ... there were not enough turnstiles'.

¶1.261 Further, an entrenched 'police culture ... influenced the way in which matches were policed'. Nevertheless, the 'primary and immediate cause of death' was the consequence of the defendants' failures. Each defendant 'owed the deceased a duty of care' and 'his negligent actions or omissions were a substantial cause of death'. Their 'negligence was of such gravity as to amount to a crime'.

¶1.262 Mr Duckenfield declined to give evidence but his evidence to the Taylor Inquiry was presented in detail. The judge called as a witness Mr Duckenfield's predecessor, former Chief Superintendent Mole, as he had drafted the Police Operational Order, introducing him as a crowd safety 'expert'.

¶1.263 Mr Murray gave evidence. Closing off the tunnel was 'something that did not occur to me at the time and I only wish it had'. While not recognising how packed the central pens had become, he had not been 'indifferent to the scenes ... I did not see anything occurring on the terrace which gave me any anxiety'.

¶1.264 Between 14 and 20 June the prosecution called 24 witnesses. At the conclusion of the evidence the judge identified four questions for the jury to consider. First, 'Are you sure, that by having regard to all the circumstances, it was foreseeable by a reasonable match commander that allowing a large number of spectators to enter the stadium through exit Gate C without closing the tunnel would create an obvious and serious risk of death to the spectators in pens 3 and 4?' If 'yes', they were to move to question 2; if 'no', the verdicts should be 'not guilty'. Second, could a 'reasonable match commander' have taken 'effective steps ... to close off the tunnel' thus preventing the deaths? If 'yes', they were to move to question 3; if 'no', the verdicts should be 'not guilty'. Third, was the jury 'sure that the failure to take such steps was neglect?' If 'yes', it was on to question 4; if 'no', the verdicts should be 'not guilty'. Fourth, was the 'failure to take those steps ... so bad in all the circumstances as to amount to a very serious criminal offence?' If 'yes', the verdicts should be 'guilty'; if 'no', they should be 'not guilty'.

¶1.265 Each question had to be contextualised 'in all the circumstances' in which the defendants had acted. Centrally, did the circumstances of chaos and confusion impede or mitigate the senior officers' decisions? On opening Gate C, was an obvious and serious risk of death in the central pens 'foreseeable' by a 'reasonable match commander?' Not someone of exceptional experience and vision, but an 'ordinary' or 'average' match commander. Even if gross negligence could be established, question 4 demanded that it had to be so bad in the circumstances that it constituted a serious criminal offence.

¶1.266 The prosecution argued that the police 'mindset' of 'hooliganism' at the expense of crowd safety was 'a failure' best captured 'in the word neglect'. It was not a failure caused by the immediacy of a 'split-second decision' but 'a case of slow-motion negligence'.

¶1.267 Like all others in the stadium, Mr Duckenfield and Mr Murray could see the 'dangerously full pens' and had adequate 'thinking time' to seal the tunnel and redirect the fans. Their failure was negligent and not postponing the kick-off 'intensified the responsibilities of those who had taken the decision to get it right'. It was a serious criminal offence because 'thousands of people' had been affected by the breach of trust in the officers.

¶1.268 Mr Duckenfield's Counsel considered the events were 'unprecedented, unforeseeable and unique'. He maintained that a 'unique, unforeseeable, physical phenomenon', unprecedented in the stadium's history, occurred in the tunnel. People were projected forward with such ferocity that others died on the terraces in the consequent surge. It was the result of a small minority of over-eager fans who had caused crushing at the turnstiles, whose actions were perhaps responsible for the projection of unprecedented force in the tunnel.

¶1.269 Mr Murray's Counsel argued that what happened was not slow-motion negligence but 'a disaster that struck out of the blue'. The deaths were not foreseeable and no 'reasonably competent' senior officer could have anticipated the sequence of events as they progressed. While the police operation might have 'had many deficiencies' Mr Duckenfield and Mr Murray should not be singled out to 'carry the can'. The terraces had been authorised as safe, the fans 'finding their own level' was taken for granted. It was 'Mole's policy, Mole's custom and practice'. A conviction would make Mr Murray a 'scapegoat'.

¶1.270 Having heard the closing speeches, the judge emphasised that the case had to be assessed 'by the standards of 1989' when 'caged pens were accepted' and 'had the full approval of all the authorities as a response to hooliganism'. The defendants had to be regarded as 'reasonable professionals' - 'an ordinary competent person', not a 'Paragon or a prophet'.

¶1.271 When the exit gates were opened, 'death was not in the reckoning of those officers'. They were responding to a 'life and death situation' at the turnstiles and the jury had to 'take into account that this was a crisis'. The jury should 'be slow to find fault with those who act in an emergency'; a situation of 'severe crisis' in which 'decisions had to be made quickly'.

¶1.272 J Hooper noted the 'huge difference between an error of judgement and negligence', that 'many errors of judgement we make in our lives are not negligent' and 'the mere fact that there has been a disaster does not make these two defendants negligent'.

¶1.273 For a guilty verdict, the negligence would have to have been 'so bad [as] to amount to a very serious offence in a crisis situation'. There were two key questions: 'Would a criminal conviction send out a wrong message to those who have to react to an emergency and take decisions? Would it be right to punish someone for taking a decision and not considering the consequences in a crisis situation?'

¶1.274 After 16 hours of discussion the jury was instructed that a majority verdict would be accepted. Over five hours later, Mr Murray was acquitted. The jury was discharged without reaching a verdict on Mr Duckenfield and the judge refused the application for a retrial.

Beyond the private prosecution

¶1.275 Following the private prosecution, the Hillsborough Family Support Group (HFSG) continued its campaign for full disclosure of all documents relating to the Hillsborough disaster. The HFSG was not the only campaign group. The others are the Hillsborough Justice Campaign and Hope for Hillsborough (focusing on the case of Kevin Williams). On 15 April 2009 at the 20th Anniversary Memorial of the disaster organised by the HFSG, the Secretary of State for Culture, Media and Sport, Andy Burnham, addressed over 30,000 people at Anfield, home of Liverpool FC.

¶1.276 In his address Mr Burnham committed the Government in principle to disclosing all public documents relating to Hillsborough. This would mean waiving the restriction placed on government documents and public records for a minimum 30-year period, known as the '30-year rule'.

¶1.277 Subsequently, the HFSG submitted a request to the Home Office for a 'full and frank disclosure of all documents, their careful evaluation and the production of a balanced report' independent of government. Its detailed request noted that disclosure was a matter of 'public interest' as well as offering 'resolution for bereaved families, survivors and others affected by Hillsborough'.

¶1.278 Following meetings between the HFSG, Merseyside MPs and the Home Secretary, in December 2009 the Home Secretary, Alan Johnson, announced the appointment of the Hillsborough Independent Panel and published its terms of reference.