Chapter 10: The 3.15pm cut-off

Chapter 10: The 3.15pm cut-off

¶2.10.1 The Coroner's decision to impose a restriction on evidence presented to the jury at the inquests became public knowledge after the completion of the 'mini-inquests' and immediately prior to the resumption of the inquests in generic form. Of the Coroner's decisions this restriction was, and remains, of profound concern to the bereaved families. Yet, as revealed in Chapter 9, it was a restriction agreed by lawyers representing the bereaved.

¶2.10.2 While controversial among the bereaved families, the restriction was not challenged by way of judicial review at the time of the inquests on the advice of Counsel. It was a prominent issue in the subsequent judicial review of the inquests and was revisited by the Stuart-Smith Scrutiny.

¶2.10.3 The complexity, enormity and exceptional demands of the work faced by the Coroner – with a duty to inquire into the deaths of 95 people – was daunting. That there were so many witnesses, CCTV and film footage and photographs compounded the challenge of selecting and prioritising evidence from the mass of statements and material gathered. For the Coroner, it also created an unprecedented difficulty in planning the scope of evidence presented at inquests.

¶2.10.4 At the conclusion of the mini-inquests families raised concerns with their legal representatives and the Coroner, Dr Stefan Popper, about 'sufficiency of inquiry' because of the limitations placed on the presentation and examination of evidence put to the jury. This chapter focuses on a central issue – the introduction at the generic hearing of a 3.15pm cut-off.

¶2.10.5 Dr Popper's rationale for imposing this restriction on evidence continues to be misunderstood or misrepresented. Most significant has been the false assumption that he proposed that in all cases death had occurred before 3.15pm. This was not the case.

¶2.10.6 Put simply, his position was that those who died received the injuries that caused their death before 3.15pm, even if they lived beyond that time. His logic was that in each case there was no 'intervening act' (novus actus interveniens) that contributed to death. This rationale, however, also suggested that whatever the interventions, or lack of interventions, as part of the emergency response each death was unavoidable once 3.15pm had been reached.

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¶2.10.7 The documents considered in Chapter 5 contain clear medical evidence that a significant number of those who died may have been alive after removal from the pens. These individuals might have survived given appropriate and timely intervention, but remained vulnerable while unconscious to the effects of a new event such as being positioned incorrectly or inhaling stomach contents.

¶Restrictions on the scope of the mini-inquests 2.10.8 It is also clear from the documents discussed in Chapter 4 that the delivery of appropriate and timely intervention was significantly hampered by lack of coordination of the emergency response, lack of prioritisation of casualties and shortage of basic equipment. The question of how to consider evidence relating to efforts made to care for and resuscitate those who died confronted the Coroner. As discussed previously, Dr Popper attempted to resolve this by resuming the inquests on a limited basis as a series of individual hearings for each of the deceased.

¶2.10.9 In a note of a conversation with Detective Chief Inspector Kevin Tope from the West Midlands Police (WMP) investigation team, Dr Popper observed that WMP wanted to establish 'at what point the evidence' at each mini-inquest 'would stop'.1 Dr Popper noted his reply, that it would extend 'probably up to the temporary mortuary but obviously if there were any particular difficulties we would do our best to try and answer the questions as far as we could'. DCI Tope commented that 'on the whole the evidence went beyond' the temporary mortuary, 'right up to identification and the Medico Legal Centre'.

¶2.10.10 In the immediate aftermath the 'scope' of the investigation had also exercised South Yorkshire Police (SYP). On 26 April 1989 a meeting of the SYP team responsible for coordinating the collation of officers' recollections or 'self-prepared statements' established that the SYP investigation would be 'internal, narrow in scope, as evidence gathering not investigation, and, finally, as secondary to the West Midlands enquiry'.2

¶2.10.11 Chief Superintendent Terry Wain, the briefing officer, stated: 'I would like you to stress to each of these officers that our enquiry is concerned only with the incident itself not the actions taken in respect of the aftermath'. The 'enquiry is to consider the events leading up to the decision to stop the game and nothing thereafter' (emphases in original).

¶2.10.12 The scope of the SYP 'evidence gathering' was further developed at a meeting on the same day that included the SYP solicitor, Peter Metcalf and Counsel, Bill Woodward QC.3 Deputy Chief Constable Peter Hayes stated that the 'scope of the enquiry' had 'focused on a time up to about 3.15, or 3.30'. He asked if this should be extended 'at this stage to focus on consequences'. Counsel replied 'Yes, I think so, why did somebody not do something might be a question? Why did someone die when they needn't have done? It's those sorts of questions that we need to be aware of'.

¶2.10.13 Thus it was against this background that the mini-inquests were held covering the 'who', 'when' and 'where' details of each person who died including the pathology evidence and the medical cause of death. As stated previously, although the scope of enquiry at this stage covered the period beyond 3.15pm, the situational evidence was summarised, presented by WMP officers and not subject to cross-examination.

1. File notes of conversation between Dr Popper and DCI Tope (WMP), 6 March 1990, SYC000001390001, p45. 2. Briefing for officers coordinating the collation of self-prepared statements from police officers on duty at FA Cup Semi-

¶Final at Hillsborough – 15 April 1989, 26 April 1989, SYP000097200001, p4. 3. Minutes of meeting with Counsel, 26 April 1989, SYP000096360001, p99.

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¶2.10.14 For many families the expectation was that questions, concerns and inaccuracies not addressed at the mini-inquests would be resolved at the generic hearing, particularly issues pertaining to the effectiveness of the emergency response and whether lives could have been saved.

¶Preparation for the generic hearing 2.10.15 In late August 1990, a preparatory meeting between the Coroner, Deputy Chief Constable Mervyn Jones and WMP investigating officers was held to prepare for the generic hearing, anticipated to run for 31 days over six weeks.4 The minutes record a recognition at the meeting that some of the bereaved would 'probably' request 'full Inquests into how their loved ones died'. This had been 'indicated' already by two families (Devonside and Hicks), 'but we cannot think that these will be the only ones who will want to trawl over the evidence. You will probably be able to identify these [others] as well as ourselves'. 2.10.16 The WMP officers advised Dr Popper 'to restrict most carefully the amount of evidence you will hear and on what subjects'. Having 'already dealt with the "why", "where", and "when", in the preliminary Inquests ... we may have to re-open those to satisfy certain individuals, but generally speaking we should be able to dismiss fairly quickly those aspects of your Inquests'. 2.10.17 As WMP officers also liaised with the bereaved, they were aware that issues were outstanding from the mini-inquests. Yet at this meeting WMP officers appeared dismissive of the substance, motives and intentions behind families' queries. Regarding the scope of the generic stage, they stated: 'we would suggest that you [the Coroner] concentrate on the period between say 1420 hours when the crowd had noticeably built up, through to Superintendent Greenwood running on to the pitch at 1505 hours plus to stop the match'. 2.10.18 The investigation team offered to prepare a schedule and a list of witnesses appropriate to this time sequence. Establishing an appropriate timeframe was an issue in deciding 'what additional evidence to lay'. It was suggested this could be addressed 'in a general sense giving a flavour of the evidence … from a West Midlands Police officer'. The background information would focus on the build-up and crush at the Leppings Lane turnstiles and the contribution made by 'drunkenness and unruliness'. 2.10.19 Soon after the meeting Dr Popper consulted with Richard Sturt, the Kent Coroner, concerning the scope of the inquests and a cut-off time for the evidence presented.5 He asked for advice 'on what in short we refer to as the "rescue"'. According to Dr Popper, Mr Sturt's 'initial reaction was that we might have to repeat that because it might go to causation, but upon further reflection, he agreed with me that one could certainly argue that it was post incident and therefore not necessary to repeat it'. 2.10.20 Mr Sturt was of the view that the inquests had the potential to become 'completely out of hand'. He advised Dr Popper to remain aloof from the legal representatives, to 'keep a distance and be rather magisterial' and not to hold a pre-inquest review prior to the generic hearing. 2.10.21 Meeting with the WMP team a month later, Dr Popper stated that he intended to hear evidence 'at least until Chief Superintendent Nesbitt [sic] arrived on the scene at 3.20pm'.6 Regarding background, he would hear evidence, for example, 'on the routes, the pubs, local residents, etc.'. 4. Meeting held on 31 August 1990 at Nechells Green Police Station to discuss the proposed inquests, 31 August 1990,

¶SYC000001180001, pp74-79. 5. File note, 'Telephone Call to Mr Sturtt [sic]', 11 September 1990, SYC000001270001, pp103-104. 6. Summary of meeting at the Medico-Legal Centre, Sheffield, 10 September 1990, SYC000001360001, p10.

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¶2.10.22 Two days later Dr Popper noted a conversation with Doug Fraser, the Hillsborough Steering Committee representative, in which Mr Fraser offered the 'view' that 'probably 6 minutes past 3 was the cut off point'.7 Dr Popper responded that he 'had in mind' a 'few minutes beyond that'. 2.10.23 He had 'dealt with the "rescue" during the interin [sic] inquests' as 'it was only fair that the families should have some idea of the amount of effort and time that had been put into this and also that should they wish to have this explored at another place, they would at least know who the people were who were involved'. The phrase 'another place' in this context would have been understood as a reference to the High Court on any application for judicial review. Dr Popper asked Mr Fraser if families' queries from the mini-inquests were substantial. Mr Fraser 'said he didn't think so … as far as he could recollect they were relatively minor matters'. 2.10.24 Having established agreement for the cut-off with the families' legal representatives Dr Popper again met DCC Jones and the WMP investigation team.8 Dr Popper noted the discussion of the scope of the inquests and agreement 'that a convenient point at which we ought to draw the line would be the arrival of the first ambulance on the pitch ... intended as a marker'. 2.10.25 A problem could arise, he stated, should there be an allegation 'that the medical treatment had caused the death'. If this was proposed as a 'serious suggestion, one might have to take that inquest out'. This would then be dealt with 'on that basis and not as part of the Hillsborough disaster'. In other words, this would constitute a cause of death distinct from that which Dr Popper considered to be common to all who died. 2.10.26 The reasoning evident in this disclosed document ignores the proposition made by families in the immediate aftermath and following the mini-inquests, that in some cases lack of access to swift and appropriate treatment was a possible contributory cause of death.

¶Pre-inquest review and further advice 2.10.27 Despite Mr Sturt's previous advice, Dr Popper held a pre-inquest business meeting, hearing submissions from legal representatives on a range of issues.9 He confirmed that the cut-off would be 'about' 3.15pm, coinciding with the arrival of an ambulance on the pitch. Counsel for the families, Tim King, requested that the cut-off be put back to 4pm. He stated that several families were:

¶... anxious that there be an inquest into the nature of the medical attention which was given to those who had been in the crushing, in regard to the allegation which certainly they wish to make and wish to investigate, that the absence of proper medical care facilities and attention and technique, led to those, certain of them in any event, dying perhaps when they might not have died at all or certainly dying sooner than might have been the case, and specifically the diagnosis of when somebody had actually died.

7. Note of a conversation between Dr Popper and Mr Fraser, 12 September 1990, SYC000000900001, p66. 8. File note, Meeting at Nechells Green Police Station, 24 October 1990, SYC000001270001, pp105-108. 9. Business meeting, Medico-Legal Centre, Sheffield, Transcript of Proceedings, 30 October 1990, SYC000110260001, pp16-18 and p37.

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¶2.10.28 Dr Popper noted that while he had yet to give a ruling he was not persuaded that he 'would want to go down that road'. He would consider legal submissions on the cut-off point but he had 'strong reasons' for the decision, 'not just obstinacy'.

¶2.10.29 At a further meeting with the WMP team Dr Popper agreed to contact Mr Fraser to establish 'how many of those he represents wish to hear evidence to 4pm'.10 While Dr Popper 'still favoured the cut-off point to be 3.15 … he would not be inflexible on this point and would consider each request on its merits'.

¶2.10.30 Dr Popper contacted James Turnbull, the West Yorkshire Coroner who had conducted the inquests following the 1985 Bradford football stadium fire. He 'asked him what he thought about the cut-off point at 3.15 subject of course to any legal submissions'.11 Mr Turnbull's view was 'in line' with Dr Popper's decision but to be 'pragmatic … it might be kind if there were just a few individuals who needed this sort of information explored to deal with what happened even after 3.15'. This had been Dr Popper's inclination, 'so his view confirmed my feelings'.

¶2.10.31 Two days later Dr Popper contacted Mr Sturt, the Kent Coroner.12 Mr Sturt 'didn't think it was right to deal with issues of WHY something happened we were there to establish HOW the deceased came by his death and that of course meant and [sic] investigation of the circumstances as well as the immediate cause of death, though one had to have some causal connection'.

¶2.10.32 Regarding the 'rescue', Dr Popper was concerned that 'the same person may be praised by one and possible [sic] condemned by another on the grounds that they had left their son/loved one too soon'. Mr Sturt replied that 'even if it were true that in the heat of the moment and under pressure somebody made some error in the extent of the resuscitation this was not something for which they could be blamed'. Although he had voiced his intention regarding the 3.15pm cut-off, Dr Popper decided to delay the final decision.

¶2.10.33 As discussed in the previous chapter, families continued to write to Dr Popper to request the reopening of their mini-inquests to consider unresolved issues. They also expressed disapproval of the 3.15pm cut-off. Dr Popper noted that in most of the correspondence families 'have completely misunderstood (a) what is happening and (b) what the ''objects of an inquest are''.13

¶2.10.34 He wrote: 'I can see at the moment no reason why I should depart from my decision to treat the cut-off point as far as the how is concerned at about 3.15 or in fact even earlier'. It appears that the depth of criticism levelled by some families against the scope of the mini-inquests had no effect on Dr Popper's determination to proceed with the 3.15pm cut-off.

¶The generic hearing submissions 2.10.35 The generic hearing opened on 16 November 1990. For most of the day submissions were made by legal representatives in open court without the jury. Two issues were significant: the imposition of the 3.15pm cut-off and the calling of senior officers to give evidence.

10. Minutes of meeting at Nechells Green Police Station, 2 November 1990, SYC000001270001, p113. 11. File note, 'Telephone Conversation with Jim Turnbull', 5 November 1990, SYC000001270001, p115. 12. File note 'Token Conversation with Mr Sturt', 7 November 1990, SYC000001030001, p39. 13. File note, 16 November 1990, SYC000001400001, p18.

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¶2.10.36 In his submission on behalf of the families Mr King stated that 'this inquest should deal with what to them [the families] is a very major issue, as to how their loved ones came by their deaths, namely how the services and rescue services, and those attending with the emergency, coped with it immediately after people were brought off the terraces because death was not certified in many, if not most, cases until after 4pm'.14

¶2.10.37 Evidence regarding 'the impact of the organisation rescue [sic] on the survival or otherwise of the particular loved one' had not been heard by the jury at the mini-inquests. Further, witnesses to the immediate aftermath had not been called. There were, stated Mr King, 'examples of people who are brought off at 15.22 and it is said that there was an effort to resuscitate by a lay individual and then that particular lay individual is not heard of again, or the officer is not, and it is said that the given loved one arrives at the temporary mortuary'. In fact, there had 'been no investigation directed to the global organisation of what happened immediately after they were brought off the terraces'.

¶2.10.38 Mr King cited an off-duty doctor, Dr Glyn Phillips, who successfully resuscitated a man after 3.15pm. While this did 'not prove this man lived, or if he did he may have been brain damaged, but the point we are trying to put across to the coroner is that after 3.15pm not all the people who were later certified dead were necessarily dead'.

¶2.10.39 There were claims by individual families, supported by off-duty doctors and nurses, that immediate medical and rescue responses were disorganised and ineffective. Mr King argued that these claims should be heard and cross-examined, and considered that 'to ignore these concerns as to the adequacy of the attentions and the rescue efforts after 3.15 is to not investigate what could well have been a major reason for why somebody died and did not survive'.

¶2.10.40 Vincent Hale, acting for Superintendent Roger Marshall, however, called for 'some sort of selection' restricting 'the areas into which you [the Coroner] are prepared to enquire further ... but I hope we are not going to waste a lot of time on negligence alone, because one item of negligence is the same as a thousand items of negligence, and you will no doubt instruct the Jury on a verdict of misadventure'.

¶2.10.41 Mr AJ Callaghan, representing the South Yorkshire Metropolitan Ambulance Service, argued that 'this is not the time and place for some sort of Public Inquiry into the activities of the Ambulance Services and the Emergency Services'. Mr King's submission, however, was that all factors including evidence concerning allegations of inadequate medical attention and equipment, and inadequate intervention, should be heard and tested.

¶2.10.42 Dr Popper presented his rationale for selecting 3.15pm as the appropriate cut-off time: 'I did not just pick the arrival [on the pitch] of the first ambulance out of the blue, I did try to consider in the light of the evidence which we had heard [at the mini-inquests] what could have been the latest time when the real damage was done'.

¶2.10.43 He considered the 'overwhelming medical evidence' to be unambiguous:

¶... the pathological evidence, and that is the crucial one [sic] I am interested in, is the damage that caused the death was due to crushing ... The medical evidence was that once ... that chest was fixed so that respiration could no longer take place, then irrevocable brain damage could occur between four and six minutes ... I felt that the evidence which I had heard and in the light of what I had read that the

14. Inquest transcript, day 1, 19 November 1990, SYC000108470001, pp5-21.

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¶latest, the latest, when this permanent fixation could have arisen would have been approximately six minutes past, which is when the match stopped. 2.10.44 Dr Popper had concluded that once the chest was 'fixed' so that respiration became impossible, 'irrevocable' brain damage would follow within minutes. Without any conclusive supporting evidence, he decided that for all who died the latest time of permanent fixation of the chest was 3.06pm, coincidentally the precise time the match was abandoned. He then added 'another six minutes' on the basis that people died within four to six minutes, 'that is twelve minutes past [three]'. 2.10.45 He took a 'convenient marker beyond that point in time ... the arrival of the first ambulance [on the pitch] not because there is anything magical about that but because when we look at the videos we can actually see that and it is a convenient marker, that is all'. Had 'the first ambulance ... arrived at 3.30 I would have picked that time'. 2.10.46 The documents disclosed and the available transcripts reveal the logic of Dr Popper's reasoning. He considered the medical evidence incontrovertible and his interpretation, supported by the pathologists, was that there was a common cause of all deaths and thus the specific circumstances of each death were irrelevant. 2.10.47 Thus the generic stage of the inquests processed 95 deaths as one: 'each individual death I dealt with families [sic] are in exactly the same situation'. He concluded that 'the fact that the person may survive an injury for a number of minutes or hours or even days, is not the question which I as a Coroner have to consider'. Consequently, 3.15pm was confirmed as the cut-off and while 'minor' deviations could be accommodated it was 'certainly not my intention to allow us to stray down that path'.

¶The Coroner's summing up and subsequent reflections 2.10.48 In his summing up, almost five months after opening the generic hearing, Dr Popper returned to the cut-off: 'we did not take much evidence after 3.15 in fact hardly any, and that was a deliberate decision of mine'.15 This decision was founded primarily on 'the pathological evidence' presented by the pathologists who had carried out the post mortems. 2.10.49 He stated that while each of the deceased 'differed in minor detail as to whether it was ten seconds or five seconds or fifteen seconds that people lost consciousness, it was clear that people lost consciousness within a relatively short period of time according to their view, and what was much more important was that irretrievable damage had been done, with somebody who was asphyxiated, between four and six minutes'. 2.10.50 The lead pathologist, Professor Alan Usher, had told the inquests 'that once the chest had been fixed so that the person could not breathe then irretrievable brain damage was caused' and 'if you [the jury] accept that as being correct then whether or not somebody subsequently breathed for a period or was resuscitated ... the damage had been done'. 2.10.51 Dr Popper 'took the view' that 'the crushing had started – well it certainly was in full swing – by 6-minutes-past, when the match had finished [sic]'. Even if crushing had not started until this time, 'you have still got nine minutes of time from there up to 15.15 for the damage to be done'.

15. Inquest transcript, day 75, 19 March 1991, SYC000001300001, pp263-268.

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¶2.10.52 It had been unnecessary to go beyond this time 'because the overwhelming medical [evidence] is that the injuries which caused the death were crushing or asphyxia or some form of compression' and the 'only place that could have happened was within the terraces'. Whatever else occurred, 'it was all related to and connected with the injuries that the people suffered within those terraces'.

¶2.10.53 Yet Dr Popper conceded that it was 'undeniable' that had resuscitation been administered correctly 'before irretrievable damage had been done' a 'person might well not only have recovered but might have been perfectly all right'.

¶2.10.54 There were, he stated, examples of several people who lost consciousness but survived 'because the cells in their case fortunately had not been so severely damaged as to be irretrievably harmed'. It was the 'beauty of the body' that it could be assaulted severely yet retrieved 'before it is too late and the people themselves just recover'.

¶2.10.55 Dr Popper's summing up reflected his preparatory notes which referred to the 'Scope of Inquests'.16 In these notes, disclosed to the Panel, he recorded that the resumed inquests 'did not deal in any detail with the rescue as it is appropriate to have some cut off point but remember that at interim inquest considerable information given right upt [sic] to the PM [post mortem]'. He continued: 'Done in the main by officers recounting summarised evidence. More extensive than normal. In so far as relevant sufficient'.

¶2.10.56 The 'reason for the cut off' was that 'the pathological evidence points to the cause of death being due to crushing'. Dr Popper listed nine pathologists who gave evidence in support of this conclusion and 'Dr Wardrope' who had 'stated that none of the patients in cardiac arrest who were resusitated [sic] in fact survived'.

¶2.10.57 The following comment concluded Dr Popper's notes: 'does not mean that if it had been possible to get at a victim sooner ie within the time limits he/she might not have survived but this is the sad fact in many accident as well as natural illness cases'.

¶2.10.58 Interviewed by the BBC in March 1992, Dr Popper commented that his 'objective' at the inquests was to 'deal with the case as if it was just one death'.17 The 'overwhelming evidence ... was that these poor people had all died of traumatic asphyxia, or virtually all; that they suffered irretrievable damage within minutes of the crushing' and 'around 3.15, the injury would have taken place with each and every one'. It was not the 'coronal [sic] task' to 'investigate ... the quality of the emergency services'.

¶2.10.59 In taking the decision to hold mini-inquests the Coroner recognised the administrative requirement of processing each death as distinct. Yet his frequent allusion to multiple deaths in a road traffic accident was an indication that, regardless of 'who', 'where' and 'when' in relation to each individual death, the origin of the medical cause of death – traumatic asphyxia – was the crush.

¶2.10.60 Thus the generic stage of the inquests, concerned exclusively with 'how' people died, was predicated on the assumption that the cause of death was common to all. What happened beyond 3.15pm, a relatively arbitrary moment determined by the arrival of an ambulance on the pitch as a 'marker', was considered inconsequential unless it could be demonstrated that another significant act contributed to an individual's death.

16. The Coroner's Summing Up, undated, SYC000001200001, p29. 17. 'REGINA -v- HER MAJESTY'S CORONER FOR SOUTH YORKSHIRE Ex-Parte SANDRA STRINGER AND OTHERS

¶AFFIDAVIT of JEREMY JOHN MURRAY HAWTHORN', 5 May 1992, SYC000001280001, p58.

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¶2.10.61 This reasoning eliminated examination of the emergency response, of the facilities, equipment or expertise available in such an emergency and of the proposition from eye witnesses that some who died could have been saved.

¶Memorial to the Attorney General and the Judicial Review 2.10.62 On 15 April 1992, a year after the inquests ended, these issues were central to a Memorial presented to the Attorney General on behalf of six families inviting him to grant his 'fiat' or authority for proceedings in the High Court to seek a new inquest under Section 13 of the Coroners Act 1988.18 It was submitted that the Taylor Report had established 'serious deficiencies in the police response to the plight of the injured once they had sustained their injuries some time between 2.52pm and 3.05pm, or even later'.

¶2.10.63 While accepting his conclusion that for many, injuries and death were 'probably inevitable', Lord Justice Taylor had also 'recognised that a quicker response' might have saved lives. The 'failure to respond swiftly enough' and to provide the 'necessary medical care to avert death' suggested that a lack of care verdict should have been put to the jury by the Coroner.

¶2.10.64 The Memorial also noted evidence, provided in detail, that four of the six lived longer 'than had been said seemed to be possible by the pathologists'. This raised the possibility that their deaths had been 'aggravated' by 'lack of care' and had there been adequate medical intervention they might have lived.

¶2.10.65 Advice given to the Attorney General noted that a 'slow response' by emergency services in 'the initial minutes of a disaster of wholly exceptional proportions' would not necessarily constitute 'lack of care'.19 If fresh inquests were to be held there would be 'difficulties in limiting the scope', possibly 'lead[ing] to a re-examination of the whole incident'.

¶2.10.66 A month later the Attorney General's office informed the families' solicitor that the law officers had concluded that 'there is nothing which would justify authorising an application to the High Court for a new inquest in any of the above cases'.20

¶2.10.67 On 6 April 1993, the High Court granted leave to six families to apply for judicial review of the inquest verdicts of accidental death on grounds similar to those put before the Attorney General.21 It was argued that negligence had been accepted by the Police Authority, the Coroner had wrongly instituted mini-inquests and the medical opinion that deaths were 'instantaneous' was now contested. The evidence summarised and presented at the mini-inquests by WMP officers had prevented necessary examination which had been 'flawed and tardy'. Taking these and several other arguments into account, Mr Justice Macpherson ruled that 'a case can be sensibly argued' in support of the challenge.

18. 'TO HER MAJESTY'S ATTORNEY GENERAL: THE HUMBLE MEMORIAL OF SANDRA STRINGER AND DONNA

¶CARLILE (the mother and sister of Paul Carlile) JOHN AND THERESA GLOVER (the father and mother of Ian Glover)

¶JOAN SINCLAIR (the sister of Michael Kelly) LESLIE AND DOREEN JONES (the father and mother of Richard Jones)

¶PETER AND JOAN TOOTLE (the father and mother of Peter Tootle) JAMES STEPHEN AND ANNE WILLIAMS (the father and mother of Kevin Williams)', 15 April 1992, AGO000000070001, p11 and p23. 19. Memorandum from SJ Wooler to the Attorney General, 31 July 1992, AGO000000140001, pp11-12 and p23. 20. Letter from SJ Wooler to Malcolm J Greggs, 18 August 1992, SYP000096240001, p426. 21. 'First Affidavit S H PIMLOTT Sworn On behalf of Respondent Case No.C0/1009/92 IN THE HIGH COURT OF JUSTICE

¶QUEENS BENCH DIVISION CROWN OFFICE LIST IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

¶BETWEEN:- REGINA – and – HER MAJESTY'S CORONER FOR SOUTH YORKSHIRE Ex parte STRINGER and

¶OTHERS', SCC000002510001, p102.

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¶2.10.68 In his subsequent affidavit for the Judicial Review Dr Popper reaffirmed his earlier position.22 The ambulance arriving on the pitch was the 3.15pm marker 'because on the overwhelming pathological evidence available to me, by that time permanent irrecoverable damage would have already occurred … my decision was based mainly upon the expert pathological medical evidence'.

¶2.10.69 The South Yorkshire Metropolitan Ambulance Service (SYMAS) Chief Ambulance Officer claimed in his affidavit for the Judicial Review that the 'response of the ambulance service' had been 'rapid', prioritising the most 'seriously injured victims'.23 He stated that there was no evidence that 'shortcomings' in the emergency response 'played any part at all in the causation of any of the deaths' or that 'lives could have been saved by more prompt medical attention'. The emergency response has been considered in full in Chapter 4.

¶2.10.70 As detailed in Chapter 5, opinions from Dr Iain West, a consultant forensic pathologist at Guy's Hospital, and from Dr James Burns, a forensic pathologist, contested the 'pathological evidence' on which Dr Popper based his conclusions.

¶2.10.71 Dr West stated that it was not possible to establish how long consciousness would have been sustained after crushing and that a victim 'could well have survived for a considerable period, well beyond 3.15pm'.24 Dr Burns concurred, noting that 'it is by no means certain that even in a severe case of traumatic asphyxia, death necessarily ensues three or four minutes after the compression begins'.25 The issue was whether 'severe compression' had been sustained. This evidence was at odds with the opinions of the original pathologists who had specified periods of 10 to 20 seconds between receiving crush injuries and losing consciousness and three to four minutes between loss of consciousness and death.

¶2.10.72 To the bereaved families the original pathologists' views appeared questionable because there were well-publicised examples of survivors who had lost consciousness yet recovered. It seemed likely to them that there was a continuum from those who recovered quickly after a short period of unconsciousness and those who recovered within days to the cases of two young men who remained in a persistent vegetative state, kept alive by tube feeding.

¶2.10.73 Dr West and Dr Burns had only a small number of post mortem records with which to work. With the benefit of access to the records of all who died at Hillsborough, it is clear that there is ample additional evidence to support the families' views, and that they were correct to challenge the opinions expressed by the original pathologists (see also Chapter 5).

¶2.10.74 On 5 November 1993, on hearing the arguments from all sides in the Judicial Review, the High Court dismissed the challenge. Lord Justice McCowan could 'see no fault in the coroner in this matter'. He had 'made a full inquiry'. In questioning the purpose of fresh inquests he saw 'no evidence' to suggest criticism of the emergency services, noting that 'in any event it would be irrelevant if all six were brain dead by 3.15 pm'.

22. 'IN THE MATTER of AN APPLICATION FOR JUDICIAL REVIEW BETWEEN: REGINA – and – HER MAJESTY'S

¶CORONER FOR SOUTH YORKSHIRE Ex parte STRINGER AND OTHERS AFFIDAVIT OF STEFAN LEOPOLD

¶POPPER', 10 September 1993, SYC000001280001, p14. 23. 'IN THE MATTER OF AN APPLICATION FOR A JUDICIAL REVIEW BETWEEN: REGINA HER MAJESTY'S CORONER

¶FOR SOUTH YORKSHIRE EX PARTE STRINGER AND OTHERS AFFIDAVIT of Albert Page', September 1993 [date unspecified], SCC000000350001, pp39-47. 24. Report of Dr Iain West, Department of Forensic Medicine Guy's Hospital, 20 August 1992, SYC000001280001, p69. 25. Dr Burns, quoted in Parliament by Sir Malcolm Thornton, 26 October, 1989, AGO000000480001, p55.

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¶2.10.75 While noting the bereaved families''deep instinct to know the circumstances in which their relatives died' he concluded that 'this was not a case in which it will be right to order a fresh inquest'.26 His ruling accepted the medical opinion of the pathologists, supported the Coroner in his interpretation of that opinion and confirmed the appropriateness of the 3.15pm cut-off.

¶The continuing controversy 2.10.76 In December 1996, following the screening of Jimmy McGovern's Hillsborough, Sue McDougall of the Operational Policing Policy Unit at the Home Office wrote to the Home Secretary, Michael Howard. She noted that a significant issue had been raised by the drama-documentary: 'the suggestion that some of the victims were still alive at

¶3.30 pm ... The coroner is reported in the press to have said that he thinks he might have been mistaken insisting on the 3.15 deadline'.27 This had 'increased the demands for a fresh inquest'. 2.10.77 Paul Pugh, also at the Unit, wrote to the Chief Constable of SYP, Richard Wells, informing him of renewed calls for a further public inquiry.28 He stated that the Home Secretary would need to be convinced that a further inquiry would be in the public interest and was 'particularly anxious to establish whether any new evidence has emerged'. 2.10.78 While the Home Secretary did not have the authority to reopen inquests, 'the relatives have expressed continuing anger that the Coroner imposed a 3.15pm cut off point after which he would not take any evidence'. CC Wells replied that according to the 'professional view' of the SYP officers involved with the earlier inquiries and investigations there was no new evidence but the Force would be 'content to have this view challenged'.29 2.10.79 Several weeks later CC Wells wrote again to the Unit's Police Policy Directorate.30 He emphasised that there was no new evidence and commented that issues raised in the drama-documentary had been 'aired' at the Taylor Inquiry and the inquests. Regarding the 3.15pm cut-off, the pathologists' evidence alongside the Coroner's observations 'led him [Dr Popper] to believe that 3.15pm cut-off was appropriate'. 2.10.80 On 10 March 1997 a Home Office meeting considered the implications of material submitted by the Hillsborough Family Support Group (HFSG) calling for a new inquiry.31 Prior to the meeting, however, there had been 'no examination of the material supplied' and it was 'unclear' whether 'it had any real significance'. 2.10.81 Within days the Attorney General received advice regarding the HFSG submission.32 It noted evidence from Dr Ed Walker about the emergency response and its implications for the 3.15pm cut-off. The claim was that Dr Walker's evidence undermined the Coroner's decision. 2.10.82 The advice rejected the claim, noting that the cut-off point had been 'found to be fully justifiable by the Divisional Court'. Consequently, there was no justification for the Attorney General to review the decision. Further, it was considered 'significant' that the HFSG barrister had 'not advised a further application'. 26. 'To the Solicitor General, Application under Section 13 of the Coroners Act 1988', 13 March 1996,

¶AGO000000480001, p7. 27. Memorandum from Sue McDougall (Operational Policing Policy Unit) to Home Secretary, 19 December 1996,

¶HOM000034110001, p2. 28. Letter from Mr Paul Pugh (OPPU) to Richard Wells, Chief Constable, South Yorkshire Police, 20 December 1996,

¶AGO000000520001, pp1-3. 29. From CC Wells to Mr Paul Pugh, Home Office OPPU, 20 December 1996, SYP000131860001, p339. 30. Letter from CC Wells to OPPU, 3 February 1997, SYP000131860001, p320. 31. Note of a meeting at the Home Office, 10 March 1997, AGO000000530001, p4. 32. Memorandum from SJ Wooler to the Attorney General, 13 March 1997, AGO000000530001, p3.

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¶2.10.83 Months later the HFSG submission continued to resonate within the Attorney General's office. Dame Barbara Mills, then Director of Public Prosecutions (DPP), wrote to the Attorney General presenting the background to the case and detailing previous judgments.33 She noted that the HFSG had 'continued to press for more and more inquiries into the cause of the disaster'. 2.10.84 Its 'new evidence' centred on video-tape footage, a statement and an affidavit from Sheffield Wednesday Football Club's design and maintenance engineer responsible for CCTV coverage and from Dr Walker who had attempted resuscitation at the Northern General Hospital. In assessing the video material and the engineer's evidence Dame Barbara considered that 'his criticisms come nowhere near the standard of proof required for criminal liability'. 2.10.85 Regarding Dr Walker's evidence she stated that there was 'no evidence ... that anyone with serious crush injuries could have survived' given that '[i]rrevocable brain damage will ensue within four to six minutes of the crushing'. She concluded that 'there is no new evidence as alleged by the HFSG and their legal representatives, and therefore no grounds for reopening the police investigation into the Hillsborough disaster'.

¶The Stuart-Smith Scrutiny 2.10.86 Two months later the recently elected Labour Government's Home Secretary, Jack Straw, noted that the 'alleged new evidence and allegations made in the Granada television programme' had been examined at the Home Office, and also by the Attorney General and the DPP.34 These considerations had found 'no evidence to justify a new public enquiry, a re-opening of the inquest, or the prosecution of individuals'. 2.10.87 However, he was 'certain that public concern will not be allayed by a reassurance from the Home Office that there is no new evidence' (emphasis in original). Consequently he proposed 'an independent examination of the alleged new evidence by a senior legal figure – a respected judge ... or perhaps a senior Counsel ... sufficiently senior and respected to command public confidence' (as noted in Part 1, this became the 'scrutiny' of 'new evidence' conducted by Lord Justice Stuart-Smith). 2.10.88 A handwritten comment on a document, from the Prime Minister's Private Secretary for Home Affairs to Liz Lloyd of the Number 10 Policy Unit, questioned Mr Straw's proposal: 'Liz, doesn't this strike you as a silly precedent?' Ms Lloyd wrote to the Prime Minister, Tony Blair, disclosing Mr Straw's position and the rationale behind the Scrutiny proposal: 'JS does not believe there is sufficient new evidence for a) a new inquiry, b) reopening the inquest or c) prosecution of individuals. However, he believes that this is not publicly acceptable unless it comes from an independent source'.35 2.10.89 A handwritten note from the Private Secretary added that it was not necessary 'to intervene on this, but we should watch for JS setting up too many inquiries of this kind'. An additional note, apparently written by the Prime Minister, asked 'Why? What is the point?'. 2.10.90 Ms Lloyd wrote to Mr Blair two weeks later referring to his scepticism concerning the need to 'look anew' at Hillsborough.36 She stated that Mr Straw considered the Scrutiny necessary because 'he and others had given assurance before the election that the new 33. Letter from Dame Barbara Mills to John Morris QC MP, Attorney General, 9 May 1997, AGO000000570001, pp4-6. 34. Letter from Jack Straw Home Secretary to John Morris QC MP, Attorney General, 5 June 1997, COO000001360001, pp1-2. 35. Memorandum from Liz Lloyd, Number 10 Policy Unit, to Prime Minister, Tony Blair, 9 June 1997, COO000001200001, p1. 36. Memorandum from Liz Lloyd, Number 10 Policy Unit, to Prime Minister, Tony Blair, 26 June 1997, COO000001350001, pp1-2.

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¶evidence would be examined'. An added comment from Mr Blair's Private Secretary noted: 'I understand your caution, but the Home Secretary is really too far into this (and was before the election) to pull back now'.

¶2.10.91 Within SYP the Stuart-Smith Scrutiny was considered to be a result of 'pressure from bereaved relatives and others who allege that hitherto unseen video recordings have been unearthed and that there is new evidence to suggest that victims were dying after

¶3.15 pm'.37 The record of a discussion between Assistant Chief Constable Ian Daines, Superintendent Roger Greenwood and the SYP solicitor dismissed 'concern over the video evidence' as 'hysterical linking of the knowledge that there were two video tapes which were lost or went missing'.

¶2.10.92 The meeting also dismissed 'new' medical evidence, noting that 'it should be perfectly possible to show that there are no inconsistencies between what the Coroner found, the basic factual information that LJ Taylor [sic] and what Dr Walker now recollects in the light of the drama/documentary'.

¶2.10.93 There was a suggestion, however, that the medical evidence was 'a slightly more grey area partly because ... there are other contributory factors in each victim's case' while the 'causative background must be very similar'. The discussion concluded that the 'only area for further investigation, if it be due, will be the extended period from 3.15pm onwards when the terraces were still being cleared and/or treatment and resuscitation was being given as best they could'. Thus 'medical evidence of the scene at the time will be significant'.

¶2.10.94 A further letter noted that the 'final stage in all this is the method and which way we propose to adopt for informing Lord Justice Stuart-Smith of the absence of any new evidence and/or the submission of any new expert evidence in the grey "causative" area which we have identified'.38

¶2.10.95 Keen to challenge the classification of 'new evidence', the SYP legal representatives considered that, as the video evidence and a statement from Dr Walker had been available to all previous Inquiries, 'on a very simple view ... there is no new evidence'. What followed was a series of exchanges challenging Dr Walker's veracity.

¶2.10.96 ACC Daines also considered Dr Walker's claim that he had not been approached by the police to offer evidence.39 Further, Dr Walker alleged that some of those who died had lived beyond 3.15pm. ACC Daines noted a conversation with Dr Walker in which he 'could not recall whether or not he had made a statement'. Told by ACC Daines that the officers had 'witnessed his signature on the statement', Dr Walker responded 'that his memory may be flawed'.

¶2.10.97 The SYP held records of a statement by Dr Walker made three months after the disaster and witnessed by two police officers. The solicitors planned to rely on the pathologists' evidence, dismissing Dr Walker as an unreliable witness: 'In view of the eminence of these people (especially Alan Usher) and the shilly-shallying of Dr Walker, I do not think we need to pursue further medical opinion'.

37. Letter from Mr Nicholas Owston, Winkworth and Pemberton Solicitors, to Mr Alan Walker, Force Solicitor, 29 July

¶1997, SYP000096270001, p54. 38. Letter from Mr Nicholas Owston, Winkworth and Pemberton Solicitors, to Mr Alan Walker, Force Solicitor, 5 August

¶1997, SYP000096270001, pp61-62. 39. Letter from ACC Ian Daines, South Yorkshire Police, to Mr Nicholas Owston, Winkworth and Pemberton Solicitors,

¶6 August 1997, SYP000096270001, p64.

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¶2.10.98 Inevitably, the 3.15pm cut-off was a central issue in LJ Stuart-Smith's Scrutiny. At a meeting with Trevor Hicks of the HFSG and barrister Alun Jones QC, the well-publicised case of Eddie Spearritt was discussed.40 Mr Spearritt, along with his son Adam, lost consciousness in pen 4. His whereabouts between that moment and 5pm, when he was first treated at the Northern General Hospital, were and remain unknown. Admitted to intensive care, he recovered.41

¶2.10.99 Mr Spearritt's survival raised doubts about the imposition of the 3.15pm cut-off in terms of the quality of care and potential for survival beyond that time. It was Mr Jones' concern, raised at the Scrutiny, that the flawed logic of the 3.15pm cut-off was 'once you are unconscious, you have had it'.42

¶2.10.100 Given Mr Spearritt's case, he proposed that death was not 'inevitable' but that there were some who died who might have survived. Mr Jones stated that the jury was unaware of the survival of people who had been admitted to intensive care because they 'were not given evidence about what happened to these people after 3.15'.

¶2.10.101 The 3.15pm cut-off was raised by a number of families in their individual meetings with LJ Stuart-Smith and he wrote to Dr Popper noting that his decision continued to be criticised.43 While LJ Stuart-Smith was familiar with the reasons for Dr Popper's decision and its support by the Divisional Court, he stated that it was 'now suggested that the Jury were unaware … that some who died did so after 3.15' and 'that some of those who suffered severe crushing injuries, and were unconscious, recovered'.

¶2.10.102 LJ Stuart-Smith found these suggestions surprising as it was 'clear' that the jury knew about Lee Nicol and Adam Spearritt, both of whom died after 3.15pm. Further, Mr Spearritt had given evidence at the generic hearing and James Wardrope had given evidence regarding cases admitted to intensive care.

¶2.10.103 LJ Stuart-Smith asked Dr Popper if he was 'right in thinking that the legal representatives were not under any misapprehension' on this issue. Dr Popper was under 'no illusion that anybody who died had not suffered the injury from which he died after 315 … that they may have breathed or had a heart beat say at 320 or 330 or 400 was neither here nor there'.44

¶2.10.104 He later wrote to the Scrutiny team to state that this comment sounded 'rather callous' and he 'would not wish to give offence' – he was simply establishing that what 'mattered was the time when the damage was done and not how long after there continued to be signs of life'.45 Dr Popper informed LJ Stuart-Smith that he had 'taken quite a bit of trouble' to inform legal representatives and the families of the logic of the 3.15pm cut-off.46

¶2.10.105 He argued that the position adopted by legal representatives concerning 'investigating the medical attention and care' was based on a 'misconception of what an inquest can do'. While the Taylor Inquiry could address the 'overall matter', including 'medical intervention', this was not the role of inquests.

40. The Hillsborough Scrutiny conducted by Lord Justice Stuart-Smith, 30 September 1997, HOM000039080001, pp1133, e.g. p122. 41. Full details of the case are in Scraton, P 2009 Hillsborough: The Truth Edinburgh: Mainstream. 42. The Hillsborough Scrutiny conducted by Lord Justice Stuart-Smith, 30 September 1997, HOM000039080001, p96. 43. Letter from Lord Justice Stuart-Smith to Dr Popper, 28 October 1997, SPP000000570001, pp1-2. 44. The Hillsborough Scrutiny, evidence of Dr SL Popper, 17 November 1997, SPP000001180001, p12. 45. Letter from Dr SL Popper to Mr CF Bone, Hillsborough Scrutiny, 24 November 1997, SPP000000500001, pp1-2. 46. The Hillsborough Scrutiny, evidence of Dr SL Popper, 17 November 1997, SPP000001180001, p13.

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¶2.10.106 Dr Popper stated that he was 'not saying that the medical people couldn't have been called sooner; that more could not have been done … it is quite possible that better quality care could have been achieved'. The inquests' purpose, however, was to establish the cause of death 'of these poor, unfortunate people' and he did not 'think it was medical care; it was crushing'.

¶2.10.107 At the time of Dr Popper's interview with LJ Stuart-Smith his successor, Christopher Dorries, contacted one of the pathologists, Dr David Slater.47 He was unsure whether Dr Slater had been contacted by LJ Stuart-Smith but suggested that given 'everything that has gone before' he might 'wish to take the opportunity to have your views heard', particularly Dr Slater's 'reservations ... about the 3.15 pm cut-off time'.

¶2.10.108 Dr Popper had 'made it plain' to Mr Dorries that the issue 'did not arise until well after the interim inquests, at which you [Dr Slater] gave evidence, had been completed'. Mr Dorries suggested the possible 'inference made by various people' was that Dr Slater had been 'pressured into making the pathology fit the time [3.15pm]'.

¶2.10.109 Subsequently, Dr Slater wrote to LJ Stuart-Smith on the suggestion of a 'third party'.48 He stated that he had complained to the Broadcasting Standards Commission regarding his portrayal in the Hillsborough drama-documentary (a complaint that was upheld) but at the time the Commission was awaiting the Scrutiny's outcome.

¶2.10.110 He noted the allegations that the pathologists had been pressurised 'to make their evidence fit the 3.15pm cut-off time'. Dr Slater stated that he had no involvement in establishing a cut-off time and had made no 'specific comment about the timing of death' or any 'comment to HM Coroner about this prior to giving oral evidence'.

¶2.10.111 In fact, he had been 'somewhat surprised by the artificial concept of a 3.15pm cut-off time and the exclusion of evidence following that time' although 'appreciative of the legal reasoning behind it'. Further, he understood the 'criticisms of the relatives with regard to this point'.

¶2.10.112 In December 1997 LJ Stuart-Smith interviewed Tim King, the HFSG barrister at the generic stage of the inquests.49 Mr King confirmed that the families' legal representatives were aware that people died after 3.15pm and noted that the Coroner's ruling had been given with the jury absent. He stated that he had 'told the families over and over again that challenging the Coroner's 3.15 cut-off point would mean getting expert medical evidence that there were people whose fatal injuries were inflicted after 3.15'.

¶2.10.113 He considered that there 'was no such evidence' and 'he did not know of any novus actus interveniens after 3.15'. The jury was aware that not all who were crushed had died. Mr King was unaware that 'Mr Fraser [the families' solicitor] had agreed to the 3.15 cut-off point' or whether, 'as now alleged', the Coroner 'misled families into believing that the questions of where and when people died would be looked at again during the main inquests'. Mr King stated that his 'efforts' had been 'directed to creating an overall picture of what happened and not to establishing the precise circumstances in which particular individuals died'.

47. Letter from CP Dorries HM Coroner to Dr DN Slater, 26 November 1997, SPP000000140001, p1. 48. Letter from Dr DN Slater, Rotherham Hospital NHS Trust, to Lord Justice Stuart-Smith, 4 December 1997,

¶HOM000039920001, pp1-9. 49. Note of Hillsborough Scrutiny meeting, 8 December 1997, HOM000039460001.

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¶2.10.114 In January 1998 Paul Pugh from the Operational Policing Policy Unit at the Home Office wrote to Stephen Wooler in the Attorney General's Office Legal Secretariat to give 'advance warning' of LJ Stuart-Smith's report.50 It was his understanding that LJ Stuart- Smith would conclude that the inquests were 'properly conducted, and that the submissions he has received about medical evidence do not call into question the decision of the Coroner in relation to the 3.15pm cut-off point'.

¶2.10.115 The following month Mr Pugh wrote to the Home Secretary recommending that he accept the 'main conclusions' of LJ Stuart-Smith's report and 'as far as possible draw a line under the Hillsborough disaster'.51 He advised that 'to hold out the hope of further inquiries or investigation' would be a 'disservice' to families 'although some of them will not see matters like that'. For them, he continued, the report would be 'another betrayal and we can expect them to be very critical of the report, the judge, the scrutiny process and you'.

¶2.10.116 Concerning the 3.15pm cut-off, LJ Stuart-Smith's report concluded that the 'arguments' presented to the Scrutiny 'show a complete misunderstanding of the coroner's reasons for determining that point' and none of the evidence put to the Scrutiny 'provides any reason to question that decision'.

¶2.10.117 On 18 February MJ Pyne of the Operational Policing Policy Unit provided advice to Home Office minister Alun Michael suggesting the 'line to take' in response to questions raised by LJ Stuart-Smith's report.52

¶2.10.118 It stated that the 3.15pm cut-off had been 'widely misrepresented', that the Coroner 'ruled ... he considered all those who died had received the injuries from which they died by 3.15' and had not suggested that 'all those who died did so before 3.15 or that the medical evidence was to this effect'. Mr Pyne's memorandum advised that the imposition of the 'cut-off point' was concerned only with 'how, by what means, the deceased came to their deaths'.

¶2.10.119 This position was followed up in a further undated, unattributed briefing.53 It noted that the jury had heard evidence about those who died after admission to hospital and of those who had been resuscitated. The evidence of death beyond 3.15pm 'would not therefore effect [sic] the inquest'. The briefing also noted that in 1993 the issue had been examined thoroughly in the Divisional Court establishing 'no other cause of death' and the decision to impose a 'cut-off point' had been 'considered and reasonable'.

¶The Scrutiny's findings 2.10.120 LJ Stuart-Smith published his findings in February 1998.54 He noted that the Coroner's ruling on the 3.15 cut-off 'had been subjected to a good deal of criticism'. While the Divisional Court had upheld the Coroner's ruling, Counsel for the HFSG had submitted that 'fresh evidence discovered since 1993' undermined that Judgment.

50. Letter from Paul Pugh, Police Policy Directorate to Stephen Wooler, Legal Secretariat to the Law Officers, 7 January

¶1998, AGO000000860001, pp1-2. 51. Memorandum from Paul Pugh to Jack Straw, Home Secretary, 6 February 1998, HOM000032470001, pp1-2. 52. Memorandum from MJ Pyne, Operational Policing Unit, Home Office to Mr Alun Michael, 18 February 1998,

¶HOM000041940001, pp1-2. 53. 'HILLSBOROUGH Q & A BRIEFING FOR THE STATEMENT' [undated post-Scrutiny, 1998], HOM000041580001, p13. 54. Stuart-Smith, Rt Hon LJ 1998 Scrutiny of Evidence Relating to the Hillsborough Football Stadium Disaster Cm 3878

¶London: The Stationery Office.

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¶2.10.121 LJ Stuart-Smith, however, concluded that 'the Coroner's reasoning' had 'been widely misunderstood and misinterpreted'. The actual time of death and medical intervention, he stated, were irrelevant, rendering it inappropriate to enquire 'into the response of the emergency services or consider in any given case whether had it been quicker, differently organised, or with other facilities a person who died might have been saved'.

¶2.10.122 He considered the medical evidence unequivocal – all who died had suffered 'crush or traumatic asphyxia as a result of being crushed in pens'. There had been no break in the chain of causation between receiving the injuries that led to asphyxiation, and death. The fatal injuries had been inflicted by 3.15pm 'at the latest' although people lived beyond that point, 'running to hours or to days'.

¶2.10.123 Further, the 'pathological evidence ... was that once the chest of the victim was fixed so that respiration could not take place, irreversible brain damage would occur after between four and six minutes'. Finally, the Coroner had to keep the inquests 'within reasonable bounds', necessitating the 3.15pm cut-off.

¶2.10.124 LJ Stuart-Smith considered it consistent with the evidence that the fatalities were 'those people whose chests were in a state of permanent fixation as a result of the crush for four to six minutes, so that they could not breathe at all for that time, whose condition was irreversible'.

¶2.10.125 Reflecting the Divisional Court Judgment, he believed it acceptable not to enquire 'into whether lives could have been saved by calling the emergency services sooner or providing better emergency care for the injured'. Such 'questions were not relevant to the inquiry into how – ie by what means – the deceased had come to their deaths'.

¶2.10.126 LJ Stuart-Smith dismissed the relevance of evidence about those who lived beyond 3.15pm and died later, considering it 'less arguable that such new evidence affords grounds for quashing the verdicts of accidental death at the inquest'. All who died 'came to their deaths' through 'traumatic or crush asphyxia' as a consequence of 'dangerous overcrowding' in the pens but not 'because first-aid or medical attention failed to resuscitate them'.

¶2.10.127 LJ Stuart-Smith stated that the Coroner and the families' legal representatives were aware that 'not all those who died did so before 3.15' and 'not all those who were unconscious as a result of the crushing died'. He concurred with the Divisional Court's opinion that it 'was a matter for the Coroner's discretion at what point he chose to confine the inquiry' and that the decision was 'reasonable and sustainable'.

¶2.10.128 He concluded that 'it is quite impossible on the basis of the evidence and submissions now advanced to impugn the verdict of accidental death or suggest that the Divisional Court should again be invited judicially to review that verdict'.

¶Kevin Williams 2.10.129 The most highly publicised case regarding the effectiveness of the emergency response, and the treatment received in the minutes following the rescue from the pens, was the death of Kevin Williams. As the documents demonstrate, this was also a case that created considerable concern within the Attorney General's office.

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¶2.10.130 Much of the controversy surrounding the case is in the public domain and centres on inconsistencies between the pathology evidence presented at the mini-inquest and statements by those who attempted resuscitation on the pitch. The former established the cause of death as asphyxia with death occurring within minutes of the crushing. The latter concerns evidence from an off-duty Merseyside Police officer, Police Constable Derek Bruder, that Kevin convulsed during attempted resuscitation and evidence from a Special Constable, Deborah Martin, that a considerable time later he opened his eyes and said the word 'Mum'.

¶2.10.131 Public concern about the case increased when the police officer, PC Bruder, stated that a year after the disaster he was visited at home by a WMP investigating officer, Inspector Robert Sawers, 'who asked him to "reconsider" his statement', particularly his assertion that Kevin convulsed and had a pulse.55

¶2.10.132 While the WMP officer was with PC Bruder he claimed the Coroner rang 'and tried to persuade him [PC Bruder] that the facts of his statement were incorrect'. In December 1991, asked if he would make a further statement, 'Bruder replied that he would be prepared to stand up in Court and state that Kevin was convulsing, that there was a pulse, and that there was vomit in his mouth'. When he attended Kevin 'there was a pulse and if that means he was alive then he was alive'.

¶2.10.133 An internal memorandum written in 1992 by Stephen Wooler in the Attorney General's Office stated that while the pathologist, Dr Slater 'did not deal very fully with the suggestion of convulsion (because he was not asked to)', his view was 'that the extent of the irreversible brain damage caused by the asphixia [sic] ... would have totally prohibited any form of communication'.56 Further, Kevin had suffered 'four fractures of the two bones in the voice box and therefore the deceased could have uttered nothing whatsoever'.

¶2.10.134 Mr Wooler noted that as a consequence of the family's concern the Coroner had both police officers re-interviewed. He also stated that 'when asked to go into detail' PC Bruder 'was less firm and said that, having had further first aid training since the incident, he would no longer use the word "convulsion" but describe what he saw as "twitching"'.

¶2.10.135 The witness statements were dismissed as mistaken: that Kevin had 'twitched' rather than convulsed and air had passed from his body giving the appearance of speaking a word. 'Sadly', concluded Mr Wooler, 'the family are convinced that their son was alive for some time after he was removed from the stand at Hillsborough and that some form of "cover up" is afoot'.

¶Memorial to the Attorney General, 1992 2.10.136 In the Memorial presented to the Attorney General the case was made that the evidence summaries presented by a WMP officer at the mini-inquest into Kevin's death established that according to the officers attending him on the pitch he was alive.57 While 55. Meeting between Anne Williams and PC Derek Bruder, 15 December 1991 [In file of evidence: Judicial Review forwarded to SYP by Malcolm Gregg solicitors on 28 April 1993], SYP000096240001, pp330-332. There is some ambiguity in the documentation as to whether the phone call referred to in paragraph 2.10.132 was in fact from the

¶Coroner (Dr Popper) or from Dr Slater, the pathologist. In paragraph 2.10.150 below, Dr Slater suggests that it was he

¶– and not Dr Popper – who spoke to PC Bruder. 56. Memorandum from SJ Wooler to the Attorney General, 6 February 1992, pp1-4. 57. 'TO HER MAJESTY'S ATTORNEY GENERAL: THE HUMBLE MEMORIAL OF SANDRA STRINGER AND DONNA

¶CARLILE (the mother and sister of Paul Carlile) JOHN AND THERESA GLOVER (the father and mother of Ian Glover)

¶JOAN SINCLAIR (the sister of Michael Kelly) LESLIE AND DOREEN JONES (the father and mother of Richard Jones)

¶PETER AND JOAN TOOTLE (the father and mother of Peter Tootle) JAMES STEPHEN AND ANNE WILLIAMS (the father and mother of Kevin Williams)', 15 April 1992, AGO000000070001, pp29-31.

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¶SC Martin's statement had been 'referred to with some scepticism' it had raised 'the possibility of survival long after 3.15pm ... and the question of whether death might have been prevented by more timely medical intervention'. 2.10.137 The Memorial noted that the Coroner had called WMP Inspector Robert Sawers whose re-interview with PC Bruder (noted above) had established that the phrase 'having convulsions' could be more appropriately described as a 'twitch' and 'that "whatever he felt there he cannot be categoric it was a pulse"'. The Coroner had also re-called the pathologist, Dr Slater, whose evidence was that death had been caused by a 'very very severe case of asphyxia' and 'four fractures to the voice box'. 2.10.138 The Memorial noted that further investigations 'revealed that considerable pressure was put on both [officers] to retract or qualify their evidence as to the signs of life they described in Kevin Williams'. It challenged the manner in which their evidence had been presented at the mini-inquest, particularly the 'second-hand accounts of [the officers'] original statements' and also 'the qualifications they had subsequently been persuaded to make to their original evidence'. 2.10.139 In a further memorandum from Mr Wooler to the Attorney General he advised that PC Bruder had 'resiled' from his revised statement and the intention of the visit by Insp Sawers 'was to persuade him to change his mind'.58 Further, he stated that SC Martin had reverted to her original statement (May 1989) and her second statement, in March 1990, had been 'made after considerable pressure had been exerted upon her by the West Midlands Police'. 2.10.140 While SC Martin's second statement had not contradicted entirely her first, 'it did provide the coroner with a sound basis for treating her evidence as unreliable'. Mr Wooler concluded that the Kevin Williams case was the 'most unsatisfactory of all' the Memorials because 'the evidential position was confused at the inquest and has become even more confused subsequently'. Yet he doubted 'whether the uncertainties flowing from the confusing evidence do have any bearing on a legal issue', specifically a verdict of 'lack of care'. 2.10.141 While considering that the Coroner 'would certainly have been wise to take more oral evidence in this particular case', Mr Wooler advised that it was difficult to justify the case for a new inquest. He suggested that the applicant's solicitor might wish to take a further statement from PC Bruder. A handwritten comment added: 'You will wish to consider the difficulty of limiting the scope of the inquest if a fresh inquest is held. It could lead to a re-examination of the whole incident even though it concerned only one death'.

¶Memorial to the Attorney General, 1996 2.10.142 Following a further request for a fresh inquest in 1996 Alison Saunders, an official in the Attorney General's Office, advised the Solicitor General on the background to the previous refusal.59 She noted the Divisional Court's finding that the Coroner 'had made a full inquiry and there was overwhelming evidence' that Kevin had died by 3.15pm. 2.10.143 The Divisional Court, she stated, had been 'scathing' about the 'speculative' evidence of Dr Iain West who had criticised the pathologist's conclusions. Dr West's evidence had been included in the 'present application although any weight which may have been attached to it is now severely diminished following the Divisional Court ruling'.

58. Memorandum from SJ Wooler to the Attorney General, 31 July 1992, AGO000000140001, pp22-24. 59. Memorandum from Alison Saunders to the Solicitor General, 'APPLICATION UNDER SECTION 13 OF THE

¶CORONER'S ACT 1988', 13 March 1996, AGO000000480001, pp1-7.

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¶2.10.144 The 'new evidence available since the judicial review proceedings' included the opinion of Home Office pathologist Dr James Burns. The family submitted that his opinion added weight to Dr West's opinion and SC Martin's evidence. While Dr Burns did not disagree with Dr Slater's initial view that Kevin 'lost consciousness very quickly' he accepted SC Martin's evidence that 'Kevin opened his eyes, moved his mouth and said "Mom", flicked his eyelashes, closed his eyes and died'.

¶2.10.145 Ms Saunders suggested that the Attorney General might 'consider that Dr Burns' evidence should be regarded as similar to Dr West's evidence which the Divisional Court found too speculative to warrant the ordering of a fresh inquest'. She reminded the Solicitor General that his previous response to the earlier application was that the pathology evidence was 'compelling'.

¶2.10.146 Ms Saunders also considered evidence provided by Tony Edwards, who had driven an ambulance onto the pitch. His account corroborated PC Bruder's evidence that Kevin was alive beyond 3.15pm. The family submitted that the failure by the Coroner to reveal Mr Edwards' account to the inquests was a 'deliberate concealment and suppression of evidence'. Although Mr Edwards had been interviewed by WMP 'in some detail', Ms Saunders considered it 'doubtful whether his evidence alone would have changed the inquest verdict'.

¶2.10.147 Finally, a Liverpool fan, John Prescott, who had identified himself on a television documentary about the inquests, confirmed PC Bruder's account of resuscitating Kevin and finding a pulse. He also stated that a woman doctor 'confirmed that he was dead'. Ms Saunders concluded, therefore, that Mr Prescott's 'evidence supports the assertion that Deborah Martin must have been mistaken when she asserted that Kevin Williams was still alive when she accompanied him to the gymnasium'.

¶2.10.148 Ms Saunders' conclusion reiterated the 1992 document prepared by Mr Wooler. She stated that the case was 'the most unsatisfactory of all the Hillsborough victims because the evidential position was confused at the inquest and has subsequently become even more confused'. She doubted 'whether the uncertainties flowing from the evidence have any bearing on a legal issue'. The 'new evidence only serves to confirm that Kevin Williams was dead by the time he reached the mortuary' and therefore 'there seems even less reason to support a new inquest'.

¶2.10.149 Finally, while recognising that the 'wish of the Williams family to have a clear picture of the final moments of Kevin's life is understandable', Ms Saunders doubted that oral evidence rather than summarised evidence at the mini-inquest 'would have made any difference or enabled the issues to be resolved more satisfactorily'. Thus there was no reason, including the interests of justice, for a new inquest.

¶2.10.150 In his letter to LJ Stuart-Smith in December 1997, Dr Slater commented that he had met PC Bruder to discuss the case and having heard PC Bruder's account he felt 'no professional need to alter my own opinion'.60 He stated that he had no knowledge about why PC Bruder had not been called to give evidence nor why he changed his initial statement. He had spoken with PC Bruder about the matter by telephone but did not 'suggest that PC Bruder should alter his initial statement'.

¶2.10.151 He also stated that he had not been involved in drafting the second statement and 'its contents contain information that did not arise during the course of our conversation'. 60. Letter from Dr DN Slater, Rotherham Hospital NHS Trust, to Lord Justice Stuart-Smith, 4 December 1997,

¶HOM000039920001, p10.

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¶Dr Slater was 'personally aware of no pressure from HM Coroner or the police to pressurise PC Bruder to change his evidence' and neither had he (Dr Slater) been under pressure 'to make my pathological evidence fit any presumptive 3.15pm cut-off point'.

¶Memorial to the Attorney General, 2005 2.10.152 A further submission was made by Anne Williams in 2005. A document written by Caroline Monks to the Attorney General, Peter Goldsmith, recommended refusal relying on previous Inquiries and refusals and stating that those who died were 'beyond saving when the emergency services arrived'.61 She advised that there was 'nothing in the material now presented which is new or additional to that ... rejected by your predecessors'.

¶2.10.153 The exception was a letter dated 15 November 2002 from Home Office pathologist Dr Nat Cary in which he stated that Kevin's death should have been recorded as 'compression of the neck' rather than 'traumatic asphyxia'.

¶2.10.154 Ms Monks noted that Dr Cary had accepted that following the neck injury Kevin would have suffered a 'degree of hypoxic brain damage and that the chances of his receiving a lifesaving tracheotomy or cricothyroidectomy in the required time would have been slim but that other measures such as the administration of oxygen and passing of an endotracheal tube could have had some useful effect and might have prevented cardiac arrest'.

¶2.10.155 Ms Monks considered that Dr Cary's opinion, like that of Dr West and Dr Burns, was 'highly speculative and it seems clear that in any event Kevin Williams was dead by the time he reached the temporary mortuary ... at the Hillsborough Ground'. Ms Monks concluded that Dr Cary's opinion was insufficient to warrant a new inquest and there was no reasonable chance that an application to the High Court would be successful.

¶2.10.156 Ms Monks referred to the Divisional Court's finding that the 'crucial point was that the extent of the damage caused to the deceased by the crushing would by 3.15pm have been such on the medical evidence that death either had occurred or was by that stage inevitable'. Consequently she recommended that the application be refused.

¶2.10.157 Within a month an 'internal note' by the Attorney General recorded his sympathy but that was 'not enough to justify a new inquest'.62 There had been 'an adequate examination of the case ... in the combination of the mini and full inquest and the Taylor inquiry and the Stuart-Smith scrutiny of evidence'. LJ Stuart-Smith had 'held there was no reason to grant another inquest and my predecessors have three times taken the same view'.

¶2.10.158 Reflecting on these documents it is instructive that in 1992 it was conceded that a case could be made for a new inquest yet by 2006 the refusals were distinctly more unequivocal, based on advice that hardened progressively even as more professional opinion accumulated to challenge the original pathologists' views.

61. Memorandum to the Attorney General, 'KEVIN DANIEL WILLIAMS (DECEASED) APPLICATION UNDER SECTION

¶13[1][B] OF THE CORONER'S ACT 1988', 11 January 2006, AGO000001240001, pp2-14. 62. Internal note prepared by Lord Goldsmith, Attorney General, 5 February 2006, AGO000001300001, p1.

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¶
• The disclosed documents establish that 'evidence gathering' by SYP in the immediate aftermath of the disaster focused on the 'incident itself', specifying a cut-off at 3.15pm or 3.30pm.
• From the disclosed documents it is clear that, prior to the mini-inquests, the Coroner understandably was concerned about his capacity to control the scope of the inquests – a concern reflected in the advice he received from other coroners. 'Response' and 'rescue' attempts were considered to be 'post-incident' and would not be addressed at the inquests.
• Prior to the generic stage of the inquests, the WMP investigation team (acting as coroner's officers) advised that its scope should be restricted to the period 2.20pm to 3.05pm.
• The rationale presented by the Coroner for selecting 3.15pm as the cut-off, acknowledged as appropriate by the High Court in the Judicial Review proceedings and the Stuart-Smith Scrutiny, was that all who died had suffered fatal and irreversible injuries by that time.
• 3.15pm was chosen because it was an undisputed and recorded time when an ambulance arrived on the pitch. This served as a 'marker' and the Coroner rounded the time to the nearest quarter-hour.
• The pathologists' medical opinion underpinned the Coroner's final decision. It concluded that all who died suffered irretrievable, fatal injury and there could be no recovery regardless of whether the deceased lived beyond 3.15pm. This opinion neglected the significance of the particular circumstances in which each individual died, including the absence of appropriate medical or treatment intervention.
• The acceptance of the pathologists' medical opinion as incontrovertible is evident from the Coroner's notes, in his affidavit to the High Court in the Judicial Review proceedings (in which he described the 'expert' pathological evidence as 'overwhelming') and in his evidence to the Stuart-Smith Scrutiny.
• Records of meetings between the Coroner and the families' legal representatives reveal that the representatives accepted the 3.15pm cut-off and portrayed families' concerns about the mini-inquests as 'minimal'.
• As the extent of the correspondence from families demonstrates, this assumption was mistaken. The Coroner dismissed the families' requests to extend the cut-off beyond 3.15pm to incorporate the period of rescue and evacuation because he believed they misunderstood the role and function of the inquests.
• The disclosed documents show that the Coroner formed the view that the case for extending the generic stage of the inquests beyond 3.15pm would require evidence of a new causal act that resulted in any one death (novus actus interveniens). He concluded that there was no evidence of such acts or interventions, a conclusion supported by the High Court in the Judicial Review proceedings and by the Stuart-Smith Scrutiny.
• The families accepted that the primary cause of injuries was crushing but, supported by further medical opinion, they challenged the certainty that all who died had suffered irretrievable fatal injury by 3.15pm. Thus they sought further inquiry into the emergency response, rescue and treatment.
• In his evidence to the Stuart-Smith Scrutiny, the barrister who had represented the families at the generic stage of the inquests informed Lord Justice Stuart-Smith that he had advised the families there was no new causal act beyond 3.15pm.

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¶
• In the Coroner's summing up he accepted that had resuscitation been administered correctly, and before the onset of 'irretrievable brain damage', some of those who died might have survived. Taken literally, this comment raises concerns about the sufficiency of inquiry into the period of rescue and resuscitation.
• In the well-documented case of Kevin Williams and successive submissions by his family to the Attorney General, the initial pathologist's opinion appeared definitive, but further authoritative opinions raised significant doubts about the accuracy of that initial opinion.
• The documents disclosed show that, considered alongside the restrictions placed by the Coroner on the examination of the evidence presented to the mini-inquests and the presentation of the pathologists' medical opinion as incontrovertible, the imposition of the 3.15pm cut-off severely limited examination of the rescue, evacuation and treatment of those who died. This raised profound concerns regarding sufficiency of inquiry and examination of evidence.