Chapter 8: The Coroner's inquiry: from the immediate aftermath to the preliminary hearings

¶Introduction 2.8.1 As discussed in Part 1, the Hillsborough inquests were controversial in their organisation, conduct and outcome. The South Yorkshire West District Coroner, Dr Stefan Popper, considered that the medical evidence determined that all who died received their fatal injuries from a common cause – the crush on the terraces. He repeatedly compared the deaths at Hillsborough with deaths in a car crash. In determining 'how' people died, therefore, he focused on the circumstances of the crush rather than the effectiveness of rescue and resuscitation attempts.

¶2.8.2 Many bereaved families, however, rejected Dr Popper's reasoning and proposed that consideration of the effectiveness of emergency response and the treatment administered immediately to the dying were key elements in establishing the circumstances in which their loved ones died.

¶2.8.3 They were critical of the Coroner's unprecedented decision to record and publish blood alcohol levels of those who died and to rely on statements gathered by the West Midlands Police (WMP) who had serviced Lord Justice Taylor's Home Office Inquiry and the criminal investigation.

¶2.8.4 Families were concerned also about the limitations of procedures adopted at the preliminary inquests (mini-inquests) at which evidence could not be examined and WMP officers presented summaries of statements as fact before the jury. This denied the opportunity to test the accuracy of the evidence. Yet the bereaved families agreed to the mini-inquests on the advice of their solicitors (Hillsborough Steering Committee).

¶2.8.5 Part 1 also establishes what was known about the 'generic' stage of the inquests, resumed once the decision had been taken that there would be no criminal prosecutions. The families' concerns here focused on the Coroner's decision not to hear evidence beyond 3.15pm, and his rationale for this decision.

¶2.8.6 There was, and remains, considerable concern that some of those who died were alive at 3.15pm and lived for a considerable time. Failure to intervene, lack of response or inappropriate response, such as being laid in a position that compromised their recovery (by airway obstruction) could have contributed to their deaths. The evidence confirming that their concerns were well-founded is set out in Chapters 4 and 5.

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¶2.8.7 The sequence in which the evidence was presented at the inquests, and the imbalance in the examination of the evidence by lawyers representing the interested parties, was considered by families and their lawyers to have had a negative impact on the jury. The subsequent Judicial Review focused particularly on irregularity of proceedings and insufficiency of inquiry. The case for new inquests was rejected.

¶2.8.8 Other chapters consider the above issues and examine the rationale behind the Coroner's decisions: his initial response to the disaster in the immediate aftermath; the significance of parallel investigations for the coronial inquiry; the background to and conduct of the mini-inquests and the generic inquest; the aftermath of the inquests; the judicial review and the continuing controversy about the inquests.

¶2.8.9 They focus on the issues of procedural irregularity and perceived insufficiency of inquiry. This is particularly significant because since the Hillsborough inquests coroners and juries have been encouraged to use discretion to return narrative verdicts or add narrative comment to tightly prescribed verdicts in certain circumstances.

¶2.8.10 While the issue of the 3.15pm cut-off is discussed in detail in Chapter 10 and the significance and reliability of the medical evidence, particularly the pathology and the recording of blood alcohol levels, are considered in Chapter 5, they have a bearing on the coronial issues considered in this chapter. The first section, however, addresses the role and function of inquests.

¶The Coroner: role, inquiry, inquests 2.8.11 The purpose of an inquest is often misunderstood, not least because as a court there is a commonly held assumption, and an expectation, that it is concerned with establishing liability – that a person, persons or organisation will be held responsible for committing an act or for failing to act, thus contributing to a death.

¶2.8.12 This is not the case. While civil and criminal courts are adversarial, establishing liability on the evidence presented by opposing parties, the inquest has a 'very limited objective':1 to establish who the deceased was; 'how', 'when' and 'where' the deceased 'came by his [sic] death'; and the 'particulars' required for registration of the death.2 Most deaths are registered without an inquest.

¶2.8.13 Where there is concern as to the cause of death, however, the coroner is obliged to hold an inquest. In cases of deaths in controversial circumstances, including serious accidents where negligence is alleged, the coroner will open an inquest and immediately adjourn proceedings to allow for criminal investigations to progress and the question of criminal prosecution to be considered.

¶2.8.14 Coroners are independent of government and are medically or legally qualified. The primary objectives of the inquest, usually explained by the coroner at its opening, are to confirm the identity of the deceased, establish when and where they died and explore how they died.

Griffiths, J R v Hammersmith Coroner, ex parte Peach in Ward T 'Coroners' Inquests 2: The Inquest' Legal Action

¶Bulletin February 1984, p16. 2. Rule 3b of the 1984 Coroners' Rules in Kavanagh, G. Coroners' Rules and Statutes London: Sweet and Maxwell 1985 p52. Since the introduction in 2000 of the Human Rights Act 1998, whereas 'how' is to be understood as 'by what means', in the usual case, it is to be understood as 'by what means and in what circumstances' in cases where ECHR

¶Art 2 requirements have to be met by the inquest.

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¶2.8.15 In establishing the medical cause of death, particularly in high-profile cases, coroners work closely with pathologists. Although ascertaining 'who', 'when' and 'where' might be contested, these elements of a case are usually straightforward. They establish a person's identity, the approximate time of death and the place where death occurred. 2.8.16 Exploration of 'how' death happened, however, requires detailed investigation of the circumstances. Deaths in controversial circumstances often involve significant differences in witnesses' evidence and in professional opinion including contrasting interpretations of 'fact' by pathologists or other 'expert' witnesses.

¶2.8.17 In contentious cases when insufficient evidence has been gathered to support a criminal prosecution against those whose action or inaction might have contributed to a death, the full weight and expectation of responsibility fall inappropriately on the inquest.

¶2.8.18 Supported by coroner's officers, often local police officers on secondment, the coroner conducts and directs the preliminary investigation, gathers evidence, and determines the extent to which, if at all, families or other interested parties may have any access to such evidence. The bereaved have little or no access to legal aid and the costs of legal representation, particularly in complex cases, are considerable and prohibitive.

¶2.8.19 From his/her investigation the coroner decides the witnesses to be called to give evidence at the inquest, taking into account any representations from families or other 'interested parties', none of whom has any right to call witnesses themselves. Witnesses are examined first by the coroner followed by examination by interested parties.

¶2.8.20 The coroner organises the sequence in which evidence is presented and examined, the scope of questioning by 'interested parties' and the conduct of the inquest. Inquests usually rely on oral evidence, often supported by written statements.

¶2.8.21 When inquiring into the cause of death 'in circumstances where the continuance or possible recurrence of which is prejudicial to the health and safety of the public or any section of the public', the coroner is obliged to summon a jury.3 Juries are selected usually from the local population in the jurisdiction where death occurred and they comprise seven to eleven jurors.

¶2.8.22 The jury hears the evidence presented at the inquest and its examination by 'interested parties'. Only the coroner can address the jury, summarising the evidence and providing legal direction. The coroner puts to the jury the verdicts, from a prescribed list, he or she considers consistent with the evidence, directing towards the verdict closest to his or her interpretation. After deliberation the jury returns the verdict with the possibility of adding a narrative commentary. Narratives, however, were not permitted in 1990.

¶Hillsborough, the Coroner and the immediate aftermath 2.8.23 At 4.16pm on 15 April 1989 Dr Popper received a telephone call from a police officer informing him of a major disaster at Hillsborough.4 He understood that a stand had collapsed and there were 74 fatalities. He contacted the assistant coroner and the senior pathologist at Sheffield's Medico-Legal Centre, Professor Alan Usher, who already had been telephoned by the South Yorkshire Police (SYP).

Coroners Act 1988, Section 8(3)(d). 4. File note, 'SLT/JT. HILLSBOROUGH DISASTER 15.4.89', 15 April 1989, SYC000001360001, pp240-249.

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¶2.8.24 The immediate plan was to move bodies from the stadium to the Medico-Legal Centre. Dr Popper arrived at the Medico-Legal Centre at approximately 5.40pm and met pathologists including Professor Usher. They discussed identification procedures and Professor Stephen Jones, who had experience in the immediate aftermath of a previous disaster, established an identification check-list. The Medico-Legal Centre was to be used as 'it was thought that we had sufficient capacity for all the dead'.

¶2.8.25 As detailed in Chapter 4, the disclosed documents reveal that Dr Popper met Detective Chief Superintendent Terence Addis of SYP in the Hillsborough gymnasium, along with Professor Jones, Professor Usher and another pathologist, Dr David Slater, and took the decisions that determined where the bodies would be held, how they would be identified and how the investigation of their deaths would proceed.

¶2.8.26 At this point Dr Popper 'considered the need for post mortem ... bearing in mind that visual inspection indicated that a probable conclusion would be Traumatic Asphyxia and bearing in mind that many of the deceased were young people'.

¶2.8.27 Having consulted with Professor Usher and others, he took the decision that 'despite' his hesitation 'it would be advisable ... to have a post mortem'. This would 'exclude any problems should there be any civil litigation with regard to say life expectancy or if there should be any criminal proceedings arising out of this matter'. Thus, 'in view of the nature of this disaster, the definitiveness of a post-mortem, the civil and criminal aspects of the matter, and the provisions of the Coroners Act ... and the desirability of having definitive diagnoses ... it would be inappropriate in this case not to proceed with a post mortem'.

¶2.8.28 The pathologists discussed the post mortems, and organised technicians and timetables on the basis of a three-session day. At some point during this period (when is not clear from his notes) Dr Popper decided with the pathologists that a sample of blood would be taken at each post mortem to determine the blood alcohol level of the deceased.

¶2.8.29 The consequences of this decision and how the results were portrayed are considered in detail in Chapter 5. Dr Popper appears to have made no record at the time of the reason for this decision, a matter of concern for bereaved families. Dr Popper subsequently addressed the issue.5 Asked why blood alcohol samples had been taken and recorded, he was clear: 'The answer is because I authorised it'.

¶2.8.30 Pressed for a more detailed justification for taking blood alcohol samples, Dr Popper stated that on the night of the disaster, while he 'realised that the vast majority were in fact extremely young ... once I had made up my mind that we wanted alcohol levels done, I said we were doing them for all, irrespective of other considerations'.6

¶2.8.31 At that time 'I did not know ... whether or not alcohol would be relevant' but that the 'levels might have been such that the cause of death might have been due to that'. Regarding age he stated that, 'youth these days is no guarantee that alcohol is not ingested'. He concluded: 'I felt it was a justifiable investigation given where it happened and all the circumstances surrounding it'. He continued 'the alcohol level was something which sprang to mind as something which could possibly be relevant'.

¶2.8.32 On 16 April Dr Popper noted a telephone conversation with David Purchon, Director of Health and Consumer Services, Sheffield City Council, during which it was anticipated that an outside police force would be appointed to investigate the disaster.7 At this point 5. Inquest transcript, 18 April 1990, SYC000109270001, p31. 6. Inquest transcript, 18 April 1990, SYC000109270001, p55. 7. File note, 'SLT/JT, HILLSBOROUGH DISASTER 16.4.89', 16 April 1989, SYC000001360001, p239.

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¶Det C/Supt Addis remained responsible for liaising between SYP and the Coroner. Mr Purchon and Dr Popper discussed the release of 'physical evidence' from the stadium, specifically the broken barrier, an obvious focus of investigation. 2.8.33 Dr Popper stated that they 'would have to wait a little while before we could release items from the ground and that [the investigating] force might have different views from Mr Addis as to the suitability of releasing the articles'. Mr Purchon 'assumed he would want the things in their laboratory by the end of this week'. 2.8.34 Also on 16 April, at a meeting of senior SYP officers, the Chief Constable commented 'at this stage we will continue with the enquiry as we would be conducting a Coroner's enquiry and simply gathering all the evidence together, instead of pursuing priorities and aspects where the responsibility/blame lies'.8 2.8.35 At a later meeting that day involving a larger group of officers it was stated that the SYP's initial inquiry would be divided: 'one enquiry will be for the Coroner ... The other enquiry is the one we are gathered here today to discuss, for it may be in the fullness of time that this enquiry will be taken away from us'.9

¶The Coroner and the police investigation 2.8.36 It was soon apparent that WMP would be the appointed investigating force and at a briefing meeting attended by Assistant Chief Constable Walter Jackson, Det C/Supt Addis and Detective Superintendent Graham McKay (who was supervising the internal criminal investigation), the Coroner's Officer, Superintendent Sleath (SYP), stated that his work was 'to locate and identify where people were prior to the incident and where the bodies have come from'. While not taking statements 'from people in respect of bodies' it was stressed 'that you ask the questions, where you found the body, and where it was taken'.10 2.8.37 Dr Popper's file note for 17 April confirms his leadership of the official coronial inquiry prior to LJ Taylor's appointment to the judicial inquiry commissioned into the disaster (the Taylor Inquiry). It was Dr Popper's responsibility to preserve evidence, particularly the broken barrier. He contacted Det C/Supt Addis and Assistant Chief Constable Mervyn Jones, of WMP: 'I spoke to Assistant Chief Constable Jones ... it had not yet been definitely decided that they [WMP] would be in charge of the task', nor was Jones in a position to say 'who [was] the Judge, if any would be heading the inquiry'.11 2.8.38 Dr Popper recorded conversations with two senior SYP officers who 'had been charged with dealing with the inquiry and assisting me and they wanted to know what was happening as far as the opening [of the Inquests] was concerned, and ... whether I needed the officers or any other witnesses at the opening'. 2.8.39 Dr Popper continued: 'We discussed the interaction of the various inquiries and the need for statements. I said that as far as I could see, provided that statements were taken, I could see very little advantage in duplicating these. Obviously, at some point, I might well want to see them'. It was clear already that statements gathered would be submitted to all inquiries. 2.8.40 Dr Popper then discussed the 'identification of location of the various deceased'. He recorded 'I[t] was explained to me that there was considerable difficulty with continuity because bodies were carried by all and sundry' and 'some of them were just dumped at 8. 'NOTES FROM THE CHIEF CONSTABLE'S BRIEFING WITH OPERATIONAL STAFF ENGAGED ON F. A. CUP SEMI-

¶FINAL DUTIES', 16 April 1989, SYP000096360001, p41. 9. 'SOUTH YORKSHIRE POLICE BRIEFING 12 NOON SUNDAY 16.4.1989', 16 April 1989, SYP000010040001, p9. 10. Briefing notes, 17 April 1989 3.30pm, SYP000010190001, pp12-13. 11. File note, 17 April 1989, SYC000001360001, pp236-238.

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¶the mortuary [gymnasium] but no-body knew precisely whether [sic] those people had been standing who had been killed'.

¶2.8.41 While accepting the enormity of the task, Dr Popper 'suggested that they should look through the photographs to see whether they could find some good ones of the particular locus'. Knowing 'precisely where the people were' had not been considered 'terribly important' by Dr Popper but he soon realised its significance, 'not only from the point of view of the inquest but also because it might give an answer as to what was actually happening'

¶The Coroner and the Taylor Inquiry 2.8.42 On 18 April, following the appointment of WMP to service the Taylor Inquiry, Dr Popper met LJ Taylor and they agreed that evidence gathered by WMP would be made available to the Coroner's inquiry. According to a letter from ACC Jones, written much later (15 October 1990), at the meeting Dr Popper 'agreed that he would co operate with the Judge's wishes'.12 ACC Jones 'interpreted this later to Lord Justice Taylor that in gathering evidence for the investigation we would do this both for the benefit of Lord Justice Taylor as well as Her Majesty's Coroner knowing that ultimately an Inquest would have to take place. Lord Justice Taylor appreciated this point'.

¶2.8.43 On 20 April WMP took over the SYP Incident Room, 'suspending all inquiries by South Yorkshire Police Officers'.13 The following day the WMP investigation team replaced SYP in providing coroner's officers. The precise role of WMP, however, was not unambiguous. Peter Metcalf, the SYP solicitor, noted, 'I spoke to Peter Hayes at Sunday lunchtime' concerning the status of statements that would be 'self-taken rather than CJA [Criminal Justice Act]'.

¶2.8.44 Mr Metcalf raised points of concern that the 'inquiry was supposed to be fulfilling some statutory functions in terms of disciplinary proceedings and in terms of supporting H.M. Coroner'. Mr Metcalf noted, 'I said that it might not be fair on the Officers if these self-taken statements were to be used for those purposes, as opposed to the purposes of the inquiry'.14

¶2.8.45 The response was that 'the Chief Constable was satisfied that the West Midlands inquiry had a duty to report only to the Judge [Taylor]'. Yet the correspondence at the time, and subsequently, demonstrates that police statements requested by the WMP team in preparation for the Taylor Inquiry 'would be used for the basis of any other investigations (eg Coroner/DPP [Director of Public Prosecutions] or Complaints)'.15

¶2.8.46 On 3 May Dr Popper wrote to LJ Taylor before the latter took oral evidence. He proposed a meeting to consider the scope and remit of both inquiries to avoid overlap. Soon after, Dr Popper wrote to the Treasury Solicitor, David Brummel, regarding the blood alcohol estimations and the tests that had been undertaken by Dr Alexander Forrest at the

Letter from M Jones (JMJ) to Stephen Walker, solicitor, South Yorkshire Police Authority, 12 October 1990,

¶SYC000001030001, p21. 13. Letter from SYP Chief Superintendent Management Services to Mr R C Johnson, The Clerk & Financial Officer, South

¶Yorkshire Joint Secretariat, 31 July 1989, SYP000096900001, pp6-7. 14. Attendance note by Peter Metcalf dated 29/30 April 1989, attached to letter from Peter Metcalf, Hammond Suddards to Lord Justice Stuart-Smith, 1 November 1997, HOM000037560001, p4. More information on self-taken police statements can be found in Chapter 11. 15. Letter from Det C/Supt MJ Foster, Midland Regional Crime Squad to Mr C Bone, The Hillsborough Scrutiny,

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¶Royal Hallamshire Hospital.16 He asked whether LJ Taylor required the remaining samples for testing to be carried out at a forensic science laboratory and cautioned that with the passage of time the alcohol levels would have depleted.

¶2.8.47 In July, immediately prior to the publication of LJ Taylor's Interim Report, Dr Popper met ACC Jones, expressing concerns about the impact of the anticipated criminal investigation on the inquest. Dr Popper also wanted 'a bit more work done to try and sort out the figures before and after the opening of the gates and also to have a look at the loading, if that's the right word, of Pen 2 which appears to have been around the Green Guide figure, but which was being described by virtually everyone as pretty empty'.17

¶2.8.48 As LJ Taylor's Interim Report was published, Dr Popper wrote to the WMP Chief Constable, Geoffrey Dear, to request WMP's continued support for the coronial inquiry and inquest.18 While:

¶it would I suppose be possible for the coronial inquiries now to be taken over by the

¶South Yorkshire Police and for them to handle them in the conventional manner in this instance however I think it would be a grave mistake if this were to take place ...

¶not because South Yorkshire would be incapable of carrying out such an inquiry nor because I have not been very well served both in the past as well as at present by

¶South Yorkshire Police … but because, rightly or wrongly, the South Yorkshire Police force have been criticised in connection with their handling of the disaster.

¶2.8.49 Should SYP 'take over the coronial inquiry they, as well as possibly myself, would lay ourselves open to criticism over, for instance, possible lack of impartiality'.

¶Preparation for the inquests 2.8.50 Having awaited the outcome of the Taylor Inquiry, the Coroner faced further delay while the DPP considered potential criminal prosecutions. Holding inquests into the deaths of 95 people brought further complications. The Taylor Inquiry processed a mass of written and oral evidence to establish a comprehensive public account of 'how' the disaster had occurred and its principal causes.

¶2.8.51 In his Interim Report LJ Taylor arrived at clear conclusions and made significant, far-reaching recommendations. Inevitably there was significant overlap between his Inquiry and the Coroner's investigation. This raised questions about the extent to which the objectives of the inquest process had been met by the Inquiry, with consequences for the conduct of the inquests.

¶2.8.52 A further complication, however, was the strong reaction within SYP at all levels to LJ Taylor's findings (see Chapters 6 and 12). While well aware that the inquest could not apportion liability, SYP anticipated an opportunity to redress what senior officers, including the Chief Constable, considered a profound imbalance in LJ Taylor's findings. The Chief Constable made this public. Faced with such a statement of adversarial intent, the Coroner sought advice from his peers and from Counsel.

¶2.8.53 In a note written prior to the publication of LJ Taylor's Interim Report, Dr Popper recorded a discussion about the potential for legal challenge: 'it seemed sensible to spend perhaps more money in the beginning and get it right rather than have a Judicial Review 16. File held by Dr Popper, SYC000001030001, p191 and p221. 17. File note, 'LONG MEETING WITH MR JONES', 19 July 1989, SPP000001470001, p1. 18. Letter from Dr SL Popper to CC GJ Dear, West Midlands Police, 1 August 1989, SYC000009850001, pp1-2.

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¶and hove [sic] to do the whole job all over again, quite apart from the trauma etc which this would cause ... it was important for Sheffield that we should be seen to be doing this correctly'.19

¶2.8.54 On 23 June 1989 he met with Richard Sturt, the Kent Coroner who had held the inquests into the deaths of those involved in the Herald of Free Enterprise disaster at Zeebrugge. Mr Sturt gave Dr Popper the 'impression' that 'it was necessary to deal with the surrounding circumstances, for example arrests for drunkenness and so on, and what had happened outside the ground immediately prior to the event'.20 2.8.55 Mr Sturt 'made it clear that it was absolutely essential to try and anticipate the legal problems which might arise and be able to give well researched guidance and rulings'. He also discussed the possibility of a verdict of 'unlawful killing' and its consequences for potential prosecution. 2.8.56 On 7 August 1989 Dr Popper met James Turnbull, the West Yorkshire Coroner, to discuss the role and purpose of the inquest, 'in particular the question of "how"'.21 They considered the DPP's role and the criminal charges that could be brought including manslaughter and the parties to whom such a charge could apply. 2.8.57 They also discussed context, including the SYP Operational Order, the control of the crowd outside the turnstiles, the control of the crowd after the gate was opened, overcrowding on the terrace, monitoring the pens and the slow response to, and awareness of, the disaster as it unfolded:

¶The point at issue here was to try and decide as a matter of law whether irrespective of the evidence and assuming it was in its most damning form, (but without express malice), a person in the situation above described was as a matter of law capable of committing the offence of unlawful killing.22 2.8.58 Dr Popper returned to the significance of blood alcohol levels in exploring 'how' people died, suggesting that alcohol and drunkenness, alongside problems with the police operation in Leppings Lane, led to the crush at the turnstiles: 'We then spent a little time discussing "how"… He agreed with me that in his view it would be necessary to call evidence on the surrounding circumstances such as the local residents, the aspects of behaviour and drunkenness'. 2.8.59 The following day Dr Popper wrote to the DPP regarding 'two possible alternatives open as far as my Inquests and your involvement are concerned'. The first would be to offer 'no objection to me proceeding with the Inquests … notwithstanding that evidence may be given which might require me to leave the possible verdict of Unlawful Killing with the Jury'. The second was adjournment 'until such time as you have completed your investigations'.23 2.8.60 The Coroner and SYP CC Wright invited WMP CC Dear and his officers to progress both the coronial investigation and the criminal inquiry for the DPP.24

File note, 'MEETING WITH MR PURCHON', 4 May 1989, SYC000009860001, p1. 20. File note, 'MEETING WITH MR STURT ON FRIDAY 23rd OF JUNE 1989', 23 June 1989, SYC000001030001, pp5-8. 21. File note, 'TELEPHONE CONVERSATION WITH MR TURNBULL', 4 August 1989, and file note, 'MEETING WITH MR

¶TURNBULL AT BRADFORD', 7 August 1989, SYC000001030001, p156. 22. File note, 'MEETING WITH MR TURNBULL AT BRADFORD', 7 August 1989, SYC000001030001, p157. See, for further example, paragraph 5 p157 where Dr Popper considers an individual's duty of care. 23. Letter from Dr Popper to Mr A Green QC, Director of Public Prosecutions, 8 August 1989, CPS000003320001, pp1-5. 24. Letter from M Jones to Mr C Newell, Office of DPP, 8 August 1989, CPS000003340001, p1 and letter from CC Peter

¶Wright to CC Geoffrey Dear, 9 August 1989, HOM000008600001, pp2-3.

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¶2.8.61 Anticipating the DPP's decision that the inquests should remain adjourned until the criminal investigation had concluded, CC Dear advised the Coroner that he would accept responsibility for the investigation. He informed Dr Popper of the consequences 'for the timing of your full inquests'.25 As he could not 'realistically see the Director of Public Prosecutions giving his decision until the summer of 1990 at the very earliest', he requested continued adjournment of the inquests.

¶2.8.62 The criminal investigation progressed and CC Dear informed CC Wright that, in agreement with the Coroner, the Inquest would remain adjourned. CC Dear had agreed that WMP 'should conduct a criminal investigation at your request'.26 WMP's 'contract to service HM Coroner will still continue but only concerning enquiries that are imperative to this purpose, it being clearly understood that the Inquest will not take place until all matters concerning the criminal investigation have been resolved'.

¶2.8.63 Dr Popper received confirmation that WMP would conduct the criminal investigation and report to the DPP. The latter's office advised: 'In all the circumstances you might be minded to now adjourn the Inquests until ... a decision [is] made as to what action, if any, should be taken'.27

¶2.8.64 On 2 October 1989 ACC Jones wrote to Captain Noel Taylor of the Police Complaints Authority noting, the 'investigation is well under way' and 'there will be a very large number of statements and other evidence produced'.28 Consequently, he suggested it would be important to address 'the future availability of the evidence, in particular, for the Coroner for the purpose of the inquest and for Mr Wright [SYP Chief Constable] for the purpose of disciplinary or civil proceedings'. On completion of the inquiry, 'copies of the investigating officer's report together with statements and other evidence will be sent to you as the supervising member of the Police Complaints Authority and to Mr Wright for transmission to the Director [DPP]'.

¶2.8.65 Although the investigation was at 'an early stage', ACC Jones asked 'that there should be no objection to the Coroner and Mr Wright having access to the evidence for the purposes I have referred to above'. The issue of the status and availability of statements gathered at this stage became significant when eventually the Coroner resumed the inquests.

¶Mini-inquests 2.8.66 Given the DPP's continuing consideration of possible prosecutions, on 17 January 1990 Dr Popper met Counsel, Michael Powers, and solicitor, Richard Hammond, to receive advice on the format and timing of the inquests.29 Mr Hammond raised the matter of the WMP report to the DPP and Police Complaints Authority reports. LJ Taylor's Final Report and developments concerning civil proceedings were also awaited.

¶2.8.67 While civil claims 'would not be worth very much as a large proportion of those people who died were young and unmarried ... it was thought that the families may seek larger amounts by attempting to embarrass the Police Authority, and this may affect the Inquest'. Concerning the resumption of the inquests, there 'had not been any pressure as yet from the families to do this' although this was anticipated. 25. Memo to Dr Popper from CC Dear, 18 August 1989, CPS000003500001, pp1-2. 26. Letter from CC Geoffrey Dear to CC Peter Wright, 11 August 1989, CPS000003440001, pp1-2. 27. Letter from Mr CWP Newell to Dr Popper, 17 August 1989, CPS000003330001, p1. 28. Letter from ACC Jones to Capt N Taylor, PCA, 2 October 1989, CPS000003580001, p1. 29. Dr S Popper – Conference with Counsel, 17 January 1990, SYC000001270001, pp96-98.

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¶2.8.68 Counsel suggested that an 'alternative to holding a full Inquest' would be to proceed 'on a limited basis'. Dr Popper could 'see each family as a unit separately and deal with the time, manner and mode of death and leave the how and non-requisite, why, in reserve'. Thus Dr Popper would 'be seen to be carrying out his duties properly whilst at the same time not getting embroiled in arguments on the wider issues of the tragedy'.

¶2.8.69 Further, Counsel advised that 'a preliminary short form Inquest for each family would have the advantage of leaving the general matters alone', although Dr Popper was concerned to 'examine evidence in detail to ascertain the "where" of death'. At each initial hearing, 'non-controversial evidence' agreed by the parties beforehand could be summarised by a senior police officer. While accepting that evidence might be 'difficult to agree', Counsel proposed that 'family solicitors may want to know at this stage the details of any pain and suffering for the formulation of civil damages claims'.

¶2.8.70 It was suggested by Counsel that preliminary, family inquests 'could be dealt with without a jury' and, 'if it was necessary to have a fuller Inquest at a later date to deal with general matters, a jury could be used'. While there could be 'a problem with presenting the jury with the information from the initial Inquest ... this could be perhaps achieved by merely showing them the documentation'.

¶2.8.71 Counsel was concerned that the inquests should not be a re-run of the Taylor Inquiry, suggesting that a generic inquest might not be necessary, as the issues 'would have been fully aired in the Taylor report, civil proceedings and possibly criminal proceedings'. Dr Popper, however, reflected that should there be no prosecutions, he would be under 'public pressure ... to explore all the wider issues at a full and lengthy Inquest'.

¶2.8.72 In late January 1990 Dr Popper met members of the WMP investigation team and shared Counsel's advice to convene 'an Inquest to take "non-controversial evidence" ... before the DPP had made up his mind'.30 The advice was not well received. Resuming the inquests could lead to the presumption 'that some information had passed between us [the DPP and the Coroner] and that that was the real reason why we were proceeding'.

¶2.8.73 Consequently they 'agreed [to] stick by what we had initially decided with regard to timing' and not divide the inquests. There was further discussion about the DPP's likely schedule being sooner than initially anticipated and the need to demonstrate that in the preparation for the inquests 'whatever we did should be excellent and it was vital that people should realise that the work had been properly done'.

¶2.8.74 Two weeks later, however, Dr Popper reversed his decision on preliminary hearings. Responding to a letter sent to the DPP's office by the Hillsborough Steering Committee (solicitors for the bereaved),31 he stated: 'it might be both helpful and advantageous if I were to resume the Inquests in early Spring for the purposes of taking the medical evidence, together with non-controversial evidence such as the location of the deceased, either alive or dead or both within the ground'. Evidence would be restricted and a 'degree of control of the proceedings would be required'.

File note, 'Meeting at Nechells Police Station Birmingham with Supt Taylor and C. I. Tobe [sic] to discuss various aspects of the Hillsborough Inquiry', 24 January 1990, SPP000001480001, pp1-2. 31. Letter from Dr Popper to Mr Newell, DPP, Director of Headquarters Case Work, 15 February 1990, SYC000001410001, p148.

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¶Disclosure of information at the inquest 2.8.75 Opening the inquests inevitably raised the matter of the disclosure of information gathered in the course of the criminal investigation. Its possible disclosure to the Hillsborough Steering Committee in preparation for the inquests was addressed in a letter from the Police Complaints Division of the Home Office to Dr Popper.32 While expressing sympathy for the bereaved it stated, 'we must ensure that the criminal investigation and any criminal prosecution is not prejudiced in any way by such disclosure'.

¶2.8.76 At this point papers had been submitted by the DPP to Counsel seeking opinion on the potential for criminal prosecution. A letter to Counsel from the DPP noted that the Hillsborough Steering Committee's request was to 'assist them in dealing with negotiations on damages in the civil claim'.33 Dr Popper had also received a 'similar request' and considered 'the information should be supplied via adjourned inquest hearings which could be held on a formal basis but restricted to giving only that information requested by the Steering Group'. 2.8.77 ACC Jones agreed with Dr Popper's proposition, noting 'there would be operational advantages to him if the requests could be dealt with in this way'. 2.8.78 Further, ACC Jones was 'satisfied that the release of the information on the restricted basis suggested by the Coroner ... would not prejudice the criminal investigation, the restriction being that only evidence of a medical nature and evidence directed at the location of each deceased be adduced'.34 2.8.79 ACC Jones also stated that Dr Popper 'appears to be satisfied that the proceedings can be controlled to achieve this object and it seems propitious that the Coroner's assistance is available in this way ... For our part we do not think the release of the information in this controlled way would be likely to prejudice a criminal trial and we do not advise that public interest immunity be claimed at this stage'. 2.8.80 At a briefing meeting with ACC Jones and the WMP investigation team, Dr Popper outlined six issues of concern for families: positive identification; where they died; the 'medical cause' of death; whether they suffered; where they were 'seen'; and 'blame' for their death, 'criminally' or 'civilly'.35 The 'responsibility aspect' would not be considered at the inquests and 'once the solicitors have grasped this … they will take what we are offering rather than nothing'. 2.8.81 An officer commented that at the inquests 'conflict would arise when families wish to question police officers about the treatment given to their loved one'. Should questions regarding liability arise, Dr Popper's reply would be, 'sorry, but we are not dealing with that aspect at this time we are only dealing with factual medical evidence'. 2.8.82 At the mini-inquests, to avoid complaints being made against police officers that might prejudice a possible future criminal trial, 'evidence' would be given 'to the solicitors in the form of a precis'. Should complaints emerge from the families through their solicitors, they must be put in writing and those officers would not be called 'at this stage'. 2.8.83 ACC Jones also questioned the necessity of an inquest. Dr Popper stated that the preliminary hearings 'were necessary in order to obtain the medical evidence so that the

Letter from Mr CJ Cleugh, Head of the Police Complaints Division, to Dr Popper, 16 February 1990,

¶CPS000004160001, p1. 33. Letter from CWP Newell, CPS, to Clerk to Mr G Williams QC and Mr Peter Birts, 16 February 1990,

¶CPS000004170001, pp1-2. 34. Joint Further Advice of Counsel in the matter of disclosure, 16 February 1990, CPS000004190001. 35. Meeting to discuss inquests, 22 February 1990, SYC000001390001, pp63-65.

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¶death certificates can be released'. According to Detective Chief Inspector Tope, 'not all the families will want to criticise the actions of the police officers and they have already been shown a lot of visual evidence and, therefore, know the answers to a lot of the questions'. 2.8.84 Following further discussion 'it was decided that the ideal option would be to conduct the [mini] inquests without any South Yorkshire Police officer being called'.36 Another WMP officer thought 'a lot' of SYP officers 'may feel let down if they are not allowed to "say their bit and put the record straight" at the inquests'. Dr Popper stated that while 'it will be impossible to please everybody … we do not want to displease everybody' and should this be the 'likely outcome' the idea of the mini-inquests would be abandoned.

¶2.8.85 ACC Jones considered that having received the feedback on the précis from solicitors, 'simple and straightforward' inquests could be conducted 'followed by any which we feel may be awkward, ie the "Crusaders" who may want to call police officers to give evidence and which could lead to further complaints'. There would be 'the possibility of further complaints against police if care is not taken in the planning stage of the inquests'.

¶2.8.86 A few days later Dr Popper met ACC Jones, Peter Metcalf (SYP solicitor) and Doug Fraser (Hillsborough Steering Committee) to discuss the inquests.37 At the meeting Dr Popper stated that he had received a letter from the Hillsborough Steering Committee requesting information about where individuals had died and relevant medical evidence.

¶2.8.87 Without mentioning either his previous advice or his consultation with the WMP investigation team, Dr Popper stated that he had written to the DPP suggesting 'a resumed inquest on a limited basis with fairly tight rules as to what kind of evidence we would hear and how we would present it'. This might 'not give you all the answers you want but it might go a long way down the road'. It would consider 'who the deceased was, when he [sic] died and where he died and we would strictly not be dealing with the question of how and why' as that 'could prejudice the criminal part'.

¶2.8.88 Dr Popper asked if 'it would be helpful if we arranged to have ... the Inquests for the purpose of taking evidence in that limited way'. Mr Metcalf considered that, subject to the ruling in the civil proceedings, 'it would be extremely helpful if Inquests could proceed, that must be true of all defendents [sic]'.

¶2.8.89 On behalf of the bereaved, Mr Fraser concurred: 'I think anything that can be done to get [specific] information to them, in almost a non-adversarial way, would be warmly welcomed by them'. Yet Mr Fraser's following comments suggested a surprisingly critical, if not contemptuous, view of some of the bereaved families whose interests he represented:

¶There will be some families who want their, someone said, their 15 minutes of fame.

¶I suppose to some extent they are going to have to be given that opportunity aren't they. I think the vast majority will go through very smoothly but I think that there will be one or two who are going [sic] problems …

¶... there will be one or two hotheads who will look for the ulterior motive behind this.

¶The vast majority will accept it in the spirit in which it's done. The press will do the same.38

Meeting to discuss inquests, 22 February 1990, SYC000001390001, pp63-65. 37. File note, 'MEETING WITH MERVYN JONES, MR METCALFE [sic] AND MR FRASER TO DISCUSS THE

¶HILLSBOROUGH FOOTBALL DISASTER INQUESTS HELD ON 26TH FEBRUARY 1990', HOM000035600001, pp11-12. 38. File note, 'MEETING WITH MERVYN JONES, MR METCALFE [sic] AND MR FRASER TO DISCUSS THE

¶HILLSBOROUGH FOOTBALL DISASTER INQUESTS HELD ON 26TH FEBRUARY 1990', HOM000035600001, p15.

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¶2.8.90 Given that many families would travel from Merseyside, Mr Fraser was asked about the most appropriate timings for the individual inquests. He suggested an early start, noting 'There is one family who would swell the coffers of the local hostelry before they arrived, so if they were a 9.00am start'.39

¶2.8.91 Following the meeting, the Hillsborough Steering Committee recorded its appreciation to the DPP's office.40

¶The pre-inquest review 2.8.92 On 6 March Dr Popper held a 'pre-inquest review' meeting with families' lawyers and two representatives of the Hillsborough Family Support Group. Dr Popper recorded the primary objective of the mini-inquests in his preparatory notes: 'at the end of the hearing bereaved should hopefully know where it has been possible to establish the when and where of death'.41 They would be 'of limited scope ... Under no circumstances will we deal at this stage with How and even less with Why or Whom to blame'.

¶2.8.93 The process should not be 'detrimental' to the investigation by the DPP, who had agreed to limitations 'in the interests of justice not least that of the bereaved'. Dr Popper intended to release medical evidence and blood alcohol levels for each of the deceased, their movements on the day and, where possible, 'to indicate where the deceased was seen in a particular pen'.

¶2.8.94 Limitations on the mini-inquests also extended to evidence presented to the jury and the witnesses called. Prepared by WMP officers, summaries of evidence relating to each individual would be submitted to Dr Popper. They would 'to the best of ability be factually correct but will be non adverserial [sic] in tone and content'.

¶2.8.95 The summaries would be read by Dr Popper and circulated to the Hillsborough Steering Committee and the SYP solicitors prior to each mini-inquest. Solicitors could 'indicate whether they are content with summary or whether anything is not clear so that if it is possible that can be elaborated at the hearing'. It would also 'enable solicitors to share information with families so as to give pre warning of the evidence and lessen if possible distress'.

¶2.8.96 Dr Popper proposed that interim proceedings would assist families with their grieving, noting that almost a year on from the disaster, 'they had not received, in an official sense, clear explanations of where their loved ones died, how they died (in a pathological sense), what efforts were made to revive them and where they were identified'.42

¶2.8.97 A 'mini-inquest ... would provide an interim stage ... so that the healing process for the bereaved could be brought one step nearer a conclusion and ... this would be of enormous help to the relatives'.

¶2.8.98 WMP 'wanted to know at what point the evidence would stop'.43 Dr Popper responded that evidence would be taken 'probably up to the temporary mortuary … if there

File note, 'MEETING WITH MERVYN JONES, MR METCALFE [sic] AND MR FRASER TO DISCUSS THE

¶HILLSBOROUGH FOOTBALL DISASTER INQUESTS HELD ON 26TH FEBRUARY 1990', HOM000035600001, p24. 40. Letter from Miss E M Steel, Hillsborough Steering Committee, to Mr C J Cleugh, 28 February 1990,

¶CPS000004240001, p1. 41. Notes of ground to be covered at pre-inquest review, 6 March 1990, SYC000001180001, pp102-103. 42. Draft note for file 'To be agreed. Meeting between HM Coroner Dr Popper and legal representatives of persons who died at the Hillsborough disaster', 6 March 1990, SPP000001630001, pp2-3. 43. 'FILE NOTE', 6 March 1990, SYC000001390001, p45.

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¶were any particular difficulties we would do our best to try and answer the questions as best we could'.

¶2.8.99 Dr Popper then wrote to the DPP expressing his gratitude for 'dealing with the matter so promptly', noting that a pre-inquest review had been held and the inquests would be resumed 'on a limited basis on the 18th of April 1990'.44

¶2.8.100 Three days after the pre-inquest review, Mr Fraser, on behalf of the Hillsborough Steering Committee, wrote to other solicitors representing the bereaved outlining the proposed procedures for the mini-inquests.45 He recommended that solicitors should send the summaries to their clients. Solicitors were advised that families could submit questions on a form provided and the WMP investigators would seek answers. Questions could be asked in court by the Steering Committee representative and families could have their solicitor present at their inquest.

¶2.8.101 However, this raised potential difficulties regarding costs as collective representation had been agreed with the insurers: 'After great difficulty we have persuaded the Municipal Mutual Insurers to fund the cost of "block representation" and this means that a member of this Committee will be present throughout the entire period the Inquests are [meeting] but if your client wants you to appear personally, you must deal with the question of your costs for doing so directly with M.M.I.'

¶Summarised evidence read by WMP 2.8.102 The Coroner's decision to provide summarised evidence to families and have summaries read by WMP officers before the jury was welcomed by the Steering Committee as an act of kindness:

¶we believe that this move by H.M. Coroner to impart information to families to be applauded and we have taken the liberty of making the point in open Court through the press. [He] is under no obligation to act in the way that he has and we believe that his stated intentions to assist families are entirely genuine and we trust that those families who you represent will accept this move on his behalf in the way which we believe that it is intended.

¶2.8.103 A further reason for welcoming the release of summarised evidence was that the solicitors would 'be in a better position to assess the pre-death terror/pre-death pain and suffering element in the damages claim and you will in due cause [sic] receive our further views on this aspect in a future [Steering Committee] Bulletin, together with a report on continuing negotiations with the insurers'.

¶Conclusion: what is added to public understanding • In public statements the Coroner explained that his decision to hold preliminary hearings on a limited basis (mini-inquests) was in response to representations from families' lawyers. The disclosed documents show that the Coroner took Counsel's advice before deciding to hold mini-inquests, a decision initially rejected by the WMP investigation team. • The procedures adopted for the presentation of evidence to the jury, particularly WMP investigating officers reading witnesses' summarised statements, prevented examination

Letter from Dr Popper to Mr CJ Cleugh, 14 March 1990, CPS000004310001, p1. 45. Letter from D Fraser, Hillsborough Steering Committee, to all solicitors acting for bereaved families, 9 March 1990,

¶SPP000000720001, pp2-6.

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¶of the evidence. This undermined its reliability and this became a serious issue of concern regarding 'sufficiency' of inquiry. • This process, while agreed by the bereaved families' legal representatives, was accepted on the assumption that questions and inconsistencies within summaries would be fully examined at the generic stage of the inquests. This occurred only in a limited number of cases. • Following the mini-inquests, the families' legal representatives conveyed their clients' satisfaction with the process to the Coroner. Yet families' correspondence demonstrates serious concerns regarding what they considered to be a flawed process which left many questions unanswered.