Chapter 9: The generic hearing, Judicial Review and continuing controversies

Chapter 9: The generic hearing, Judicial Review and continuing controversies

¶Introduction 2.9.1 In June 1990, one month after the conclusion of the mini-inquests, the Coroner, Dr Stefan Popper, wrote to solicitor Ian Rothera enclosing proposed instructions to Counsel, Michael Powers.1 He speculated on the implications for the inquests should criminal prosecutions not materialise. 2.9.2 The inquests would be resumed, but as a public inquiry had been held, he questioned 'how much further work' would have 'to be undertaken by the Coroner and his Jury' with a view to reaching a verdict. The scope of the inquests would be important to establish. He asked: 'How large a "circle" does the word "how" encompass' and 'To what extent do the questions of "why did it happen" and "who is to blame" fall within the compass of the word "how"?' 2.9.3 Dr Popper considered imposing strict limitations: 'One view' could be 'to restrict the question of "how" to the establishment simply of the fact that a crush occurred within the terraces, but not to explore the reasons for this, taken together with the medical cause of death, the Jury could be invited to bring in a verdict'. 2.9.4 He recognised it was unlikely such a restriction 'would satisfy anyone', could be challenged on the grounds of insufficiency of inquiry and would prevent consideration of an unlawfully killed verdict because it would not allow the jury 'to be satisfied beyond a reasonable doubt that the criteria for such a verdict had been fulfilled'. 2.9.5 A full inquiry, he suggested, would focus on:

¶(i) The fans – time of arrival including possibly the reasons for lateness of arrival.

¶Behaviour, demeanour and state of intoxication.

¶(ii) The site (including Club – Engineers [indecipherable] etc) – turnstiles, signs, access, stewarding and possibly previous incidents in particular an incident which occurred in 1981 when crushing occurred on these terraces.

¶(iii) The police – the police were severely criticised in Lord Justice Taylor's report.

¶Their management of the game, including command and organisation within and without the ground, and management ranging from the Site Commanders to individual officers, particulary [sic] those who have been the subject of complaint.

¶(iv) Others, eg, licensing authorities, rescue organisations etc.

1. Letter from Dr Popper to Mr Ian Rothera, 13 June 1990, SPP000001580001, pp1-5.

¶
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¶Preparation for the generic stage of the inquests 2.9.6 On 1 April 1990 Leslie Sharp, Chief Constable of Cumbria, was appointed to take overall responsibility for the criminal and disciplinary investigations, replacing Geoffrey Dear, the outgoing West Midlands Police (WMP) Chief Constable. CC Sharp would head the WMP team with Detective Chief Inspector Nick Foster at his side. The context and significance of the change of management was discussed between Michael Kennedy and Christopher Newell within the Crown Prosecution Service.2

¶2.9.7 Mr Newell was concerned whether there was 'any more to this than meets the eye'. It seemed anomalous that a senior investigating officer would be appointed to manage investigations conducted by WMP. He asked: 'What's going on?!' Mr Kennedy replied there was 'nothing sinister' about the newly promoted Deputy Chief Constable Mervyn Jones' secondment. It had been agreed a year earlier in anticipation of an earlier end to the inquiry. Normally CC Dear's replacement would have been the new West Midlands Chief Constable but he had been at Hillsborough as a spectator; hence CC Sharp's appointment.

¶2.9.8 DCC Jones, however, continued as principal coroner's officer. Yet, in an extraordinary move, CC Sharp informed DCC Jones, 'I'm taking you off the Hillsborough Inquiry ... I've discussed it with the Coroner, and this is what he wants'.3 Dr Popper denied this and DCC Jones raised his concern that CC Sharp had misrepresented the position to Dr Popper, stating he wanted to retain coronial duties to assure continuity and impartiality.

¶2.9.9 DCC Jones also questioned CC Sharp's position. He noted that CC Sharp had 'investigated' Peter Wright (South Yorkshire Police (SYP) Chief Constable) and senior SYP officers and 'no further action' was taken. He asked, 'Is that likely to taint the objectivity of the inquests, some may ask?' Both CC Sharp and DCI Foster 'could be material witnesses – should they retain a distance?'

¶2.9.10 Further, should the jury 'return a certain verdict, could it be that the investigation has to be re-opened?' and 'Should Mr Sharp and Mr Foster retain the objectivity to deal with that?' He concluded, 'I thought you would like early notice of what was coming to you'. Keen to continue working with DCC Jones, Dr Popper privately wrote to CC Dear to inform him of the situation. While no further action was taken, the events were 'noted'.

¶2.9.11 On 14 August 1990, with the Director of Public Prosecutions' (DPP's) decision regarding criminal prosecution imminent, Dr Popper met DCC Jones and senior WMP officers to consider the inquests' resumption 'on the assumption' that there would be no prosecutions.4 The potential impact of civil proceedings, due in October, was also discussed.

¶2.9.12 Should the inquests be postponed further to await the conclusion of the civil cases, it 'might take any heat out of the [inquest] proceedings'. Dr Popper anticipated polarised inquests between those who would 'try and obtain a verdict of Unlawfully Killed' and those seeking to 'redress the balance ... with regard to the involvement of the fans'.

¶2.9.13 He noted that while it was 'understood and acknowledged that strictly speaking a Coroner's Inquest should not seek to determine either civil or criminal liability', the

2. Notes between Mr M Kennedy and Mr C Newell, 17 and 18 June 1990, CPS000004700001, pp2-3. 3. Papers relating to the position of coroner's officer, SYC000009880001. 4. File note, 'Meeting with M. Jones, S. Beechey, C. Highton and S.L.P. [Popper]', 14 August 1990, SPP000001610001, pp1-4.

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¶'possibility of a verdict of Unlawfully Killed' made it 'necessary to carry out a fairly extensive inquiry'. The choice was 'to do virtually nothing, or probably a very extensive investigation'.

¶2.9.14 Dr Popper reflected on the scope of the inquests, returning to the analogy of a road traffic accident. He also commented on the importance of crowd behaviour and the need to consider the significance of alcohol consumption: 'In particular, we had to try and deal with the reasons if any why there was the pressure outside the turnstiles and the outer perimeter gates. The effect if any of alcohol on this as well as the effect of mass behaviour (Mervyn's point)'. 2.9.15 He considered the 'broken barrier' in pen 3 'was seen to have played quite a part in the number of the deceased' and 'equally it was important to try and deal with what seemed to be the case that a lot of the people who died actually came in fairly late on'.

¶I felt that it was essential that we should actually get this pinpointed accurately. I also felt that it might be worth then, having analysed alcohol levels to see if [sic] a. what they showed and b. whether any statistically interesting matters would be drawn. I felt that in the interests of justice and fairness, one had to try and weave together the behaviour mood of the crowd, the effect if any of alcohol in crowd behaviour on them and the contagion which this might have spread to everybody there. The effect if any that this might have had on officers, the physical nature of the stadium together with assigning turnstiles etc., the broken barrier and finally and by no means least, the organisation and policing efforts which had been put in place. 2.9.16 While he acknowledged that the condition of the stadium and police assumptions about alcohol consumption were issues, the blood alcohol levels of those who died, late arrival of fans, crowd behaviour and 'contagion' would be explored in contrast to 'what had happened' at the Taylor Inquiry.

¶The status of evidence 2.9.17 In late August 1990 Dr Popper met DCC Jones and other WMP officers.5 At the meeting there was concern that SYP would be 'seeking to establish as much evidence as they can so far as the culpability of those who attended the match ... to illustrate that the fans contributed to the outcome and that drunkenness and disobedience to directions played a major part'. 2.9.18 The SYP focus would be 'ticketless fans who were perhaps motivated to force the situation where the gates were opened'. Further, SYP would emphasise 'the culpability of the club in as far as the capacity, signing, stewarding and issuing of tickets are concerned ... on Eastwood and Partners on barrier and turnstile issues ... [and] the nepotism of Sheffield City Council in the licensing arrangements'. 2.9.19 These issues would also 'assist their [SYP's] civil case which may be heard by the time the inquests take place'. Individual officers represented at the inquests would be motivated 'to defend themselves against any police disciplinary proceedings and, of course, any criminal proceedings which may follow a voluntary bill of indictment'. 2.9.20 On 30 August 1990 CC Sharp notified Dr Popper that the DPP had decided there was insufficient evidence for the criminal prosecution of any individual and his report would be submitted to 'the Chief Constable of South Yorkshire Police so that he ... can consider whether any officer should face disciplinary charges'.6

5. 'MEETING HELD ON 31 AUGUST 1990 AT NECHELLS GREEN POLICE STATION TO DISCUSS THE PROPOSED

¶INQUESTS INTO THE HILLSBOROUGH DISASTER 1989', 31 August 1990, SYC000001360001, p114. 6. Letter from CC Sharp to Dr Popper, 30 August 1990, SYC000001360001, p126.

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¶2.9.21 Dr Popper challenged the decision to submit the report, arguing that it 'would form the basis of the evidence which will be used at the inquests' thus giving SYP 'potential advantage'. This would not 'be fair and ... is, or gives the appearance of being, against the rules of natural justice'.7

¶2.9.22 Further, disciplinary issues could also arise from the evidence given at the inquests. As 'Hillsborough' was 'highly charged', he considered that CC Sharp should reconsider his decision to release his report to SYP. 2.9.23 Dr Popper and CC Sharp disagreed about the appearance of bias. According to Dr Popper's notes, CC Sharp's explanation was that while WMP had technically 'carried out the investigation, this had been done following a request by South Yorkshire'. Thus, 'in a sense the West Midlands Police were merely an extension of the South Yorkshire Police effort'. Dr Popper accepted this but objected because the 'South Yorkshire Police had been the subject of criticism'. CC Sharp responded 'that strictly speaking, he should have submitted the documents to South Yorkshire, even before the D.P.P. had given his decision'.8 2.9.24 Reluctantly Dr Popper acceded, but remained 'anxious that as far as possible things should be done correctly, but if the decision was that information had to be disclosed, then so be it'. Should that occur, 'I might find that I could not successfully resist confirming that I had no objection to releasing information to other parties'.9 In other words, he might disclose to the families' legal representatives. 2.9.25 CC Sharp also suggested that should police officers be called to give evidence, 'we might have to obtain new statements from them'. Dr Popper disagreed, 'because the statements apart from a very few had originally all been taken for Lord Justice Taylor and for my benefit, and that I felt myself free to use them if I wanted to'.10 CC Sharp had consulted with the SYP Chief Constable, Richard Wells, and with the South Yorkshire Police Authority, suggesting 'it might be a wise thing to discuss the position with me and in particular not to use statements in any way prejudicial to the inquest'. 2.9.26 CC Sharp confirmed his decision, taken in consultation with 'appropriate members of the Police Complaints Authority'.11 He stated that the 'reports, supporting papers and documents' would be 'passed to the Chief Constable of South Yorkshire Police'. In his view the papers were simply to be used for disciplinary purposes, and that it would be quite improper for them to be used during and as part of the inquest proceedings. He apologised for not being able 'to accede' to Dr Popper's 'request to delay such a move, but the Chief Constable is aware of your interest in the matter'. 2.9.27 While this discussion was in progress, DCC Jones wrote to the Head of the Police Complaints Division at the Home Office informing him that he had resumed responsibilities as coroner's officer. He had been 'kept briefed by Mr Sharp and Mr Foster as to the developments, albeit I do not know the intimate detail as to what went on in the [criminal] interviews ... both Dr Popper and myself would appreciate early intimation, especially if you intend to take no further action'.12 2.9.28 Soon after, DCC Jones confirmed to Dr Popper he had 'formally resumed' his 'role as your Coroner's Officer following the announcement of the Director of Public Prosecutions 7. Letter from Dr Popper to CC Sharp, 31 August 1990, SYC000001360001, pp122-123. 8. File note, 'TELEPHONE CONVERSATION WITH MR SHARP AT ABOUT 2 P.M', undated, SYC000001360001, p86. 9. File note, 6 September 1990, SYC000001360001, p84. 10. File note, 'TELEPHONE CONVERSATION WITH LESLIE SHARP', 10 September 1990, SYC000001360001, p13. 11. Letter from CC Sharp to Dr Popper, 10 September 1990, SYC000001360001, p12. 12. Letter from Mr Mervyn Jones to Mr Colin Cleugh, Head of Police Complaints Division, Home Office, 24 August 1990,

¶CPS000004910001, p1.

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¶not to take further action in the criminal courts'.13 CC Wells had stated 'that it is proper for the West Midlands Police to continue to support your Inquests until their completion'.

¶2.9.29 DCC Jones assured Dr Popper that there would be 'a smooth transition between criminal/ disciplinary investigations and the coronal enquiry'. CC Sharp, DCC Jones noted, would continue to be responsible for disciplinary investigations 'until such a time that he and Mr Wells have agreed that there is nothing further to be considered'.

¶Disclosure of statements 2.9.30 Dr Popper wrote to DCC Jones regarding the release of statements and documents, confirming 'that these should remain confidential until after the conclusion of the D.P.P. inquiry (which has now happened) and the Inquests'.14 Referring to restrictions in a previous case he concluded, 'I would have no authority to order the disclosure of statements to third parties'.

¶2.9.31 In the interest of fairness, however, he considered the same information should be available to all interested parties. Although statements had 'been made available to South Yorkshire Police solely for the use in disciplinary proceedings', it presented 'recipients with a very major problem of ensuring that information supplied for one purpose is not used for others'.

¶2.9.32 Dr Popper specified three categories: those in the DPP file and given to SYP; those in the body files in his possession but not given to SYP; and a 'large number of statements' unreleased. In all cases he had 'no further objection to their release'.

¶2.9.33 Within days SYP appear to have regretted receiving the documentary material 'as they had to make a decision as to what to do'. Dr Popper noted: 'I said that it was their fault, we had spelt it out for them, at least spelt it out to Mr Sharp and that was all that could be done'.15

¶2.9.34 Dr Popper had 'also told Mervyn [Jones] that should it come about that South Yorkshire had refused to release documents and that I was approached I would suggest that the matter be decided by the divisional court' as it would not 'be right for me to release the documents without their authority, bearing in mind that there was ... a major point a [sic] principle at stake'.

¶2.9.35 A significant, protracted correspondence followed, including legal opinion on the appropriateness of releasing statements, reports and other documents to families and their lawyers. The debate centred on the ownership of documents. DCC Jones was clear: 'the product of all the investigations must belong to the Chief Constable of SYP who was one of the original sponsors of the investigation in April 89 ... he is the "owner" of all the information and ultimately – perhaps after the Coroner's Inquests have concluded – will assume complete responsibility'.16

¶2.9.36 In October, prior to the resumption of the inquests, CC Sharp informed Dr Popper that the Police Authority had decided to defer complaints made against Assistant Chief Constable Walter Jackson and that the Chief Constable had decided not to consider further the complaints against other senior officers until the conclusion of the inquests. Still 13. 'HILLSBOROUGH CORONIAL INQUIRY – PROGRESS REPORT' from M Jones to Dr Popper, 12 September 1990,

¶SYP000118480001, p29. 14. Letter from Dr Popper to M Jones, 14 September 1990, SYP000118480001, pp31-32. 15. File note, 'Telephone call from Mervyn', 19 September 1990, SYC000001360001, p77. 16. Letter from M Jones to Mr Stephen Walker, Solicitor, South Yorkshire Police Authority, 15 October 1990,

¶SYC000001400001, p216.

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¶concerned, however, Dr Popper sought advice from another coroner, and it was suggested that the full archive of material be delivered to his house so that he could state that he had been given access.17

¶2.9.37 In fact, the families' lawyers did not request access to the DPP report nor the investigation material but only to their clients' statements. Dr Popper agreed to limited access, shortly before each witness gave evidence, and the issue of equal access raised initially by Dr Popper subsided.

¶2.9.38 Dr Popper then decided to heed the advice he had received from a fellow coroner. As the Hillsborough Steering Committee (representing the bereaved families) had not asked for access to the 'whole shooting match ... the problem might not be quite as large as it would appear'. He 'suggested to Mervyn [Jones] that he should arrange to let me have a set of all the documentation for a few days at home so there could be no argument that not only was it available to me but in fact I had access to it'.18 Although he 'wasn't proposing to read it all' he considered it 'would be sensible'. Accordingly, the mass of documentation – 'a van load' – was delivered to his home.

¶2.9.39 Dr Popper requested from SYP the names of witnesses they wanted to appear at the inquests. This was discussed between Deputy Chief Constable Peter Hayes and Peter Metcalf, the SYP solicitor. The 'general stance' was that what happened outside the stadium was 'of limited influence in terms of the actual deaths' but that '[t]urnstile signing and engineering factors' were 'more important'.19

¶2.9.40 The main points of the Phillips Report20 would be emphasised alongside 'the police view that crowd obduracy (non-cooperation) was of a most unusual degree and alcohol a far greater factor than the Taylor report states'. Mr Metcalf undertook to ask Dr Popper 'to ask West Mid [sic], who have full access to both used and unused statements and questionnaire material, to identify the best non-police (independent) witnesses in this regard'.

¶Consulting the bereaved families 2.9.41 On 19 September Dr Popper wrote to the Hillsborough Steering Committee to request 'names and other appropriate details of any witness or witnesses whom you would like me to consider calling to give evidence at the resumed Inquests'.21

¶2.9.42 Ten days later Dr Popper recorded a conversation with Mr Doug Fraser, solicitor from the Hillsborough Steering Committee, in which the families' reactions to the 'interim inquest' were discussed. Mr Fraser considered 'it [mini-inquest stage] went very well', finishing 'within a few minutes of the scheduled time over a two and a half week period'.22

¶2.9.43 He stated that a 'few' families, however, 'had expected more and they were not entirely happy with the way that he had asked any questions ... but he confirmed that the vast majority of families were very satisfied with the way the inquests had been done'.

¶2.9.44 A contrary perspective is evident from the record of a meeting on 2 October between members of the Hillsborough Family Support Group (HFSG) and Sir David Napley, 17. File note, 'TELEPHONE CONVERSATION WITH PAUL KNAPMAN', 5 November 1990, SYC000001030001, pp10-11. 18. File note, 'TELEPHONE CONVERSATION WITH MERVYN JONES', 6 November 1990, SYC000001030001, p15. 19. Note for file 'HILLSBOROUGH – INQUEST', 24 September 1990, SYP000123570001, p222. 20. The Phillips Report is covered in detail in Chapter 6. 21. Letter from Dr Popper to Hillsborough Steering Committee, 19 September 1990, SPP000000730001, p1. 22. File notes, 'HILLSBOROUGH FINANCE', and 'TELEPHONE CALL WITH MR. FRAZER [sic]', 29 September 1990,

¶SPP000001310001, pp1-2.

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¶who had represented bereaved families at the Herald of Free Enterprise inquest.23 At the meeting it was stated that the mini-inquests had been limited to 'who', 'when' and 'where' people died and '[n]othing more apart from the alcohol levels was raised'.

¶2.9.45 According to the HFSG representatives, Dr Popper had been 'quite clearly aggressive' towards families, despite their 'polite' requests for information on the organisation of the inquests. The HFSG expressed concern about the discretionary power of the Coroner, the lack of information received by families, that 'fundamental issues appertaining to this disaster' would remain unresolved, and about their lawyers' strength of commitment. 2.9.46 The HFSG rationale for accepting the conditions of the mini-inquests, including their non-controversial content, had been that they would receive medical evidence on each of the deceased and be able to challenge persistent slurs of drunkenness made against their loved ones. Their objective had been to bring 'truth to the public ... by having people questioned in an open court'. 2.9.47 This, they stated, had not happened and some of the summarised evidence was inaccurate. They were also concerned that WMP officers had provided the investigating force for LJ Taylor, the DPP and the Coroner. 2.9.48 Soon after this meeting Mr Fraser informed Dr Popper that, in fact, several families had 'some small queries on the individual inquests and [asked] was I proposing to deal with these and if so when'.24 Dr Popper noted that he 'hadn't really intended to do that but I would consider the point'. Mr Fraser suggested that families' solicitors would organise requests in writing to be dealt with by correspondence or at the start of the generic stage of the inquests. Dr Popper agreed. 2.9.49 Four days later Mr Fraser wrote to Dr Popper enclosing a large file of requests from families. He referred to an announcement by Dr Popper that he would 'consider re-opening a number of interim inquests if families supplied you with details of why they wanted their own particular case re-opening and that you would be prepared to consider putting back from 3.15pm to about 4.00pm the point at which you would stop taking evidence'.25 2.9.50 Mr Fraser concluded, 'we have received a large number of letters and documents in respect of both matters'. This letter calls into question the accuracy of Mr Fraser's comment, made less than two weeks earlier, reporting that the 'vast majority of families' were satisfied with the outcome of the mini-inquests.

¶The scope of the generic hearing 2.9.51 Dr Popper met DCC Jones and senior WMP officers to consider his prepared 'schema for the Inquest', including 'schedules of witnesses'.26 DCC Jones was unhappy 'with the revised version in which I suggested that we would take the evidence of supporters first followed by others'. This, he believed, 'would give an unbalanced impression'. 2.9.52 In selecting witnesses for the generic inquests, the 'object of the exercise was to try and give a rounded and balanced view of what people had seen or perceived both from supporters as well as others'. Dr Popper 'suggested that it was important that we dealt with supporters and lay people first so that we could try and give as much notice as 23. Draft verbatim account of meeting with Sir David Napley, 2 October 1990, DRA000000170001, pp1-20. 24. File note, 'Mr Frazer [sic] Rang', 12 October 1990, SPP000000750001, p1. 25. Letter from Hillsborough Steering Committee (Mr Fraser) to Dr Popper, 16 October 1990, SPP000000780001, p1. 26. File note, 'MEETING AT MEDICO-LEGAL CENTRE WITH MERVYN JONES, CAROLINE PERKINS, STAN BEECHEY

¶AND FOR PART OF THE TIME, SUE HARPER', 3 October 1990, SPP000001490001, pp1-5.

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¶possible to them. I explained that I had not yet looked at police witnesses because I had not had time'. 2.9.53 Dr Popper also considered the 'background statement' to be read in court, stating that 'it would probably be better if this was given by several people rather than one person and arrangements were put in hand for the appropriate officers to start preparing a statement'. This would be sent to solicitors for comments.

¶2.9.54 Dr Popper considered that 'sorting out when people came through into the Stadium had to be done very carefully and that whoever presented it had to be ready to justify his opinions'.

¶2.9.55 Finally, Dr Popper 'suggested that it might be an idea' to deal 'in great detail with the evidence of some of the people who were perhaps at the forefront of the issue and who had made some of the criticisms'. It was important to ensure 'that the points which people felt strongly about and which they were prepared to be vocal over had been put to the inquest jury'.

¶2.9.56 On 30 October Dr Popper organised a pre-inquest business meeting with representatives of all interested parties in Sheffield to establish the rationale and scope of the generic stage of the inquests.27 He reiterated that the mini-inquests had 'already dealt at considerable length with three questions: who, when and where'. 'In fact', Dr Popper stated, 'we dealt with them rather more extensively than in an average inquest'. What followed clearly reveals his thinking:

¶For practical purposes the 'how' will apply to all the ninety-five deceased. Technically, as you will appreciate, I am not doing one inquest, we are doing ninety-five separate and individual inquests, which is why we took evidence individually for ninety-five people in April and May. However, because it would be a practical impossibility to recount the generality of the evidence ninety-five times over, we will take the evidence together in respect of all of them.

¶2.9.57 It was Dr Popper's position that the mini-inquests, in exceptional detail, had examined matters and issues specific to each death – the 'who, where and when' each individual died. In this, however, he did not review the significance of the limitations he had placed on examination of evidence, the summarised evidence presented by WMP officers, concerns raised by families that their specific questions had remained unanswered, and contested accounts presented to the jury as fact.

¶2.9.58 The generic hearing, he stated, would deal with 'how' people died on the assumption that they each died as a direct consequence of the same cause. Thus the evidence before the jury at the generic inquest would be presented and examined on the assumption that it applied equally to the circumstances in which each person died.

¶2.9.59 Dr Popper stated that evidence would be heard up to 3.15pm on the day, with evidence becoming 'more detailed' from 'more witnesses' at the time of the actual crush on the terraces: 'subsidiary actors' would present 'a certain amount of information which isn't necessarily vital but which makes the whole thing more readily understandable'.

¶2.9.60 There were, he noted, six categories of witnesses: 'supporters', including relatives and friends; local residents; shopkeepers; 'Other Independents ... people who were either

27. Business meeting, Medico-Legal Centre, Sheffield, 30 October 1990, SYC000110260001, pp1-37.

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¶professionally present or who may not even have been at the scene'; club employees; and the police. There would be no pre-circulation of the witness list.

¶2.9.61 Dr Popper emphasised that proceedings were 'inquisitorial ... and not adversarial'. He would prevent recurrence of the 'situation' at the mini-inquests regarding discrepancies between the content of pre-circulated statements and what was stated in court. The Taylor Interim Report would not be admitted as evidence and Counsel would not be permitted to quote comments made to LJ Taylor by witnesses giving evidence at the inquests.

¶2.9.62 The families' Counsel asked if Dr Popper would consider families' requests to correct factual inaccuracies unchallenged at the mini-inquests. While Dr Popper would not 're-open all the ninety-five cases', he stated that should matters be raised he considered 'justified and legitimate and proper to be dealt with', he would respond 'sympathetically'. While he had contacted families' solicitors requesting their suggestions for witnesses, Dr Popper stressed that the final decision on who would be called was his alone.

¶2.9.63 Challenged about his decision not to rely on LJ Taylor's findings, Dr Popper stated, 'I am reluctant to use the Report' because it 'does not necessarily follow that it is accepted, or that every paragraph is accepted, by every single party before me. It would be improper to use it, or if I did we would then have to argue out all the disputed aspects of it insofar as they were relevant'. Should parties agree to certain paragraphs he would accept their submission but his preference was to 'call the evidence, if you like, in toto, in order to try to be fair to people as far as I am able'.

¶2.9.64 Dr Popper acknowledged that using the Taylor Report posed a 'difficult problem' yet he confirmed he would 'not allow the transcript to be used to put things to people so ... they say they will not answer the question'. Should he need to 'put it to them that it is an incriminating question and they have exercised their privilege not to answer, then I will not allow whoever it is to pursue them on that point by quoting to them from the transcript because I would consider that to be oppressive'.

¶2.9.65 Dr Popper stated that he had 'never ever conducted an inquest of this size or complexity' and he had 'to learn, like most of us probably have to, as to how to do it correctly' while reserving 'the right that I too may have to modify what I do'.

¶2.9.66 Regarding the order of evidence, he would 'work from the outside in' where relevant, calling witnesses to the 'events' as they had happened. He intended to 'group witnesses so that people who are saying similar things are coming at the same time' and he expected to call more than the 174 witnesses who had given evidence to the Taylor Inquiry. Expert witnesses would deal with 'special things' but their evidence would be 'restricted to what is relevant to an inquest'.

¶2.9.67 The following day DCC Jones noted a telephone phone call from DCC Hayes.28 Its purpose was to establish the witnesses whom Dr Popper intended to call. DCC Jones stated that, as it was a matter for the Coroner, no information would be disclosed and all parties would be treated equally.

¶2.9.68 According to DCC Jones' note, DCC Hayes 'introduced the telephone discussion by referring to the Coroner's pre-inquest review and saying that "vengeance" was in the air'. DCC Jones replied, 'that may be so but not much different to other motivations from other parties not least of his own!'

28. Fax from Mervyn Jones to Dr Popper, 1 November 1990, SPP000001510001, pp2-4.

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¶2.9.69 DCC Hayes asked if he 'could obtain early indication of what was likely to be said [at the inquest] in order to help him to identify possible shortfalls in evidence which may not bring out the full extent of the fans' behaviour'. DCC Jones replied 'that "advanced disclosure" was not part of the way in which a Coroner's court works'. Overall, the conversation 'reinforces our assessment that South Yorkshire Police will be attempting to set the context of fan behaviour more appropriately as a contributory factor than did (in their view) Lord Justice Taylor'.

¶2.9.70 Following this exchange the Coroner wrote to DCC Jones 'for the sake of record'.29 He emphasised that 'all representatives and by extension the interested parties must be treated in an equal and even handed manner', thus SYP were 'not entitled to any privileges' nor were 'they to be put at a disadvantage as compared to other interested parties'.

¶2.9.71 Dr Popper confirmed it was his decision who would be called and 'whether advance notice of the names of potential witnesses should be disclosed to interested parties or their representatives'. He would conduct 'a proper coronal [sic] inquiry ... undertaken fairly, even handedly, openly and with the purpose of establishing the truth as far as this falls within my jurisdiction so that the jury at the end of the day can reach a verdict on the evidence'.

¶2.9.72 On behalf of the Hillsborough Steering Committee, Elizabeth Steel wrote to Dr Popper about the release of witness statements previously made by the bereaved to the WMP investigation.30 The Committee was concerned that 'if clients are asked to make a statement again "from scratch" [it would] cause distress to those individuals'.

¶2.9.73 As the DPP had decided against criminal prosecutions, Miss Steel asked Dr Popper to 'consider again authorising the West Midlands Police to release individual statements to Solicitors upon written request'. Statements would be limited to 'those made by their own individual clients or ... statements of witnesses who gave signed authority for the release of a statement to a particular solicitor'.

¶2.9.74 Dr Popper replied that he had no objection to the release of statements to solicitors, referring the Steering Committee to WMP who 'will then look into the matter, and no doubt will deal with it as far as they can'.31 Dr Popper discussed the issue with DCC Jones, noting that he was 'in a difficulty because he was waiting for South Yorkshire to make up their mind'.32

¶2.9.75 According to Dr Popper, if people requested their personal statements, 'the simplest way' would be 'for South Yorkshire to agree to this unless a particular statement fell within public interest immunity and/or was non-releaseable [sic] because of say disciplinary proceedings'. This 'would enable people to get what they wanted and yet preserve South Yorkshire's position'.

¶2.9.76 DCC Jones wrote to SYP Assistant Chief Constable Stuart Anderson relaying that Dr Popper had no objection to the release of statements to solicitors in certain circumstances.33 DCC Jones also stated that the 'policy I have been operating on your behalf has been to refuse these requests [for access]'. To continue that policy, however, 'I believe is inappropriate' and 'applications for release should be granted'.

29. Letter from Dr Popper to Mervyn Jones, 1 November 1990, SPP000001510001, p1. 30. Letter from Miss Steel, Hillsborough Steering Committee, to Dr Popper, 5 November 1990, SPP000003490001, p1. 31. Letter from Dr Popper to Miss Steel, 13 November 1990 [wrongly dated, 18 November, corrected in postscript],

¶SPP000003490001, p2. 32. File note, 'MERVYN JONES RE DISCLOSURE OF STATEMENTS', 14 November 1990, SPP000003540001, p1. 33. Mervyn Jones to ACC Anderson, South Yorkshire Police, 14 November 1990, SPP000003530001, p1.

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¶The verdict and bereaved families' concerns 2.9.77 As the opening of the resumed inquests approached, the Coroner continued to receive letters from bereaved families reiterating their concerns that the mini-inquests had failed to answer questions specific to the precise circumstances in which their loved ones died. Discrepancies were raised regarding timing, location, identification, time of death, inaccuracies on post mortem reports and inconsistencies between statements.

¶2.9.78 One letter, from a bereaved mother to the Hillsborough Steering Committee, raised the 3.15pm cut-off point, an issue of increasing concern to families, stating that as her son was pronounced dead at 4pm the resumed inquests would be 'of no use to us'.34 Other letters made the same point.

¶2.9.79 As discussed in Part 1, on 28 March 1991 the jury returned majority verdicts of accidental death. The verdicts were immediately contested, not least because to the layperson 'accidental death' appeared to contradict LJ Taylor's unequivocal findings and allocation of responsibility. Much of the families' criticism was directed towards the Coroner and the proceedings he had adopted.

¶2.9.80 Yet, on 30 April Miss Steel wrote to Dr Popper on behalf of the Hillsborough Steering Committee and its clients, thanking him for his 'kindness in the past and to wish you every happiness and success in the future'. She noted 'care and sensitivity and in particular the arrangements made for the families at the individual Inquests' that had been 'very much appreciated both by them and by us'.

¶2.9.81 Miss Steel continued: 'As far as the lawyers are concerned your unfailing courtesy and consideration to the advocates and ready response to various problems that we, as Solicitors, have had to burden you with have been appreciated by us all'.35 Yet Miss Steel was aware of the families' dissatisfaction. Some months later she wrote that it was 'understandable' that 'families were extremely concerned over the accidental death verdict'.36

¶2.9.82 Several months after the conclusion of the inquests, Dr Popper wrote to John Burton, the West London Coroner and Secretary of the Coroners' Society, concerning the problem of identification of victims of major disasters.37 Neither he nor LJ Taylor had dealt with this issue yet it had 'caused considerable concern to many of the relatives'.

¶2.9.83 This concern centred on the following:

¶
• the length of waiting time imposed on the bereaved prior to identification of the bodies
• the unsuitability of the temporary mortuary
• the pain caused by viewing photographs
• the presentation of the dead in body bags
• insufficient time for the bereaved to spend with their loved ones and lack of personal contact
• statement-taking immediately after identification
• lack of privacy
• the lack of contact at the Medico-Legal Centre because of the glass partition
• in some instances, police officers had been rude or curt with people.

34. Letter from Dolores Steele to Hillsborough Steering Committee, 12 November 1990, SPP000003640001, p1. 35. Letter from Miss Steel, Hillsborough Steering Committee, to Dr Popper, 30 April 1991, SPP000001060001, p1. 36. Letter from Miss Steel, Hillsborough Steering Committee, to David Phillips & Partners, 16 July 1991,

¶SYP000094820001, p9. 37. Letter from Dr Popper to Mr J D K Burton, 27 September 1991, SPP000002990001, pp1-2.

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¶2.9.84 These were the issues raised by families interviewed for research conducted into the aftermath of the disaster and published in April 1990.38 Dr Popper's suggestion was that the Coroners' Society should consider these issues and develop 'the best possible methodology for dealing with viewing and identification of deceased people in a major disaster situation'.

¶The Memorial to the Attorney General 2.9.85 By February 1992 questions regarding the conduct of the inquests were under consideration within the Attorney General's office.39 An internal memorandum disclosed to the Panel noted: 'It seems clear that the coroner has, within the framework of his inquest, set out to try and dispel any lingering misunderstandings and doubts as much as possible. He cannot be criticised for insufficiency of enquiry'.

¶2.9.86 The Attorney General's attention was drawn to two 'aspects of the inquest'. First, that the inquests were held in two parts. Second, that the Coroner had relied 'very heavily on written statements rather than calling witnesses'. It was presumed 'that this was to avoid the same witnesses having to be called time and time again in relation to each individual deceased'.

¶2.9.87 The latter point was particularly significant in the controversy about the death of Kevin Williams and claims made by police officers that he had lived beyond 3.15pm. The memorandum noted that it was 'understandable' that his parents 'would have preferred' to have heard such significant evidence 'in person'.

¶2.9.88 It concluded, however, that the 'aspects' raised were 'procedural matters for the coroner' and 'it cannot really be said that the inquest was anything other than thorough'. Finally, and in relation to those who might have died after 3.15pm, it 'seems unlikely now that the issues as to the precise time of death can be established with any great precision'.

¶2.9.89 In April 1992, an application (or 'Memorial') on behalf of six families was presented to the Attorney General under Section 13 of the Coroners Act 1988 inviting him to grant his 'fiat' or authority for proceedings in the High Court to seek a new inquest.40 It was submitted that four key issues had remained unresolved at the conclusion of the mini-inquests.

¶2.9.90 First, pathologists had testified that 'in most cases unconsciousness had followed within seconds of the crush injuries which eventually proved fatal and that brain death occurred on average within four to six minutes thereafter'. Yet in some cases the 'comparative mildness of the crush injuries' sustained suggested that the 'general rule ... was not applicable in [every] individual case'.

¶2.9.91 Second, there was significant evidence in a range of eye-witness accounts and doctors 'at the scene' to suggest that 'lives could have been saved by more prompt medical attention'. There had been 'a number of examples of successful resuscitation when prompt medical attention had been made available'. Yet at the inquests no consideration had been given to the effectiveness of the emergency response thus inhibiting full consideration of 'how' people died.

38. Coleman, S., Jemphrey, A., Scraton, P., and Skidmore, P. Hillsborough and After: The Liverpool Experience Liverpool

¶City Council, April 1990. 39. Memorandum from S J Wooler to Attorney General, 6 February 1992, AGO000002400001, p3. 40. Memorial to Attorney General in respect of Paul Carlisle, Ian Glover, Michael Kelly, Richard Jones, Peter Tootle and

¶Kevin Williams, April 1992.This process is premised on the argument that 'by reason of fraud, rejection of evidence, irregularity of proceedings, the sufficiency of the inquiry, the discovery of new facts or evidence or otherwise it is necessary or desirable in the interests of justice that another inquest should be held', HOM000037850001, pp32-35.

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¶2.9.92 Third, the Memorialists considered that in several cases 'the emergency services and the shortcomings in their response may have played a part in the causation of their relatives' deaths'. 2.9.93 The final issue, and the most significant, was that the bereaved had been led 'to believe that the question of "how" their relatives met their deaths would be fully investigated at the resumed inquest' including all events up to the time of their actual deaths. This included issues of 'preventability' and the adequacy of the emergency response. 2.9.94 The application submitted that the imposition by the Coroner of the 3.15pm cut-off had prevented inquiry into the specific circumstances of each death and whether effective medical intervention could have saved lives, thus rejecting evidence that should have been put to the jury and resulting in 'insufficiency of inquiry'. 2.9.95 On 31 July 1992 the Attorney General received advice on the application.41 Noting the timeframe between LJ Taylor's Interim Report and the criminal investigation, the advice recorded that the 'coroner appears to have been motivated by an appreciation of the desire of individual families to know the details of the fate of their loved ones'. 2.9.96 Thus the Coroner had 'decided to hear evidence in relation to each deceased confined to the statutory questions of "who" the deceased was and "when" and "where" he met his death' and 'indicated that he would postpone all wider investigation into the further question of "how" the deceased came by their deaths – and the extent to which fault played a part in that causation – until after the decision by the DPP on whether to initiate criminal proceedings'. 2.9.97 The advice to the Attorney General also noted that: 'the form of the "mini inquests" was unorthodox': 'In each case the coroner took evidence from the pathologist' followed by 'evidence from a police officer who summarised the evidence obtained from eye witnesses as to the movements of the deceased on the day of the disaster, the sightings made of them at the time of the fatal crush, the findings of their bodies on the pitch, any attempts at resuscitation made, the taking of their bodies to the temporary mortuary in the gym, and the certification of death'. 2.9.98 A second police officer then was taken 'through all the documentary evidence' relating to the deceased. While the advice noted that the adopted procedure did not appear to comply with the Coroners Rules it concluded that it did not 'follow that such irregularity renders a fresh inquest necessary in the interests of justice'. 2.9.99 In August 1992, the Attorney General announced that he had rejected the application on the basis that a fresh inquest was not considered to be necessary in the interests of justice.

¶Judicial Review 2.9.100 On 6 April 1993, the High Court granted leave to six families to apply for a judicial review of the original inquest verdicts on grounds similar to those put before the Attorney General and on 14 May Dr Popper received a letter from his successor, Christopher Dorries.42 Mr Dorries had been reported as 'having no objection' to the application for a judicial review. He stated, however, that '[n]othing could be further from the truth and indeed I cannot actually think of anything more futile than the proceedings that are currently taking place ... the arguments are (in the main) weak and illogical'. 41. Memorandum from S J Wooler to Attorney General, 31 July 1992, AGO000000140001, pp2-3. 42. Letter from Mr C P Dorries to Dr Popper, 14 May 1993, SPP000002160001, pp1-2.

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¶2.9.101 In Dr Popper's affidavit for the Judicial Review he noted his 'usual and well-established practice' of considering the key questions within the 'parameters of the Coroners' Act ... Who? When? Where? How?'43 He stated that the decision to hold preliminary or mini-inquests was to satisfy a request from the Hillsborough Steering Committee, representing the interests of bereaved families.

¶2.9.102 'How' would not be dealt with and there had to be careful handling of evidence to guard against prejudicing the criminal investigations. He recounted the meetings with the families' legal representatives to establish a 'method of proceeding' and 'the way in which I wanted the evidence to be presented so as to meet the legitimate requirements of everyone involved'.

¶2.9.103 According to Dr Popper, there had been 'no dissent from the proposals'. Thus he 'had determined that the factual evidence concerning the questions of who, when and where, could and should be met by Officers of the West Midlands Constabulary summarising for each of the 95 cases the effect of the evidence they had gathered and collected'. This had been 'carefully explained to all concerned in particular Mr Fraser ... and he was in agreement with my proposals'.

¶2.9.104 Dr Popper explained that the 'forensic pathology evidence would be dealt with by the pathologists who undertook the post mortem examinations ... no less than 4 professors, one of whom was Professor Alan Usher ... a pathologist of international repute'. Autopsies were completed within 48 hours of the disaster.

¶2.9.105 He stated that the summarised evidence 'included the results of extensive and exhaustive study of TV recordings, video and photographic evidence and was intended inasmuch as was possible to give accurate and factual evidence in respect of the questions of who, when and where' and 'as a matter of common humanity it avoided or at least reduced the need for relatives and friends of the deceased to have to re-live acutely painful and distressing events'.

¶2.9.106 Again, Dr Popper stressed that the procedure had been explained to the families' legal representatives and had been agreed. While the evidence presented by the summarising officers was 'hearsay' it had been 'given on oath'. The written summaries had been circulated to the legal representatives before the evidence was called. He had explained the process to the jury and no representation had been made by the families' legal representatives on the issues.

¶2.9.107 Dr Popper was satisfied that at each stage of the process he had kept all parties informed and his suggested procedure had received full support from the families' legal representatives: 'insofar as I can recall, there was no substantial challenge by way of cross-examination to the summarised evidence provided by the Officers of West Midlands Force' and a 'number of families through Mr Fraser expressed their thanks for the work carried out by those officers'.

¶2.9.108 Dr Popper also provided his rationale for the presentation of evidence to the generic stage of the inquests, 'starting outside the ground and working inwards'. He had 'attempted to call evidence such that all points of view were put before the jury, namely from the spectators, the Police and others'.

43. Application for Judicial Review, Affidavit of Stefan Popper, 10 September 1993, SYC000001280001, pp7-21.

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¶2.9.109 At the conclusion of the evidence 'all representatives made submissions as to whether or not the verdict of unlawful killing should be left open to the jury'. Yet none of the legal representatives 'made any submissions relating to any verdict of lack of care [as had been suggested subsequently] or any verdict whereby the cause of death was aggravated by lack of care – either on the part of any Police Force or Police officer or of any other body'. Submissions from the families' Counsel were 'exclusively referable to the verdict of unlawful killing'.

¶2.9.110 While, Dr Popper recalled, legal representatives 'on most days of the main part of the Inquests' had 'raised submissions concerning points of law', at 'no stage was I addressed upon verdicts of the nature of lack of care'. In summing up to the jury he had 'emphasised that each Inquest had to be considered separately'.

¶2.9.111 He had offered three verdicts: unlawful killing, accidental death and open. He had 'emphasised that [accidental death] included events where no one was to blame through to events where there was negligence', making 'it clear that such a verdict did not absolve everyone of blame'.

¶2.9.112 As noted in Part 1, the Judicial Review judgment was delivered on 5 November 1993.44 Consistent with Dr Popper's submission, it stressed that the 'idea' of the mini-inquests had been 'positively supported by the families, who were distressed at having to wait what must have seemed an eternity for the hearing of the investigation into the individual deaths'.

¶2.9.113 Regarding the presentation of summarised evidence to the jury, the judgment noted that Coroners Rules permitted the admission of documentary evidence providing the Coroner had allowed for objection to its admission. In the case of the mini-inquests, however, 'Mr Fraser, on behalf of the relatives, expressed complete contentment with the use of the summary'.

¶2.9.114 Two weeks later the Coroner received a telephone call from Terri Sefton, the mother of Andrew Sefton.45 Dr Popper recorded the exchange:

¶She had never felt that she had got the facts or had her questions answered and whether even in retrospect perhaps I might think that the inquests should have been different. I explained that I had retired and that I did not think that I should make any comment and that as far as I was concerned the proceedings were over. She said that might be so for me but not for her ... she had previously told me she had not been satisfied with the conduct of the inquest. She felt that she as an ordinary mother had been caught up in a hugh [sic] intrigue and that none of the questions that she had wanted answered had been answered. When she mentioned that it was all a hugh

¶[sic] intrigue I said to Mrs. Sefton that whilst she had the right to speak her mind I had the right not to listen.

¶2.9.115 Dr Popper 'felt rather upset when she said it was a bad intrigue as I knew I had done my best and I did not think that I had to listen to some one telling me otherwise'.

44. Judicial Review Judgment: Regina v HM Coroner for South Yorkshire, ex parte Stringer and others, 5 November 1993,

¶SYC000000060001, pp1-11. 45. Dr Popper, note of telephone call from Mrs Sefton, 21 November 1993, SPP000002150001, pp1-2.

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¶A continuing controversy 2.9.116 In October 1996 prior to the television screening of Jimmy McGovern's drama-documentary, Hillsborough, the South Yorkshire West District Coroner since Dr Popper's retirement, Christopher Dorries, wrote to Dr Popper anticipating 'that the conduct of the inquest, particularly the 3.15pm cut off and the way that relatives were dealt with generally is likely to form the subject of much adverse comment'.46

¶2.9.117 Mr Dorries 'very much doubted that the complimentary remarks made by the High Court about your handling of the matter will get much of a mention'. He was 'rather concerned about this because I think that the picture likely to be left in the minds of the average local viewer will be of a Coroners Office that is uncaring and (possibly) incompetent'.

¶2.9.118 Such a picture, he stated, 'was very far from the truth and I think that someone is going to have to stand up and say so loudly and publicly at the appropriate time ... the first right of reply will fall to you but in all the circumstances you may not care to exercise it. If that is the case I would certainly wish to get stuck into this myself and stand up both for you and for the office'.

¶2.9.119 Mr Dorries also noted, 'as human beings mistakes were made and there will be a number of things that you could identify worthy of improvement for "next time". Certainly this should be admitted but equally I see no future in letting wild criticism become accepted as factual simply by default'. The 'mistakes' to which he alluded were not identified.

¶2.9.120 In the aftermath of the screening Dr Popper received a telephone call from the Crown Prosecution Service (CPS) to discuss video evidence.47 In the course of the conversation he stated that the inquest proceedings had been video-recorded, 'for back up for the shorthand writers and so that one could monitor how the inquests were conducted'. Asked if the tapes were recorded secretly, Dr Popper replied, 'we did not publicise it but there was a camera taking pictures'.

¶2.9.121 Having reflected further, Dr Popper 'phoned him back and I said I had thought about the question and to [sic] it was difficult because it depended how one viewed the matter whether it was secret but I had not made it known that they were being made as they were for a specific backup purpose'. It was his understanding that access had been allowed to the recordings as 'in the drama doc some of the footage relating to the evidence of (Mr) Glover was based on the video recording rather than on the transcripts'.

¶2.9.122 Dr Popper was asked 'if the families knew about the videos of the proceedings ... whether there was authority to have video in court, and whether the H[igh] Court knew of this at the judicial review'. The concern within the CPS was that 'one should not suppress anything so as to avoid suggestions that if one had done it once [one] might be doing it again'.

¶2.9.123 Dr Popper had no objection to the disclosure of videos to those who had 'a legitimate interest particularly bearing in mind the reason why they were prepared'. He could not 'say' whether the law had been breached by filming in court but affirmed that coroners had 'considerable control over their own procedure and the purpose of having the recordings seem [sic] entire[ly] proper'.

46. Letter from Mr C P Dorries to Dr Popper, 22 October 1996, SPP000002600001, p8. 47. 'Tel call with Mr Groston' [sic – Croston, CPS], 8 May 1997, SPP000002000001, pp1-2.

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¶The Stuart-Smith Scrutiny 2.9.124 In November 1997 Dr Popper met LJ Stuart-Smith accompanied by Michael Burgess of the Coroners' Society.48 While their discussion of the imposition of the 3.15pm cut-off is considered in Chapter 10, LJ Stuart-Smith covered a range of other related issues raised in meetings with the bereaved.

¶2.9.125 LJ Stuart-Smith summarised the procedure at the mini-inquests. It was his 'impression' that, in relation to each of the deceased, WMP summarised the evidence 'culled from various witnesses' tracing the movement from leaving home to the last point of contact.

¶2.9.126 This included:

¶where he was in the pens; where he was last seen alive; the attempts to resuscitate him, either on the terraces or behind, or on the pitch; and then, so far as he could be, traced to the gymnasium or hospital; and a sequence of people certifying death, police officers being with them, and so on, until they were eventually identified, and then through to the post mortem.

¶2.9.127 Dr Popper confirmed this process, noting that two WMP officers had presented evidence. One officer had read the summaries circulated to enable families and their legal representatives to 'know what was coming' and to 'comment if they thought there was anything wrong'. The second officer had provided identification information from photographs taken in the stadium.

¶2.9.128 LJ Stuart-Smith noted that the 'thing that seems to be bugging families now is that in some cases they don't know whether their relative died at 6 minutes past 3 in the pen, or 20 minutes later somewhere else'. Dr Popper responded, stating that the visual and witness evidence was varied for each of the deceased.

¶2.9.129 He considered it 'hard on families when you cannot pinpoint to the minute what happened, but the fact of the matter is that the evidence was not there and I was in no position to invent it for them'. The 'objective' had been 'to say as much as we possibly could about each one, to try to narrow it down and pin it down as closely as we could, and we succeeded in many cases'.

¶2.9.130 Dr Popper recounted ten cases in which witnesses were called at the generic stage of the inquests to respond to questions and inconsistencies raised by families and their legal representatives. In presenting these cases he made it clear to LJ Stuart-Smith that he (Dr Popper) was committed to resolving issues relating to attempted resuscitation in the period beyond 3.15pm.

¶2.9.131 In one case at the inquest he had re-called the senior pathologist, Professor Usher, because a claim had been made that a particular individual was alive beyond 3.15pm. While he could not recall Professor Usher's evidence he thought 'he was not impressed ... he felt it made no difference'. LJ Stuart-Smith commented, 'I imagine that in some cases there is a bit of wishful thinking?' Dr Popper replied, 'I am afraid so'.

48. Hillsborough Scrutiny conducted by LJ Stuart-Smith, evidence of Dr S L Popper, with Michael Burgess in attendance,

¶17 November 1997, SPP000001180001, pp1-41.

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¶2.9.132 LJ Stuart-Smith was concerned that families might have been 'misled ... into thinking that any questions that might not have been answered then [at the mini-inquests] would be answered at the full Inquest. Speaking for myself I have not found anything to suggest that, and I have not really been referring to anything, but it is say [sic] that this is the implication of what is said'. While LJ Stuart-Smith expressed reservations about the 'fairness' of the question, he asked if Dr Popper would 'like to comment'.

¶2.9.133 Dr Popper declined, stating that he would 'stand by what I said in the transcripts' and his 'general remarks when I opened the Inquests'. He proceeded to describe the sequence of negotiations at the business meeting with legal representatives when he had requested suggestions for witnesses to be called.

¶2.9.134 This had drawn 'a whole load of names and witnesses who they raised and they also raised quite a lot of questions on things which had happened at the mini Inquests where there was some concern'. Consequently 'extra witnesses' had been called and 'whenever somebody raised a point they were not happy with, we looked at it'.

¶2.9.135 He continued:

¶Sometimes it was dealt with at the Inquest. Sometimes I refused to call witnesses.

¶Sometimes I think somebody explained what was said and what had happened. It is a matter of interpretation. I do not know whether I did mislead them. I cannot comment on that I just don't know. I don't remember.

¶2.9.136 He stated that his objective at the generic stage of the inquests 'was to ... tidy up and correct errors which could have occurred [at the mini-inquests], or where I felt that the families had a legitimate reason'. LJ Stuart-Smith asked if Dr Popper could provide further examples of the attempt to 'deal' with matters raised by families, commenting:

¶It is no criticism of you, but it is perfectly obvious that the thing [the inquest and the number of witnesses] got out of control in a way. It took far too long largely because people kept on asking repetitive questions, and they were trying to push the frontiers of what is legitimate at an Inquest beyond what they should have been and so on.

¶It seemed to me that it is very unfair on a Coroner to have to deal with a situation like this.

¶2.9.137 Dr Popper stated that it was his decision to call witnesses and he had considered 'that if we were going to put to the jury – and I knew I had to in a way – the possibility of an unlawful killing verdict, and bearing in mind the standard of proof is the criminal standard ... that I had to do a pretty comprehensive job in order that at the end of the day the jury had information from different sources, different people, so that they could try and reach a justified verdict'.

¶2.9.138 Yet he had not followed the 'strict rules of evidence', admitting evidence 'which in any other court would have been thrown out'. LJ Stuart-Smith replied, 'if I may say so, you bent over backwards to put the supporters' point of view because you called innumerable supporters who all said exactly the same thing, were all asked the same questions by counsel and so on'. According to LJ Stuart-Smith, Dr Popper had erred 'on the side of caution'. It was 'absurd' that there should be a long inquest when there had been a full judicial inquiry.

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¶2.9.139 The discussion also considered the relationship between public inquiries and coroners' inquests in such high-profile cases. LJ Stuart-Smith concluded that it would have been 'sensible in this case' to have 'confine[d] the Inquest to what took place at the mini Inquests ... which was who, when and where, and leave the how to Taylor LJ'. This would have eliminated 'any problems about cut off points or suggestions that you should enquire into the adequacy of the emergency services, and so on, which had all been done by Lord Taylor'.

¶2.9.140 A further issue related to a comment made by LJ Stuart-Smith in a letter to Dr Popper regarding the holding of 'material' gathered for the inquests. While LJ Stuart-Smith had stated it had been held at a 'local police station', Dr Popper commented that it had been held by WMP at their Sheffield location (Furnival House) 'because we obviously did not want our material to be with the local police for obvious reasons'.

¶2.9.141 However, Dr Popper thought 'they did have access' and there had been 'problems'. He recalled correspondence with CC Sharp 'because he wanted to release certain material for disciplinary proceedings and I was very reluctant that we should do that because I thought it would give an unfair advantage'.

¶2.9.142 LJ Stuart-Smith had been under the impression that his information had come from the CPS who had been advised by Dr Popper. At this point in the meeting the Coroners' Society representative interjected: 'It may be more correct, sir, to say the rest of it was kept locally'.

¶2.9.143 LJ Stuart-Smith simply repeated the word, 'Locally'. The Coroners' Society representative added, 'Without necessarily identifying where'. 'Unfortunately', stated Dr Popper, 'I cannot remember what we actually did. I know we had a store room, a secure room, for the legal representatives so they did not have to carry everything'.

¶Conclusion: what is added to public understanding • The Coroner decided against relying on the Taylor Inquiry to meet the requirements of the generic stage of the inquests. As the disclosed documents show, the hearings became adversarial as SYP attempted to use the proceedings to respond to criticisms in Lord

¶Justice Taylor's Interim Report. • The Coroner anticipated that SYP would attribute responsibility for the disaster to

¶'drunkenness and disobedience' and 'ticketless' fans while also proposing that failings by SWFC and its safety engineers and the 'nepotism' of Sheffield City Council were relevant factors. • The Coroner's file notes also indicate his acceptance, regardless of Lord Justice Taylor's findings, that the relationship between alcohol consumption, late arrivals and crowd behaviour could have contributed to the disaster. The reason for this assumption is not evident from the disclosed documents. • Exchanges between the lead investigating officer, Chief Constable Leslie Sharp, and the

¶Coroner demonstrate strong differences of opinion regarding the status of the information gathered for the criminal investigation and the access to the information granted to SYP prior to completion of the inquests. • These differences were settled by Chief Constable Sharp's decision to release documents to SYP and the Force's agreement that they would be used only for disciplinary purposes and not in preparation for the inquests.

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¶
• Confusion and controversy about the status and ownership of documents and statements gathered by the WMP investigation team reveal the problems associated with sharing evidence between interested parties and the privilege enjoyed by SYP in preparation for the generic stage of the inquests.
• It is also evident that, in order to fulfil an expectation that the Coroner had all documents 'available' to him, he arranged for their delivery to his home for a few days even though he would not have the capacity to consider them thoroughly.
• It is clear from the disclosed documents that the Coroner considered the mini-inquests had answered issues of relevance to each of the bereaved. The task of the generic hearing was to establish 'how' the 95 had died.
• Having invited all interested parties to identify who they wanted to be called as witnesses at the generic stage, in the disclosed documents there is no explanation for the Coroner's final selection.
• There is a substantial amount of documentary evidence concerning the inadequacy of the inquest process. In subsequent Judicial Review proceedings the High Court recognised that the inquests were 'unorthodox' and failed to comply with the Coroners Rules. Yet the High Court rejected claims that there had been insufficiency of process.
• Lord Justice Stuart-Smith raised concerns with the Coroner that families had been misled into believing that questions that remained unanswered at the mini-inquests would be addressed at the generic stage. The Coroner reassured him that, wherever relevant, this was achieved, although subsequent correspondence from families suggests otherwise.
• While Lord Justice Stuart-Smith recognised the complexities and difficulties facing the Coroner, he considered that the generic hearing became 'out of control'. He suggested that it might have been more appropriate to have adopted the findings of the Taylor Inquiry than to have conducted a generic hearing.