The Report of the Hillsborough Independent Panel
OF ACTION: CHECK TRANSCRIPTS & SUBMISSIONS BY SWFC RE FENCE. CHECK TRANSCRIPTS AND FINAL SUBMISSIONS BY SHEFFIELD WEDNESDAY FOOTBALL CLUB RE ADDITIONAL GATE IN THE RADIAL FENCE IN
OF ACTION: CHECK TRANSCRIPTS & SUBMISSIONS BY SWFC RE FENCE. CHECK TRANSCRIPTS AND FINAL SUBMISSIONS BY SHEFFIELD WEDNESDAY FOOTBALL CLUB RE ADDITIONAL GATE IN THE RADIAL FENCE IN
¶LEPPINGS LANE TERRACES ... RESULT OF ACTION: Checked. Nothing of value'. 68. Memorandum from DI Cleverley to C/Supt Wain,16 April 1989. The Prime Minister's Press Secretary later revealed, however, that he had been informed on the day that drunkenness and violent crowd behaviour were significant causes of the disaster. • The disclosed documents show that in the immediate aftermath of the disaster SYP prioritised an internal investigation and the collection of self-taken, handwritten statements in preparation for the imminent external inquiries and investigations. SYP Counsel advised that the police should approach its information-gathering exercise by considering themselves 'the accused'. • A subsequent internal report ('the Wain Report') informed the SYP submission to the Taylor Inquiry. Key elements of the SYP submission emphasised exceptional, aggressive and unanticipated crowd behaviour: large numbers of ticketless, drunk and obstinate fans involved in a concerted action, even 'conspiracy', to enter the stadium. 172. South Yorkshire Police press release, 13 January 1992, SYP000123580001, pp7-8. 173. Press clipping from unidentified newspaper, undated, SYP000123580001, p3. June 1990, SYP000098370001, p4. 69. Memorandum from DI Cleverley to C/Supt Wain, 13 July 1990, SYP000098410001, pp2-6. 70. Letter from Peter Metcalf, Hammond Suddards, to DCC Peter Hayes, 19 July 1990, SYP000118290001, p4. 71. Letter from Peter Metcalf, Hammond Suddards, to DCC Peter Hayes, 30 August 1990, SYP000116060001, pp1-2.
247¶2.7.102 In his report DCC Phillips concluded:
¶The South Yorkshire Police on the basis of the evidence available to me planned the policing of this fixture in accordance with prevailing standards in 1989. Events at
¶Leppings Lane precipitated a situation they could not have foreseen and in the event they deployed as well as circumstances allowed. The decision to open the gates became inevitable and was a consequence of the culpable crowd misbehaviour and not of any failure in policing.
¶The overcrowding in pens 3 and 4 occurred because of fundamental design flaws resulting from ground alterations in 1981 and 1985. Responsibility in this rested primarily with the Club and its engineers. Whilst the police were members of the
¶Officer Working Party their role was marginal as to engineering matters and restricted to commenting on how physical structures affected their strategies in containing disorderly crowds.72
¶2.7.103 In contrast, Mr Stalker commented:
¶[I]n my opinion the South Yorkshire Police approached the policing of the 1989 semi-final with a certain lack of vision: this comment is not made in the knowledge that things went badly wrong. My professional impression is that they thought a combination of very substantial manpower and strict segregation of fans, written into a repeat of the 1988 Operational Order, was sufficient to see the day through.
¶In the main their plans worked well especially in relation to the movement of traffic, the prevention of disorder outside the ground and the reception of the
¶Nottingham supporters. In failing to consider the possible, indeed probably, late arrivals of Liverpool fans at the confined Leppings Lane entrances the police made an operational mistake. This in turn led to confused, chaotic and eventually unmanageable policing problems in Leppings Lane for which contingency plans should have been made. The result was the best efforts of Superintendent Marshall and of the mounted police officers were not enough. The bulk of spare policemen were behind the crowd rather than between it and the turnstiles. Once that had happened the need to open the gates became almost inevitable. The problem was foreseeable and avoidable by better management of the crowd route along
¶Leppings Lane.
¶Despite the relative operational successes in previous years Leppings Lane should have been closed to traffic from 2.00pm. Similar closures occur at many other grounds and the reasons are simple: to provide room, a line of sight, operational options and to remove confusion and danger to large crowds milling around moving vehicles. The fact that such closure was not considered, even as a set option for
¶Superintendent Marshall until the situation forced itself on him, was a major cause of his subsequent difficulties.
¶That, and the lack of police deployment across the mouth of the terrace tunnel, were in my view, the two serious flaws in the South Yorkshire Police operation.73
¶2.7.104 Mr Metcalf invited comments on the Stalker Report from the action team. He was satisfied, however, that the Phillips Report dealt reasonably well with Mr Stalker's criticism of the police handling of the crowd outside the turnstiles in Leppings Lane. 72. Report of JD Phillips, Deputy Chief Constable, Devon and Cornwall Constabulary, August 1990, SYP000116060001, 73. Report of John Stalker,20 April 1989, HOM000016460001, pp1-5. August 1990, SYP000116060001, p278.
248¶2.7.105 It was also assumed that the importance attached to the events outside the turnstiles was reduced significantly by the HSE evidence indicating that the number of spectators who had entered the terraces, including those who entered through the opened Gate C, did not exceed the number allowed for under the safety certificate.
¶2.7.106 Of Mr Stalker's comments on events inside the stadium, he wrote that Mr Stalker 'blandly states that the tunnel ought to have been closed by the Commanding Officers, but does not give any reasons for suggesting this. His only other pertinent criticism appears to be that binoculars should have been available inside the Control Box'.74
¶2.7.107 C/Supt Brian Mole was also asked to provide further comments for the hearings on several issues in response to Mr Stalker's report. C/Supt Mole stated that the placement of barriers and cordons outside the stadium would not have prevented the build-up in Leppings Lane and, in fact, could have led to 'public order difficulties and breach of segregation'.
¶2.7.108 He referred to an assumption underpinning police planning, shared by SWFC and Dr Eastwood, that if the small gates at the head of the radial fences were locked open, the West Terrace could be treated as one entity.
¶2.7.109 He challenged the assumption that monitoring capacity in individual pens could be successfully achieved, noting 'categorically that if the Safety Certificate had been amended to include specific capacities for the individual pens then I would have insisted on sitting down with the responsible official at the club to determine how those limits ought to have been enforced'.75
¶2.7.110 C/Supt Mole referred to the 'great deal of misunderstanding of the reasons for … monitoring'. This was a policy followed only for league matches where a capacity crowd was not expected and the small gates at the rear of the radial fences were locked shut. On those occasions it was necessary for police to make a visual assessment of the number of fans allowed into the pens.
¶2.7.111 This policy was not followed at cup semi-finals or where a capacity crowd was expected. On such occasions 'all the gates between the pens would be locked open and no visual assessment of numbers would take place'. C/Supt Mole did not seek to defend the policy but challenged the representation that such a mistake was solely the responsibility of the police:
¶The belief common to club and police was that the terracing was safe up to its certified capacity as a whole on the basis that fans could move between individual pens. In hindsight this can be clearly seen to be a mistake but I reiterate that it was a mistake made by all those concerned. I specifically do not accept that the club would have been expecting the police to be monitoring numbers in individual pens on the day of the semi-final.
¶2.7.112 At the conclusion of the action team's investigations it was recognised that the findings, particularly concerning monitoring the capacity in the pens, suggested a negative outcome for SYP in the contribution hearings, as in the Taylor Inquiry.
¶2.7.113 It was suggested by the SYP solicitors that a more fruitful line could be offered by the evidence relating to the collapsed barrier: 'our prospects of substantially improving on
- Letter from Peter Metcalf, Hammond Suddards, to DCC Peter Hayes, 30 August 1990, SYP000116060001, pp1-2. 75. Statement of C/Supt Mole, submitted to contribution hearings (undated), SYP000116400001, pp1-3.
¶the outcome of the inquiry rest on convincing the court that the collapse of barrier 124A occurred as result of culpable failure on the part of the Club's Consulting Engineers'.76
¶The trial and terms of settlement 2.7.114 Following the announcement of the DPP's decision that no prosecutions would be brought,77 it was clear that the contribution proceedings would proceed to trial at the beginning of October as scheduled. At the pre-trial review, however, the judge assigned to hear the trial, Mr Justice Jowitt, indicated his view that SYP was clearly negligent and was surprised an out-of-court settlement had not been reached.
¶2.7.115 Mr Metcalf observed that there had been 'no balancing comment that he [Jowitt] saw the other parties extensively liable although clearly he does expect them to make a contribution'.78 Consequently, the Chief Constable was advised that the police case had to be realistic – there was no point in trying to defend the 'absolute indefensible'.
¶2.7.116 Regarding the seven officers identified as likely to face disciplinary proceedings, referred to as the 'at risk seven', a decision was taken not to call them to give evidence for SYP. Each had been asked to give additional statements expanding on their originals and all, with the exception of Supt Murray, had declined. It was thought to be 'folly' to call them without the benefit of such statements.
¶2.7.117 The possibility of applying to the judge for an adjournment until after the inquests was considered and rejected. The outcome of the inquests was considered difficult to predict and it was feared the officers might prove to be extremely negative witnesses if the inquest verdict had gone against them.
¶2.7.118 In the wake of the pre-trial hearing, it was anticipated that the officers would have to be called, at least to identify the transcripts of their evidence to the Taylor Inquiry. It was also considered that the judge might instruct them to answer all questions put to them.79
¶2.7.119 The trial commenced on 2 October 1990. Following four days of evidence, Counsel for SYP, Richard Payne, requested an adjournment following receipt of a message from Mr Metcalf and from Counsel for the Defendants. When the Court reconvened on Monday 8 October, an out-of-court settlement had been agreed between the parties.80
¶2.7.120 The terms of the settlement were not made public and the details are not recorded in the court papers. However, when questions about the overall payout and individual settlement of claims were subsequently raised by relatives of the deceased and injured, Mr Metcalf clarified the background and settlement terms:
¶[S]hortly before the hearing began, the Engineers made a cash offer of £1.5 million to cover the whole of their potential liability and shortly after the hearing began, the
¶Club indicated their willingness to match the sum. We were not immediately inclined to accept those proposals but, after the first few days of the hearing, it was clear that the Judge was not kindly disposed towards our case and it was decided to accept the sums offered, rather than risk the possibility of losing outright. 76. Letter from Hammond Suddards to 'Chief Superintendent',16 April 1989. The Prime Minister's Press Secretary later revealed, however, that he had been informed on the day that drunkenness and violent crowd behaviour were significant causes of the disaster. • The disclosed documents show that in the immediate aftermath of the disaster SYP prioritised an internal investigation and the collection of self-taken, handwritten statements in preparation for the imminent external inquiries and investigations. SYP Counsel advised that the police should approach its information-gathering exercise by considering themselves 'the accused'. • A subsequent internal report ('the Wain Report') informed the SYP submission to the Taylor Inquiry. Key elements of the SYP submission emphasised exceptional, aggressive and unanticipated crowd behaviour: large numbers of ticketless, drunk and obstinate fans involved in a concerted action, even 'conspiracy', to enter the stadium. 172. South Yorkshire Police press release, 13 January 1992, SYP000123580001, pp7-8. 173. Press clipping from unidentified newspaper, undated, SYP000123580001, p3. August 1990, SYP000098520001, pp2-3. 77. Letter from Mr C Cleugh, Head of Police Complaints Division, CPS, to the Chief Constable, South Yorkshire Police,
¶30 August 1990, CPS000004930001, p1. 78. File note written by DCC Peter Hayes, 21 September 1990, SYP000118480001, pp20-22. 79. File note written by DCC Peter Hayes, 12 September 1990, SYP000118480001, pp38-39. 80. Full transcripts of the five days of the proceedings can be read on the Panel's website at: SYP000098630001;
¶SYP000098640001; SYP000098650001; SYP000098660001; SYP000098670001.
250¶Consequently, sums of £1.5 million were accepted from the Club and from the Club's
¶Consulting Engineers, Messrs. Eastwood and Partners. Subsequently, it was agreed that a further sum of £1 million (I believe that this is the correct figure) would be paid towards settlement by insurers on behalf of Sheffield City Council in consideration of the possible claim against them.
¶Thus the total sum of £4 million was contributed by other parties to a total liability now estimated at £12 million. If the estimate is correct then the South Yorkshire Police have taken two thirds of the liability with the other parties taking one third – 12.5% each for the Club and the Engineers and 8.3% for the City Council.81
¶2.7.121 Mr Metcalf indicated that it had been in SYP's interests to ensure that the terms of the settlement remained confidential because, at the time of the contribution hearings, figures of £20 million and £30 million had been quoted in the press.
¶2.7.122 It was a concern that in the context of this publicity the sums accepted from SWFC and Eastwoods would be seen as derisory and that the public would conclude that SYP had accepted full responsibility. SYP wanted the details to be treated as confidential and the other parties readily agreed.
¶2.7.123 In information provided to the Stuart-Smith Scrutiny, SYP attempted to make the case that the police had actually intended to take less than 50 per cent of the liability. It was argued that in December 1990, the total estimated liability arising from the disaster had been between £7 and £8 million and the three parties between them had thus contributed over 50 per cent of the expected cost.82 The disclosed documents do not reveal evidence to support this contention.
¶2.7.124 In the absence of such evidence, it appears clear that the contribution of £4 million made by the other parties amounted to approximately one fifth of the total of £19.8 million known to have been paid out by SYP in damages to the bereaved and injured.83
¶Compensation claims and settlements 2.7.125 Compensation payments to SYP officers were covered by SYP's employer's liability insurance policy. They totalled £1.5 million. The funds from which compensation payments to the injured and bereaved were made came from six sources: South Yorkshire Police Authority's public liability insurance cover (£8.5 million); South Yorkshire Police Authority's financial reserves (£4.5 million); special payments from the Home Office (£2.8 million); and as a result of the contribution hearings (£1.5 million from SWFC, £1.5 million from Eastwood & Partners and £1 million from SCC).
¶2.7.126 South Yorkshire Police Authority's Finance and General Purposes Committee met on 8 December 1989 to consider the implications of the decision to settle some compensation claims from the bereaved and injured. Press reports that estimated the final cost of claims as £50 million were noted, but regarded as speculation fuelled mainly by solicitors acting for the claimants. The Police Authority's public liability insurance cover with MMI was limited to £8.5 million.
- Letter from Peter Metcalf, Hammond Suddards, to DCC Peter Hayes, 19 February 1992, SYP000160160001, pp1-3. 82. Letter from Superintendent AM Hepworth to C Bone, Hillsborough Scrutiny, 23 December 1997, SYP000160110001, 83. See below for details and source in relation to this figure.
¶2.7.127 Minutes of the meeting recorded that the Police Authority's solicitor considered 'the estimate of £50m' was 'a wild exaggeration'. Further, the possibility that the Police Authority would 'ultimately have to bear any part of the cost' depended on 'the final bill and the extent of the police's liability'. However, the Police Authority's solicitor was 'reasonably confident at this juncture that the insurance cover will prove to be sufficient'.84
¶2.7.128 The announcement in the press that SYP proposed to pay compensation, possibly as high as £50 million, caused surprise and concern within the Home Office. Aware of the £8.5 million insurance limit, questions were raised about where that amount would be found.85 Other Home Office officials had greater awareness of the situation, having responded to a request from the Police Authority in October 1989 for guidance on whether the Home Office might help to meet the cost of claims from central funds.
¶2.7.129 At the time, South Yorkshire Police Authority's Clerk and Financial Officer, RC Johnson, wrote:
¶Unfortunately although half a year and more has elapsed since the date of the disaster, the size of this liability remains a matter of conjecture …
¶2.7.130 The Home Office response gave no firm commitment to the Police Authority but it did not rule out a special payment. It noted that since the level of grant paid direct from the Home Office had been raised to 51 per cent of total police expenditure the only special payment made to any Force was also to South Yorkshire (in relation to the Hillsborough investigation led by WMP). It set out the circumstances in which a further payment might be considered:
¶(a) whether the size of the expenditure is such that to meet it would involve the police authority in such huge costs that the viability of the police force would be put at risk and (b) whether the commitment could have been foreseen (and so budgeted for ).
¶The problem with compensation liability following Hillsborough … although the size and timing of the commitment are uncertain, the likelihood of the commitment arising is foreseeable.87
¶2.7.131 It was clear from the Home Office response that the Police Authority should demonstrate full commitment to meeting its responsibilities before seeking further government funds: 'While … I do not wish to close the door in advance on any future application from your authority, I have to say that our expectation would be that it would have taken steps to cover this contingency from its own resources (including the grant it receives from the Government)'.
- 'SOUTH YORKSHIRE POLICE AUTHORITY, FINANCE AND GENERAL PURPOSES COMMITTEE', 8 December 1989,
¶SPA000000760001. 85. Internal Home Office memorandum, 1 December 1989, HOM000006080001. 86. Letter from RC Johnson, South Yorkshire Police Authority, to M Addison, Home Office, 27 October 1989,
¶HOM000013850001. 87. Letter from M Addison, Home Office to RC Johnson, South Yorkshire Police Authority, 6 November 1989,
252¶2.7.132 There followed a different approach from the Police Authority. Having agreed to pay compensation to those claimants meeting certain criteria, there was concern that the statutory figure for bereavement under the Fatal Accidents Act 1976 was only £3,500.
¶2.7.134 While noting that it was for the parties involved to negotiate the level of settlement in each case, the Police Authority was advised as follows: 'As far as the grant position is concerned, if on legal advice, your Authority proposes to settle at a higher level than the statutory figure the Home Office would be prepared to pay grant on that element of compensation not covered by your Authority's insurance, provided the total compensation figure paid did not exceed £10,000 per person'.88
¶2.7.135 It is clear from the published updates from the Hillsborough Steering Committee of solicitors representing bereaved families that discussion of this issue was not confined to the Police Authority and the Home Office.
¶2.7.136 Elizabeth Steel, on behalf of the Steering Committee, wrote that it was 'common ground that the current level of damages for bereavement £3,500 is far too low and although Parliament has never pretended it should be a compensatory figure it has remained static since 1982 and should be increased'.89 The Hillsborough Steering Committee negotiated with the Police Authority and their insurers.
¶2.7.137 Despite those negotiations, and the assurance given by the Home Office, it appears that a higher figure in respect of bereavement was never formally agreed or paid, with bereaved families on record as having received only the statutory figure of £3,500.
¶2.7.138 Claims for compensation were received over a long period and the Police Authority's Finance and General Purposes Committee was given regular updates on anticipated costs. On 6 January 1995, the Police Authority's Clerk and Financial Officer reported that the then current estimate was that the £8.5 million insurance limit would be exceeded by £1.35 million. At that time 1,566 claims were reported as having been settled, with a further 80 outstanding.90
¶2.7.139 By 15 March 1996, the estimate of the uninsured costs had increased to a possible £2 million, £0.5 million more than the amount provided for in the Police Authority's allocation. This did not appear to create anxiety. The Police Authority was running a projected underspend of £1.442 million that year and its revenue reserves were understood to be £7.9 million.91
- Letter from P Ransford, Home Office, to S Walker, South Yorkshire Police Authority,20 April 1989, HOM000016460001, pp1-5. February 1990,
¶HOM000036010001, p5. 89. Letter from Elizabeth Steel, Hillsborough Steering Committee to a firm of Solicitors: Hillsborough Group Bulletin 12,
¶29 December 1989, FAM000000190001, p10. 90. 'SOUTH YORKSHIRE POLICE FINANCE AND GENERAL PURPOSES COMMITTEE', 6 January 1995, 91. 'SOUTH YORKSHIRE POLICE AUTHORITY, REPORT OF THE CLERK AND TREASURER', 15 March 1996,
253¶2.7.140 Estimates of the likely final costs continued to increase and by September 1999 the situation was less manageable. The Police Authority's decision to fund the defence costs of its former officers (Chief Superintendent David Duckenfield and Supt Murray) in the private criminal prosecution threatened to impact directly on policing budgets already being 'squeezed' by Hillsborough.92
¶2.7.141 Writing to the Home Secretary to seek a meeting to discuss a further application for financial support, the Chair of South Yorkshire Police Authority, Clarence Swindell, suggested that the rising compensation costs 'could add around 13 per cent to Council Tax'.
¶2.7.142 Mike Hedges, who had recently succeeded Richard Wells as SYP Chief Constable, also wrote to the Home Secretary in support of an application for additional central funds.93 He considered that the 'exceptional nature of the impact of the Hillsborough Stadium Disaster of 15 April 1989 continues to affect the Force's finances in ways that could not have been foreseen'. This imposed 'a financial burden which reduces my ability to provide the people of South Yorkshire with the policing service that I would like and that they deserve'.
¶2.7.143 A briefing paper prepared by the South Yorkshire Police Authority for the meeting with the Home Office set out in detail the costs of settling the compensation claims. It explained that the £8.5 million insurance limit together with the £4 million contributions made by other parties that accepted a share of liability had been exceeded in June 1997.94
¶2.7.144 Since that time, payments made by the Police Authority from its funds in the settlement of claims totalled £2.227 million while reserves placed on outstanding claims stood at £5.078 million. The resulting overall total of £19.8 million represented a substantial increase on initial estimates. The uniqueness of Hillsborough was highlighted thus: 'Hillsborough has re-written the rules and will have caused all police authorities to review the limits of their public liability policies. South Yorkshire Police Authority now have an indemnity limit under their policy of £21m and this is currently under review'.
¶2.7.145 Ultimately, the Police Authority's case was persuasive and the Home Office agreed to provide £1 million in March 2000 in support of outstanding compensation payments (although it declined to provide financial assistance in support of former officers' defence costs). Following further discussion, an additional £1 million was provided in the next financial year, followed by £800,000 in 2002/03.95
¶Conclusion: what is added to public understanding • The decision by SYP to settle certain categories of compensation claims from the injured and bereaved in November 1989 was sudden and taken for legal and tactical reasons. It was made deliberately without any admission of liability so as not to prejudice the position of any police officers subsequently under criminal investigation. • Following legal action by SYP, other organisations agreed to contribute to the payment of compensation to the injured and bereaved as follows:
- Letter from Clarence Swindell, Chair of South Yorkshire Police Authority, to Jack Straw MP, Home Secretary,
¶10 September 1999, HOM000010060001, pp4-5. 93. Letter from Chief Constable Mike Hedges to Jack Straw MP, 29 September 1999, HOM000010130001, pp3-5. 94. Letter and enclosure from South Yorkshire Police Authority to Chris Michael, office of Charles Clarke MP, 21 October
¶1999, HOM000010120001, p8. 95. Confirmed to the Panel by the Home Office.
254¶– Sheffield Wednesday Football Club – £1.5 million
¶– the Club's engineers Eastwood & Partners – £1.5 million
¶– Sheffield City Council – £1 million.
-
¶
- It was estimated that total compensation to the injured and bereaved might reach £12 million, suggesting that SYP would have accepted two-thirds of the liability and the other organisations one-third. Ultimately the cost of compensation rose to £19.8 million. SYP's public liability insurance cover was limited to £8.5 million. The remainder of the total was paid from the Police Authority's financial reserves and through special payments from the Home Office.
- Compensation claims from SYP officers caused considerable tension within the Force. Senior officers viewed the claims with 'great concern' and junior officers felt 'immense pressure' from the Force to withdraw them. SYP accepted internally that they had 'no defence' in relation to a category of claims in late 1992, but did not agree to make payments until mid-1995. This was a strategic decision to deter 'copy-cat' claims. Those claims not settled were successfully defended in court. £1.5 million was ultimately paid out by SYP to 16 officers. The costs were met from the Force's employers' insurance cover.
¶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.
256¶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.
257¶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.
¶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. The Prime Minister's Press Secretary later revealed, however, that he had been informed on the day that drunkenness and violent crowd behaviour were significant causes of the disaster. • The disclosed documents show that in the immediate aftermath of the disaster SYP prioritised an internal investigation and the collection of self-taken, handwritten statements in preparation for the imminent external inquiries and investigations. SYP Counsel advised that the police should approach its information-gathering exercise by considering themselves 'the accused'. • A subsequent internal report ('the Wain Report') informed the SYP submission to the Taylor Inquiry. Key elements of the SYP submission emphasised exceptional, aggressive and unanticipated crowd behaviour: large numbers of ticketless, drunk and obstinate fans involved in a concerted action, even 'conspiracy', to enter the stadium. 172. South Yorkshire Police press release, 13 January 1992, SYP000123580001, pp7-8. 173. Press clipping from unidentified newspaper, undated, SYP000123580001, p3. April 1989, SYC000001360001, p239.
259¶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. The Prime Minister's Press Secretary later revealed, however, that he had been informed on the day that drunkenness and violent crowd behaviour were significant causes of the disaster. • The disclosed documents show that in the immediate aftermath of the disaster SYP prioritised an internal investigation and the collection of self-taken, handwritten statements in preparation for the imminent external inquiries and investigations. SYP Counsel advised that the police should approach its information-gathering exercise by considering themselves 'the accused'. • A subsequent internal report ('the Wain Report') informed the SYP submission to the Taylor Inquiry. Key elements of the SYP submission emphasised exceptional, aggressive and unanticipated crowd behaviour: large numbers of ticketless, drunk and obstinate fans involved in a concerted action, even 'conspiracy', to enter the stadium. 172. South Yorkshire Police press release, 13 January 1992, SYP000123580001, pp7-8. 173. Press clipping from unidentified newspaper, undated, SYP000123580001, p3. April 1989, SYP000096360001, p41. 9. 'SOUTH YORKSHIRE POLICE BRIEFING 12 NOON SUNDAY 16.4.1989',16 April 1989. The Prime Minister's Press Secretary later revealed, however, that he had been informed on the day that drunkenness and violent crowd behaviour were significant causes of the disaster. • The disclosed documents show that in the immediate aftermath of the disaster SYP prioritised an internal investigation and the collection of self-taken, handwritten statements in preparation for the imminent external inquiries and investigations. SYP Counsel advised that the police should approach its information-gathering exercise by considering themselves 'the accused'. • A subsequent internal report ('the Wain Report') informed the SYP submission to the Taylor Inquiry. Key elements of the SYP submission emphasised exceptional, aggressive and unanticipated crowd behaviour: large numbers of ticketless, drunk and obstinate fans involved in a concerted action, even 'conspiracy', to enter the stadium. 172. South Yorkshire Police press release, 13 January 1992, SYP000123580001, pp7-8. 173. Press clipping from unidentified newspaper, undated, SYP000123580001, p3. April 1989, SYP000010040001, p9. 10. Briefing notes,17 December 1997, HOM000030920001, p1. April 1989 3.30pm, SYP000010190001, pp12-13. 11. File note,17 December 1997, HOM000030920001, p1. April 1989, SYC000001360001, pp236-238.
260¶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,
261¶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.
262¶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 March 1988, SYP000096970001, p600. 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 March 1988, SYP000096970001, p600. 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 1991, SPA000000600001. 140. Letter from ACC Anderson, South Yorkshire Police, to Brigadier Pownall, Police Complaints Authority, 28 March 1991, SYP000123570001, p98. 141. Letter from Brigadier Pownall, Police Complaints Authority, to ACC Anderson, South Yorkshire Police, 10 April 1991, SYP000123570001, pp91-92. 142. Letter from ACC Anderson, South Yorkshire Police, to Brigadier Pownall, Police Complaints Authority, 10 April 1991, SYP000123570001, p95. 143. Letter from Brigadier Pownall, Police Complaints Authority, to ACC Moore, South Yorkshire Police, 7 May 1991, SYP000123570001, pp75-78. August 1989, HOM000008600001, pp2-3.
263¶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 December 1997, HOM000030920001, p1. 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 December 1997, HOM000030920001, p1. January 1990, SYC000001270001, pp96-98.
264¶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 April 1989, HOM000016480001, p1. 43. Memorandum from White's News Agency to News Editor, London Evening Standard, re. allegations over behaviour of Liverpool fans at the Hillsborough semi-final, NGN000000070001. January 1990, SPP000001480001, pp1-2. 31. Letter from Dr Popper to Mr Newell, DPP, Director of Headquarters Case Work, 15 February 1990, SYC000001410001,
¶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 April 1989. The Prime Minister's Press Secretary later revealed, however, that he had been informed on the day that drunkenness and violent crowd behaviour were significant causes of the disaster. • The disclosed documents show that in the immediate aftermath of the disaster SYP prioritised an internal investigation and the collection of self-taken, handwritten statements in preparation for the imminent external inquiries and investigations. SYP Counsel advised that the police should approach its information-gathering exercise by considering themselves 'the accused'. • A subsequent internal report ('the Wain Report') informed the SYP submission to the Taylor Inquiry. Key elements of the SYP submission emphasised exceptional, aggressive and unanticipated crowd behaviour: large numbers of ticketless, drunk and obstinate fans involved in a concerted action, even 'conspiracy', to enter the stadium. 172. South Yorkshire Police press release, 13 January 1992, SYP000123580001, pp7-8. 173. Press clipping from unidentified newspaper, undated, SYP000123580001, p3. February 1990,
¶CPS000004160001, p1. 33. Letter from CWP Newell, CPS, to Clerk to Mr G Williams QC and Mr Peter Birts,16 April 1989. The Prime Minister's Press Secretary later revealed, however, that he had been informed on the day that drunkenness and violent crowd behaviour were significant causes of the disaster. • The disclosed documents show that in the immediate aftermath of the disaster SYP prioritised an internal investigation and the collection of self-taken, handwritten statements in preparation for the imminent external inquiries and investigations. SYP Counsel advised that the police should approach its information-gathering exercise by considering themselves 'the accused'. • A subsequent internal report ('the Wain Report') informed the SYP submission to the Taylor Inquiry. Key elements of the SYP submission emphasised exceptional, aggressive and unanticipated crowd behaviour: large numbers of ticketless, drunk and obstinate fans involved in a concerted action, even 'conspiracy', to enter the stadium. 172. South Yorkshire Police press release, 13 January 1992, SYP000123580001, pp7-8. 173. Press clipping from unidentified newspaper, undated, SYP000123580001, p3. February 1990,
¶CPS000004170001, pp1-2. 34. Joint Further Advice of Counsel in the matter of disclosure,16 April 1989. The Prime Minister's Press Secretary later revealed, however, that he had been informed on the day that drunkenness and violent crowd behaviour were significant causes of the disaster. • The disclosed documents show that in the immediate aftermath of the disaster SYP prioritised an internal investigation and the collection of self-taken, handwritten statements in preparation for the imminent external inquiries and investigations. SYP Counsel advised that the police should approach its information-gathering exercise by considering themselves 'the accused'. • A subsequent internal report ('the Wain Report') informed the SYP submission to the Taylor Inquiry. Key elements of the SYP submission emphasised exceptional, aggressive and unanticipated crowd behaviour: large numbers of ticketless, drunk and obstinate fans involved in a concerted action, even 'conspiracy', to enter the stadium. 172. South Yorkshire Police press release, 13 January 1992, SYP000123580001, pp7-8. 173. Press clipping from unidentified newspaper, undated, SYP000123580001, p3. February 1990, CPS000004190001. 35. Meeting to discuss inquests, 22 February 1990, SYC000001390001, pp63-65.
266¶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, 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.
267¶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.
268¶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 August 1991, SPA000000600001. 140. Letter from ACC Anderson, South Yorkshire Police, to Brigadier Pownall, Police Complaints Authority, 28 March 1991, SYP000123570001, p98. 141. Letter from Brigadier Pownall, Police Complaints Authority, to ACC Anderson, South Yorkshire Police, 10 April 1991, SYP000123570001, pp91-92. 142. Letter from ACC Anderson, South Yorkshire Police, to Brigadier Pownall, Police Complaints Authority, 10 April 1991, SYP000123570001, p95. 143. Letter from Brigadier Pownall, Police Complaints Authority, to ACC Moore, South Yorkshire Police, 7 May 1991, SYP000123570001, pp75-78. March 1990,
¶SPP000000720001, pp2-6.
269¶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.
¶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.
- Letter from Dr Popper to Mr Ian Rothera, 13 June 1990, SPP000001580001, pp1-5.
-
¶
- Chapter 9 The generic hearing, Judicial Review and continuing controversies — 271
¶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
- Notes between Mr M Kennedy and Mr C Newell,17 December 1997, HOM000030920001, p1. 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,
¶'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
- '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.
274¶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 April 1989, HOM000016480001, p1. 43. Memorandum from White's News Agency to News Editor, London Evening Standard, re. allegations over behaviour of Liverpool fans at the Hillsborough semi-final, NGN000000070001. August 1990,
¶CPS000004910001, p1.
275¶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.
276¶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 April 1989, HOM000016480001, p1. 43. Memorandum from White's News Agency to News Editor, London Evening Standard, re. allegations over behaviour of Liverpool fans at the Hillsborough semi-final, NGN000000070001. 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.
277¶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 April 1989. The Prime Minister's Press Secretary later revealed, however, that he had been informed on the day that drunkenness and violent crowd behaviour were significant causes of the disaster. • The disclosed documents show that in the immediate aftermath of the disaster SYP prioritised an internal investigation and the collection of self-taken, handwritten statements in preparation for the imminent external inquiries and investigations. SYP Counsel advised that the police should approach its information-gathering exercise by considering themselves 'the accused'. • A subsequent internal report ('the Wain Report') informed the SYP submission to the Taylor Inquiry. Key elements of the SYP submission emphasised exceptional, aggressive and unanticipated crowd behaviour: large numbers of ticketless, drunk and obstinate fans involved in a concerted action, even 'conspiracy', to enter the stadium. 172. South Yorkshire Police press release, 13 January 1992, SYP000123580001, pp7-8. 173. Press clipping from unidentified newspaper, undated, SYP000123580001, p3. 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.
278¶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
- Business meeting, Medico-Legal Centre, Sheffield, 30 October 1990, SYC000110260001, pp1-37.
¶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!'
- Fax from Mervyn Jones to Dr Popper, 1 November 1990, SPP000001510001, pp2-4.
¶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'.
- 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.
281¶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.
- 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 April 1989. The Prime Minister's Press Secretary later revealed, however, that he had been informed on the day that drunkenness and violent crowd behaviour were significant causes of the disaster. • The disclosed documents show that in the immediate aftermath of the disaster SYP prioritised an internal investigation and the collection of self-taken, handwritten statements in preparation for the imminent external inquiries and investigations. SYP Counsel advised that the police should approach its information-gathering exercise by considering themselves 'the accused'. • A subsequent internal report ('the Wain Report') informed the SYP submission to the Taylor Inquiry. Key elements of the SYP submission emphasised exceptional, aggressive and unanticipated crowd behaviour: large numbers of ticketless, drunk and obstinate fans involved in a concerted action, even 'conspiracy', to enter the stadium. 172. South Yorkshire Police press release, 13 January 1992, SYP000123580001, pp7-8. 173. Press clipping from unidentified newspaper, undated, SYP000123580001, p3. July 1991, 37. Letter from Dr Popper to Mr J D K Burton, 27 September 1991, SPP000002990001, pp1-2.
¶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.
- 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.
283¶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.
284¶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'.
- Application for Judicial Review, Affidavit of Stefan Popper, 10 September 1993, SYC000001280001, pp7-21.
¶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'.
- 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.
286¶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'.
- 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.
¶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'.
- Hillsborough Scrutiny conducted by LJ Stuart-Smith, evidence of Dr S L Popper, with Michael Burgess in attendance,17 December 1997, HOM000030920001, p1. November 1997, SPP000001180001, pp1-41.
¶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.
289¶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.
290-
¶
- 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.
¶The 3.15pm cut-off
¶2.10.1 The Coroner's decision to impose a restriction on evidence presented to the jury at the inquests became public knowledge after the completion of the 'mini-inquests' and immediately prior to the resumption of the inquests in generic form. Of the Coroner's decisions this restriction was, and remains, of profound concern to the bereaved families. Yet, as revealed in Chapter 9, it was a restriction agreed by lawyers representing the bereaved.
¶2.10.2 While controversial among the bereaved families, the restriction was not challenged by way of judicial review at the time of the inquests on the advice of Counsel. It was a prominent issue in the subsequent judicial review of the inquests and was revisited by the Stuart-Smith Scrutiny.
¶2.10.3 The complexity, enormity and exceptional demands of the work faced by the Coroner – with a duty to inquire into the deaths of 95 people – was daunting. That there were so many witnesses, CCTV and film footage and photographs compounded the challenge of selecting and prioritising evidence from the mass of statements and material gathered. For the Coroner, it also created an unprecedented difficulty in planning the scope of evidence presented at inquests.
¶2.10.4 At the conclusion of the mini-inquests families raised concerns with their legal representatives and the Coroner, Dr Stefan Popper, about 'sufficiency of inquiry' because of the limitations placed on the presentation and examination of evidence put to the jury. This chapter focuses on a central issue – the introduction at the generic hearing of a 3.15pm cut-off.
¶2.10.5 Dr Popper's rationale for imposing this restriction on evidence continues to be misunderstood or misrepresented. Most significant has been the false assumption that he proposed that in all cases death had occurred before 3.15pm. This was not the case.
¶2.10.6 Put simply, his position was that those who died received the injuries that caused their death before 3.15pm, even if they lived beyond that time. His logic was that in each case there was no 'intervening act' (novus actus interveniens) that contributed to death. This rationale, however, also suggested that whatever the interventions, or lack of interventions, as part of the emergency response each death was unavoidable once 3.15pm had been reached.
-
¶
- Chapter 10 The 3.15pm cut-off — 291
¶2.10.7 The documents considered in Chapter 5 contain clear medical evidence that a significant number of those who died may have been alive after removal from the pens. These individuals might have survived given appropriate and timely intervention, but remained vulnerable while unconscious to the effects of a new event such as being positioned incorrectly or inhaling stomach contents.
¶Restrictions on the scope of the mini-inquests 2.10.8 It is also clear from the documents discussed in Chapter 4 that the delivery of appropriate and timely intervention was significantly hampered by lack of coordination of the emergency response, lack of prioritisation of casualties and shortage of basic equipment. The question of how to consider evidence relating to efforts made to care for and resuscitate those who died confronted the Coroner. As discussed previously, Dr Popper attempted to resolve this by resuming the inquests on a limited basis as a series of individual hearings for each of the deceased.
¶2.10.9 In a note of a conversation with Detective Chief Inspector Kevin Tope from the West Midlands Police (WMP) investigation team, Dr Popper observed that WMP wanted to establish 'at what point the evidence' at each mini-inquest 'would stop'.1 Dr Popper noted his reply, that it would extend 'probably up to the temporary mortuary but obviously if there were any particular difficulties we would do our best to try and answer the questions as far as we could'. DCI Tope commented that 'on the whole the evidence went beyond' the temporary mortuary, 'right up to identification and the Medico Legal Centre'.
¶2.10.10 In the immediate aftermath the 'scope' of the investigation had also exercised South Yorkshire Police (SYP). On 26 April 1989 a meeting of the SYP team responsible for coordinating the collation of officers' recollections or 'self-prepared statements' established that the SYP investigation would be 'internal, narrow in scope, as evidence gathering not investigation, and, finally, as secondary to the West Midlands enquiry'.2
¶2.10.11 Chief Superintendent Terry Wain, the briefing officer, stated: 'I would like you to stress to each of these officers that our enquiry is concerned only with the incident itself not the actions taken in respect of the aftermath'. The 'enquiry is to consider the events leading up to the decision to stop the game and nothing thereafter' (emphases in original).
¶2.10.12 The scope of the SYP 'evidence gathering' was further developed at a meeting on the same day that included the SYP solicitor, Peter Metcalf and Counsel, Bill Woodward QC.3 Deputy Chief Constable Peter Hayes stated that the 'scope of the enquiry' had 'focused on a time up to about 3.15, or 3.30'. He asked if this should be extended 'at this stage to focus on consequences'. Counsel replied 'Yes, I think so, why did somebody not do something might be a question? Why did someone die when they needn't have done? It's those sorts of questions that we need to be aware of'.
¶2.10.13 Thus it was against this background that the mini-inquests were held covering the 'who', 'when' and 'where' details of each person who died including the pathology evidence and the medical cause of death. As stated previously, although the scope of enquiry at this stage covered the period beyond 3.15pm, the situational evidence was summarised, presented by WMP officers and not subject to cross-examination.
- File notes of conversation between Dr Popper and DCI Tope (WMP), 6 March 1990, SYC000001390001, p45. 2. Briefing for officers coordinating the collation of self-prepared statements from police officers on duty at FA Cup Semi-
¶Final at Hillsborough – 15 April 1989, 26 April 1989, SYP000097200001, p4. 3. Minutes of meeting with Counsel, 26 April 1989, SYP000096360001, p99.
293¶2.10.14 For many families the expectation was that questions, concerns and inaccuracies not addressed at the mini-inquests would be resolved at the generic hearing, particularly issues pertaining to the effectiveness of the emergency response and whether lives could have been saved.
¶Preparation for the generic hearing 2.10.15 In late August 1990, a preparatory meeting between the Coroner, Deputy Chief Constable Mervyn Jones and WMP investigating officers was held to prepare for the generic hearing, anticipated to run for 31 days over six weeks.4 The minutes record a recognition at the meeting that some of the bereaved would 'probably' request 'full Inquests into how their loved ones died'. This had been 'indicated' already by two families (Devonside and Hicks), 'but we cannot think that these will be the only ones who will want to trawl over the evidence. You will probably be able to identify these [others] as well as ourselves'. 2.10.16 The WMP officers advised Dr Popper 'to restrict most carefully the amount of evidence you will hear and on what subjects'. Having 'already dealt with the "why", "where", and "when", in the preliminary Inquests ... we may have to re-open those to satisfy certain individuals, but generally speaking we should be able to dismiss fairly quickly those aspects of your Inquests'. 2.10.17 As WMP officers also liaised with the bereaved, they were aware that issues were outstanding from the mini-inquests. Yet at this meeting WMP officers appeared dismissive of the substance, motives and intentions behind families' queries. Regarding the scope of the generic stage, they stated: 'we would suggest that you [the Coroner] concentrate on the period between say 1420 hours when the crowd had noticeably built up, through to Superintendent Greenwood running on to the pitch at 1505 hours plus to stop the match'. 2.10.18 The investigation team offered to prepare a schedule and a list of witnesses appropriate to this time sequence. Establishing an appropriate timeframe was an issue in deciding 'what additional evidence to lay'. It was suggested this could be addressed 'in a general sense giving a flavour of the evidence … from a West Midlands Police officer'. The background information would focus on the build-up and crush at the Leppings Lane turnstiles and the contribution made by 'drunkenness and unruliness'. 2.10.19 Soon after the meeting Dr Popper consulted with Richard Sturt, the Kent Coroner, concerning the scope of the inquests and a cut-off time for the evidence presented.5 He asked for advice 'on what in short we refer to as the "rescue"'. According to Dr Popper, Mr Sturt's 'initial reaction was that we might have to repeat that because it might go to causation, but upon further reflection, he agreed with me that one could certainly argue that it was post incident and therefore not necessary to repeat it'. 2.10.20 Mr Sturt was of the view that the inquests had the potential to become 'completely out of hand'. He advised Dr Popper to remain aloof from the legal representatives, to 'keep a distance and be rather magisterial' and not to hold a pre-inquest review prior to the generic hearing. 2.10.21 Meeting with the WMP team a month later, Dr Popper stated that he intended to hear evidence 'at least until Chief Superintendent Nesbitt [sic] arrived on the scene at 3.20pm'.6 Regarding background, he would hear evidence, for example, 'on the routes, the pubs, local residents, etc.'. 4. Meeting held on 31 August 1990 at Nechells Green Police Station to discuss the proposed inquests, 31 August 1990,
¶SYC000001180001, pp74-79. 5. File note, 'Telephone Call to Mr Sturtt [sic]', 11 September 1990, SYC000001270001, pp103-104. 6. Summary of meeting at the Medico-Legal Centre, Sheffield, 10 September 1990, SYC000001360001, p10.
294¶2.10.22 Two days later Dr Popper noted a conversation with Doug Fraser, the Hillsborough Steering Committee representative, in which Mr Fraser offered the 'view' that 'probably 6 minutes past 3 was the cut off point'.7 Dr Popper responded that he 'had in mind' a 'few minutes beyond that'. 2.10.23 He had 'dealt with the "rescue" during the interin [sic] inquests' as 'it was only fair that the families should have some idea of the amount of effort and time that had been put into this and also that should they wish to have this explored at another place, they would at least know who the people were who were involved'. The phrase 'another place' in this context would have been understood as a reference to the High Court on any application for judicial review. Dr Popper asked Mr Fraser if families' queries from the mini-inquests were substantial. Mr Fraser 'said he didn't think so … as far as he could recollect they were relatively minor matters'. 2.10.24 Having established agreement for the cut-off with the families' legal representatives Dr Popper again met DCC Jones and the WMP investigation team.8 Dr Popper noted the discussion of the scope of the inquests and agreement 'that a convenient point at which we ought to draw the line would be the arrival of the first ambulance on the pitch ... intended as a marker'. 2.10.25 A problem could arise, he stated, should there be an allegation 'that the medical treatment had caused the death'. If this was proposed as a 'serious suggestion, one might have to take that inquest out'. This would then be dealt with 'on that basis and not as part of the Hillsborough disaster'. In other words, this would constitute a cause of death distinct from that which Dr Popper considered to be common to all who died. 2.10.26 The reasoning evident in this disclosed document ignores the proposition made by families in the immediate aftermath and following the mini-inquests, that in some cases lack of access to swift and appropriate treatment was a possible contributory cause of death.
¶Pre-inquest review and further advice 2.10.27 Despite Mr Sturt's previous advice, Dr Popper held a pre-inquest business meeting, hearing submissions from legal representatives on a range of issues.9 He confirmed that the cut-off would be 'about' 3.15pm, coinciding with the arrival of an ambulance on the pitch. Counsel for the families, Tim King, requested that the cut-off be put back to 4pm. He stated that several families were:
¶... anxious that there be an inquest into the nature of the medical attention which was given to those who had been in the crushing, in regard to the allegation which certainly they wish to make and wish to investigate, that the absence of proper medical care facilities and attention and technique, led to those, certain of them in any event, dying perhaps when they might not have died at all or certainly dying sooner than might have been the case, and specifically the diagnosis of when somebody had actually died.
- Note of a conversation between Dr Popper and Mr Fraser, 12 September 1990, SYC000000900001, p66. 8. File note, Meeting at Nechells Green Police Station,24 April 1989, HOM000016480001, p1. 43. Memorandum from White's News Agency to News Editor, London Evening Standard, re. allegations over behaviour of Liverpool fans at the Hillsborough semi-final, NGN000000070001. October 1990, SYC000001270001, pp105-108. 9. Business meeting, Medico-Legal Centre, Sheffield, Transcript of Proceedings, 30 October 1990, SYC000110260001, pp16-18 and p37.
¶2.10.28 Dr Popper noted that while he had yet to give a ruling he was not persuaded that he 'would want to go down that road'. He would consider legal submissions on the cut-off point but he had 'strong reasons' for the decision, 'not just obstinacy'.
¶2.10.29 At a further meeting with the WMP team Dr Popper agreed to contact Mr Fraser to establish 'how many of those he represents wish to hear evidence to 4pm'.10 While Dr Popper 'still favoured the cut-off point to be 3.15 … he would not be inflexible on this point and would consider each request on its merits'.
¶2.10.30 Dr Popper contacted James Turnbull, the West Yorkshire Coroner who had conducted the inquests following the 1985 Bradford football stadium fire. He 'asked him what he thought about the cut-off point at 3.15 subject of course to any legal submissions'.11 Mr Turnbull's view was 'in line' with Dr Popper's decision but to be 'pragmatic … it might be kind if there were just a few individuals who needed this sort of information explored to deal with what happened even after 3.15'. This had been Dr Popper's inclination, 'so his view confirmed my feelings'.
¶2.10.31 Two days later Dr Popper contacted Mr Sturt, the Kent Coroner.12 Mr Sturt 'didn't think it was right to deal with issues of WHY something happened we were there to establish HOW the deceased came by his death and that of course meant and [sic] investigation of the circumstances as well as the immediate cause of death, though one had to have some causal connection'.
¶2.10.32 Regarding the 'rescue', Dr Popper was concerned that 'the same person may be praised by one and possible [sic] condemned by another on the grounds that they had left their son/loved one too soon'. Mr Sturt replied that 'even if it were true that in the heat of the moment and under pressure somebody made some error in the extent of the resuscitation this was not something for which they could be blamed'. Although he had voiced his intention regarding the 3.15pm cut-off, Dr Popper decided to delay the final decision.
¶2.10.33 As discussed in the previous chapter, families continued to write to Dr Popper to request the reopening of their mini-inquests to consider unresolved issues. They also expressed disapproval of the 3.15pm cut-off. Dr Popper noted that in most of the correspondence families 'have completely misunderstood (a) what is happening and (b) what the ''objects of an inquest are''.13
¶2.10.34 He wrote: 'I can see at the moment no reason why I should depart from my decision to treat the cut-off point as far as the how is concerned at about 3.15 or in fact even earlier'. It appears that the depth of criticism levelled by some families against the scope of the mini-inquests had no effect on Dr Popper's determination to proceed with the 3.15pm cut-off.
¶The generic hearing submissions 2.10.35 The generic hearing opened on 16 November 1990. For most of the day submissions were made by legal representatives in open court without the jury. Two issues were significant: the imposition of the 3.15pm cut-off and the calling of senior officers to give evidence.
- Minutes of meeting at Nechells Green Police Station, 2 November 1990, SYC000001270001, p113. 11. File note, 'Telephone Conversation with Jim Turnbull', 5 November 1990, SYC000001270001, p115. 12. File note 'Token Conversation with Mr Sturt', 7 November 1990, SYC000001030001, p39. 13. File note,16 April 1989. The Prime Minister's Press Secretary later revealed, however, that he had been informed on the day that drunkenness and violent crowd behaviour were significant causes of the disaster. • The disclosed documents show that in the immediate aftermath of the disaster SYP prioritised an internal investigation and the collection of self-taken, handwritten statements in preparation for the imminent external inquiries and investigations. SYP Counsel advised that the police should approach its information-gathering exercise by considering themselves 'the accused'. • A subsequent internal report ('the Wain Report') informed the SYP submission to the Taylor Inquiry. Key elements of the SYP submission emphasised exceptional, aggressive and unanticipated crowd behaviour: large numbers of ticketless, drunk and obstinate fans involved in a concerted action, even 'conspiracy', to enter the stadium. 172. South Yorkshire Police press release, 13 January 1992, SYP000123580001, pp7-8. 173. Press clipping from unidentified newspaper, undated, SYP000123580001, p3. November 1990, SYC000001400001, p18.
¶2.10.36 In his submission on behalf of the families Mr King stated that 'this inquest should deal with what to them [the families] is a very major issue, as to how their loved ones came by their deaths, namely how the services and rescue services, and those attending with the emergency, coped with it immediately after people were brought off the terraces because death was not certified in many, if not most, cases until after 4pm'.14
¶2.10.37 Evidence regarding 'the impact of the organisation rescue [sic] on the survival or otherwise of the particular loved one' had not been heard by the jury at the mini-inquests. Further, witnesses to the immediate aftermath had not been called. There were, stated Mr King, 'examples of people who are brought off at 15.22 and it is said that there was an effort to resuscitate by a lay individual and then that particular lay individual is not heard of again, or the officer is not, and it is said that the given loved one arrives at the temporary mortuary'. In fact, there had 'been no investigation directed to the global organisation of what happened immediately after they were brought off the terraces'.
¶2.10.38 Mr King cited an off-duty doctor, Dr Glyn Phillips, who successfully resuscitated a man after 3.15pm. While this did 'not prove this man lived, or if he did he may have been brain damaged, but the point we are trying to put across to the coroner is that after 3.15pm not all the people who were later certified dead were necessarily dead'.
¶2.10.39 There were claims by individual families, supported by off-duty doctors and nurses, that immediate medical and rescue responses were disorganised and ineffective. Mr King argued that these claims should be heard and cross-examined, and considered that 'to ignore these concerns as to the adequacy of the attentions and the rescue efforts after 3.15 is to not investigate what could well have been a major reason for why somebody died and did not survive'.
¶2.10.40 Vincent Hale, acting for Superintendent Roger Marshall, however, called for 'some sort of selection' restricting 'the areas into which you [the Coroner] are prepared to enquire further ... but I hope we are not going to waste a lot of time on negligence alone, because one item of negligence is the same as a thousand items of negligence, and you will no doubt instruct the Jury on a verdict of misadventure'.
¶2.10.41 Mr AJ Callaghan, representing the South Yorkshire Metropolitan Ambulance Service, argued that 'this is not the time and place for some sort of Public Inquiry into the activities of the Ambulance Services and the Emergency Services'. Mr King's submission, however, was that all factors including evidence concerning allegations of inadequate medical attention and equipment, and inadequate intervention, should be heard and tested.
¶2.10.42 Dr Popper presented his rationale for selecting 3.15pm as the appropriate cut-off time: 'I did not just pick the arrival [on the pitch] of the first ambulance out of the blue, I did try to consider in the light of the evidence which we had heard [at the mini-inquests] what could have been the latest time when the real damage was done'.
¶2.10.43 He considered the 'overwhelming medical evidence' to be unambiguous:
¶... the pathological evidence, and that is the crucial one [sic] I am interested in, is the damage that caused the death was due to crushing ... The medical evidence was that once ... that chest was fixed so that respiration could no longer take place, then irrevocable brain damage could occur between four and six minutes ... I felt that the evidence which I had heard and in the light of what I had read that the
- Inquest transcript, day 1, 19 November 1990, SYC000108470001, pp5-21.
¶latest, the latest, when this permanent fixation could have arisen would have been approximately six minutes past, which is when the match stopped. 2.10.44 Dr Popper had concluded that once the chest was 'fixed' so that respiration became impossible, 'irrevocable' brain damage would follow within minutes. Without any conclusive supporting evidence, he decided that for all who died the latest time of permanent fixation of the chest was 3.06pm, coincidentally the precise time the match was abandoned. He then added 'another six minutes' on the basis that people died within four to six minutes, 'that is twelve minutes past [three]'. 2.10.45 He took a 'convenient marker beyond that point in time ... the arrival of the first ambulance [on the pitch] not because there is anything magical about that but because when we look at the videos we can actually see that and it is a convenient marker, that is all'. Had 'the first ambulance ... arrived at 3.30 I would have picked that time'. 2.10.46 The documents disclosed and the available transcripts reveal the logic of Dr Popper's reasoning. He considered the medical evidence incontrovertible and his interpretation, supported by the pathologists, was that there was a common cause of all deaths and thus the specific circumstances of each death were irrelevant. 2.10.47 Thus the generic stage of the inquests processed 95 deaths as one: 'each individual death I dealt with families [sic] are in exactly the same situation'. He concluded that 'the fact that the person may survive an injury for a number of minutes or hours or even days, is not the question which I as a Coroner have to consider'. Consequently, 3.15pm was confirmed as the cut-off and while 'minor' deviations could be accommodated it was 'certainly not my intention to allow us to stray down that path'.
¶The Coroner's summing up and subsequent reflections 2.10.48 In his summing up, almost five months after opening the generic hearing, Dr Popper returned to the cut-off: 'we did not take much evidence after 3.15 in fact hardly any, and that was a deliberate decision of mine'.15 This decision was founded primarily on 'the pathological evidence' presented by the pathologists who had carried out the post mortems. 2.10.49 He stated that while each of the deceased 'differed in minor detail as to whether it was ten seconds or five seconds or fifteen seconds that people lost consciousness, it was clear that people lost consciousness within a relatively short period of time according to their view, and what was much more important was that irretrievable damage had been done, with somebody who was asphyxiated, between four and six minutes'. 2.10.50 The lead pathologist, Professor Alan Usher, had told the inquests 'that once the chest had been fixed so that the person could not breathe then irretrievable brain damage was caused' and 'if you [the jury] accept that as being correct then whether or not somebody subsequently breathed for a period or was resuscitated ... the damage had been done'. 2.10.51 Dr Popper 'took the view' that 'the crushing had started – well it certainly was in full swing – by 6-minutes-past, when the match had finished [sic]'. Even if crushing had not started until this time, 'you have still got nine minutes of time from there up to 15.15 for the damage to be done'.
- Inquest transcript, day 75, 19 March 1991, SYC000001300001, pp263-268.
¶2.10.52 It had been unnecessary to go beyond this time 'because the overwhelming medical [evidence] is that the injuries which caused the death were crushing or asphyxia or some form of compression' and the 'only place that could have happened was within the terraces'. Whatever else occurred, 'it was all related to and connected with the injuries that the people suffered within those terraces'.
¶2.10.53 Yet Dr Popper conceded that it was 'undeniable' that had resuscitation been administered correctly 'before irretrievable damage had been done' a 'person might well not only have recovered but might have been perfectly all right'.
¶2.10.54 There were, he stated, examples of several people who lost consciousness but survived 'because the cells in their case fortunately had not been so severely damaged as to be irretrievably harmed'. It was the 'beauty of the body' that it could be assaulted severely yet retrieved 'before it is too late and the people themselves just recover'.
¶2.10.55 Dr Popper's summing up reflected his preparatory notes which referred to the 'Scope of Inquests'.16 In these notes, disclosed to the Panel, he recorded that the resumed inquests 'did not deal in any detail with the rescue as it is appropriate to have some cut off point but remember that at interim inquest considerable information given right upt [sic] to the PM [post mortem]'. He continued: 'Done in the main by officers recounting summarised evidence. More extensive than normal. In so far as relevant sufficient'.
¶2.10.56 The 'reason for the cut off' was that 'the pathological evidence points to the cause of death being due to crushing'. Dr Popper listed nine pathologists who gave evidence in support of this conclusion and 'Dr Wardrope' who had 'stated that none of the patients in cardiac arrest who were resusitated [sic] in fact survived'.
¶2.10.57 The following comment concluded Dr Popper's notes: 'does not mean that if it had been possible to get at a victim sooner ie within the time limits he/she might not have survived but this is the sad fact in many accident as well as natural illness cases'.
¶2.10.58 Interviewed by the BBC in March 1992, Dr Popper commented that his 'objective' at the inquests was to 'deal with the case as if it was just one death'.17 The 'overwhelming evidence ... was that these poor people had all died of traumatic asphyxia, or virtually all; that they suffered irretrievable damage within minutes of the crushing' and 'around 3.15, the injury would have taken place with each and every one'. It was not the 'coronal [sic] task' to 'investigate ... the quality of the emergency services'.
¶2.10.59 In taking the decision to hold mini-inquests the Coroner recognised the administrative requirement of processing each death as distinct. Yet his frequent allusion to multiple deaths in a road traffic accident was an indication that, regardless of 'who', 'where' and 'when' in relation to each individual death, the origin of the medical cause of death – traumatic asphyxia – was the crush.
¶2.10.60 Thus the generic stage of the inquests, concerned exclusively with 'how' people died, was predicated on the assumption that the cause of death was common to all. What happened beyond 3.15pm, a relatively arbitrary moment determined by the arrival of an ambulance on the pitch as a 'marker', was considered inconsequential unless it could be demonstrated that another significant act contributed to an individual's death.
- The Coroner's Summing Up, undated, SYC000001200001, p29. 17. 'REGINA -v- HER MAJESTY'S CORONER FOR SOUTH YORKSHIRE Ex-Parte SANDRA STRINGER AND OTHERS
¶AFFIDAVIT of JEREMY JOHN MURRAY HAWTHORN', 5 May 1992, SYC000001280001, p58.
299¶2.10.61 This reasoning eliminated examination of the emergency response, of the facilities, equipment or expertise available in such an emergency and of the proposition from eye witnesses that some who died could have been saved.
¶Memorial to the Attorney General and the Judicial Review 2.10.62 On 15 April 1992, a year after the inquests ended, these issues were central to a Memorial presented to the Attorney General on behalf of six families inviting him to grant his 'fiat' or authority for proceedings in the High Court to seek a new inquest under Section 13 of the Coroners Act 1988.18 It was submitted that the Taylor Report had established 'serious deficiencies in the police response to the plight of the injured once they had sustained their injuries some time between 2.52pm and 3.05pm, or even later'.
¶2.10.63 While accepting his conclusion that for many, injuries and death were 'probably inevitable', Lord Justice Taylor had also 'recognised that a quicker response' might have saved lives. The 'failure to respond swiftly enough' and to provide the 'necessary medical care to avert death' suggested that a lack of care verdict should have been put to the jury by the Coroner.
¶2.10.64 The Memorial also noted evidence, provided in detail, that four of the six lived longer 'than had been said seemed to be possible by the pathologists'. This raised the possibility that their deaths had been 'aggravated' by 'lack of care' and had there been adequate medical intervention they might have lived.
¶2.10.65 Advice given to the Attorney General noted that a 'slow response' by emergency services in 'the initial minutes of a disaster of wholly exceptional proportions' would not necessarily constitute 'lack of care'.19 If fresh inquests were to be held there would be 'difficulties in limiting the scope', possibly 'lead[ing] to a re-examination of the whole incident'.
¶2.10.66 A month later the Attorney General's office informed the families' solicitor that the law officers had concluded that 'there is nothing which would justify authorising an application to the High Court for a new inquest in any of the above cases'.20
¶2.10.67 On 6 April 1993, the High Court granted leave to six families to apply for judicial review of the inquest verdicts of accidental death on grounds similar to those put before the Attorney General.21 It was argued that negligence had been accepted by the Police Authority, the Coroner had wrongly instituted mini-inquests and the medical opinion that deaths were 'instantaneous' was now contested. The evidence summarised and presented at the mini-inquests by WMP officers had prevented necessary examination which had been 'flawed and tardy'. Taking these and several other arguments into account, Mr Justice Macpherson ruled that 'a case can be sensibly argued' in support of the challenge.