Sheffield City Council

Fans.

¶2.6.203 Regarding SYP as a corporate body, while 'recklessness' would rest 'with those individuals charged with the responsibility on the day', it was important to consider corporate responsibility. SYP had been aware of overcrowding since 1981 and 'could be criticised with hindsight' yet 'such criticism does not amount to criminal behaviour'.

¶2.6.204 Turning to SYP officers it was considered that while, with hindsight, Assistant Chief Constable Walter Jackson could be criticised for not taking command of the match given C/Supt Duckenfield's relative lack of experience, this did not amount to a criminal offence.

¶2.6.205 Regarding senior officers C/Supt Duckenfield, Supt Murray, Supt Marshall and Supt Greenwood, interviews would be necessary before deciding on the appropriateness of criminal prosecution.

Part 7 – Report to the Director of Public Prosecutions, SYP000038850001.

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¶2.6.206 This course of action extended to two junior officers on the perimeter track who had been accused of failing to recognise the extent of the impending crisis within the pens. However, it was considered 'very difficult to imagine' that their actions 'could be so reckless as to be criminal'.

¶2.6.207 LJ Taylor's criticisms concerning the responsibilities of SWFC and their safety engineers, Eastwoods, were: the layout of the Leppings Lane terrace; lack of fixed capacities for the pens; the location and condition of barriers in pen 3; and the inadequacy of the perimeter gates. The submission noted that '[c]ommon sense would suggest that Eastwood & Partners should have been more thorough by following up safety aspects especially where the capacities were concerned between 1981 and 1986'.

¶2.6.208 Further, the failure to ensure that perimeter gates met Green Guide standards again demonstrated 'the unsatisfactory way in which the Club and Eastwoods chose to ignore a safety issue'. Yet, in conclusion, 'as with the Club, the events left Eastwoods' control once the decision was made to open the gates at 1452 hours'. The submission recommended interviews with key individuals but considered there was insufficient evidence to pursue a corporate manslaughter charge against SWFC or Eastwoods. 2.6.209 Regarding the possible prosecution of Dr Eastwood as an individual, however, the failure to reconsider the capacity of the Leppings Lane terrace after the changes of 1981 and 1985 'may be considered as a serious omission which in itself contributed to the disaster'. Nevertheless, '[w]hether the lack of care was sufficiently reckless to consider Dr Eastwood for Culpable Manslaughter seems unlikely'. The development of the Leppings Lane end and the 'lack of attention to safety' provided possibly 'strong mitigating factors in considering the culpability of South Yorkshire Police and Chief Superintendent Duckenfield'. 2.6.210 The report concluded that 'Sheffield City Council (and their predecessors, South Yorkshire County Council) had not dealt with the Safety Certificate correctly as is required by the 1975 Safety at Sports Grounds Act'. 2.6.211 Further, 'the Council, through its records and its employees, has acted in a careless manner'. Yet this did 'not amount to a reckless disregard for safety'.112 The Council's carelessness 'may have led to the enormity of the disaster', but the decision to open Gate C was not its responsibility, nor could it have been foreseen. 2.6.212 There was insufficient evidence to consider corporate manslaughter and though 'an alternative offence of Culpable Malfeasance may have been committed ... given the remoteness of the amendments to the Safety Certificate to the disaster itself, it would be inappropriate to pursue such a prosecution'. 2.6.213 Finally, there was no evidence available 'to prove that an individual or a group of supporters [were] responsible for a major criminal offence'. The submission recommended that the behaviour of fans required examination: 'The extent to which the effects of alcohol played a part, the late arrival of many thousands of Liverpool supporters and even perhaps their own failure to recognise the distress of fellow supporters in pens 3 and 4 are important issues in this disaster investigation'. 2.6.214 The report accepted that 'the evidence on which Lord Justice Taylor drew his conclusions has not been added to significantly', yet there were 'aspects of this disaster which in the opinion of the Investigating Officer may not have been given sufficient prominence [by LJ Taylor]; for example, the role of supporters'.

Continuing quotes from Part 7 – Report to the Director of Public Prosecutions, SYP000038850001. This quote from

210

¶2.6.215 While LJ Taylor had dismissed the issues of drunkenness and ticketless fans as contributing factors to the disaster, the report put them back on the agenda while stating clearly that there was no evidence on which to base criminal prosecutions of fans. 2.6.216 The report advised a series of interviews under caution. Some of those under examination declined to be interviewed. Other interviews were held in June and July 1990 and transcripts have been disclosed to the Panel.113 The interviews of police officers served the parallel purpose of informing disciplinary investigations. Transcripts were sent to the DPP on 1 August 1990.114

¶Consideration by the Director of Public Prosecutions 2.6.217 Gareth Williams QC and Peter Birts QC were asked to advise the DPP and the CPS on 'whether there exists sufficient evidence to justify bringing criminal proceedings against any of the organisations or individuals concerned' in the disaster.115 Their Joint Opinion was submitted to the CPS on 6 August 1990.

¶2.6.218 In their Opinion, despite the thoroughness of the criminal investigation, it had not 'significantly added to or contradicted Lord Justice Taylor's findings'. Thus LJ Taylor's analysis of the facts was the starting point. Accordingly, the disaster had 'three separate causative elements'. These were: 'the layout of the ground; the opening of the exit gate; and the build up outside the ground'.

¶2.6.219 The layout of the ground was 'the responsibility of four organisations, and ... individuals acting on their behalf, namely the Club, Eastwood and Partners, the Council and the police'. None had foreseen 'that the progressive alterations made to the ground from about 1977 onwards in the interests of safety and good order would come to constitute, in effect, a death trap for supporters entering pens 3 and 4'.

¶2.6.220 The reason, the Opinion stated, was that it had not been anticipated 'that up to 2000 supporters would be allowed to enter these pens at a time when they were already overcrowded, and when spreading out to the side to absorb the extra numbers would be impossible'.

¶2.6.221 The four organisations 'share[d] some responsibility for the lack of safe maximum capacities, the lack of controlled entry to the pens and the absence of any proper system of monitoring, as they must for the departures from the Green Guide and the inadequacy of the Safety Certificate'.

¶2.6.222 Further, the police 'must take the main responsibility for the policy of letting the fans find their own level', although SWFC also 'share[d] some responsibility'.

¶2.6.223 The crushing in 1981 did 'not add to the potential criminal responsibility of the police and the Club'. Radial fences had been installed after that incident with the intention of improving safety 'and until the disaster it was assumed that this was a correct response'.

Transcripts available as follows: Superintendent Marshall at SYP000038880001; Graham Mackrell at

¶SYP000038890001; Superintendent Murray at SYP000038900001; Assistant Chief Constable Jackson at

¶SYP000038910001; Superintendent Greenwood at SYP000038920001; Chief Superintendent Duckenfield at 114. Letter from CC Sharp to Michael Kennedy, 1 August 1990, CPS000004820001. 115. Joint Opinion by Gareth Williams QC and Peter Birts QC, 6 August 1990, CPS000003270001, pp77-116.

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¶2.6.224 The decision to open Gate C 'was the responsibility of Mr Duckenfield' and 'in the circumstances' it was correct. Yet 'the failure to give any order to accommodate the influx was a serious error which must in our view be Mr Duckenfield's responsibility and his alone'.

¶2.6.225 The Opinion noted that the tunnel had been 'cordoned off in 1988 by a handful of junior police officers apparently on their own initiative – an action that almost certainly would have averted the disaster a year later' and this constituted 'one of the most unfortunate aspects of the case'.

¶2.6.226 While 'at first sight the operational organisation of the police might seem responsible for failing to incorporate this tactic in its match planning', in Counsel's view 'it was within [C/Supt Duckenfield's] power to accommodate the opening of Gate C, and the blame for not doing so cannot in our view be laid elsewhere'.

¶2.6.227 Further, the Opinion noted that planning for and managing the build-up outside the ground was important given the restrictions on space determined by the geography of Leppings Lane; 'the layout of the turnstiles and their numbers, designation and marking was primarily a matter for the police and the Club'. Sheffield City Council was also responsible for ensuring safe entry into the stadium.

¶2.6.228 Outside the stadium, the Opinion claimed, 'drink and unruliness of the supporters certainly contributed to the pushing from the back and was a factor in making supporters less amenable to police requests to move back'. Further, some 'drunk supporters tried to force themselves in at the turnstiles, causing fighting with other supporters and scuffles with the police trying to prevent their entry'. The Opinion noted that a 'minority contributed to the loss of control of the crowd by police in our view'.

¶2.6.229 Counsel's Joint Opinion concluded: 'Nevertheless, the main factor in this loss of control was a failure of police strategy in not planning properly for the crush likely to be caused by a large concentration of arrivals from 2.30pm onwards, and in failing to stem the flow of supporters or filter them towards the turnstiles from some position outside the perimeter gates'. This had happened in 1988, and the failure in 1989 'was solely a police responsibility', but a collective one which 'cannot be attributed to any individual officer'.

¶2.6.230 Counsel advised on whether the mistakes and failures identified amounted to a criminal offence. The Joint Opinion focused on the offence of manslaughter, and in particular the offence of gross negligence manslaughter: 'manslaughter is committed if the person causing the death intends to do an act, or omits to do an act where there is a duty to do so, being grossly negligent whether death or serious injury results ("gross negligence")'.

¶2.6.231 While accepting ambiguity in the law, 'in the circumstances of Hillsborough' it was correct 'to approach the evidence on the basis that the gross negligence test is sufficient to establish the offence of manslaughter' and this formed the basis for their Joint Opinion. SWFC's 'responsibility for the crushing and deaths' lay 'in its responsibility for ... the layout of the inside of the ground' and the 'layout, number, designation and marking of the turnstiles'. While potentially 'substantial causes of the deaths', they were 'not the sole causes, or even the major causes'. For 'the layout of the ground was the responsibility of ... four organisations and in varying degrees'.

¶2.6.232 As 'a case against each defendant must be given totally separate consideration', Counsel's joint advice was: 'there is no sufficient evidence to support a prima facie case that the Club caused the deaths'. In addition, 'the evidence does not begin to show either recklessness or gross negligence' on the part of SWFC and there was 'no evidence to support a charge of manslaughter against either the Club or any of its officials'.

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¶2.6.233 As consultant engineer to the Club, Dr Eastwood shared responsibility for the layout of the stadium and the operation of the turnstiles. His advice, however, 'formed part only of the sequence of events that led to the structural condition of the ground' and 'by no rational yardstick' could it 'have caused the deaths'.

¶2.6.234 It was Dr Eastwood who had recommended discrete turnstile entrances for each pen 'which might well have led to the insertion of maximum figures ... in compliance with the Safety Certificate'. SWFC had not pursued his recommendations for financial reasons. 2.6.235 The Joint Opinion considered there was 'no evidence that Dr Eastwood caused the deaths'; nor that 'he was either reckless or grossly negligent'. Counsel had 'no hesitation, therefore, in concluding that there is no evidence to support a charge of manslaughter against Dr Eastwood or against Eastwood and Partners'. 2.6.236 Sheffield City Council, not Dr Eastwood, was responsible for 'ensuring compliance with the Green Guide' and for issuing the safety certificate which 'should have been amended to provide for the alterations and for the insertion of maximum figures for the pens'. 2.6.237 The Joint Opinion noted that it did 'not follow that the disaster would not have happened even if the safety certificate had been amended, since compliance depended on the Club and Dr Eastwood'. In Counsel's view, as with SWFC and Dr Eastwood, 'the Council's errors only partly contributed to the ground conditions identified above as causes of the deaths and on any view were too remote to amount to a prima facie case of manslaughter'. There was 'no evidence of recklessness or gross negligence on their part'. 2.6.238 Counsel's Joint Opinion, in line with LJ Taylor, was that the 'main responsibility for the disaster' lay with SYP. They had been partly responsible for the stadium layout and for the turnstiles and were also responsible for initiating an informal 'policy' of allowing spectators to 'find their own level' within and between the terrace pens. This had been 'heavily criticised in the Taylor Report'. 2.6.239 Further, there was 'a serious failure of policing in Leppings Lane, due in part to a failure to follow filtering tactics used effectively in 1988'. 2.6.240 In the Joint Opinion, however, these errors were only 'part of a complex sequence of events, many of which were outside the control of the police'. SWFC, Eastwoods and Sheffield City Council each had greater responsibility for the layout of the stadium and the inadequacy of the safety certificate. While the 'unruly behaviour of a minority of [Liverpool supporters]' was 'no doubt foreseeable', it 'created added difficulties' for the police. 2.6.241 Responsibility for the 'failure to postpone the kick-off and to cordon off the access tunnel' was 'confined to Mr Duckenfield'. Thus Counsel considered it 'inescapable' that 'the police as an organisation cannot be said to have caused the deaths by their strategy and operational errors' (emphasis in original). Consequently there was 'no basis on which to advise a charge of corporate manslaughter'. 2.6.242 LJ Taylor's criticisms of C/Supt Duckenfield for failing to cordon off the access tunnel to the central pens and for his decision not to postpone the kick-off had been 'entirely justified'. As 'operational commander ... he was ultimately responsible for the policing both within and outside the ground'. He had been 'slow to recognise the crushing' and 'the gross imbalance of filling' between the central and outer pens and his

213

¶'preoccupation with the possibility of a pitch invasion caused him to delay putting the Major Disaster Plan into operation'. 2.6.243 However, C/Supt Duckenfield 'had under his command officers with considerable experience of policing the match and the ground who also made operational errors or failed to react as they should have done'. In addition, if 'the operational orders or police intelligence was inadequate, as seems likely, it was not the fault of Mr Duckenfield who inherited a ready made match plan compiled by others and tried to follow it'.

¶2.6.244 Though C/Supt Duckenfield declined to be interviewed, in Counsel's Joint Opinion he 'would no doubt argue that none of [his] errors caused the deaths because of the imposition of the many other factors already rehearsed'. Counsel considered that this 'argument would be likely to succeed in relation to many of the criticisms'. 2.6.245 Yet there was 'a case to be made ... that his failure both to postpone the kick-off and to take action to close the tunnel after the opening of gate C was a substantial cause of the deaths, in that it significantly contributed to the crowd pressure which led to the crushing and the collapse of barrier 124A'. 2.6.246 In considering manslaughter, the issue was: 'did [Duckenfield] intend an act which created an obvious and serious risk of causing personal injury, either not giving thought to the possibility of such risk, or having recognised that there was some risk involved, nonetheless go on to take it?' 2.6.247 Mr Duckenfield's 'act' was: 'an omission or omissions to act which contributed to a rapidly developing state of affairs ending in serious risk of injury'. Counsel's view was that this was not 'an obvious risk at the time'. 2.6.248 In fact, the 'complexity of the disaster as now known to those who have analysed it in hindsight demonstrates that there must be grave doubt as to whether the omissions created a risk which was obvious to anyone at the time' (emphasis in original). 2.6.249 Consequently, there was 'insufficient evidence' to charge him with recklessness and no evidence that he had been 'grossly negligent in failing to act'. Thus there was 'no sufficient evidence of any criminal offence having been committed by Mr Duckenfield'. Regarding allegations made against SYP officers other than C/Supt Duckenfield, Counsel concluded that there was no evidence of criminal offences but that there should be consideration of disciplinary proceedings. 2.6.250 Counsel considered that responsibility for the disaster lay with SWFC, Eastwoods, Sheffield City Council and SYP, the greatest proportion with the police. They were satisfied that the evidence did not support the criminal prosecution of any organisation or individual. The disaster was complex, with responsibility shared for many failings. 2.6.251 Counsel's Joint Opinion was accepted by the CPS, apparently without further consideration, and the Head of its Police Complaints Division noted, 'there is insufficient evidence to justify the institution of criminal proceedings against any person for any offence arising out of this terrible disaster'.116 Papers would be 'sent to the Attorney General to inform him of that advice' and, '[s]ubject to the Attorney's views, we propose to advise the Chief Constable of South Yorkshire accordingly'. 2.6.252 The timing of a public announcement took into account 'the anxiety that South Yorkshire Police quite properly express' about the opening fixture of the new season

Memorandum from Mr CWP Newell, Director of HQ Casework, CPS, to Mr CJ Cleugh, Head of Police Complaints

¶Division, CPS,²⁰²⁰ April 1989, HOM000016460001, pp1-5. August 1990, CPS000003250001, p41.

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¶between Sheffield Wednesday and Liverpool. It was delayed until after the match. A press statement confirming the DPP's decision was published on 30 August 1990.117 2.6.253 The decision was contested by MPs whose constituents included bereaved families. In a letter to Doug Hoyle MP, the Attorney General set out the position.118 It had been established that 'many factors' contributed to the disaster – historical, safety requirements, policing – and 'all combined in differing proportions to produce the disaster'.

¶2.6.254 Criminal liability, stated the Attorney General, was not determined by the 'overall picture' but through 'analysis of the individual conduct of each potential defendant and whether his or her conduct was sufficiently proximate to the disaster to constitute what the law describes as a "substantial operating cause"'.

¶2.6.255 Having explained the legal test for 'manslaughter' the Attorney General noted that the DPP had given 'careful consideration' to 'all those whose conduct could be regarded as having a bearing on the tragedy'. Following 'advice from two very experienced leading counsel' he had concluded 'that the evidence was insufficient for there to be a realistic prospect of securing a conviction of any person for manslaughter or any other criminal offence'.

¶2.6.256 Throughout the Judicial Inquiry SYP had obtained copies of the officers' statements to assist with the preparation of their evidence. On the direction of the CPS, and with the agreement of the Police Complaints Authority (PCA) and the Coroner, this practice ceased during the criminal investigation.119 Following the DPP's decision, with the eventual agreement of the Coroner, the DPP and Investigating Officer Chief Constable Leslie Sharp, all statements and evidence material passed into the possession of SYP.120

¶Complaints and disciplinary investigations 2.6.257 Investigations into complaints made by bereaved families and others against SYP officers were undertaken by WMP investigators in conjunction with the criminal investigation. They informed decisions taken by SYP and the PCA regarding possible disciplinary action against SYP officers. The lead Investigating Officer was Leslie Sharp, Chief Constable of Cumbria Constabulary, who superseded the previous Investigating Officer, CC Dear. The investigations were overseen by the PCA.

¶2.6.258 The complaints against SYP Chief Constable Peter Wright focused on reported comments following an interview with the Sheffield Star headlined 'Coroner will reveal the true story'.121 In the press interview, he referred to 'a very strong feeling of resentment and injustice in the force as a result of Hillsborough'. LJ Taylor's conclusion that fans' drinking had had 'no effect on the events' was 'a little difficult to come to terms with'.

¶2.6.259 At the inquest, he claimed, there would 'be a lot of additional evidence presented to the coroner's inquiry that was not presented at Lord Justice Taylor's inquiry, which may put a different complexion on the end product'.

¶2.6.260 In response, bereaved families complained about the 'distressing innuendo, insinuation and veiled hints that additional evidence, not revealed to Lord Justice Taylor, will

Press release: 'THE HILLSBOROUGH FOOTBALL STADIUM DISASTER', 30 August 1990, CPS000004930001, p13. 118. Letter from Attorney General to Douglas Hoyle MP, 29 November 1990, CPS000005010001. 119. Several documents within Crown Prosecution Service file CPS000003250001. 120. File note 'Hillsborough – Legal/Inquest Proceedings – Progress Report' written by DCC Peter Hayes, 18 September 121. Sheffield Star, 'Coroner will reveal the true story', 5 February 1990, SYP000123600001, p126.

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¶show alcohol played a major part in the tragedy'.122 They considered CC Wright's comments 'at best a breach of his privileged position and at worst a deliberate attempt to pervert the course of justice' by influencing the forthcoming inquests.123

¶2.6.261 The South Yorkshire Police Authority decided that complaints made against the Chief Constable should be investigated by WMP.124 The Investigating Officer was CC Sharp.125 Statements were taken from the complainants and from the Sheffield Star journalist who had written the story.126 CC Wright provided written evidence127 and a full transcript of the newspaper interview was obtained.128 CC Wright was then formally interviewed.129

¶2.6.262 CC Wright reiterated that evidence not heard by LJ Taylor would be presented at the inquests;130 the 'cause of the barrier collapse in pen three and the specific place where deaths occurred' were 'obvious instances of evidence not yet revealed'. He denied implying 'that the fresh evidence relates to drink', stating that he had 'no knowledge of what specific evidence will emerge'.

¶2.6.263 Given 'all the publicity given to Lord Justice Taylor's Inquiry, all that has been said by many people publicly during and since the Inquiry … the suggestion that my statement would prejudice jurors is quite simply nonsense'.

¶2.6.264 CC Sharp reported on the complaints.131 He considered there had been 'nothing' said by CC Wright 'which suggests the additional evidence would or might relate to drink'. Yet, 'the manner in which the article is presented in The Sheffield Star could be interpreted that way' due to 'selectivity and juxtaposition in respect of the quotes'.

¶2.6.265 There was 'nothing to indicate that Mr WRIGHT was, or intended to be oppressive, abusive or uncivil to anyone, or to influence any juror or proceedings'. In conclusion, CC Sharp found 'all of the complaints to be unsubstantiated' and that 'no disciplinary offences' had been committed. His report and conclusions were accepted by South Yorkshire Police Authority on 27 April.132

¶2.6.266 CC Wright retired, as planned, three days later. He wrote to CC Sharp thanking him for processing the complaints quickly.133 He had 'dreaded the thought that I may have left the Service with them unresolved' but could now leave 'with a clear conscience'.

¶2.6.267 CC Sharp replied with gratitude, stating that the investigation had not been 'a job I relished or enjoyed doing'.134 He continued: 'That is not to say that I did not do it to the best of my ability – I did – but I would much rather have been able to sit with you over a pint, and

Letter from Mr Devonside to South Yorkshire Police Authority, 3 March 1990, SYP000123600001, p131. 123. Letter from Mr and Mrs Hicks to South Yorkshire Police Authority, 7 February 1990, SYP000123600001, p129. 124. Letter from South Yorkshire Police Officer to West Midlands Police, 22 March 1990, SYP000123600001, p133. 125. Statement of CC Leslie Sharp, 10 April 1990, SYP000123600001, p106. 126. Statements in document SYP000123600001, pp74-113. 127. Letter from CC Peter Wright to South Yorkshire Police Authority, 23 February 1990, SYP000123600001, p143. 128. Transcript of 'Peter Wright 5.2.90' tape, 5 February 1990, SYP000123600001, p147. 129. Interview with CC Peter Wright, 10 April 1990, SYP000123600001, p180. 130. These quotes are from the letter from CC Peter Wright to South Yorkshire Police Authority, 23 February 1990,

¶SYP000123600001, pp143-144. 131. Complaint against Peter Wright, Investigating Officer's Report, 23 April 1990, SYP000123600001, from p213. Quotes from pages 230, 257 and 258. 132. Minutes of special meeting of South Yorkshire Police Authority, 27 April 1990, SPA000000430001. 133. Letter from CC Peter Wright to CC Leslie Sharp, 30 April 1990, SYP000123600001, p212. 134. Letter from CC Leslie Sharp to Peter Wright, 8 May 1990, SYP000123600001, p211.

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¶yarn about the past, present and future'. Given that '[s]omeone had to do it' he was 'pleased that I was able to complete it in time to let you leave the service in peace'.

¶2.6.268 CC Sharp concluded that the 'balance sheet of service and dedication of Peter Wright will always be heavily in credit. More people than you will ever know, believe that. I, for one, know that to be true'.

¶2.6.269 CC Sharp also investigated complaints made against seven other SYP officers. The PCA confirmed it was content that the various complaints had been 'thoroughly investigated' and CC Sharp's reports had been forwarded to SYP and its Police Authority.135 In each case, CC Sharp presented the allegations, his analysis of the evidence and his recommendations regarding disciplinary action.136

¶2.6.270 The complaints against C/Supt Duckenfield were:

Failure 'to acquaint himself with the planning and problems related to the control of the semi-final'.
Failure 'to prevent a dangerous build up of supporters outside the Leppings Lane gates'.
Failure 'to monitor the crowd numbers packing into pens 3 and 4'.
Failure 'to act when it became obvious that pens 3 and 4 were overfull when he had an excellent view point from the police box above the pens'.
'He should not have opened the gates under any circumstances giving unlimited and uncontrolled access into the football ground by supporters'.
Failure 'to control the movement of supporters subsequent to the opening of Gate C'.
Failure 'to make provision for fans coming through Gate C after he had given the order for the gate to be opened'.
Failure 'to respond to the developing tragedy and [that he] was slow to effect a rescue operation'.
Failure 'to act when it was obvious that people were in distress'.
Deceit and intentionally misleading 'senior police officers and members of the public regarding his command and control of police officers on the day'.
Attempting 'to mislead the Assistant Chief Constable at the ground and others, namely, representatives of the Club, the FA, and the fans themselves regarding the origin of the order for gate 'C' to be opened. That is by inferring [sic] supporters had forced open the gate when he had, in fact, given the order to open the gate'.
Example statement by the Police Complaints Authority, SPA000000390001. 136. The complaint and discipline report files are available as follows:

¶Chief Superintendent David Duckenfield, South Yorkshire Police, SYP000038960001

¶Assistant Chief Constable Walter Jackson, South Yorkshire Police, SYP000038970001

¶Superintendent Roger Marshall, South Yorkshire Police, SYP000038980001

¶Superintendent Roger Greenwood, South Yorkshire Police, SYP000038990001

¶Superintendent Bernard Murray, South Yorkshire Police, SYP000131490001

¶A South Yorkshire Police Constable, SYP000038940001

¶A South Yorkshire Police Constable, SYP000038950001.

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Collusion 'with Mr JACKSON, the Assistant Chief Constable, to mislead the public over the opening of Gate C'.137

¶2.6.271 CC Sharp's analysis reflected the WMP report to the DPP. His advice was that allegations 1, 5, 10, 11 and 12 (above) were 'unsubstantiated' while allegations 2, 3, 4, 6, 7, 8 and 9 were 'identical to those currently under consideration by the Director of Public Prosecutions'.

¶2.6.272 Consequently, should it be decided that there was 'insufficient evidence to prosecute these criminal offences, then the same must be said in respect of the disciplinary offence'.

¶2.6.273 CC Sharp also considered that allegations made against one junior officer were unsubstantiated, while in the remaining six cases (including C/Supt Duckenfield), all complaints would be unsubstantiated if the DPP decided not to prosecute. The DPP announced his decision not to proceed with criminal prosecutions on 30 August 1990. 2.6.274 The SYP decision regarding disciplinary proceedings was not made immediately as 'the Coroner and the Police Complaints Authority are of the view that no discipline decisions should be arrived at in advance of the Inquest findings'.138 2.6.275 Following the conclusion of the inquests, SYP's Assistant Chief Constable Stuart Anderson wrote to the PCA.139 He had decided 'that no disciplinary action is appropriate in respect of any of the complaints'.140 His decision was 'based solely upon the evidence presented to me in the report of the supervised investigation undertaken by Mr Leslie Sharp'. 2.6.276 Brigadier John Pownall replied that the PCA was 'disappointed' with the lack of detail in ACC Anderson's letter and requested 'a more fully reasoned explanation'.141 ACC Anderson responded immediately.142 He explained that it had been his wish that 'the events of that afternoon be looked at externally and quite independently without any suggestion of influence by the management of the force'. The recommendation submitted was 'unbiased' and he 'would not seek to influence the decision of the PCA'. 2.6.277 Brigadier Pownall wrote to ACC Anderson's successor, Assistant Chief Constable Moore, presenting the PCA's position on possible disciplinary action.143 For four officers, the PCA agreed that the evidence did not justify disciplinary proceedings. The complaints against C/Supt Duckenfield and Supt Murray, however, raised 'difficult issues'. 2.6.278 The PCA did not accept that the disciplinary charge of 'neglect of duty' was identical to any possible criminal offence. Even had it been, 'we would not be bound

Complaint and discipline report file for Chief Superintendent David Duckenfield, South Yorkshire Police,

¶SYP000038960001. 138. File note 'Hillsborough – Legal/Inquest Proceedings – Progress Report' written by DCC Peter Hayes, 18 September

¶1990, SYP000118480001, p23. 139. ACC Anderson's letter did not cover the complaints made against Assistant Chief Constable Walter Jackson. Though

¶CC Sharp had also concluded that complaints against ACC Jackson were unsubstantiated, this case was dealt with separately. South Yorkshire Police Authority were advised to dismiss the complaints made against ACC Jackson on

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¶(as far as discipline is concerned) by the decision of the Director not to bring criminal prosecutions'. 2.6.279 For the PCA, the Hillsborough disaster 'would not have occurred had sensible and simple steps been taken to secure the safety of spectators in Pens 3 and 4'. The 'responsibility for the safety of those in Pens 3 and 4 and blame for overcrowding in those pens should rest with those in the Police Control Box from which the pens could be observed, the deployment of police manpower could be directed and the decision to open Gate "C" was made with its attendant responsibility for controlling those who entered through it'. 2.6.280 Thus the PCA recommended that disciplinary charges of 'neglect of duty' be brought against C/Supt Duckenfield and Supt Murray, as well as an additional charge of 'discreditable conduct' against C/Supt Duckenfield in line with LJ Taylor's finding that he had misled others into believing that Liverpool supporters had forced entry through Gate C. 2.6.281 In preparing a response to the PCA's recommendations, SYP took advice from CC Sharp and Counsel, Richard Payne. CC Sharp wrote to SYP Deputy Chief Constable Peter Hayes, stating it was 'quite wrong … to pursue disciplinary charges of "neglect of duty", particularly as the Inquest jury brought in a verdict of "Accidental Death"'.144

¶2.6.282 In CC Sharp's opinion, the inquest verdict, together with the DPP's decision not to prosecute, was a 'powerful argument' against disciplinary charges. He advised that 'the problems of proving the disciplinary offences proposed by the PCA are formidable'.

¶2.6.283 On 31 May 1991, Stephen Walker, solicitor for South Yorkshire Police Authority, wrote to Mr Payne, requesting further advice.145 Directing Mr Payne towards relevant parts of the inquest transcripts, Mr Walker noted that 'much of what happened at the inquests helped in no small way to redeem a balance which had hitherto weighed heavily in criticism of the actions of some officers at Hillsborough, not least being Chief Superintendent Duckenfield and Superintendent Murray'.

¶2.6.284 Should Mr Payne advise 'that the PCA's views are supportable disciplinary proceedings will be taken as recommended'. Mr Walker stated that ACC Moore had 'no principle objection to taking disciplinary action' but there was 'clear concern that the PCA's recommendations fly so dramatically in the face of the Investigating Officer's views'.

¶2.6.285 Should Mr Payne consider that disciplinary proceedings were 'not supportable', written opinion would be sought by SYP and submitted to the PCA. Subsequently, Mr Payne advised that, with the exception of LJ Taylor, 'the conclusions of those who have made an independent study of the primary evidence do not attribute blame to any Police Officer'.146 He cited the DPP's decision not to prosecute, the inquest jury's finding of accidental death and CC Sharp's report to the PCA.

¶2.6.286 In conclusion, Mr Payne's view was that disciplinary charges would be 'oppressive and unnecessary and fruitless' with none having a 'realistic chance to succeed'. ACC Moore forwarded Mr Payne's and CC Sharp's submissions to Brigadier Pownall at the PCA.147

Letter from CC Sharp, Cumbria Constabulary, to DCC Hayes, South Yorkshire Police,¹⁶¹⁶ 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.Show full note May 1991,

¶SYP000123570001, pp58-63. 145. Letter from Stephen Walker to Richard Payne, 31 May 1991, SYP000123570001, pp37-48. 146. Counsel's advice from Richard Payne, undated, SYP000094930001, pp91-125. 147. Letter from ACC Moore, South Yorkshire Police, to Brigadier Pownall, Police Complaints Authority, 26 July 1991,

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¶2.6.287 Brigadier Pownall forcefully rejected both submissions.148 He questioned the propriety of CC Sharp's letter, writing that 'we did not feel it was altogether appropriate for the investigating officer to set out so fully his views on the disciplinary action to be taken'. He also criticised the lack of thoroughness underpinning Mr Payne's opinion, stating that it was 'selective' and had failed to reflect 'some important points'.

¶2.6.288 As SYP had not acted on the PCA's recommendations, the PCA had 'decided in accordance with Section 93(3) of the Police and Criminal Evidence Act 1984 to direct that disciplinary charges be preferred against Chief Superintendent Duckenfield and Superintendent Murray as set out in our letter of 7 May, 1991 and for the reasons explained in that letter'. This placed a legal duty on SYP to bring disciplinary charges.

¶2.6.289 Arrangements for a Tribunal to hear the charges followed.149 Charges were drafted by SYP and forwarded to the PCA for approval.150 Following discussion with ACC Moore, Brigadier Pownall agreed with the draft charges, but 'wondered if counsel should have the opportunity to comment upon them before they were served'.151

¶2.6.290 This caused a significant delay. The South Yorkshire Police Authority solicitor provided initial instructions to Counsel, John Sleightholme,152 who visited the PCA.153 Superintendent Alan Fell at SYP estimated the 'anticipated date for the Tribunal' as 2 July 1992, a nine-month delay.154 Brigadier Pownall 'was concerned about the delay'155 and suggested setting a date for the Tribunal without charges being served.

¶2.6.291 According to ACC Moore, however, this 'would amount to oppressive conduct as Chief Superintendent Duckenfield was sick with stress and had been told not to deal with any issue at all relating to Hillsborough'. ACC Moore stated that Brigadier Pownall 'went on at length as to how the public was fed up with police officers using this method of "getting away with it"'.

¶2.6.292 Ahead of a further conversation between ACC Moore and Brigadier Pownall, Supt Fell wrote to ACC Moore informing him of several problems.156 These centred on the status of evidence gathered by WMP. Statements could not be 'conveniently used' for disciplinary proceedings as many were 'unsigned or undated recollections of answers to questionnaires'.

¶2.6.293 Further, relevant witnesses had 'not been asked for their evidence'. Many statements 'did not contain material that the witnesses gave to the Lord Justice Taylor enquiry and the Inquest'. Without proper statements, charges could not be formulated, witnesses could not be chosen and it was not possible to meet the legal duty to disclose evidence against the accused.

Letter from Brigadier Pownall, Police Complaints Authority, to ACC Moore, South Yorkshire Police,

¶SYP000123570001, p9. 149. South Yorkshire Police press release, 12 July 1991, SYP000123580001, p319. 150. Letter from South Yorkshire Police to Brigadier Pownall, Police Complaints Authority, 18 July 1991, with draft charges,

¶SYP000123580001, p301 and pp306-311. 151. Note for file of discussion with Brigadier Pownall, Police Complaints Authority, 22 July 1991, SYP000123580001, p289. 152. Instructions to Counsel, 25 July 1991, SYP000110390001. 153. Counsel's advice,⁹⁹ 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.Show full note October 1991, SYP000123580001, pp180-188. 154. Memorandum from Superintendent Fell to Chief Superintendent Mole, 5 September 1991, SYP000123580001, p257. 155. Note of telephone conversation between ACC Moore, South Yorkshire Police, and Brigadier Pownall, Police

¶Complaints Authority, 29 August 1991, SYP000123580001, p262. 156. Memorandum from Superintendent Fell to Assistant Chief Constable Moore, 23 September 1991, SYP000123580001,

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¶2.6.294 On 25 September, ACC Moore had a telephone conversation with Brigadier Pownall, apparently recorded verbatim.157 Brigadier Pownall's advice, from the Chairman of the PCA, was that the problems raised by Mr Sleightholme were inconsequential. ACC Moore stated that he had 'the impression' that Brigadier Pownall thought the SYP was 'not doing our job properly' and 'might be trying to delay the matters, which I don't think is fair'.

¶2.6.295 Brigadier Pownall replied that 'the issues are really comparatively simple'. ACC Moore disagreed. Brigadier Pownall, however, stated that he had 'seen this in many cases that we [the PCA] deal with, and you know even much much lesser things than this – it's a sort of tactic. I mean, I don't mean it offensively or rudely, but I can see no other reason'.

¶2.6.296 ACC Moore disclosed that he was in a difficult position given Counsel's advice and suggested that the Chairman of the PCA, Judge Francis Petre, should meet Mr Sleightholme and they could 'talk law together'.

¶2.6.297 Brigadier Pownall then wrote to ACC Moore expressing concern that such a meeting might 'be imposing too great an influence from the Authority [the PCA] on matters which are strictly the responsibility of the South Yorkshire Police'.158 He enclosed a note written by Judge Petre intended to 'provide some helpful guidance'.

¶2.6.298 According to Judge Petre's note, the disciplinary charges were 'simple and easy to understand' and although 'the overall enquiry gave rise to a vast amount of paper-work ... the charges are specified so as to keep the issues within manageable limits'.

¶2.6.299 Mr Sleightholme, however, considered that the note appeared to miss the point. He stated: 'Whilst I am grateful for the Chairman's notes, these do not, with respect to him, represent the problems which presently give cause for concern'.159 Mr Sleightholme was concerned about the status of witness statements.

¶2.6.300 Further, his intention had been to rely on C/Supt Duckenfield's evidence at the inquests, but he 'had not anticipated that he [C/Supt Duckenfield] would have given some answers which were against his interests but were untrue'. Apparently, he 'had "wilted" under cross-examination' and it 'would be entirely wrong to seek to rely on answers we genuinely believe to be untrue'.160

¶2.6.301 Mr Sleightholme required more time to consolidate the charges and prepare the evidence thoroughly. While he wanted to establish a timetable for the Tribunal as soon as possible, it was not 'proper' to do so without agreeing charges.

¶2.6.302 Concern about C/Supt Duckenfield's health was also significant, particularly the impact of serving charges on someone who had been 'off sick for a lengthy period'.

¶2.6.303 A further note from Supt Fell presented the problems.161 The Tribunal could not 'proceed until charges accompanied by supporting statements of evidence have been served on the accused officers'. Yet the evidence did not 'exist in an appropriate form'. It would require a 'team of police officers conversant with the circumstances ... to obtain

Note of telephone conversation between ACC Moore, South Yorkshire Police, and Brigadier Pownall, Police

¶Complaints Authority, 25 September 1991, SYP000123580001, p251. 158. Letter from Brigadier Pownall, Police Complaints Authority, to ACC Moore, South Yorkshire Police, 30 September

¶1991, SYP000123580001, pp219-230. 159. Advice from Counsel,⁹⁹ 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.Show full note October 1991, SYP000123580001, pp180-188. 160. The evidence considered 'untrue' is not specified. 161. 'Problem preventing progress of the Hillsborough tribunal' by Superintendent Fell, 21 October 1991, such statements'. Given that the PCA had already 'certified ... that it was satisfied with the investigation' setting up a team was 'difficult to countenance'.

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¶2.6.304 Supt Fell reiterated the issue concerning officers' recollections, some of which 'were supplemented by further recollections'. He considered that 'some' recollections 'were perhaps influenced by advice as to what was required for the purpose of the Taylor Inquiry and civil litigation'.

¶2.6.305 Other statements, made by non-police witnesses, were also unsigned and witnesses had given additional evidence to LJ Taylor or the inquests, making their statements 'incomplete'. Supt Fell continued: 'Unpalatable though it might prove, the Regulations must be followed and the solution to the problem of obtaining suitable statements appears to be that West Midlands police should complete the investigation under the continuing supervision of the Police Complaints Authority'. Otherwise, 'the Tribunal probably cannot begin its work'.

¶2.6.306 According to Supt Fell, there appeared to be 'no alternative to obtaining appropriate and suitable statements'. Yet there were risks. When it became 'widely realised that there is a need to take further statements to be satisfactory for the purpose of the discipline hearing, questions may be asked whether (as the investigating officer indicated) they were unsatisfactory for the purpose of a criminal prosecution'.

¶2.6.307 Should this be the case, it could be suggested that they were not 'ideally appropriate for making decisions as to criminal culpability'. His conclusion was unambiguous: 'Far fetched though such speculation is, it would be better if it never could surface'.

¶2.6.308 Supt Fell's report was forwarded to the PCA.162 Following a request for more information, a schedule of statements given by the proposed disciplinary witnesses, along with details of whether they had been signed, dated and witnessed, was provided soon after.163

¶2.6.309 Meanwhile, because of C/Supt Duckenfield's continuing ill-health, doubts were raised publicly about the likelihood of disciplinary charges. An open letter from Trevor Hicks of the Hillsborough Family Support Group stated that delays in bringing charges were 'totally unacceptable'.164

¶2.6.310 He wrote that considerable time had passed since the decision on criminal prosecution had been taken, and '[n]othing has, so far, happened – allegedly due to Mr Duckenfield's incapacity on undisclosed sickness grounds'. He noted that it was '90 days since ... Mr Duckenfield commenced sick leave' allowing him 'to apply for early retirement on ill health grounds and the disciplinary matters relating to him would automatically lapse'.

¶2.6.311 SYP Chief Constable Richard Wells replied that he understood 'the [bereaved] families' sense of impatience'. He continued: 'The 96 deaths resulting from the Hillsborough tragedy are constantly on our minds and we share the grief of those bereaved. Strong

Letter from ACC Moore, South Yorkshire Police, to Brigadier Pownall, Police Complaints Authority,²⁴²⁴ 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 1991,

¶SYP000123580001, p161. 163. Letter from ACC Moore, South Yorkshire Police, to Judge Petre, Police Complaints Authority, 29 October 1991, 164. Letter from Trevor Hicks to Chief Constable Richard Wells, South Yorkshire Police, 23 October 1991, feelings like this have still to submit themselves to the processes of the world of legal detail'.165

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¶2.6.312 He reassured Mr Hicks that SYP had 'let no grass grow under our feet' and had instructed Counsel to draw up disciplinary charges. It was, however, 'very difficult for anyone to finalise arrangements for the hearing while the details of charges have yet to be agreed between the South Yorkshire Police and the Police Complaints Authority'. C/Supt Duckenfield's illness was a 'further complication'. The assessment of his illness was 'not a matter for police officers, it is a matter of medical advice'. A report from 'a police staff surgeon' was awaited.

¶2.6.313 Soon after, the report was received by SYP and CC Wells issued a statement.166 He had taken 'the decision to retire Chief Superintendent David Duckenfield from the South Yorkshire Police on medical grounds'. The police surgeon's 'unequivocal report left ... no doubt that Mr Duckenfield is too ill to continue service as a police officer'. His medical condition could not be disclosed due to 'the rules of patient and doctor confidentiality'. More generally, however, he was 'described as suffering from severe depression and post traumatic stress disorder'.

¶2.6.314 CC Wells stated that he understood that bereaved families and others would 'be angry at my decision since it rules out Mr Duckenfield's involvement in the planned disciplinary tribunal for which South Yorkshire Police have been preparing for some months'. He continued: 'David Duckenfield has become the symbolic focus of much of the anguish felt by those who were so hurt by the tragedy but I must deal with the man, not the symbol. The fact is, David Duckenfield is now too ill to serve'.

¶2.6.315 The decision had not been taken 'lightly ... more especially in a case of such complexity and public interest'. He concluded: 'The fact that David Duckenfield is so unwell has simplified that decision. There has been enough suffering already and I can only hope that time will help to soften the terrible pain felt by the families of the Hillsborough victims, and will help to heal David Duckenfield as well'.

¶2.6.316 The sole remaining charge was against Supt Murray. Mr Sleightholme accepted 'the charge against Supt Murray has some prospects of success' but he was 'concerned as to whether having regard to all the circumstances that now obtain it is just and fair that Supt Murray should as it were be seen to face the music alone'.167

¶2.6.317 A detailed charge was drafted.168 WMP were approached to take additional evidence.169 SYP, however, requested the PCA to allow proceedings to be dropped.170 Crucially, it was questionable 'whether a fair hearing can occur when such an important witness [C/Supt Duckenfield] is absent' leaving 'the tribunal as a means of casting Mr Murray as scapegoat for the Hillsborough Disaster'.

¶2.6.318 On 13 January 1992, the PCA published its decision.171 Following 'very careful consideration' it had decided that in the wake of C/Supt Duckenfield's retirement 'what

Statement by CC Wells, South Yorkshire Police, undated, SYP000123580001, pp163-164. 166. South Yorkshire Police press release, 29 October 1991, SYP000123580001, p123. 167. Advice from Counsel, SYP000123580001, p88. 168. Draft disciplinary charge, 26 November 1991, SYP000123580001, p39. 169. Letter from ACC Roche, West Midlands Police, to ACC Moore, South Yorkshire Police,²⁰²⁰ April 1989, HOM000016460001, pp1-5. December 1991,

¶SYP000123580001, p14. 170. Letter from ACC Moore, South Yorkshire Police, to Judge Petre, Police Complaints Authority, 12 December 1991, 171. Statement by the Police Complaints Authority, 13 January 1992, SYP000123580001, pp9-13.

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¶is, in effect, a joint allegation of neglect of duty cannot be fairly heard in the absence of the more senior officer'. To continue with disciplinary proceedings would be 'unjust and inappropriate'. Thus SYP were granted leave not to proceed.

¶2.6.319 CC Wells expressed SYP's 'deep and sincere sorrow' towards the bereaved families and noted the impact of the disaster on police officers who 'faced with the tragedy, attempted to deal with the horror of the moment'.172 He recalled 'the sentiments of Dr Hapgood who, at the Memorial Service, said that no disaster was the fault of one organisation or of just one human being, but rather a combination of factors and shared responsibilities'.

¶2.6.320 Consequently, CC Wells had 'never been convinced of the appropriateness of the disciplinary tribunal'. This opinion had been 'strengthened by the Director of Public Prosecution's [sic] decision on criminal matters, by the findings of the independent investigating team, the conclusions of the inquest and advice given by leading counsel'.

¶2.6.321 CC Wells had 'never thought that the police alone should be blamed, although we firmly acknowledged our own responsibilities by the settlement of the civil actions against us'. He concluded by stating that SYP were 'anxious not to forget Hillsborough, but to draw strength from its lessons and to move forward, particularly in the area of ground improvements for crowd safety, which are the real ways in which we can give some meaning to the awful loss of life on that afternoon'.

¶2.6.322 On behalf of the Hillsborough Family Support Group, Mr Hicks criticised the decision as the 'final coat of whitewash'.173

¶Conclusion: what is added to public understanding • Documents disclosed to the Panel by SYP show that on the morning after the disaster senior officers discussed privately the 'animalistic behaviour' of 'drunken marauding fans', but agreed not to make this a public issue in case they were perceived as avoiding responsibility. • No contemporaneous documents have been disclosed concerning the briefing given to the Prime Minister and the Home Secretary by SYP when they visited Sheffield on

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The SYP submission also noted structural deficiencies within the stadium and its management by SWFC. This line of argument was further developed in advice from a senior police officer from another force commissioned by SYP in support of civil proceedings. In contrast, the SWFC submission specified serious failures in policing in monitoring the pens, processing the crowd and opening Gate C without preparing for the consequences.
Reports commissioned by SYP and SWFC from two experienced senior police officers reveal how, when confronted with consistent information from two distinct and potentially culpable institutional interests, significantly different conclusions were drawn.
The submission by Counsel to the Taylor Inquiry focused on the build-up of fans outside the stadium, insufficiency of turnstiles and lack of control of the numbers distributed between the pens.
An initial investigation into the condition of the Leppings Lane terrace and its approaches was conducted by Sheffield City Council. It found deficiencies in the placement of safety barriers and in the width of the perimeter fence gates.
In its more detailed investigation, the Health and Safety Executive (HSE) established that the safe maximum capacity of the pens had been set too high and that the crowd density in pen 3, where most of the deaths occurred, was substantially higher than the Green Guide maximum.
The HSE established not only that the maximum capacity of the terrace and the central pens had been significantly over-calculated, but that alterations to the terrace had not been considered in establishing safe capacity. It concluded that the terrace safety barriers were considerably below the recommended height and that this deficiency should have reduced further the maximum safe capacity.
The restricted approach to the Leppings Lane end and the comparatively low number of turnstiles resulted in inevitable congestion and delays in entering the stadium at capacity matches. The HSE noted that the number of fans that had to pass through each of the Leppings Lane turnstiles was between 2.9 and 3.5 times higher than at turnstiles serving other parts of the stadium. The calculated rate of admission shows that the crowd could not have completed entering the ground until approximately 40 minutes after the kick-off.
Many of these issues were also raised in Professor Leonard Maunder's advice as one of the assessors to the Taylor Inquiry. The advice from the police assessor, Chief Constable of Lancashire Brian Johnson, criticised SYP's failure to review the 1988 Police Operational Order to identify 'shortcomings'; poor communications between senior officers; and the consequent failure to divert the crowd away from the tunnel once Gate C had been opened.
It is evident from the Salmon letters issued to SYP, SWFC, Sheffield City Council and Eastwood & Partners (disclosed to the Panel) that there was an understanding within the Home Office of the central issues of responsibility to be examined by the Taylor Inquiry.
In documents disclosed to the Panel it is evident that the primary concern of the Government at the time was the potential impact (positive or negative) on the Parliamentary passage of the planned Football Spectators Bill.

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Following the publication of the Taylor Report, the Prime Minister was briefed that 'the defensive – and at times close to deceitful – behaviour by the senior officers in South Yorkshire sounds depressingly familiar'. The Government did not seek to protect the SYP Chief Constable and it was considered inevitable that he would resign. His resignation, however, was rejected by South Yorkshire Police Authority.
Access to Cabinet documents reveals that in an exchange about her Government 'welcoming the Report' the Prime Minister, Margaret Thatcher, expressed her concern that the 'broad thrust' of the Taylor Report constituted a 'devastating criticism of the police'.
In reaching a decision on criminal prosecutions, the Director of Public Prosecutions was advised that responsibility for the disaster lay with SWFC, Eastwood & Partners engineers, Sheffield City Council and SYP. While the most significant proportion of responsibility was attributed to SYP, it was considered that the legal case for manslaughter or any other criminal offence could not be established.
Disciplinary proceedings against Chief Superintendent David Duckenfield and Superintendent Bernard Murray were brought only following a direction from the Police Complaints Authority (PCA). Responding to legal advice, SYP had decided that disciplinary charges should not be brought. The PCA was concerned that subsequent delays in bringing disciplinary proceedings were 'tactical'. A significant cause of the delay was the impact of the 'review and alteration' of SYP statements and their evidential unreliability.

¶Civil litigation

¶2.7.1 Part 1, Hillsborough: 'what was known', included an overview of the litigation pursued through the civil courts. In the light of the material now disclosed, this chapter reveals the 'behind the scenes' context, particularly concerning the apportionment of culpability for the disaster through the 'contribution hearings'.

¶2.7.2 Civil litigation is concerned with the rights and duties of individuals and organisations towards each other. In this context, it involves a claim for damages or compensation for loss or harm suffered as a result of a civil wrong ('tort'), brought by the individual or body that has suffered the loss or harm (the 'claimant' or the 'plaintiff') against the person or organisation that is said to be responsible for the wrong (the 'defendant'). The claim may be settled 'out of court' on terms agreed between the claimant and the defendant.

¶2.7.3 In the absence of any such settlement, however, if the claim is pursued to trial, it is heard before a judge in the High Court or the County Court, usually without a jury. On the evidence presented at trial, the judge is required to decide, on a balance of probabilities: (i) whether the claimant was in fact wronged; (ii) if so, whether the defendant is 'liable' for that wrong; and (iii) if so, the award of damages or compensation that the defendant should be required to pay in order to remedy the wrong suffered by the claimant.1

¶2.7.4 The complexity of the events at Hillsborough, the number and range of people affected (survivors, bereaved relatives in the ground or watching on TV, rescuers, police officers) and the multiple layers of potential culpability – the South Yorkshire Police (SYP); Sheffield Wednesday Football Club (SWFC); the Football Association (FA); the structural engineers (Eastwood & Partners); Sheffield City Council (SCC); the South Yorkshire Metropolitan Ambulance Service (SYMAS); and others – meant that a diverse range of civil litigation claims was inevitable.

In contrast to civil litigation, the criminal process relates to a wrong that is recognised in law as a 'crime', which is then the subject of a criminal prosecution brought on behalf of the state or the public (the 'prosecution') against the alleged wrong-doer (the 'defendant') in the Magistrates' Court or the Crown Court. In the case of serious crimes, the prosecution will result in a trial before a judge and jury in the Crown Court where, on the available evidence, (i) the jury will be required to decide whether they are sure beyond reasonable doubt that the defendant is 'guilty' of the crime as alleged; and (ii) if so, the judge will then decide what sentence should be handed down to the defendant by way of punishment and deterrence. Throughout, the victim of the alleged wrong-doing is not involved in the prosecution in any capacity other than that of a witness.

Chapter 7 Civil litigation — 227

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¶2.7.5 The scope of the litigation that ensued can be addressed in three broad categories: claims for damages on behalf of the bereaved and injured, including the appeals in the cases Alcock and others and Hicks; claims for damages on behalf of police officers, including the case of White and others; and 'contribution' or 'third party' proceedings brought on behalf of SYP against SWFC and their consultant engineers Eastwood & Partners to determine the level of contribution required from each party towards the sums to be paid on the damages claims arising from the disaster.

¶Claims on behalf of the bereaved and injured, including the cases of Alcock and others v Chief Constable and Hicks v Chief Constable 2.7.6 The first writs seeking compensation for injuries sustained at Hillsborough were issued and served on SYP and SWFC on 18 April 1989.

¶2.7.7 Documents disclosed to the Panel reveal that while there is no record of a response from SWFC, SYP undertook criminal records checks on the claimants. The purpose of these checks, on the Police National Computer and with the Criminal Record Office, remains unclear.2

¶2.7.8 A first meeting between SYP, their solicitors Hammond Suddards, the Secretariat to South Yorkshire Police Authority and the Police Authority's insurers, Municipal Mutual Insurance (MMI), was held on 19 April 1989.3 The meeting discussed the insurance and legal implications of the received and anticipated claims. A representative from MMI set out the insurer's position:

¶Our interest is primarily a financial interest. We are providing an indemnity in relation to any liability that is going to be found to have been incurred by the Police Authority.

¶Having said that, I would like to put on record very early that we are not looking to protect our financial interests at the expense of either the PR interest or any other interest of the Authority. We really want to hear what you want us to do in relation to protecting our common financial interest in the short term. In the long term I think things will evolve and there will be things to be done to which we will have no option, but that might be 3/4/5 years.

¶2.7.9 The uncertainty regarding where liability might lie was shared within the Home Office. Responding to a question from Frank Field MP regarding the availability of automatic

SYP000160100001, see for example p1, PNC printout.

¶The position in relation to data protection law also appears to have been unclear. Following a later example of criminal record checking in response to a civil claim, the results of the check were released accidentally to the claimant's solicitor

¶– alerting them that such a search had been made. The claimant's solicitor complained, writing to South Yorkshire Police that:

In supplying it you appear to have breached not only the long-standing code of confidentiality and circumstances under which a record might be disclosed, but you have also breached the provisions of the Data Protection Act 1984. This is an extremely grave matter…

¶The response of the police officer who had released the information was to hold responsible the solicitor who had requested the search. He wrote:

I find it negligent on their behalf to first state they were entitled to view the record if they weren't so entitled and secondly then to release a copy of the convictions along with a copy of my covering letter to the solicitor's representing [the claimant].

¶The issue appears to have been resolved following a conversation between the solicitors involved. SYP000160100001, p2 onwards. 3. 'HILLSBOROUGH DISASTER – MEETING TO DISCUSS INSURANCE AND LEGAL IMPLICATIONS', 19 April 1989, compensation, officials at the Home Office noted that the issue of compensation would be complex and protracted.

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¶2.7.10 It was 'by no means clear that someone or some organisation will be found to be liable'. In marked contrast to other disasters, such as the Clapham rail disaster, this ruled out automatic compensation. Officials considered it inevitable that the legal process would have to be pursued until liability was established in court.4

¶2.7.11 Further compensation claims were issued against SYP and others during the months that followed, but no steps were taken to progress proceedings in court until Lord Justice Taylor published his Interim Report on 4 August 1989.

¶2.7.12 Following the Report's publication – which criticised SWFC, SCC and others, but found that the main cause of the disaster was the failure of police control – on 18 August 1989 the insurers, MMI, presented the position at a meeting of the South Yorkshire Police Authority as follows:5

¶They reported that at that date, 701 claims had been received from the dependants of those killed or those who were injured, although Solicitors acting on the Steering

¶Committee [of solicitors representing the bereaved and injured] estimated there will ultimately be at least 1,000 claims.

¶The Insurers having met with the Steering Committee in Liverpool together with the

¶Sun Alliance Insurance Company who insure the Football Association and Sheffield

¶Wednesday F.C. have so far denied liability.

¶At meetings with the Steering Committee it has been agreed that test cases will be held and it is anticipated there will probably be six of these covering the various categories of claim arising out of the tragedy.

¶The Insurers reported to the Authority that the full cost of the claims could be of the order of £15 million although members will have read press reports in which various parties, not least Solicitors acting for the claimants, have estimated the full cost as being as high as £50 million. The limit on insurance taken out by the Authority is £8.5 million which means that any excess which the Police are found to be responsible for, whether by negotiation or arising out of the test cases, will have to be borne by the Authority.

¶The Insurers, at the Authority's meeting on 18th August, warned they may have to enter into negotiations with those representing the claimants if it is considered the climate is right to do so, and said they would welcome any views the Authority has with regard to the financial implications and also political implications which may arise. The Authority therefore resolved that the Finance and General Purposes

¶Committee be requested to consider in detail the points made by the Insurers …

¶Whatever the ultimate responsibility of the Police the Authority will have to bear any cost of compensation over and above insurance provision of £8.5 million. In the light of comments made by the Insurers at the Authority's meeting on 18th August and also the estimates of total costs of compensation there is a very real potential that the Authority will be involved in considerable expenditure.

Internal Home Office memorandum, 3 May 1989, HOM000015410001, pp1-6. 5. 'FINANCE AND GENERAL PURPOSES COMMITTEE, Report of Clerk and Financial Officer', 15 September 1989,

¶SPA000000730001, p1.

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¶2.7.13 Given this potential financial exposure, it was proposed that staff from the Police Authority would shadow MMI's work and the issue would be referred back to the Authority prior to any substantive decision.

¶2.7.14 Aside from the financial risk, there was also concern that civil claims might come to trial in advance of a decision from the Director of Public Prosecutions (DPP) on the issue of criminal proceedings against those found to be responsible for the disaster. At a pre-trial review hearing before Mr Justice Rose in the High Court on 26 October 1989, SYP applied for a 'stay' or postponement of the civil claims pending a decision from the DPP.

¶2.7.15 SYP's solicitors, Hammond Suddards, subsequently wrote in a letter to the Crown Prosecution Service (CPS):

¶At the hearing, an unsuccessful application for a stay of the proceedings was made on behalf of the South Yorkshire Police, not in connection with possible prejudice to any Officer who may be the subject of the present inquiry but simply on the basis that it is difficult for the Chief Constable to prepare a case when Officers, rightly or wrongly, believe that they may be under investigation and, hence, are unwilling to co-operate in providing further statements.6

¶2.7.16 Having rejected the SYP application, Mr Justice Rose set 11 June 1990 for the start of the civil claims trial.7

¶Settlement 2.7.17 The disclosed documents suggest that there was debate and argument between SYP and their insurers about their decision to offer a settlement of some civil claims. On 17 November 1989, Chief Constable Peter Wright presented a report to the Police Authority in which he indicated that the claims were to be defended.

¶2.7.18 On 30 November, however, a press release illustrated a significant shift in position: 'It has been decided by the Chief Constable of South Yorkshire and the South Yorkshire Police Authority, in conjunction with their insurers, Municipal Mutual Insurance, that those bereaved and injured in the tragic events at Hillsborough stadium on 15 April should not have to await the outcome of a further lengthy hearing in 1990 before receiving compensation'.8

¶2.7.19 Thus, 'the Chief Constable, in conjunction with his insurers, intends to open negotiations with the aim of resolving all bona fide claims against him for compensation arising out of the Hillsborough disaster'.

¶2.7.20 Other named defendants, SWFC, Eastwood & Partners and SCC, had been 'offered the opportunity of joining in the course of action now taken on behalf of the South Yorkshire Police, but have refused to do so'. The 'Chief Constable and his insurers' intended to 'pursue legal action against those parties to recover moneys paid out to the claimants pursuant to today's offer'.

Letter from Hammond Suddards to CJ Cleugh, Crown Prosecution Service, 30 October 1989, CPS000003750001, p14. 7. 'SOUTH YORKSHIRE POLICE AUTHORITY, REPORT OF THE CHIEF CONSTABLE',¹⁷¹⁷ December 1997, HOM000030920001, p1. November 1989,

¶SPA000000190001, pp1-6. 8. 'PRESS STATEMENT OF THE CHIEF CONSTABLE', 30 November 1989, SYP000160110001, p7.

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¶2.7.21 Within the Force there was an additional rationale:

¶The civil case was likely to take place in advance of any criminal proceedings against anyone arising out of the events at Hillsborough. Had this occurred a number of police witnesses, acting on legal advice, would in all probability have declined to give evidence on the grounds of possible self-incrimination. The South Yorkshire

¶Police would therefore have unnecessarily appeared evasive and the civil hearing been unduly prejudiced because of the lack of information forthcoming from those witnesses. Furthermore, any findings of liability may have been prejudicial to officers concerned in the criminal enquiry.

¶I have agreed therefore to accept the legal advice given to me and to settle out-of-court.9

¶2.7.22 As the police solicitors, Hammond Suddards, subsequently explained in a letter to the Steering Committee of solicitors representing claimants (Hillsborough families), the settlement offer applied only to claims that fell within certain categories.10 It stated that 'all bona fide claims for compensation by those injured and the dependants of those who died at the ground will be paid on a common law basis to be agreed if possible or, failing agreement, to be assessed by the Court'.

¶2.7.23 Compensation would be 'paid for nervous shock cases, if they would be entitled to damages by law'. The relevant categories for inclusion were claimants who were: in pens 3 or 4 and suffered physical injury and nervous shock;11 in pens 3 or 4 and suffered no physical injury but suffered nervous shock; in another part of the ground and saw a spouse or child injured or killed; in another part of the ground and, knowing or believing a spouse or child to be in pens 3 or 4, later found them injured or dead; and persons involved in rescue attempts who were not originally in pens 3 or 4.12 9. Memorandum from Chief Constable Wright to all Chief Superintendents, 30 November 1989, SYP000160110001, p6. 10. Letter from Hammond Suddards to Hillsborough Steering Committee, 15 December 1989, SYP000160110001, pp2-5. 11. 'Nervous shock' in this context is a generic term signifying any recognised psychiatric injury sustained as a result of shock, including post-traumatic stress disorder (PTSD). The National Institute for Health and Clinical Excellence

¶(publications.nice.org.uk/post-traumatic-stress-disorder-ptsd-cg26/guidance#the-symptoms-of-ptsd) describes the symptoms of PTSD as follows:

The most characteristic symptoms of PTSD are re-experiencing symptoms. PTSD sufferers involuntarily re-experience aspects of the traumatic event in a very vivid and distressing way. This includes flashbacks where the person acts or feels as if the event was recurring; nightmares; and repetitive and distressing intrusive images or other sensory impressions from the event. Reminders of the traumatic event arouse intense distress and/or physiological reactions. In children, re-experiencing symptoms may take the form of re-enacting the experience, repetitive play or frightening dreams without recognisable content. Avoidance of reminders of the trauma is another core symptom of PTSD. This includes people, situations or circumstances resembling or associated with the event. People with PTSD often try to push memories of the event out of their mind and avoid thinking or talking about it in detail, particularly about its worst moments. On the other hand, many ruminate excessively about questions that prevent them from coming to terms with the event (for example, about why the event happened to them, about how it could have been prevented, or about how they could take revenge). PTSD sufferers also experience symptoms of hyperarousal including hypervigilance for threat, exaggerated startle responses, irritability and difficulty concentrating, and sleep problems. Others with PTSD also describe symptoms of emotional numbing. These include lack of ability to experience feelings, feeling detached from other people, giving up previously significant activities, and amnesia for significant parts of the event. Symptoms of PTSD often develop immediately after the traumatic event but in some (less than 15% of all sufferers) the onset of symptoms may be delayed. PTSD sufferers may not present for treatment for months or years after the onset of symptoms despite the considerable distress experienced, but PTSD is a treatable disorder even when problems present many years after the traumatic event. Assessment of PTSD can, however, present significant challenges as many people avoid talking about their problems even when presenting with associated complaints. www.nice.org.uk/nicemedia/pdf/CG026NICEguideline.pdf

¶These symptoms are a usual reaction to a traumatic event. However, their persistence and severity to the extent that they interfere with well-being constitute PTSD. Because of the circumstances of the disaster many more people than otherwise would be expected to suffer incapacitating PTSD. 12. Letter from Hammond Suddards to Hillsborough Steering Committee, 15 December 1989, SYP000160110001, pp2-5.

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¶2.7.24 Settlements were offered 'without making any admission of liability'.13 This was for two key reasons. First, it was considered that to do otherwise would risk prejudicing the interests of those officers under criminal investigation.

¶2.7.25 Second, as the Hillsborough Steering Committee explained in an update to its solicitors,14 it reflected SYP's intention to 'pursue a claim' against the other potentially liable organisations.15 The offers were accepted by the Steering Committee on behalf of the relevant claimants.

¶2.7.26 In the wake of the settlements, the level of compensation paid in relation to those who died was decided on the basis of the category in which the claim fell and the personal situation of the deceased. In cases that concerned the death of children, their parents received no more than the statutory bereavement allowance of £3,500 and funeral expenses.16

¶2.7.27 Cases that concerned the death of adults survived by dependants resulted in higher payments. Compensation for those who endured physical or psychological injury was assessed on the nature and extent of the injury, resulting loss of earnings or any ongoing medical costs.

¶Alcock and others v Chief Constable of South Yorkshire Police 2.7.28 The decision to defend claims that were not covered by the agreed categories resulted in two significant sets of proceedings in court. Each eventually reached the House of Lords. The first was Alcock and others v Chief Constable of South Yorkshire Police.

¶2.7.29 In proceedings brought on behalf of 16 claimants, but said to be representative of 150 similar claims, the primary issue concerned those who had suffered psychiatric illness due to the shock of what had happened to their friends or relatives at the stadium. The legal question was whether and how, in such circumstances, people who were not directly involved or injured in the incident could be entitled to compensation as 'secondary victims'.

¶2.7.30 For the purposes of these proceedings, SYP admitted responsibility for the circumstances at the stadium, but argued that as a matter of public policy they should not be required to pay compensation to those who were too distant from what happened, either by relationship to those killed or injured, or in time and space.

¶2.7.31 The case proceeded through the High Court17 and Court of Appeal18 to a final determination in the House of Lords on 28 November 1991.19 Applying and clarifying long-standing principles of common law, the House of Lords ruled that, to establish a claim for psychiatric illness resulting from shock, it was necessary to show that the injury was a reasonably foreseeable result of the events at the stadium, and that the claimant was sufficiently proximate or close to what had happened.

¶2.7.32 Such proximity had to be established according to the relationship of the claimant to those directly injured as well as presence at the relevant events in time and space, although the mere fact of presence and relationship was insufficient. Proximity by relationship depends on ties of love and affection, the closeness of which should be proved in each case. 13. Memorandum from Chief Constable Wright to all Chief Superintendents, 30 November 1989, SYP000160110001, p6. 14. Letter from Elizabeth Steel of Hillsborough Steering Committee to a firm of Solicitors: Hillsborough Group Bulletin 11,

¶30 November 1989, FAM000000180001. 15. 'SOUTH YORKSHIRE POLICE AUTHORITY, FINANCE AND GENERAL PURPOSES COMMITTEE', 8 December 1989,

¶SPA000000760001, p1. 16. For example, see press cutting, Daily Mirror, 3 February 1995, SYP000160120001. 17. 31 July 1990, [1991] 3 All E.R. 88. 18. 3 May 1991, [1991] 3 All E.R. 88. 19. [1992] 1 A.C. 310.

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¶2.7.33 Such closeness would be easier to prove in relationships such as husband and wife or parent and child, but more remote relationships would require more careful scrutiny. Proximity in time and space to the incident or its immediate aftermath was equally essential in each case. It was necessary for the claimant to be within sight and hearing of the event or its immediate aftermath, and the viewing of the event on television was not sufficient for that purpose.

¶2.7.34 Lord Keith of Kinkel, with whom the rest of the Court agreed, explained:

¶Of the present plaintiffs two, Brian Harrison and Robert Alcock, were present at the

¶Hillsborough ground, both of them in the West Stand, from which they witnessed the scenes in pens 3 and 4. Brian Harrison lost two brothers, while Robert Alcock lost a brother-in-law and identified the body at the mortuary at midnight. In neither of these cases was there any evidence of particularly close ties of love or affection with the brothers or brother-in-law. In my opinion the mere fact of the particular relationship was insufficient to place the plaintiff within the class of persons to whom a duty of care could be owed by the defendant as being foreseeably at risk of psychiatric illness by reason of injury or peril to the individuals concerned. The same is true of other plaintiffs who were not present at the ground and who lost brothers, or in one case a grandson.

¶I would, however, place in the category to members of which risk of psychiatric illness was reasonably foreseeable Mr and Mrs Copoc, whose son was killed, and

¶Alexandra Penk, who lost her fiancé. In each of these cases the closest ties of love and affection fall to be presumed from the fact of the particular relationship, and there is no suggestion of anything which might tend to rebut that presumption. These three all watched scenes from Hillsborough on television, but none of these depicted suffering of recognisable individuals, such being excluded by the broadcasting code of ethics, a position known to the defendant. In my opinion the viewing of these scenes cannot be equiparated with the viewer being within 'sight or hearing of the event or of its immediate aftermath,' to use the words of Lord Wilberforce [in another case], nor can the scenes reasonably be regarded as giving rise to shock, in the sense of a sudden assault on the nervous system. They were capable of giving rise to anxiety for the safety of relatives known or believed to be present in the area affected by the crush, and undoubtedly did so, but that is very different from seeing the fate of the relative or his condition shortly after the event. The viewing of the television scenes did not create the necessary degree of proximity.20

[1992] 1 A.C. 310 at 398. See also: Lord Ackner at 405-406: 'Only one of the plaintiffs … , namely Brian Harrison, was at the ground. His relatives who died were his two brothers. The quality of brotherly love is well known to differ widely – from Cain and Abel to David and Jonathan. I assume that Mr Harrison's relationship with his brothers was not an abnormal one. His claim was not presented upon the basis that there was such a close and intimate relationship between them, as gave rise to that very special bond of affection which would make his shock-induced psychiatric illness reasonably foreseeable by the defendant. Accordingly, the judge did not carry out the requisite close scrutiny of their relationship. Thus there was no evidence to establish the necessary proximity which would make his claim reasonably foreseeable and, subject to the other factors, to which I have referred, a valid one. The other plaintiff who was present at the ground, Robert Alcock, lost a brother-in-law. He was not, in my judgment, reasonably foreseeable as a potential sufferer from shock-induced psychiatric illness, in default of very special facts and none was established. Accordingly their claims must fail, as must those of the other plaintiffs who only learned of the disaster by watching simultaneous television'. And Lord Oliver of Aylmerton at 417: 'In the case of both Brian Harrison and Robert Alcock, although both were present at the ground and saw scenes which were obviously distressing and such as to cause grave worry and concern, their perception of the actual consequences of the disaster to those to whom they were related was again gradual. In my judgment, the necessary proximity was lacking in their cases too, but I also agree with my noble and learned friend, Lord Keith of Kinkel, that there is also lacking the necessary element of reasonable foreseeability'. Or Lord Jauncey of Tullichettle at 424: 'Only two plaintiffs, Mr and Mrs Copoc, lost a son, but they saw the disaster on television and Mr Copoc identified the body on the following morning having already been informed that his son was dead. No plaintiff lost a spouse. None of the other plaintiffs who lost relatives sought to establish that they had relationships of love and affection with a victim comparable to that of a spouse or parent. In any event only two of them were present in the ground and the remainder saw the scenes on simultaneous or recorded television. In these circumstances none of the plaintiffs having satisfied both the tests of reasonable foreseeability and of proximity'.

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¶Hicks v Chief Constable of South Yorkshire Police 2.7.35 The second action was Hicks v Chief Constable of South Yorkshire Police. In these proceedings, the primary issue concerned the extent to which compensation was payable for the pre-death pain and the suffering of those who had died. Again, for the purposes of these proceedings, SYP accepted responsibility for the circumstances, but argued that there was no pre-death pain and suffering because the medical evidence purported to establish that the deceased victims would have lost consciousness within a matter of seconds before they died.

¶2.7.36 The case proceeded through the High Court21 and Court of Appeal22 to a determination in the House of Lords on 5 March 1992.23 Throughout, on the basis of the medical evidence presented, the Courts accepted and agreed with the argument advanced by SYP. The short judgment handed down by Lord Bridge of Harwich, with whom the rest of the Court agreed, was clear:

¶The appellants are the parents of two girls, Sarah and Victoria Hicks, who died in the disaster at Hillsborough Football Stadium on April 15, 1989, when they were respectively 19 and 15 years of age. … The basis of the claim advanced here is that at the moment of death Sarah and Victoria each had an accrued cause of action for injuries suffered prior to death which survived for the benefit of their respective estates. The action was tried by Hidden J. who held that the plaintiffs had failed to prove that either girl suffered before death any injury for which damages fell to be awarded. His decision was affirmed by the Court of Appeal …

¶No one can feel anything but the greatest sympathy for the relatives of those who died in the disaster, the circumstances of which are now all too well known. The anguish of parents caused by the death in such a horrifying event of sons and daughters who were on the very threshold of life must indeed have been almost unbearable. But the common law has never awarded damages for the pain of bereavement. [An Act of Parliament in 1982] introduced such a claim for the first time in the fixed sum of £3,500 (subsequently increased by statutory instrument to £7,500) but only for the benefit of a spouse in respect of the death of the other spouse or for the benefit of parents in respect of the death of a minor child. … In respect of the deaths of Sarah and Victoria …, apart from a bereavement claim under the Act of

¶1982 in respect of Victoria, a claim for damages in respect of injuries suffered before death was the only claim which Mr. and Mrs. Hicks could bring.

¶… We were assured by counsel, and I have no reason to doubt it, that the action was not brought for the sake of the money that may be awarded but rather to mark the anger of these parents and other bereaved relatives at what occurred. But whatever justification there may be for that anger has no relevance to damages in a civil action for negligence, which are compensatory, not punitive.

¶The difficulty which immediately confronts the appellants in this House is that the question what injuries Sarah and Victoria suffered before death was purely one of fact and Hidden J.'s conclusion on the evidence that the plaintiffs had failed to discharge the onus of proving any such injury sufficient to attract an award of damages was a finding of fact affirmed by the Court of Appeal. …

Judgment by Mr Justice Hidden of the Queen's Bench Division, Liverpool Crown Court: Various Plaintiffs v Chief

¶Constable of South Yorkshire Police, 31 July 1990, LLS000000220001. 22. 3 May 1991, [1992] 1 All E.R. 690. 23. [1992] 2 All E.R. 65.

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¶The evidence … showed that both girls died from traumatic asphyxia. They were in the pens at one end of the Hillsborough Stadium to which access was through a tunnel some 23 metres in length. When the pens were already seriously overcrowded a great number of additional spectators, anxious to see the football match which was about to start, were admitted through the turnstiles and surged through the tunnel causing the dreadful crush in the pens in which 95 people died. Medical evidence which the judge accepted was to the effect that in cases of death from traumatic asphyxia caused by crushing the victim would lose consciousness within a matter of seconds from the crushing of the chest which cut off the ability to breathe and would die within five minutes. … Hidden J. was not satisfied that any physical injury had been sustained before what he described as the 'swift and sudden [death] as shown by the medical evidence.' … These findings, as Hidden J. himself said 'with regret,' made it impossible for him to award any damages.

¶… The Court of Appeal … carefully reviewed the evidence and concluded, in agreement with Hidden J., that it did not establish that any physical injury was caused before the fatal crushing injury. … In the circumstances I think it sufficient to say that, in my opinion, the conclusion of fact reached by Hidden J. and the Court of Appeal was fairly open to them and it is impossible to say that they were wrong.

¶2.7.37 As explained in Chapter 5, the disclosed documents reveal that the medical evidence which provided the basis for this conclusion is contested. Consequently, the conclusion reached by the Courts remains open to question.

¶2.7.38 In the years that followed, SYP and its insurers received, processed and settled further compensation claims. Primarily these related to psychological injury and post-traumatic stress disorder (PTSD), but also extended to individuals with long-term physical healthcare needs as a consequence of Hillsborough.

¶2.7.39 The total amount eventually paid out in compensation to a total of over 1,500 claimants was approximately £19.8 million. The total figure expended in legal costs was £3.8m.24,25

Compensation expenditure calculated from a briefing paper submitted to the Home Office in 1999,

¶HOM000010130001, and confirmed by South Yorkshire Police Authority. Legal costs also confirmed by South

¶Yorkshire Police Authority. 25. The Hillsborough Disaster Appeal (key references are CMS000001000001 and HWP000001120001)

¶Outside the civil cases, the Hillsborough Disaster Appeal Fund also provided financial support to the injured and bereaved. The Fund was launched and established as a Trust in the days following the disaster by four sponsors:

¶the Lord Mayors of Sheffield and Nottingham; the Chairman of Liverpool City Council; and the Chairman of Liverpool

¶Football Club. Trustees were nominated by the sponsors.

¶Donations to the Fund were generous and the Trustees expressed their 'gratitude and, indeed, amazement at the incredible generosity' which the disaster prompted. The result was that £12.1 million had been raised by the first anniversary of the disaster in April 1990, 'far and away the largest domestic disaster Fund ever raised [in the UK]'.

¶In addition to large donations from the Government (£500,000) and elsewhere, the Trust was to receive money from

¶'hundreds of spontaneously organised events and activities, as well as from countless donations from individuals, educational and sporting organisations, and businesses large and small'. A selection of letters enclosing donations can be found at LCA000000010001.

¶The Trust's view was that money should be distributed as quickly as possible and within a year £10 million had been distributed to bereaved families and also to 647 injured survivors, each of whose claim was assessed by the Trust's

¶Medical Panel. By the time distribution of money to the injured and bereaved was complete, in June 1992, the final figure had risen to £11.8 million.

¶The balance of funds raised by the appeal, eventually amounting to £1.9 million, was placed in a separate Charitable

¶Trust. This Charitable Trust funded a range of projects, including memorial bursaries in Liverpool, Sheffield and

¶Nottingham, as well as funding training courses for doctors, paramedics and members of the emergency services.

¶These and other recipients of funding were considered 'appropriate to commemorate those who died at Hillsborough, and to commemorate the generosity of those who contributed to the appeal'.

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¶Compensation claims on behalf of police officers, including the cases of White v Chief Constable and Frost v Chief Constable 2.7.40 From the earliest publicity concerning compensation claims by police officers who had suffered psychological injury as a consequence of the Hillsborough disaster, the issue was controversial.

¶2.7.41 Those who had suffered bereavement and injury could not reconcile the six-figure sums suggested by the media in relation to such claims with the relatively paltry sums they had themselves received, particularly those for whom compensation amounted to a £3,500 statutory bereavement payment and funeral expenses.

¶2.7.42 It was also controversial within SYP, whose senior managers were concerned about the impact on the Force should officers bring claims against their own Chief Constable.26 They were also concerned that floodgates might open should the initial claims prove successful.

¶The origin of the claims 2.7.43 Initially, the Police Federation's Sheffield branch proposed that officers affected by the disaster would not take legal action but claim from the Hillsborough Disaster Appeal Fund established 'for the assistance of those who have suffered injury or loss as a result of the Hillsborough disaster'.27

¶2.7.44 In June 1989, with the approval of CC Wright, a letter from the Police Federation representative, Paul Middup, was circulated to affected officers:

¶It has been announced on local radio that the Trustees of the Hillsborough Disaster

¶Appeal Fund would like anyone who thinks that they may be entitled to make a claim for either physical or psychological reasons should [sic] contact them.

¶A number of West Yorkshire officers successfully claimed from the Bradford Fire

¶Disaster Appeal Fund and I see no reason why our officers should not claim from the

¶Hillsborough one, if indeed, they feel that they have been affected. There must be a good chance that out of the 200 plus officers who had to be counselled after the tragedy some will be eligible to claim.

¶Unfortunately, if they did not hear the announcement on local radio they may not know anything about making a claim. I believe that it is important that it be brought to the notice of everyone who may be eligible.28

¶2.7.45 By October 1989 the position had changed. A further letter from the Police Federation, not approved by the SYP Chief Constable, raised the possibility of civil claims possibly alongside claims to the Disaster Appeal Fund.29 It suggested that police officers 26. The basis on which officers were able to bring claims against their Chief Constable was similar to the basis on which claims were brought by those bereaved and injured, i.e. that they had suffered harm as a result of a wrong or a 'tort' for which the Chief Constable was ultimately responsible. In addition, the officers were also able to argue that they were entitled to recover damages either on the basis of an employer's duty to protect employees from harm through work or by virtue of their status as rescuers. 27. Internal Home Office memorandum, 18 April 1989, HOM000006980001, p1. 28. Letter from Paul Middup to CC Wright, 27 June 1989, SYP000160130001, p11. Whether any claims to the Appeal

¶Fund were eventually made is not clear since payments made by the Fund to the injured were made in confidence. 29. Letter from Paul Middup to Police Federation members,⁹⁹ 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.Show full note October 1989, SYP000160130001, p8.

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¶should 'not be hesitant about making a claim', noting that all 'claims made on behalf of our people after the Bradford fire were successful and incidentally, they all also claimed from the Disaster Fund itself and they too were all successful'.

¶2.7.46 The Police Federation intended that claims should be made against the Health and Safety Executive (HSE) and SWFC. Its position, however, could not be sustained. In refusing a request from the Federation for assistance with legal costs, South Yorkshire Police Authority was clear that, given other ongoing civil claims made against SYP, 'it may be anticipated in due course that the Chief Constable will be enjoined in the proceedings'.30 He was, and by 1 February 1990 SYP had received 26 claims from its officers, and a further 100 claims were anticipated.31

¶2.7.47 These and subsequent claims were made by officers with a range of distinct experiences at Hillsborough. Some had been involved in rescue attempts, pulling bodies from the pens or giving mouth-to-mouth resuscitation.

¶2.7.48 Others had been on duty later in the day at the stadium gymnasium, designated a temporary mortuary, or assisting in identifying bodies or in clearing the scene. Claims were made on the basis that police officers' experiences, in the course of their formal duties, had resulted in psychiatric injury including PTSD.

¶The South Yorkshire Police response 2.7.49 The claims provoked concern within SYP. Although the Police Federation had advised officers that the Chief Constable, Peter Wright, regarded legal action as 'entirely proper and legitimate',32 this was not the case. CC Wright clarified his position in a letter to the President of the Association of Chief Police Officers (ACPO).33

¶2.7.50 He viewed 'with extreme concern actions taken by one police officer against another, particularly in circumstances such as Hillsborough'. Recognising that this 'might be legally correct, the legal advices will have no concern about Force morale, about mutual reliance between officers, or about the effect that such action may have on subsequent day- to-day operational matters'.

¶2.7.51 CC Wright considered that the Police Federation had 'some responsibility to consider these factors when they embark on legal proceedings similar to those arising out of Hillsborough'. SYP Deputy Chief Constable Peter Hayes went further, writing in February 1990 that the claims were 'on one level unfortunate, distasteful, may adversely affect the morale and image of the Force'.34 He was also concerned that the claims could impact negatively on officers' ability to give evidence objectively when required to do so in proceedings such as the inquests or the contribution hearings.

¶Press response 2.7.52 There was no publicity concerning the claims until April 1990 when a story in the Sheffield Star was published, headlined 'Shocked police may sue Wright'. It stated: 'More than 150 South Yorkshire police officers are threatening to sue their own chief constable for

Letter from RC Johnson, South Yorkshire Police Authority, to Paul Middup,¹⁶¹⁶ 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.Show full note October 1989, SYP000097060001, p44. 31. File note written by DCC Peter Hayes, 2 February 1990, SYP000160130001, p7. 32. File note written by DCC Peter Hayes, 5 February 1990, SYP000160130001, p9. 33. Letter from Chief Constable Peter Wright to President of ACPO, 25 April 1990, SYP000160130001, pp14-15. 34. File note written by DCC Peter Hayes, 2 February 1990, SYP000160130001, p7.

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¶damages over the Hillsborough disaster – a move which could split the force on the eve of the tragedy's first anniversary'.35

¶2.7.53 Following CC Wright's retirement in May 1991, responsibility passed to his successor, Richard Wells. Soon after Chief Constable Wells' appointment, DCC Hayes informed the new Chief Constable of the issue:

¶Currently 77 police officers from inspector down, mainly constables, through the

¶Federation solicitors Russell Jones & Walker have intimated their intention to sue the Chief Constable for damages for pain and suffering (psychological) endured by them at Hillsborough on 15 April 1989. All have undergone medical (psychiatric) examination and have evidence to substantiate their claims. An additional 19 would-be claimants have withdrawn their claims ...

¶Whilst we have never formally admitted liability for what occurred at Hillsborough, we have not disputed the claims made by others that by opening the emergency gates and failing to protect the tunnel under the West Stand thereby allowing spectator access to pens three and four when they were already full, we allowed a dangerous situation to develop.

¶By implication and general assumption, even by the High Court, we are assumed to have conceded this point.

¶I was advised by seven separate lawyers at a meeting some 18 months ago that in terms of civil negligence we are liable as stated above and our position is absolutely indefensible.36

¶2.7.54 This assessment of liability, however, did not mean that police claimants were considered to be eligible for compensation. They were considered to be in two distinct categories: rescuers (officers involved in handling the bodies in the activities at the pens or at the mortuary) and non-rescuers (officers not so directly involved).

¶2.7.55 DCC Hayes asserted that the SYP 'lawyers feel that we have a powerful case for resisting claims by non-rescuers on grounds of remoteness and this is strengthened by the recent Appeals decisions in the High Court apropos Hillsborough on 3 May 1991'.

¶2.7.56 The 'Appeals decisions' referred to were the decisions of the High Court and the Court of Appeal in the case of Alcock and others v Chief Constable of South Yorkshire. As explained above, the Court of Appeal had held that for those who were not 'rescuers', any entitlement to claim as 'secondary victims' had to be determined on the basis of proximity in time and space as well as relationship, depending on ties of love and affection, the closeness of which should be proved in each case.37

File note written by DCC Peter Hayes, 11 April 1991 and press cutting from the Star, SYP000160130001, pp12-13. 36. Memorandum from DCC Peter Hayes to CC Richard Wells, 8 May 1991, SYP000160130001, pp1-2. 37. Alcock and others v Chief Constable of South Yorkshire Police [1991] 3 All E.R. 8. See above for further detail.

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¶Rescuers' position 2.7.57 The position in relation to 'rescuers' was considered more complex, but the initial advice to the Force was clear: 'we resist on the possible grounds of lack of foreseeability, no duty of care, public policy and the fortitude and phlegm argument'.38

¶2.7.58 The advice to resist the claims was also informed by views within SYP, as expressed in a meeting with its insurers MMI and its solicitors Hammond Suddards.39 There was 'considerable anger and bitterness that these claims should be brought at all and it was noted that some 19 of the claims originally put forward had been withdrawn'.

¶2.7.59 While there was acceptance of 'some genuine serious psychiatric problems as a result of the disaster', it was expressed that 'a considerable number of officers were simply jumping on a bandwagon'. This does not suggest a direct link between 'anger and bitterness' within SYP and the decision by some officers not to proceed with their claims, but it was suggested.

¶2.7.60 The Police Federation's solicitors Russell, Jones & Walker wrote to MMI noting that a 'large number of those who commenced proceedings have now abandoned them'.40 Officers had 'complained ... that senior officers have brought undue pressure on them to drop their claim. Some have succumbed to this pressure'. These were not to be treated as formal complaints: 'indeed those officers who have succumbed to such pressure would naturally, for obvious reasons, be the last to wish formal complaints to be made'. They illustrate the tensions within SYP regarding claims made against the Force.41

¶2.7.61 On 9 May 1991, CC Wells announced his decision to resist the claims:42

¶We can confirm that writs on behalf of South Yorkshire police officers were issued on

¶Monday afternoon against the Chief Constable, Richard Wells.

¶The writs are in respect of the shock and stress suffered by officers who dealt with the

¶Hillsborough disaster in April 1989 and this action has been taken on their behalf by solicitors representing the Police Federation.

¶South Yorkshire Police intends to defend this action.

¶The Chief Constable has already gone on record expressing his disappointment that some officers feel the need to pursue claims. 'There are well-tried avenues in the

¶South Yorkshire Police for helping officers to overcome grief and mental anguish and

¶I'll do all I can personally to help them and their families to recover. An expression of some understanding and shared responsibilities from Merseyside to match our own expression of sorrow and shared liability would be enormously helpful. But meanwhile, I think the claims are as much symbolic – a bid for mental suffering to be recognised – as about search for compensation'. 38. Memorandum from DCC Peter Hayes to CC Richard Wells, 8 May 1991, SYP000160130001, pp1-2. The 'fortitude and phlegm argument' referred to here is the argument that, for example, 'the driver of a car or vehicle, even though careless, is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure … the noise of a collision and the sight of injury to others, and is not to be considered towards one who does not possess the customary phlegm' (per Lord Porter in Bourhill v Young [1943] AC 92 at 117). In the present context, it amounts to an expectation that the law would assume officers to be sufficiently robust to do their job and not to suffer shock as a result of their experiences in that job. 39. Letter and attendance note from Hammond Suddards to DCC Peter Hayes,⁹⁹ 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.Show full note May 1991, SYP000160130001, pp3-6. 40. Letter from Russell Jones & Walker to Municipal Mutual Insurance, 22 November 1991, SYP000160130001, p21. 41. A minute of a Police Federation meeting of 14 February 1990 also illustrates those tensions. It speaks of 'immense pressure' being placed on members of the Federation not to proceed with claims. TPF000000080001. 42. South Yorkshire Police press release, 31 July 1991, SYP000160130001, p16.

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¶2.7.62 Doubts soon surfaced within the Force, however, concerning whether this public stance could and should be maintained. In November 1991 DCC Hayes wrote that SYP was 'adopting the stance that we must defend these actions at all costs in whatever way we can, in the event of the uniqueness of Hillsborough however it may in fact be more sensible to settle'.43

¶2.7.63 SYP's position was complicated. There was anger about the claims and a concern that to agree compensation to officers would open the 'flood gate' to further action; not just from officers affected by Hillsborough but nationally in other circumstances in which the police experienced trauma as a result of their work.44

¶2.7.64 Yet the internal analysis of the legal position gave rise to increasing doubts about whether all the claims could be successfully resisted. If SYP was likely to lose the claims, there were tactical and financial reasons why agreed settlements might be preferred in advance of any trial in court.

¶Settlement 2.7.65 By November 1992, the revised legal advice to SYP was clear. Regarding claimants in the category 'rescuer', SYP had no realistic chance of success at trial and it should agree to settle. After a meeting with representatives of the Police Authority and MMI, DCC Hayes wrote:

¶There are 50 officers who have lodged claims. Up to 20 of these on the evidence now available are obviously within the 'rescuer' category and in view of the precedents … we have no defence and an out-of-court settlement is obviously appropriate. There are about 10 officers who appear to have acted so far from the scene in both distance and time that they were not rescuers and should not be compensated.

¶The remaining 20 officers fall within these two extremes and it may be appropriate to offer all of them compensation, but the offer will be reduced as they are found to be further away from the clear 'rescuer' category.

¶After a long discussion, the above was agreed on the grounds that an out-of-court settlement would produce no new principle at law, would be made on the grounds that the defendant (South Yorkshire Police) caused the event resulting in the injuries, those compensated were definable as rescuers, a clear duty of care exists between the plaintiffs and the defendant and that the injuries sustained were foreseeable.

¶If we resist the claims in the case of the middle 20, the probability is that we will lose, attract considerable adverse publicity, lose credibility with our workforce, pay costs on top of damages, and because of the way this will be reported, give the mistaken impression that when Chief Constables expose officers to extremely difficult, dangerous or unpleasant events and psychiatric injury results, claims are almost certain to succeed. The important distinction in this case being that the South

¶Yorkshire Police were found liable for the disaster occurring.

¶Claims could total £1 million. This is covered by the Public Liability Policy and not by the Hillsborough insurance cover which is almost expended and so there are no financial provision problems.45

File note written by DCC Peter Hayes, 12 November 1991, SYP000160130001, p20. 44. File note written by DCC Peter Hayes, 25 February 1992, SYP000160130001, p23. 45. File note written by DCC Peter Hayes,²⁰²⁰ April 1989, HOM000016460001, pp1-5. November 1992, SYP000160130001, p28.

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¶2.7.66 As this note illustrates, concern that an agreed settlement might have wider implications for the policing of dangerous situations had receded. A flood of claims from officers who might be traumatised by future events was thought to be unlikely since, in the case of Hillsborough, any settlement was predicated on the assumption that SYP 'caused the event resulting in the injuries'.

¶2.7.67 The decision to settle claims was not, however, implemented immediately. In his note of the same meeting SYP solicitor Peter Metcalf recorded 'that as we were not under any great pressure at the moment, we would not take steps to implement settlements'.46 This was a strategic decision, allowing the limitation period within which claims could be made to expire in order to 'deter any further claims being made in a "copy cat" manner'.47

¶2.7.68 Consequently, no claims were settled for a further two and a half years, until March 1995, just as proceedings were due to come to trial. By that point there were 52 claims standing. Fourteen claims, on behalf of officers in the 'rescuer' category, were settled at that stage. In 2001, two further claims from officers within the 'rescuer' category suffering from late onset PTSD were received, processed and settled. Settlements were reached in relation to 16 claims from 'rescuer' officers, resulting in an outlay of over £1.5 million in compensation, paid from the Force's Employer's Liability Insurance.48

¶White and others v Chief Constable of South Yorkshire Police 2.7.69 Meanwhile, the courts were required to deal with claims on behalf of five officers in the 'non-rescuer' category, selected as test cases on the basis that they were representative of the various roles carried out by claimants who had not been active in the immediate area where the deaths and injuries occurred.

¶2.7.70 The ensuing litigation progressed from the High Court49 to the Court of Appeal50 before it was determined in the House of Lords on 3 December 1998 under the case title of White and others v Chief Constable of South Yorkshire Police.51

¶2.7.71 That the named police officers had suffered PTSD caused by their experiences arising from the tragedy was not contested. Four of them had been on duty at the stadium. The fifth had been responsible for stripping bodies and completing casualty forms at a hospital.

¶2.7.72 As in Alcock and Hicks, for the purpose of the proceedings the Chief Constable admitted responsibility for the circumstances at the stadium, but disputed the officers' entitlement to recover compensation for any psychiatric injury they had suffered as they did not qualify as 'rescuers'.

¶2.7.73 By a three to two majority, the judges in the House of Lords ruled that the Chief Constable could not be liable for psychiatric injury sustained by officers who had not been involved as rescuers and attempts to establish liability in favour of the officers in these circumstances would not sit easily with the decision to deny compensation to bereaved

Attendance note,²⁰²⁰ April 1989, HOM000016460001, pp1-5. November 1992, SYP000160130001, pp25-27. 47. Letter from Hammond Suddards to ACC Graham Moore, 25 July 1994, SYP000160150001, pp1-3. 48. These figures are drawn from material in the public domain and from records relating to individual officers which were disclosed to the Panel. 49. The Times, 3 July 1995. 50. [1998] Q. B. 254. 51. [1999] 2 A.C. 455.

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¶relatives of victims of the disaster who had not witnessed events at first hand or acted as rescuers. Lord Steyn explained:

¶In the present case, the police officers were more than mere bystanders. They were all on duty at the stadium. They were all involved in assisting in the course of their duties in the aftermath of the terrible events. And they have suffered debilitating psychiatric harm. The police officers therefore argue, and are entitled to argue, that the law ought to provide compensation for the wrong which caused them harm. This argument cannot be lightly dismissed. But I am persuaded that a recognition of their claims would substantially expand the existing categories in which compensation can be recovered for pure psychiatric harm. Moreover, as the majority in the Court of

¶Appeal was uncomfortably aware, the awarding of damages to these police officers sits uneasily with the denial of the claims of bereaved relatives by the decision of the

¶House of Lords in Alcock … The decision of the Court of Appeal has introduced an imbalance in the law of tort which might perplex the man on the Underground.52

¶2.7.74 Lord Griffiths gave a different opinion:

¶2.7.75 In this thread of litigation through the courts a small overall majority of five judges (Mr Justice Waller at first instance in the High Court, Lord Justice Judge in the Court of Appeal and Lords Steyn, Hoffman and Browne-Wilkinson in the House of Lords) were in favour of the Chief Constable's argument for the dismissal of the claims on behalf of officers in the non-rescuer category.

¶2.7.76 However, four (Lord Justice Rose and Lord Justice Henry in the Court of Appeal; and Lord Griffiths and Lord Goff in the House of Lords) would have allowed some or all of the claims. This lack of unanimity was a reflection not only of tensions inherent in an area of the law where the needs of justice have to be mediated by the needs of public policy but also the political imperatives arising from the nature of events at Hillsborough.

[1999] 2 A.C. 455 at 494-495. See also Lord Hoffmann at 505: 'Essentially, … the plaintiffs draw two distinctions between their position and that of spectators or bystanders. The first is that they had a relationship analogous to employment with the Chief Constable. … The plaintiffs say that they were therefore owed a special duty which required the Chief Constable and those for whom he was vicariously liable to take reasonable care not to expose them to unnecessary risk of injury, whether physical or psychiatric. Secondly, the plaintiffs (and in this respect there is no difference between the police and many others in the crowd that day) did more than stand by and look. They actively rendered assistance and should be equated to "rescuers," who, it was said, always qualify as primary victims.

¶But I think that such an extension would be unacceptable to the ordinary person because (though he might not put it this way) it would offend against his notions of distributive justice. He would think it unfair between one class of claimants and another, at best not treating like cases alike and, at worst, favouring the less deserving against the more deserving. He would think it wrong that policemen, even as part of a general class of persons who rendered assistance, should have the right to compensation for psychiatric injury out of public funds while the bereaved relatives are sent away with nothing.' 53. [1999] 2 A.C. 455 at 465.

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¶2.7.77 The disclosed material reveals that, despite initial consternation within SYP about the prospect of claims from their officers, the strategy adopted by the Chief Constable and SYP's solicitors, Hammond Suddards, to limit those claims was eventually vindicated. In effect, it restricted the claims which succeeded to those on behalf of a relatively small number of SYP officers.

¶The 'contribution hearings' 2.7.78 In the wake of his decision, announced on 30 November 1989, to settle certain claims on behalf of the bereaved and the injured,54 the SYP Chief Constable Peter Wright invited SWFC, Eastwood & Partners and SCC to join with SYP in the settlement negotiations. All three parties declined the invitation.

¶2.7.79 Subsequently, in the context of the lead actions of Chapman and Rimmer v Chief Constable of South Yorkshire, the Chief Constable issued 'contribution' or 'third party' proceedings against the Club and Eastwood & Partners (the 'defendants' to the third party proceedings).

¶2.7.80 The purpose was to determine the level of contribution required from each party towards the sums to be paid on damages claims arising from the disaster. SCC was not a party to the action, but was pursued for contribution subsequently and separately.

¶2.7.81 Both SWFC and Eastwoods had indicated that they would cooperate in bringing the third party proceedings to trial as soon as possible. The SYP Chief Constable, however, was in an awkward position regarding the preparation of his case while SYP officers were under investigation and faced the possibility of criminal prosecution.

¶2.7.82 An initial attempt by the Chief Constable to stay, or postpone, the litigation was dismissed by the High Court on 26 October 1989, and the two actions on behalf of Chapman and Rimmer were scheduled to come to trial on 11 June 1990.

¶2.7.83 On 15 December 1989, at a pre-trial review in the High Court, it was submitted on behalf of the Chief Constable that there should be 'no fixed date' for a trial of the contribution proceedings and that matters might be delayed as far as 1993 or, indeed, beyond.55 That submission was rejected by the Court, which directed that the trial of the contribution proceedings should be fixed for hearing in October 1990.

¶2.7.84 Consequently, on 15 January 1990 the Chief Constable issued an application to the High Court seeking permission to discontinue the contribution proceedings, on the basis that it was for him to determine when and how he chose to litigate the issue of contributions. SWFC and Eastwoods responded with counter-applications regarding the basis of any grant of permission to discontinue the contribution proceedings.

¶2.7.85 The Chief Constable's application and the counter-applications went before the High Court on 6 March 1990 when the arguments on behalf of the Chief Constable were rejected.56 Mr Justice Steyn held that the pending contribution proceedings could be set aside only on the Chief Constable's undertaking not to bring further proceedings against SWFC and Eastwoods, and that 'on the information presently available, there is no reason why a fair hearing of the issues could not take place in October or November of this year'.

'PRESS STATEMENT OF THE CHIEF CONSTABLE', 30 November 1989, SYP000160110001, p7. 55. Court transcript from 15 December 1989, SYC000001430001, p155. 56. Court transcript from 6 March 1990, SWF000000920001.

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¶2.7.86 Meanwhile, the Director of Public Prosecutions' (DPP's) decision not to bring criminal charges against any individual prompted the Coroner to announce that the adjourned inquests would resume in November 1990. This drew adverse comment from the solicitors for all parties to the contribution proceedings.

¶2.7.87 They considered it would be 'highly unfortunate' if the contribution proceedings overlapped with the inquests, not least because the inquests might otherwise benefit from access to the transcripts of the contribution proceedings.57

¶Developing the case 2.7.88 As discussed in Chapter 6, on 31 May 1990 an 'action team' of SYP officers headed by Chief Superintendent Terry Wain was placed at the disposal of Peter Metcalf of SYP solicitors Hammond Suddards.58 This was, in effect, the re-activation of the team that had conducted the internal SYP investigation in the immediate aftermath of the disaster, and had been disbanded at the conclusion of the Taylor Inquiry.

¶2.7.89 In the context of the contribution proceedings, its first task was to prepare a report for Superintendents Bernard Murray, Roger Greenwood and Roger Marshall and all other officers of inspector rank and above who had had responsibilities on the day of the disaster at the Leppings Lane end of the ground, the concourse, the turnstiles and the outer perimeter area.

¶2.7.90 The report was intended to raise officers' awareness of the forthcoming trial of the contribution proceedings and to explain that its purpose was to determine the extent and proportion of liability between the parties involved. It was also intended to forewarn police witnesses that they might be called to support the police case or that of the other parties.59

¶2.7.91 Mr Metcalf was hopeful 'that the trial is largely concerned with expert evidence and legal argument, with the factual background being either agreed or put in by reference to statements or transcripts of evidence given to the Inquiry'.60 At a directions hearing on 24 May 1990, the Court ruled on the admissibility of LJ Taylor's Interim Report as evidence in the proceedings and the mechanism by which the parties should respond to the issues addressed by LJ Taylor: 'each party is to mark up copies of the interim and final Taylor reports by underlining those aspects of the report which they do not admit for the purposes of trial'.

¶2.7.92 After consulting with Counsel, Mr Metcalf observed that 'there is a good deal of the interim [report] with which we disagree'. Consequently, the action team was asked to consider specific issues and whether the investigation could be taken further:61

Whether we should accept the HSE estimate of about two thousand people entering the ground through Gate C at the second opening
Davies Arnold Cooper, SWFC solicitors, to Dr Popper, 19 September 1990, SWF000001430001, p155. 58. Memorandum from Chief Superintendent Wain to Chief Superintendent Mole, 1 June 1990, SYP000118480001, p47. 59. File note written by DCC Peter Hayes, 30 May 1990, SYP000098230001, pp1-4. 60. Letter from Peter Metcalf, Hammond Suddards to DCC Peter Hayes, 25 May 1990, SYP000098240001, pp2-4. 61. Letter from Peter Metcalf, Hammond Suddards to DCC Peter Hayes, 31 May 1990, SYP000098250001, pp2-4.

¶Extensive documentation relating to the investigations carried out by the South Yorkshire Police team for the hearings including witness statements, correspondence, memos and notes for Counsel is available on the Panel's website. See the South Yorkshire Police series entitled 'Contribution Hearings'.

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Whether we can get to the bottom of the evidence relating to the closing of the tunnel in 1988 ... 62
Whether there might be available copies of press cuttings and statements issued by Bert McGee on his retirement.
Whether it might be possible for you to prepare a comprehensive plan of the location of fatalities working from the individual plans produced at the Inquest hearings63
Whether anyone can remember what was the reason for the Police suggesting that there ought to be a second gate in at least one of the radial fences when alterations were being made to the ground in the summer of 1985.

¶2.7.93 Additional to the issues identified by Mr Metcalf and SYP Counsel Bill Woodward QC, a further review of the report by C/Supt Wain, Chief Superintendent Brian Mole and recently promoted Superintendent Norman Bettison highlighted a number of other statements that were 'not agreed'. These concerned sales of alcohol, access through the turnstiles, the role of stewards and the provision of pre-match entertainment.64

¶2.7.94 These issues underpinned the investigation conducted by the action team. SYP officers identified from their recollections as having made reference to the issues under investigation were re-interviewed by the team and invited to supplement their original statement with information now considered relevant in support of the South Yorkshire Police case.

¶2.7.95 However, progress reports on the actions taken and their outcome suggest that there was little new information to be found to challenge the conclusions of LJ Taylor's Interim Report. For example, regarding the 1988 closure of the tunnel, Detective Inspector John Cleverley reported:

¶Nothing has been found to alter the basic conclusions of [the] enquiry, namely that officers had acted on their own initiative to close off the tunnel at a critical time when the pens were becoming full …

¶We have interviewed again the officers who closed the gates. The instructions to do so came from police sources, not the club so far as they knew. No stewards were involved. The operation seems to have been simple and low key, with not much more than three officers involved, and not lasted longer than the full surge of incoming spectators before the start of the match …

¶No evidence has been found of club involvement.65 62. There was some suggestion from witness statements that Sheffield Wednesday's stewards may have been involved on previous occasions when the tunnel had been closed at FA Cup matches in order to avoid over-filling of pens 3 and

This was viewed as particularly significant because the Taylor Report had been critical of the police failure to pick up the blocking of the tunnel in the debriefings which followed those earlier matches. If stewards were involved or if instructions came from the Club's officials then 'the Club's responsibility is correspondingly increased'. 63. The preparation of a plan showing the position of fatalities was an essential part of the case that the collapse of the barrier in pen 3 was more significant than had been recognised and 'turned an already serious incident into a major disaster'. It was thought it would be much more difficult for opponents to attack a plan prepared directly from the inquest material than a case dependent principally on oral evidence. 64. Memorandum from C/Supt Wain to DCC Hayes, SYP000098290001, pp5-9. For example, in response to the statement 'PARA 55 – Evidence did not suggest a great amount of alcoholic drink was bought (at the off licences)' it was noted 'The enquiry team remember that evidence was available of at least one off-licence (believed to be

¶Gateway) selling out of alcoholic drink. No statement can be found to this effect. If this evidence is thought to be significant then it will be found – by speaking to Gateway staff if absolutely necessary'. 65. Report from DI Cleverley to C/Supt Wain, 3 July 1990, SYP000098390001, pp4-5.

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¶2.7.96 The line of enquiry concerning the statement made by Bert McGee, SWFC Chairman (reported by the Sheffield Star,¹⁶¹⁶ 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.Show full note March 1990) that hundreds of ticketless Liverpool fans had travelled to Hillsborough with the intention of creating mayhem yielded little: it 'appeared not to affect the question of liability'.66

¶2.7.97 Similarly, checks made by the team found 'nothing of value' relating to any police suggestion that there ought to be additional gates in the radial fences.67 Regarding HSE evidence it was reported that '[t]he figure cannot be challenged by better evidence.'68

¶2.7.98 A 'body plan' showing the location of fatalities and the seriously injured was produced from the 'individual body plans and Coroner's evidence' in accordance with Mr Metcalf's specification. It was not straightforward:

¶In discussion of the plan it was clear that the first impression did not immediately convey what Mr Metcalf was looking for ...

¶[Name redacted] decided to try another plan on a smaller scale ... the overall effect was much better than on the large plan, in that the dots became more prominent, and showed the crowding towards the front of the pen much better. The marker dots are now representing an area of .4 metre, roughly the breadth of a man's shoulders and there can be no suggestion of exaggeration on our part.69

¶2.7.99 Police officers' evidence regarding the closure of the tunnel and monitoring capacity in the pens was inconsistent and highlighted ambiguity in police custom and practice. Yet there was uncertainty about the potential of mounting a realistic challenge to the findings of the Taylor Inquiry.

¶2.7.100 However, on the understanding of provisional indications that expert evidence would demonstrate that the fatal consequences of opening the gates were the result of serious flaws in the design of the ground rather than police failures, Mr Metcalf decided that SYP would 'not now concede … that the failure to block the entrance to the tunnel on the opening of Gate C itself amounted to negligence'.70

¶Commissioned reports 2.7.101 As discussed in Chapter 6, David Phillips, Deputy Chief Constable of Devon and Cornwall, was instructed on behalf of SYP to provide expert evidence regarding the policing of the event and John Stalker, former Deputy Chief Constable of Greater Manchester Police, was instructed on behalf of SWFC. Eastwoods appear to have decided against obtaining or relying on expert evidence.71

Action taken by the South Yorkshire Police, 13 June 1990, SYP000110320001, p4. 67. Action taken by the South Yorkshire Police, 25 June 1990, SYP000110340001, p30. From the document: 'NATURE