Thursday 10 January 2013

Hillsborough - Fresh Inquests - the question of Article 2 compliance

On 19th December 2012, the Administrative Court granted a 'fresh inquest' application made by the Attorney-General under the Coroners Act 1988 section 13 - see HM Attorney General v HM Coroner for South Yorkshire (West) and HM Coroner for West Yorkshire (West)  [2012] EWHC 3783 Admin - Lord Judge LCJ; Burnett LJ and HHJ Peter Thornton (Chief Coroner).  Lord Judge said (para 30):

'All the inquisitions will be quashed. There will be new inquests in each and every case. The legislation relating to venue is, as we have said in argument, problematic. The inquests will be remitted to another coroner for the same administrative area as the original inquests: in relation to the 95 victims the South Yorkshire (East) area at Doncaster; and in relation to the inquest into Anthony Bland, to the West Yorkshire (West) Coroner at Bradford.'

Merely as a passing observation, it is a pity that, somehow, the inquests could not be held in a location perhaps more convenient to the families.  A venue such as Manchester's relatively new Civil Justice Centre would seem more suited.

At para 31, Lord Judge said - 'An assistant deputy coroner will be appointed in accordance with the appropriate processes, and pre-inquest hearings will then be organised.'

The judgment is short and should be read in full.   In the following, paragraph numbers are in [ ].

Lord Judge emphasised the finding of Lord Justice Taylor's inquiry that the 'main reason for the disaster was the failure of police control' [3].   Lord Judge went on [4] - 'That should have been that. Unfortunately the culpability of the police was not acknowledged, and indeed a campaign was mounted to undermine confidence in Taylor LJ's conclusions. These were developed at the inquest which took place in the winter of 1990/1991 and continued thereafter. Notwithstanding its falsity the tendency to blame the fans was disappointingly tenacious and it lingered on for many years.' 

As regards alcohol, Lord Judge noted another finding of Lord Justice Taylor [5] - ' ... the great majority of the fans were not drunk or even the worse for drink .... '

In [6] Lord Judge described the so-called 'mini-inquests' and refers to the crucial decision of the Coroner to impose a "cut off" period so that the inquiry into events on that afternoon never extended beyond 3.15pm.  On 28th March 1991, the jury returned verdicts of accidental death although the possibilities of unlawful killing or open verdicts had been left for them to consider. A later inquest into the death of Tony Bland returned the same verdict.  The process resulting in the accidental death verdict was not regarded as satisfactory by the families of the victims and, at the inquests, representations were made to the Coroner about the 3.15 cut off.  Since the inquests, there has been 'a profound, almost palpable, belief that justice has not been done and that it cannot be done without and until the full truth is revealed' [7].

In [10] Lord Judge stated that the single question was whether the interests of justice make a further inquest either necessary or desirable. In [11] the Hillsborough Independent Panel report is referred to and Lord Judge said that the members of the court had studied it in full.  It was clear [12] that there were features of the evidence casting new light on the circumstances in which the deceased came to meet their deaths.

The court considered these features.  The flawed 3.15 pm cut off was, in  itself, sufficient ground to order fresh inquests [13-21].  Further features were the prominence given to alcohol [21], alterations or amendments of statements [24-26] of which the jury was unaware and. at [27] safety of the stadium.

The alterations of statements extended beyond S. Yorkshire Police to the S. Yorkshire Ambulance Service and the S. Yorkshire Fire Service.  116 out of 164 Police statements were amended though, sometimes, in minor ways - e.g. to remove expletives.  Solicitors were involved in the amendment of statements.  In [25] examples are given of statements being altered with a view to concealing evidence.  It will be open to a new inquest to reflect whether the efforts made to conceal evidence relating to neglect and breach of duty may have a bearing on the cause of death [26].  A statement is, of course, intended to be a record of matters such as what the maker of the statement did and observed at the time.  As such, original statements ought to be allowed to stand.  Original statements referring to lack of leadership and supervision might well be relevant if, for example, it can be shown that this led to failure to take timely action which might have saved lives.  How the new inquest handles this area will be of particular interest.

It will be for the coroner conducting the new inquest to decide what evidence bears on the questions which the inquest is required to answer [28]. The inquest will take place in public, but it will not be a public inquiry. It will be a coronial process. The inquest will be conducted in accordance with those processes and with the objectives of the inquest in mind. The coroner will have to decide the format of the inquest and whether Article 2 of the European Convention on Human Rights is engaged in this inquest, and, if so, the form that it should take to address these issues. (See R (Middleton) v HM Coroner for Somerset [2004] 1 AC 182). Finally, Lord Judge said - "like the Independent Panel, we should deprecate this new inquest degenerating into the kind of adversarial battle which, looking back on it, scarred the original inquest." [My emphasis].

This last observation is very important since an inquest is supposed to be an inquisitorial procedure and not adversarial.  (This point is relied upon by government in relation to the general absence of legal aid for the family of a deceased person though, exceptionally, legal aid can be available).

Article 2 Compliant Inquests:

Thus, the Administrative Court seems to be in no doubt that the fresh Hillsborough inquests could be Article 2 compliant - it being left to the Coroner to decide whether they actually will be.

Hillsborough occurred on 15th April 1989.  Although the European Convention has bound the United Kingdom in international law since 3rd September 1953, it was not until 1st October 2000 that the Human Rights Act 1998 (HRA) came into legal force.  The HRA is vital in requiring courts in the UK to apply convention rights - essentially 'bringing rights home.'  An undoubted object of the HRA was to reduce recourse to the European Court of Human Rights (E Ct HR).

The E Ct HR regards the Convention as a 'living instrument.'  This approach is necessary if the Convention is to remain relevant to prevailing circumstances though, in some - mainly political - quarters, the living instrument approach is now being questioned.  Article 2 (Right to Life) is an example of where the E Ct HR has extended the application of a Convention right. In McCann v United Kingdom (1995) 21 EHRR 97 it was held that article 2 by implication gave rise not merely to a substantive obligation on the state not to kill people but, where there was an issue as to whether the state had broken this obligation, a procedural obligation on the state to carry out an effective official investigation into the circumstances of the deaths ("the procedural obligation").  There has been much discussion as to whether the existence of the procedural obligation depended on the State being in breach (or possible breach) of the substantive obligation.  I return to this point below.

In R (Middleton) v HM Coroner for Somerset [2004] 1 AC 182, the House of Lords held that, in order to be compliant with Article 2, the Coroners Act 1988 s11 had to be interpreted so that 'how' the deceased came by death meant not only 'by what means' but also 'in what circumstances.'

In a number of cases, the House of Lords held that no claim lay in respect of an alleged breach of the Convention if the facts giving rise to the alleged breach predated the entry into force of the HRA.  The issue then arose of whether the procedural obligation to investigate a death applied after the HRA had come into force in relation to a death that had occurred before the Act came into force. In In re McKerr [2004] UKHL 12; [2004] 1 WLR 807 the House of Lords held that it did not.   McKerr was applied by the House of Lords in R (Hurst) v London Northern District Coroner [2007] UKHL 13; [2007] 2 AC 189 and Jordan v Lord Chancellor [2007] UKHL 14; [2007] 2 AC 226.

This approach changed with the Supreme Court decision in McCaughey [2011] UKSC 20. In McCaughey, a case from Northern Ireland, the appellants contended that the basis of the decision of the House of Lords in McKerr was destroyed by the decision of the E Ct HR in Šilih v. Slovenia (Application no. 71463/01) 2009 and that if an inquest is held into a death that predated October 2000 (the coming into force of the HRA) there is an obligation under the HRA to ensure that it complies with the requirements of article 2.  By a 6 to 1 majority judgment, the Supreme Court accepted this argument and held that a pre HRA event might have to be subject to an Article 2 (Middleton) investigation.

In McCaughey, it was also clearly pointed out that the Strasbourg case law was now such that the procedural obligation was not dependent on the State being in breach (or possible breach) of the substantive Art 2 obligation.  The procedural obligation is 'free standing' and not parasitic on the existence of a breach of Art 2 (or possible breach).

McCaughey - being a decision of the UK Supreme Court - is therefore of the highest authority that the fresh  Hillsborough inquests could be Art 2 (Middleton) inquests.  Given the involvement the Police on that tragic day as well as South Yorkshire's Ambulance and Fire Services, it seems very likely that the new inquests will be held in an Art 2 (Middleton) compliant way though this is, of course, a decision for the Coroner conducting the inquests.

The E Ct HR's decision in Šilih v. Slovenia has been severely criticised, not least by the UK Supreme Court where it was described in Lord Rodger's dissenting judgment as 'poorly reasoned and unstable' and Lord Hope said - 'Only the most starry-eyed admirer of the Strasbourg court could describe the guidance that the Grand Chamber offered in para 163 of its judgment in Šilih as clear.'  The criticism stems from the way in which the E Ct HR sought to apply some 'controls' over investigations into historic events.  This is discussed by Lord Phillips at para. 44 of McCaughey.  Nevertheless, the Supreme Court adopted the judgment essentially on the basis of the 'mirror principle' - i.e. that application of the HRA should mirror that of the Convention.  The object of the Act was to bring human rights home and this could only be achieved if claimants are able to bring in this jurisdiction claims that they would otherwise be permitted to bring before the Strasbourg Court.

It remains to be seen whether the E Ct HR Grand Chamber will reconsider aspects of  Šilih v. Slovenia in the Katyn Massacre case of Janowiec v Russia which is to be heard on 13th February 2013.  The Chamber judgment in Janowiec has not yet been considered by the UK Supreme Court but in Chong Nyoh Keyu and others v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Defence (4th September 2011) the High Court considered it briefly but noted that, in any event, it was bound by the Supreme Court's decision in McCaughey.

Additional Note 22nd October 2013 - The Grand Chamber judgment in the Katyn Massacre case - Janowiec and others v Russia.

Will a new inquest have a jury?

Under the Coroners Act 1988 s8(3)(d) - 'public safety' - a jury would seem to be required.  The Coroners and Justice Act 2009 s.7 amends (and limits) the requirements for juries but this is not yet in force.  An interesting question will be whether the new Act applies should it be implemented before the time at which a fresh inquest is opened. 

Other materials:

UK Supreme Court Blog 30th June 2010 - Aidan O'Neill QC - Some reflections on Art 2 and the procedural obligation to investigate deaths

UK Human Rights blog 13th June 2011 - Matthew Hill -  Does 'bringing rights home' mean bringing problems home too?

UK Human Rights blog 8th January 2013 - Adam Wagner - Religion, Inquiries, Judicial Review - note the podcast and other material concerned with holding the State to account.  Excellent (and free) material here for anyone seriously concerned with human rights in the UK

The [Justice] Gap - Mark George QC - Hillsborough: the end of the beginning for campaign for justice for the 96

Lawobserver - April 2009 - The Hillsborough disaster and its legal legacy

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