Saturday, 27 April 2013

Hillsborough ~ new inquests and new problems

In December 2012, the original inquest verdicts into the deaths at Hillsborough in April 1989 were quashed by the High Court and fresh inquests were ordered - Law and Lawyers 20th December 2012. and see - Her Majesty' 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 QC (Chief Coroner).

In addition to fresh inquests, a new Police investigation was ordered under Durham Chief Constable Jon Stoddart.  This investigation is to work closely with the Independent Police Complaints Commission (IPCC).

Following on from the quashing of the original verdicts, Lord Justice Goldring was appointed as Assistant Deputy Coroner to conduct the new inquests - Judiciary 13th February 2013.

A preliminary hearing
was held in London on Thursday 25th April.  It is reported that some Police Officers may refuse to answer questions at the inquests and have cited the privilege against self-incrimination - The Guardian 26th April.

At the preliminary hearing, it was argued for the Police that the inquests should be delayed until after the conclusion of the investigation and any ensuing criminal proceedings (including any appeals).  Clearly, that could take several years.  Goldring LJ - obviously mindful of the 24 years which have already elapsed - ruled against this and the new inquests will commence in 2014.

The venue for the new inquests is to be announced in the near future.  It was strongly argued for the families that a venue in the North West should be chosen.

The IPCC is publishing some material relating to the investigation.


An inquest is a fact-finding inquiry into a violent or unnatural death, a sudden death of unknown cause, or a death which has occurred in prison to establish who has died, and how, when and where the death occurred.  For further see Law and Lawyers 10th January 2013 - Hillsborough - Fresh Inquests - the question of Article 2 compliance


The handling of the crowds at Hillsborough; the Police and Ambulance Service response to the tragedy and allegations of 'cover up' lie at the heart of establishing the facts - see the blogpost of 12th September 2012 on the Hillsborough Independent Panel Report.  It may seem strange that a witness is able to refuse to answer questions aimed at establishing the facts but this takes us into territory occupied by a privilege which is deep-rooted in English law: the privilege against self-incrimination.  It is based on traditional reluctance to compel anyone, on pain of punishment, to give incriminating evidence against himself.  The treatment of John Lilburne is an historical example of a man pleading that he should not be required to incriminate himself.  Wikipedia tells us the story:

Lilburne was arrested upon information by an informer acting for The Stationers' Company and brought before the Court of Star Chamber. Instead of being charged with an offence he was asked how he pleaded. In his examinations he refused to take the oath known as the 'ex-officio' oath (on the ground that he was not bound to incriminate himself), and thus called in question the court's usual procedure. As he persisted in his contumacy, he was sentenced (13 February 1638) to be fined £500, whipped, pilloried, and imprisoned till he obeyed.  It is this trial that has been cited by constitutional jurists and scholars in the United States of America as being one of the historical foundations of the Fifth Amendment to the United States Constitution. It is also cited within the 1966 majority opinion of Miranda v. Arizona by the U.S. Supreme Court.

However, as Adrian Keane (The Modern Law of Evidence) points out, the privilege is at a crossroads with both Parliament and the courts recognising the unsatisfactory results which can arise.

The classical description of the privilege is that by Goddard LJ in Blunt v Park Lane Hotel [1942]  2 KB 253:

' ... no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose [him] to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for.'

Lord Templeman in AT and T Istel v Tully [1992] 3 All EWR 523, viewed the privilege in civil proceedings as 'an archaic and unjustifiable survival from the past' but the fact remains that it is part of the law and has produced a mountain of case law.  Importantly, various Acts of Parliament have disapplied the privilege in some circumstances - e.g. the Theft Act 1968 section 31 or the Senior Courts Act 1981 section 72 - the subject of a Supreme Court decision in Phillips v Mulcaire 2012 - (see UK Supreme Court blog). 

Further discussion of the privilege see In House Lawyer 15th May 2012.

At an inquest, rule 22 of the Coroners Rules 1984 expressly permits refusal to answer questions on this basis.

(1) No witness at an inquest shall be obliged to answer any question tending to incriminate himself.
(2) Where it appears to the coroner that a witness has been asked such a question, the coroner shall inform the witness that he may refuse to answer.

----- OOOOO -----

Inferences from silence: a footnote .....

A matter closely related to self-incrimination is the right to silence in criminal proceedings.  Technically, the right to silence comprised two elements: freedom of an accused person not to have to incriminate himself and the right not to have inferences drawn from his silence.  The right not to have inferences drawn from silence suffered a hammer blow with the Criminal Justice and Public Order Act 1994 sections 34 to 38.  'Proper' inferences may be drawn from the refusal of a defendant to answer questions.  The law in this area is complicated.  The 1994 Act applies only to criminal proceedings.

It should also be noted that, in appropriate circumstances, an adverse inference may be drawn from a suspect's refusal, without good cause, to consent to the taking of 'intimate samples' from his body - Police and Criminal Evidence Act 1984 s.62.


  1. Archaic it may be, that being just another word for "well-established" but unjustifiable it is not. Whenever Parliament has forced people to testify on oath against themselves it has made the product inadmissible against them; there was one exception which in 1996 led the ECtHR to rule in favour of the Guinness Four and the law was corrected in 1999.

    And if that means that there can be no criminal prosecutions that is just too bad.