Mr Andy Burnham is the Mayor of Greater Manchester and a former MP. He held office in the Gordon Brown Labour government as Secretary of State for Culture, Media and Sport from January 2008 to June 2009.
Mr Burnham's article:
On 30 May The Guardian published an article by Mr Burnham - The collapse of the last Hillsborough trial shows our legal system is broken . A sub-heading follows - "It's time to pass a law to make sure no bereaved family is ever again made to relive their trauma in court."
Ever since his appearance
at the Liverpool FC ground in April 2009 - (see the event on Youtube) - Mr Burnham has spent much of his time in politics trying to improve the situation for the families of the 96 victims of the Hillsborough stadium disaster and for families of any future disasters.The previous post on this blog looked at the ruling by Mr Justice William Davis which ended the trial of two former Police Officers and a former solicitor. This may well be the last trial to be held of anyone in connection with Hillsborough. The decision of the trial judge appears to be entirely supportable in law though it is perhaps a pity that the prosecution decided not to appeal. The judge's ruling is available HERE (27 pages pdf).
Here Mr Burnham has stepped into what a commentator on twitter referred to as a "bear-pit of lawyers." So, what are Mr Burnham's arguments?
The arguments:
1]. The legal system has "failed to provide any real accountability for 96 unlawful deaths and a cover up."
According to Burnham, the "cover-up" took the "form of a false, blame-shifting narrative briefed to newspapers days after the tragedy, was maintained by South Yorkshire police throughout the Taylor inquiry and the first inquest, and was repeated only last week to the BBC by a senior QC involved in the case." (The comments on radio of Mr Goldberg QC are considered in my previous post and his further statement of 28 May is available on his website. The outcome of a Bar Standards Board hearing were reported by The Guardian on 26 April 2022).
Discussion -
After the Taylor report, the Director of Public Prosecutions decided that there was insufficient evidence to bring prosecutions. The original inquests - (conducted by Dr Stefan Popper) - were held at Sheffield and ended in 1991 with verdicts of accidental death. The findings of the Popper inquests were quashed by the High Court in 2012 (previous post) and new inquests ordered. A private prosecution in 2000 of David Duckenfield and Bernard Murray ended with the acquittal of Mr Murray. In Duckenfield's case the jury was unable to reach a verdict.
The Hillsborough Independent Panel Report was published in 2012. This was not a legal proceeding but it was a thorough examination of the disaster and its aftermath.
The second Hillsborough Inquests were held at Warrington in 2016 with former Lord Justice of Appeal Sir John Goldring as acting Coroner. This culminated with a conclusion by the jury of unlawful killing. After sitting for 279 days, there was a 26 day summing up before the jury answered questions set by Sir John. This was, by any standards, a detailed and meticulous examination of the situation. The jury's specific findings of fact addressed a number of "myths" and misinformation.
A prosecution of former Chief Superintendent David Duckenfield - (S. Yorkshire Police "Match Commander" on the day) - was brought in 2019 but ended with his acquittal - previous post 29 November 2019.
Despite the second inquest concluding that the deaths were unlawful killing, only one individual has actually been convicted of any offence and that was an offence under Health and Safety law.
2]. "Hillsborough is not an isolated case. Rather, it is the highest-profile example of what is still, sadly, a common experience for families at inquests and the criminal trials that follow."
Discussion -
Legal representation for families at inquests is the exception rather than the rule and the Justice Committee has recently called for this situation to be put right. See Justice Committee report of 27 May 2021 - The Coroner Service -at para 103.
3]. Public servants "can’t be held legally to account for evidence provided to them – risks giving a dangerous green light to those who wish to withhold or amend evidence. Further, by clarifying that there is no “duty of candour” on public servants at inquests, the scales of justice have been tipped even further in favour of the authorities."
In 2017, Mr Burnham presented the Public Authority (Accountability) bill to parliament but it fell by the wayside due to the 2017 election and neither it nor a similar bill has returned to Parliament. As Burnham states, "the bill had two core proposals: parity of legal funding for bereaved families, and a duty of candour on public officials."
The Justice Committee has recommended - The Coroner Service - that the Ministry of Justice amend the Coroners' rules to make it clear that the duty of candour extends to the Coroner Service. The government should also consider whether a similar duty to be candid at inquests should be extended to all public bodies.
Mr Burnham's further arguments:
Burnham then went on to suggest some further measures.
A requirement that criminal trials that follow inquests must be based on the findings of those inquests.
It is not the usual way for an inquest to conclude and then be followed by criminal prosecutions. The Coroners and Justice Act 2009 provides that an inquest be suspended if criminal proceedings are brought. When the trial concludes the Coroner has to decide whether to resume the inquest. This webpage from City of Manchester is a straightforward explanation of the usual process.
In the case of Hillsborough the second inquest concluded in 2016. The prosecution of David Duckenfield commenced in 2018 following an application decided by Mr Justice Openshaw. This was therefore the reverse of the more usual process.
The key problem with Mr Burnham's suggestion is that an inquest does not (and may not) determine either criminal of a named person or civil liability - Coroners and Justice Act 2009 section 10(2) . . The purpose of an inquest is limited to four questions -
- Who the deceased was
- When and where they died
- The medical cause of their death
- How they came by their death
However, having answered the 4 questions, the inquest will then go on to draw its conclusions. The Chief Coroner has issued guidance on the process and one of the possible conclusions is unlawful killing - see Chief Coroner's Law Sheet 1
Conclusions can be expressed in "short form" or "narrative" or a mixture of the two.
It is the move from answering the 4 questions to a conclusion where a dissonance can arise if there is a conclusion of unlawful killing but a subsequent criminal trial ends with the acquittal of an individual. How this will be addressed, if at all, is unclear.
The dock at a criminal trial -
Mr Burnham also noted that at the recent trial held at the Lowry Centre (Salford), the defendants were not in the dock. He wrote - "You have to ask: would the same treatment be offered to young people on trial from the tougher parts of Liverpool or Manchester? I doubt it. In court there should be one rule for everyone irrespective of status, and that is why use of the dock should be clarified in law."
It appears that the court at Lowry Centre did not have a secure dock. It is a "Nightingale court" set up to assist with the backlog of trials - Judiciary 30 October 2020 and The Guardian 23 September 2020.
There is of course a contrary view that the dock is an antiquated part of criminal courtrooms and ought to be abolished - see, for example, here.
Victims' families:
The Justice Committee report - The Coroner Service - has considered rights for bereaved people (page 20), disclosure of evidence to bereaved people (page 21) and steps to assist bereaved people other than legal representation (page 25).
Final:
The government should accept and implement the recommendations of the Justice Committee report. In particular:
A duty of candour ought to be brought into law and must cover all evidence put forward by public bodies or officials in connection with both any form of inquiry and any form of legal process.
Legal representation ought definitely to be introduced for families of victims where public bodies are represented by lawyers.
The problem of an inquest conclusion of unlawful killing followed by a criminal trial perhaps merits further consideration - perhaps by the Justice Committee which has already done excellent work on the Coroners Service.
Mr Burnham deserves credit for entering the bear-pit of lawyers and for raising these serious questions.
2 June 2021.
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