Hillsborough ~ Trial judge decides no case to answer at trial of two former Police Officers and a former Solicitor

Addendum - 4 June 2021 - The Guardian 'Judicial' Hillsborough inquiry questionnaires cast doubt on trial ruling

In the Crown Court sitting at a "Nightingale Court" at the Lowry Centre, Salford, Mr Justice William Davis decided a point of law which ended the trial of three men charged with perverting the course of justice in connection with Lord Justice Taylor's inquiry relating to the 15 April 1989 Hillsborough disaster. where 96 people lost their lives. 

The families of Hillsborough victims have condemned the decision as "ludicrous" - The Guardian 26 May.

In another article, The Guardian 26 May 2021 commented that - "

"Two ex-South Yorkshire police officers,

Ch Supt Donald Denton and DCI Alan Foster, and the force’s then solicitor Peter Metcalf had been charged with perverting the course of public justice, for their roles in amending 68 police officers’ statements after the Hillsborough disaster.

The trial judge, Mr Justice William Davis, ruled that the offence could not have been committed, because the amendments were to prepare police statements for the public inquiry, chaired by Lord Justice Taylor. That was a non-statutory inquiry, which Davis described to the jury as “an administrative exercise”, not a “course of public justice”.

So even if the amendments meant the South Yorkshire police withheld important evidence from the Taylor inquiry, that could not constitute perverting the course of justice."

The offence:

A general common law offence of perverting the course of justice was held to exist in R v Grimes [1968] 3 All ER 179 and this was confirmed by the Court of Appeal (Criminal Division) in Panayiotou [1973] 1 WLR 1032. The precise boundaries of the offence have been uncertain and charges in this area of the criminal law are often brought as attempting to pervert the course of justice or, if there are 2 or more individuals involved, as conspiracy to pervert the course of justice. See also R v Cotter [2002] EWCA Crim 1033 - where at para 30 the court stated - "for the purposes of the offence, “the course of public justice” includes the process of criminal investigation."

The offence was discussed by the Law Commission in a working paper published in 1975 - Offences relating to the administration of justice - and also in a further paper published in 1979 - Law Com No 96.  The 1979 paper gives examples of conduct which may amount to perverting the course of justice - see Part III para 2 - e.g. fabricating evidence with intent to influence the outcome of judicial proceedings, whether civil or criminal.  A further example is giving a false statement to the Police in relation to a criminal offence resulting in the arrest of another. Nothing in the Law Commission's paper suggests that the offence goes beyond matters in connection with judicial proceedings or criminal investigation.

The Taylor Inquiry:

Lord Justice Taylor (as he then was) was appointed by Home Secretary Douglas Hurd to inquire into the events at Sheffield Wednesday on 15 April 1989 and to make recommendations about the needs of crowd control and safety at sports events. Evidence to the inquiry was NOT taken on oath because, as Lord Taylor stated in his interim report (para 13) - "Witnesses were not sworn. Since this is a departmental inquiry, there was no power to administer the oath but there was no instance of any witness giving evidence which I considered might have been different had he or she been sworn."

Lord Taylor was therefore of the opinion that he was not engaged in judicial proceedings even though his conduct of the inquiry at Sheffield Town Hall had much of the formal appearance of a court as can be seen in this photograph taken when the hearings opened. (Lord Taylor can be seen in the large chair. His assessors are on either side).

Had the government wished to do so it could have taken steps to set up an inquiry under the Tribunals of Inquiry (Evidence) Act 1921 (now repealed and replaced by the Inquiries Act 2005). This never happened. 

According to an article in The Guardian 4 June 2021 - 'Judicial' Hillsborough inquiry questionnaires cast doubt on trial ruling
 - after the disaster, witnesses were sent questionnaires with the heading "Lord Justice Taylor's Judicial Inquiry into the Hillsborough Football Disaster."

CPS Guidance:

The CPS guidance on Public Justice Offences notes that the offence of Perverting the Course of Justice is committed when an accused:

  • does an act or series of acts;
  • which has or have a tendency to pervert; and
  • which is or are intended to pervert;
  • the course of public justice.

The offence is contrary to common law and triable only on indictment. It carries a maximum penalty of life imprisonment and/or a fine. The course of justice must be in existence at the time of the act(s). The course of justice starts when:

  • an event has occurred, from which it can reasonably be expected that an investigation will follow;
  • investigations which could/might bring proceedings have actually started; or 
  • proceedings have started or are about to start.

The CPS guidance continues - "

Perverting the course of justice covers a wide range of conduct. A charge of perverting the course of justice should, however be reserved for serious cases of interference with the administration of justice."

Questions:

A statement by the CPS issued after the case ended commented - "That a publicly funded authority can lawfully withhold information from a public inquiry charged with finding out why 96 people died at a football match, in order to ensure that it never happened again - or that a solicitor can advise such a withholding, without sanction of any sort, may be a matter which should be subject to scrutiny."

The Judiciary has published the judge's  Ruling on submissions of no case to answer

 It appears that the prosecution do not intend to appeal the ruling.

Media:

The Guardian 28 May - Covid bereaved join call for 'Hillsborough law' to force duty of candour