Hillsborough Stadium Disaster - 4
Litigation ~ and a turn in a long and winding road
Continued from Part 3.
The Hillsborough disaster resulted in litigation resulting in important judgments in the House of Lords which was, until 2009, the ultimate court of law in the UK.1
Litigation
A] The actions for “nervous shock” (psychiatric illness)
English law has a branch known as TORT which provides civil actions for various “wrongs” such as trespass (to persons, land or goods); defamation (slander and libel), breach of statutory duty, negligence, and various other torts.
Negligence, as a tort, covers many situations but liability only arises if a duty of care is owed by a defendant to the claimant. A branch of negligence deals with claims arising when some event is said to have caused an individual to suffer a recognised psychiatric illness. These used to be referred to as “nervous shock” cases.
This is a difficult and unsatisfactory area of the law.2 Potentially, large-scale tragic events (such as Hillsborough) are capable of causing suffering to many people in addition to personal injury or death caused to individuals present at the event.
Relatives of those injured or killed my have also been at the scene or may have witnessed the event on television. Rescuers may also be affected by what they have had to cope with. In cases brought after Hillsborough, the House of Lords sought to limit the scope of liability.
One such case was Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 where the claimants had witnessed Hillsborough and suffered extreme distress as a result. They were mostly relatives of people who died at the stadium. Some saw the events unfold at the ground, others saw bodies of their loved one(s) in the temporary mortuary, some saw the disaster unfolding on television. They claimed against South Yorkshire Police.
The legal question in the case was whether, in all the circumstances, the Police owed a “duty of care” to those claiming. The claims failed in the House of Lords. The House ruled that claims from “secondary” victims could not succeed.
A later case was White and Others v. Chief Constable of South Yorkshire and Others [1998] UKHL 45. Here, the claims were made by police officers who had been on duty inside Hillsborough Stadium. Their claims failed in the House of Lords. Again, they were viewed as secondary victims because they were not in physical danger at the time.
The law, established by those Hillsborough cases, continues to apply as shown by a Supreme Court decision in early 2024 - Paul and another (Appellants) v Royal Wolverhampton NHS Trust [2024] UKSC 1. By a majority of six to one, the court decided that, while doctors owe a duty of care to protect the health of their patients, they do not owe a duty of care to members of the patient’s close family to protect them against the risk of illness arising from the experience of witnessing the death or medical crisis of their relative from a condition which the doctor has negligently failed to diagnose or treat.
B] Mrs Anne Williams - efforts to get a fresh inquest
Further litigation was taken by Mrs Anne Williams (1953 - 2013), the mother of Kevin Williams who died, aged 15, at Hillsborough. Mrs Williams complained, under Article 2 (Right to Life) of the European Convention on Human Rights, that the UK had failed to investigate properly the circumstances of her son’s death. She alleged that there was no effective investigation, in particular:
(i) that there was no independent public investigation into the emergency response and planning;
(ii) that there was no independent public investigation into whether any failings by state agents had an impact on the death of her son; and
(iii) that no criminal or disciplinary charges were pursued by the authorities against police officers involved.
The European Court ruled that Mrs Williams’ application was inadmissible due to lapse of time - Anne Williams v United Kingdom [2009] ECHR 478 (17th February 2009) - European Court of Human Rights.
The European court’s judgment contains information about the various legal steps taken within the UK.
On 6 April 1993, relatives of six of the deceased, including Mrs Williams, were granted permission to judicially review the inquest verdict of accidental death. On 5 November 1994, the High Court refused to quash the verdict.
In 1990, The Director of Public Prosecutions (DPP) decided not to bring criminal proceedings.
In June 1990, Mrs Williams lost a civil claim concerning Kevin’s pre-death suffering because the pathological evidence given at the inquest was that none of the deceased would have felt any pain.
The Police Complaints Authority (“PCA”) appointed the West Midlands Police to supervise a disciplinary investigation into the conduct of South Yorkshire Police officers. In July 1991, the PCA directed the South Yorkshire Police to prefer disciplinary charges against Superintendent Murray, for one charge of neglect of duty, and Chief Superintendent Duckenfield, for four charges of neglect of duty and one of discreditable conduct. However, in November 1991, Chief Superintendent Duckenfield was allowed to retire on health grounds. The disciplinary charges against him were accordingly discontinued as under police regulations, a disciplinary hearing could not proceed when a police officer retired. The PCA decided on 13 January 1992 to withdraw the charge against Superintendent Murray because it considered that it would have been unfair to pursue what was, in effect, a joint charge in the absence of the more senior officer.
In 1992, the Attorney General was asked to apply to the High Court for a new inquest on the basis of new evidence. This request was rejected in August 1992.
The Lord Justice Stuart-Smith Scrutiny - The outcome was unfavourable to the families.
In June 1998, the Hillsborough Family Support Group commenced private prosecutions against former Chief Superintendent Duckenfield and Superintendent Murray, alleging two specimen charges of unlawful killing and wilful misfeasance in public office. They were committed to stand trial at Leeds Crown Court on 6 June 2000. The trial took place between 6 June and 24 July 2000. Superintendent Murray was acquitted on 20 July 2000. On 24 July 2000, the jury announced that they could not reach a verdict on Chief Superintendent Duckenfield and were discharged. On 26 July 2000, the Hillsborough Family Support Group made an application for re-trial of Chief Superintendent Duckenfield. The application was refused on the grounds that he would not get a fair trial.
Following the entry into force of the Human Rights Act 1998, Mrs Williams made a second request to the Attorney General in 2006 to have her case referred to the High Court. The application was made on the basis of the alleged insufficiency of the inquiry into Kevin Williams’ death on the ground that there had been no Article 2-compliant investigation; and on the basis of new evidence. Her request was refused on 12 February 2006.
C] Anthony Bland
Tony Bland was age 17 at the time of Hillsborough. He suffered a severe crushed chest injury which gave rise to brain damage. His condition rapidly deteriorated and despite the intensive and heroic efforts of the doctors and nurses he remained in a state of complete unawareness. This was known to the medical profession as a “persistent vegetative state” (“P.V.S.”). Although his brain stem was intact he had suffered irreparable damage to the cortex. All the higher functions of his brain were destroyed and, according to unanimous medical opinion, there was no hope whatsoever of recovery or improvement of any kind. The House of Lords decided that the permission of the court was required for doctors to remove life-support from patients. The heart-rending case is -
Airedale NHS Trust v Bland [1993] UKHL 17 (04 February 1993) (bailii.org).
Life-support was eventually withdrawn and Tony died on 3 March 1993. He was the 96th person to die as a result of Hillsborough.3
In 2021, Andrew Devine became the 97th to die - see Hillsborough's 97th victim was unlawfully killed, coroner concludes - BBC News. Andrew had suffered life-changing injuries at Hillsborough.
Links:
Liability for Psychiatric Illness - Law Commission
Law and Lawyers: UKSC - Paul and others v Royal Wolverhampton NHS Trust - Tort - Negligence (obiterj.blogspot.com)
Mr Andy Burnham (b. 1970) was Secretary of State for Culture, Media and Sport in the Labour government (2007 - 10) of Gordon Brown.
In April 2009, after being heckled at Anfield during the 20th anniversary commemoration of the Hillsborough disaster, Burnham attended a Cabinet meeting held at 10 Downing Street and asked if he could raise the issue of Hillsborough in Parliament. Gordon Brown agreed.
The eventual result was the second Coroner’s inquest.
In 2014, when Burnham spoke at the 25th anniversary of the Hillsborough disaster, he was applauded by the crowd.
Videos of those occasions are available -
In July 2009 the Home Secretary (then Alan Johnson MP) met with representatives of the Hillsborough Family Support Group and in January 2010 the Hillsborough Independent Panel, chaired by the Right Reverend James Jones (Bishop of Liverpool), was appointed.
Following an online petition. there was a debate in the House of Commons on 17 October 2011 at which MPs called for the full disclosure of all Government-related documents, including Cabinet minutes, relating to the disaster. The House also called for the families and the Hillsborough Independent Panel to have unrestricted access to that information.- E-petition debate on disclosure of Hillsborough documents - Committees - UK Parliament.
The Panel reported in September 2012 - The report of the Hillsborough Independent Panel HC 581 (publishing.service.gov.uk). Finally, the truth had emerged and was documented in detail.
In December 2012, the High Court quashed all the original inquest verdicts and ordered a fresh inquest.
Attorney General v Coroner of South Yorkshire (West) & Anor [2012] EWHC 3783 (Admin) (19 December 2012) (bailii.org).
Part 5 looks at the Inquest and what has happened since …..
Historically, the House of Lords was the highest law court in the United Kingdom. It had its own judiciary known as Lords of Appeal in Ordinary and, as a court, it sat as the Appellate Committee of the House of Lords. Under the Constitutional Reform Act 2005, the House of Lords was replaced by the Supreme Court of the UK. The House of Lords remains as a legislative Chamber in Parliament.
For those wishing to delve into the detail see Liability for Psychiatric Illness - Law Commission (1999) Law Com 249