COVID-19: Distinguishing crime
The Attorney General must now decide in an independent capacity whether there are sufficiently justifiable grounds for holding fresh inquests in to the untimely deaths of the Hillsborough victims. Even though David Cameron gave a clear indication in his speech to the Commons yesterday that he thought there should be new inquests, the Attorney’s decision is not automatic.
If he says yes –which it seems fairly certain he will – the High Court will then separately decide whether to quash the original verdicts and hold fresh inquests. The court will look very carefully at whether there is a real risk that justice was not done at the controversial first inquests held by Dr Stefan Popper.
One of the key questions that the High Court will at look under section 13(1)(b) of the Coroners Act 1988 is the sufficiency of his original inquiry. It is well publicised that Dr Popper “stopped the clock” at 3.15 p.m. on 15 April 1989 and concluded that no action could be taken to save any of the victims after this point in time.
New analysis of the post mortem results of the victims carried out by the Hillsborough Independent Panel shows that 41 of the victims could have had reversible asphyxia beyond 3.15 p.m. Finding out what happened after 3.15 p.m. will now be vital in establishing how and possibly even when these victims died (two of the key questions coroners must examine at every inquest). The High Court will also look very closely at whether new evidence of failures by the emergency services could undermine the verdicts of accidental death recorded by the coroner. This new evidence, coupled with the fact that there has been no inquiry into events after 3.15 p.m. means it is very likely that the High Court will use its powers under section 13(2)(a) – (c) to quash the original verdicts and order new inquests.
What will happen at the new inquests? The new coroner appointed to inquire into the deaths will look at who died, and how, where and when it happened. The coroner will have to make other preliminary decisions, such as whether to sit with a jury, and who should be allowed interested party status. Victims' families will of course be key participants. However, those facing potential criticism, including current and past members of South Yorkshire Police, South Yorkshire Ambulance Service, Sheffield City Council and Sheffield Wednesday Football Club will also want to be present.
The critical question is what verdict the coroner (and possibly his or her jury) will deliver? All options are open, ranging from accidental death (the original verdicts) to unlawful killing on the basis of gross negligence manslaughter. The coroner may also opt for a narrative verdict. This would allow the coroner to go further and explain the circumstances of the deaths of the Hillsborough victims in detail. It may also allow the coroner to touch on the blaming of fans by police to the extent that it is relevant to understanding the evidence and circumstances of the deaths, but it will not allow the coroner to consider or make findings about allegations that witness statements were altered. Importantly, the narrative verdict will allow the coroner to say who if anyone bears responsibility for the deaths and to look at any failing made by the authorities or others to see what lessons can be learnt.
It is difficult to predict when any new inquests may take place. If the Director of Public Prosecutions (DPP) agrees that the handling of the disaster, in relation to crowd control, or in the immediate aftermath, should now lead to criminal prosecutions of individuals for gross negligence manslaughter, those prosecutions will precede the inquests, and lead to considerable delay. However, the inquests are unlikely to be delayed for charges to be brought for perverting the course of justice in connection with the alteration of witness statements – unless of course those subject to prosecution seek a delay on the basis that the inquests may prejudice the trial process. Not only this, but there are of course 40,000 new documents for the Attorney, High Court and DPP to consider before any decisions are made.
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