The Hillsborough jury’s majority finding that the 96 people who died in the disaster were unlawfully killed means that seven of the nine jurors agreed on four points: that former chief superintendent David Duckenfield, the match commander, owed a duty of care to the victims; that he was in breach of that duty; that his breach caused their deaths; and that his breach of duty amounted to gross negligence – meaning it was so bad as to be a criminal act or omission. And yet, by law, the jury’s findings “must not be framed in such a way as to appear to determine any question of criminal liability on the part of a named person”.
This is more than a little curious. It has come about because Sir John Goldring, the former appeal judge who was appointed as coroner, put a set of detailed questions to the jury after hearing legal arguments from those involved in the inquest. Jurors were also told precisely what answering “yes” would mean. Giving the jury a written questionnaire is a growing trend in major inquests and very much to be welcomed. It shows how a system that parliament has hardly touched in 800 years can be adapted by the judiciary to meet modern needs.
Another curious thing is that the police are continuing a criminal investigation into the tragedy which they say should be finished “by the turn of the year”. It will then be for the Crown Prosecution Service to decide whether any individual or corporate body should face prosecution. That’s unusual, because inquests are commonly suspended until criminal investigations have been completed. The reason is obvious: an inquest finding might be thought to prejudice a subsequent criminal trial.
We know that the Independent Police Complaints Commission has been considering evidence that witness statements were doctored after the disaster. A decision is expected on whether serving or retired officers should face criminal proceedings arising from an alleged cover-up.
But the most interesting question of all is whether Duckenfield will now face fresh criminal proceedings. He was tried for manslaughter in 2000 but the jury failed to agree. That outcome, of course, is not an acquittal and a retrial would normally follow. Instead, Mr Justice Hooper ordered a “stay” on the proceedings. The judge said that putting Duckenfield through a second trial would amount to oppression. “I have an overriding duty to ensure a fair trial for the defendant,” said Hooper in July 2000. “That, I am firmly convinced, is no longer possible.”
It used to be thought that a stay was permanent. But in October 2014 Mr Justice Globe lifted a stay that had been imposed by a magistrate as far back as 1998. The defendant was Gary Glitter, charged as Paul Gadd. In granting what’s called a voluntary bill of indictment, the judge said that Gadd could still receive a fair trial 16 years later. His subsequent conviction was upheld on appeal.
As a matter of law, then, it would be possible for the CPS to bring manslaughter charges against Duckenfield if prosecutors thought there was a realistic prospect of conviction and that a prosecution would be in the public interest. But Duckenfeld’s lawyers would undoubtedly argue that any prosecution would be an abuse of process.
If a fair trial was not possible in 2000, they would maintain, how can it be possible in 2017? The answer, of course, is that a fair trial was perfectly possible in 2000. It was held; the judge allowed it to continue; and it came to an end.
Could there be a fair retrial now? On one hand, the inquest findings are clearly, and literally, prejudicial. The findings have already been the subject of publicity and comments – including this. On the other, juries should be trusted to put prejudicial material out of their minds. Delay should not be a factor provided the necessary evidence is available, and the Hillsborough independent panel has placed a huge archive of material online. Nor should age matter, unless a defendant is unfit to stand trial.
Whether a retrial would now be an abuse of process is a matter that should be decided by the courts if and when it arises – and not by the court of public opinion. But the one thing that should not affect the courts’ decision is the wishes of the bereaved Liverpool families. They have, at last, been fully vindicated by the jury’s verdict. Whether or not there are any criminal convictions, nothing can take that vindication away from the relatives of those who died. No wonder, 27 years on, they broke into song.