It has now been a week since the Hillsborough jury returned their firm conclusions to 14 questions put to them, finding that there were multiple and catastrophic failures in the planning and policing of the FA Cup Semi-Final at Hillsborough Stadium on 15th April 1989 which led to the crush in the West Terrace pens; deciding that, after the crush began to develop, failures by both the police and the ambulance service in their response to the emergency had resulted in loss of lives which could otherwise have been saved; entirely exonerating the fans of any blame, correcting the slurs which they have faced for almost three decades; and finding that the 96 victims of the crush had been unlawfully killed, the result of gross negligence manslaughter by the South Yorkshire Police Match Commander, David Duckenfield.
It has also been a week since powerful statements were made in Parliament by the Home Secretary and Shadow Home Secretary. Theresa May MP rightly acknowledged that, ‘for the families and survivors, the search to get to the truth of what happened on that day has been long and arduous’ and that ‘they suffered the injustice of hearing the victims—their loved ones and fellow supporters—being blamed.’
Her strong words were far removed from many dismissive and insulting statements made about the families and survivors over the years, including by the Prime Minister himself who in 2011 compared their search to ‘a blind man, in a dark room looking for a black cat that isn’t there’.
We have both, for the past three years, acted for bereaved families in the Hillsborough inquests. What they have been through is unthinkable and their courage and determination has resulted in the truth about that horrific day 27 years ago being recognised and confirmed by the inquest jury.
Behind the headlines generated by the jury’s conclusions, many families finally obtained answers to questions that they have privately held for 27 years. Did anyone try to save his life? Did he suffer? Was anyone with him when he died? In denying them access to the truth in 1989, bereaved families were condemned to almost three decades of both public struggle and private anguish.
In many ways, what the Hillsborough families and survivors have experienced is unparalleled, given the scale, depth and duration of the injustice they have endured. Sadly, however, much of what they have experienced is not exceptional. In fact, much of it is typical of what bereaved families experience when a loved one has died in the care of the State or at the hands of the State. Public bodies routinely try to avoid meaningful investigations; to cover their tracks; to deny responsibility; to blame the victims.
As inquest lawyers, we see in the Hillsborough families’ and survivors’ 27-year fight for truth, justice and accountability many common themes which bereaved families face every day across this country.
We highlight just four here.
Demonising the dead
First, the disgraceful and odious peddling of lies about what happened in the aftermath of the deaths, to deflect blame. Demonising the dead is a common diversion tactic by public bodies when their actions or failures may be in the frame following a death. There are many high-profile examples, such as the wholly untrue stories which spread, and were widely reported, within minutes of Jean Charles de Menezes’ death in 2005, describing him as a suspected terrorist who was behaving suspiciously, wearing a heavy padded jacket with protruding wires, and vaulting a ticket barrier.
As Simon Hattenstone has pointed out, the flawed initial reports were published because no newspaper or broadcaster seriously questioned the validity of reports from ‘police sources’; and the police and the media have a ‘distinguished history of misrepresentation in such cases’ – see, for example, what happened to Richard O’Brien (1994), Shiji Lapite (1994), Roger Sylvester (1999), Harry Stanley (1999) and Mikey Powell (2003). Four years ago, in January 2012, INQUEST described this tactic in detailed analysis produced for the Bureau of Investigative Journalism on restraint-related deaths in police custody:
‘Misinformation or ‘spin’ has featured in many of these restraint-related deaths with concerted attempts by the authorities to tarnish the reputation of the deceased, demonise them and create the idea of an ‘undeserving’ victim in order to deflect attention away from official incompetence or wrongdoing.’
This demonisation often spreads to the bereaved themselves, with public bodies criticising family members to justify and explain away the death. Many families describe how they have felt that, instead of the death of their loved one being investigated, they are being subjected to scrutiny and vilification.
Three years ago, Sara Ryan’s 18-year-old son Connor Sparrowhawk drowned in a bath at a residential unit run by Southern Health. Connor was epileptic, autistic and had learning disabilities. His death was found in an independent report to be entirely preventable and an inquest jury concluded that his death had been contributed to by neglect and serious failings by Southern Health staff. However Sara Ryan first had to endure staff criticising her, apparently encouraged to do so by Southern Health. She was described as ‘toxic’.
This demonization of the dead and their families is a common institutional response to many contentious deaths where State bodies seek to deflect attention away from the actions of those who may be responsible. That is what is truly toxic and it must stop.
Second, although the inquest process is supposed to seek out the truth, and state bodies should assist in that process, we find that they regularly do quite the opposite. As happened in the Hillsborough inquests, state bodies usually fight tooth and nail to avoid any criticisms during inquests.
Often this happens despite public apologies having been issued earlier – apologies which are meaningless as the organisation seeks to sidestep them as soon as they are away from the glare of press cameras and before a Coroner and jury in a courtroom. This institutional defensiveness is entirely at odds with the notion of State bodies learning lessons from a death. We rarely see a true desire to learn lessons. Rather, we see an all-consuming desire to avoid criticism.
Resisting proper disclosure
Third, securing disclosure has been a long and tortuous process for the Hillsborough families and their lawyers. Again, this is an all too common feature in inquests. Basic, fundamental facts and documents are held back from families, and often from Coroners. We see this still in the North of Ireland, where bereaved families are still fighting for access to basic information about relatives’ deaths as long ago as the 1970s; and across the country when people die in the custody or care of the state in police stations, prisons, immigration detention centres and mental health institutions.
In the Connor Sparrowhawk inquest, for example, Southern Health failed to inform his family, the Coroner or the police that there had been a death of another patient in the same bath seven years previously. See, too, what happened to the family of Kenneth Severin, who died while on remand in HMP Belmarsh. The Prison Service failed to provide the family with its internal investigation report into his death prior to the inquest, a failure which was heavily criticised by the Ombudsman following their complaint.
Securing the right documents and information is extremely difficult for the bereaved, when the state bodies hold all the cards. There is now an industry of lawyers who advise State bodies in inquests about how to avoid potentially embarrassing matters being documented and then potentially becoming open to disclosure. Weightmans, for example, who describe themselves as acting for ‘local authorities, police forces and health trusts’ advise that such bodies should bear in mind that statements which contain opinion can cause problems:
‘Dealing with such statements once they exist can be fraught with pitfalls. Even if they are subsequently confirmed to have reached the wrong conclusions, there is a danger of being perceived as having attempted to cover things up. Far better to ensure that only properly considered factual accounts and opinion are documented in the first place. Ideally these will have been considered, challenged and tested in a forum such as a root cause analysis meeting before being committed to paper.’
Now that there is a clear duty of candour, runs the sub-text, avoid criticisms being committed to paper. This is particularly concerning given that initial investigations are often conducted by the very body which is under suspicion. Robust, transparent and truly independent inquests must be based upon full and timely disclosure.
Equality of arms
Fourth, and finally, the Hillsborough families had public funding this time – unlike at the original inquests, when many of the families clubbed together to instruct a single barrister, and one of our clients, Joan McBrien, gave up her job as a teacher to represent herself.
This Government has presided over indefensible and unconscionable cuts to legal aid for inquests which, in the words of Deborah Cole of INQUEST, ‘leaves wrongdoing unchallenged, prevents learning and impedes changes to dangerous practices’.
This lack of funding is all the more concerning given the issues we have noted above – without funding and representation how can the bereaved defend themselves from the character assassinations, challenge institutional defensiveness, and secure disclosure of key documents? What is already an entirely lopsided process, with the bereaved at a huge disadvantage, is skewed even further by the lack of public funding. This fails those who have died in circumstances giving rise to concerns that there may have been systemic failures on the part of the state. This fails their grieving families. But it also fails all of us.
It undermines the effectiveness of the inquest process, and prevents Coroners, juries and the public ensuring that, as Lord Bingham has put it:
‘… the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.’
Theresa May MP told Parliament last week that no-one should have to endure what the Hillsborough families and survivors have been through.
We agree. That is why real change is needed: by public bodies which should focus upon the search for truth rather than the search for blame; and by the Government, which must ensure that bereaved families receive funding for legal representation to strip away lies and obfuscations and ensure justice and accountability.
More on the Justice Gap
Siobhan Taylor-Ward on a 27 year fight for justice (The greatest miscarriage of justice of our times)
Chris Horrie from Proof magazine on the story behind The Sun’s notorious front cover (Telling the truth about the Scum)
Caoilfhionn is a barrister at Doughty St Chambers specialising in human rights; and Brenda is a barrister at Garden Court practicing in all areas of criminal defence and inquests