As explained in Halsbury’s law of England “An inquest has been held to be a fact-finding inquiry conducted by a coroner, with or without a jury, to establish reliable answers to four important but limited factual questions. (1) The identity of the deceased; (2) the place of death; (3) the time of death; and (4) how the deceased came by his death”. With the Hillsborough inquest being the focus of this essay, the first half of the essay will examine the legal procedures that were available to challenge the original verdict of the Hillsborough inquest.
Under the domestic legislation of the Coroners Act 1988 and the legal routes proposed and implemented under the Coroners and Justices Act 2009 (CJA 2009). The second half of the discussion will look into the supra national law aspect of an inquest mainly article 2 of the European Convention on Human Right (ECHR). The original Hillsborough inquest conducted under the Coroners Act 1988 by-the coroner- Dr Stefan Popper, concluded on March 1991 with the verdict of “Accidental Death”. The verdict at that time was very controversial and disheartening for the family of the victims.
Primarily because the final inquiry into the disasters conducted by LJ Taylor, also known as the Taylor inquiry indicated that the main reason for the crush was the failure of the police control and some blame on the Safety engineers and the Sheffield City Council on that devastating day. In his words: “policing on 15 April broke down…although there were other causes, the main reason for the disaster was the failure of police control” . Professor Scarton also noted that whilst the ‘judicial inquiry found serious institutional failures in the policing and management of the capacity crowd, no criminal prosecutions resulted’.
Instead the authorities blamed the tragic event on the drunken violent fans. It is without a doubt that such a verdict of “accidental death” would be largely contested by the families of the deceased. Which is very understandable because based on the fact that evidence were pointing towards the police incompetence on that day and poor emergency response, how can the verdict be ‘accidental death’? As a result, the angered families and survivor were ready to challenge the verdict.
There is no ‘statutory appeals from an inquest, in the sense of an opportunity for a rehearing on the merits and the potential for a fresh decision substituted for the original’ . However, there are two established routes of appeal available for the families of the deceased who wish to challenge the lawfulness of the coroner’s decision or the conduct of the inquest.
The first – and eventually successful- legal route that was available to challenge the original Hillsborough verdict under the Coroners Act 1988, was to persuade the Attorney General to exercise their power under s13 of the Act. 13(1)(b) indicates that an inquest will be granted if the high court is satisfied that “where an inquest has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held”. ‘Him’ referring to the coroner. And under s13(2) the court has the power to quash the findings of the original inquest.
On the 19th of December 2012, following an application by the Attorney-general, the high court quashed the verdicts of the original inquests and ordered fresh inquests to be held . In the words of the LCJ: “All the inquisitions will be quashed. There will be new inquests in each and every case. The legislation relating to venue is, as we have said in argument, problematic. The inquests will be remitted to another coroner for the same administrative area as the original inquests: in relation to the 95 victims the South Yorkshire (East) area at Doncaster” .
In the original inquest the coroner ruled that there was to be no consideration of events that happened after 3. 15pm and no evidence would be heard, when even at that time, most of the people that died were still very much alive . This constitutes as “rejection of evidence”. In fact, the jury were informed that they would only inquire into the identity of the deceased, and ‘when’ and ‘where’ each deceased had died . Thus, the coroner conducted the inquest and used evidence selectively, ignoring the “how” aspect of the investigation.
According the Scarton , ‘the families were deprived of the most significant testimony: examination of the precise circumstance of death. Not only did the coroners ruling exclude this evidence, there was no disclosure of the statements taken in each case’. The court had accepted that there was evidence which was brought to light about the death of the deceased. Especially regarding the first coroner failing to take into consideration that even after 3:15 some of the victims were still alive.
Their death could have been prevented. Similarly, the case of R v HM Coroner the court held that having read the new evidence, it was satisfied under s13 that another inquest should be held. Conversely under the CJA 2009 before it was repealed by the Public Bodies Act 2011, the Hillsborough verdict could have been challenged under section 40 of the act . Section 40 of the act provided that “an interested person may appeal to the Chief Coroner against a decision made by a senior coroner that falls within subsection (2)”.
The section proposed was intended to create a new legal route for the bereaved families and to give them the right to appeal against decisions made by the coroners or the conduct of the inquest. Instead of them having to go going through the process of s13 of the Coroners Act 1998. The Act would have replaced the statutory procedure of application to the High Court made by the Attorney- General, by giving the Chief Coroner power to compel a coroner to hold an inquest, or to amend or quash a determination or finding .
Consequently, preventing the need for families to go through the long and expensive process of judicial reviews. The second legal route that an inquest verdict could be challenged is through a judicial review as mentioned earlier: expensive and often very complicated. The English administrative court is very unlikely to interfere with a coroner’s decision unless it can be challenged on these grounds: illegality, irrationality and proportionality, and procedural impropriety.
On the 6th of April 1993 the high court granted leave to six families of the Hillsborough disaster to apply for a judicial review. The grounds of their appeal include: insufficiency of inquiry, the irregularity of proceedings and the emergence of new facts or evidence. LJ McCowan rejected the submission on the 5th of November, ruling that the inquests had been properly conducted and there had been no suppression of evidence . Therefore ruling that it “was not a case on which it would be right to order fresh inquests.
In addition, even though there has been cases such as R v North London coroners and R v Avon coroners , whereby the court found that the coroner had misdirected the jury, the court refused to quash the original verdicts and order fresh inquests, as the court saw no benefits in doing so. This indicates how high the threshold for a judicial review is. As noted by Sparks : “The role of the inquest in society is undergoing a period of intense scrutiny, both judicially and by Parliament.
There have been a number of important developments in case law, underlined by the implementation of Human Rights Act, incorporating the European Convention on Human Rights”. Article 2 of the ECHR protects the right to life; “everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”. The quintessential case brought to the Strasbourg’s court regarding the breach of Article 2 by the United Kingdom was in the case of McCann V United Kingdom in 1995 and it was successful.
Obligation under article 2 can be interpreted to the obligations of coroners in cases where the state is allegedly only indirectly responsible for the death, as in this case, by failing to prevent it. Going back to December 2012, when the verdict of the original Hillsborough inquest was quashed, in the words of the Lord Judge: “The coroner will have to decide the format of the inquest and whether Article 2 of the European Convention on Human Rights is engaged in this inquest, and, if so, the form that it should take to address these issue” .
Thus, it seems that the High court had no doubt as to whether the new inquest would be compliant with Article 2. McIntosh discussed in one of his journals that: ‘Where state agents are alleged to have been involved in an individual’s death, Article 2…requires the state to initiate an independent, public and effective investigation’.
Going back to the series of events that happened during the Hillsborough disaster, it is clear that both the policing and medics failed the deceased people. Some death could have been prevented. The current Hillsborough inquest can be referred to as a Middleton inquest as it is compliant with article 2. But most importantly this type of inquest deals with ‘how’ and ‘under what circumstances,’ the deceased came about death, having being ruled into the CJA 2009 under section 5.
In doing so, the Supreme Court created a new legal procedure for inquests, closing the gap between the UK’s idea of an adequate investigation, and that of Strasbourg’s. Now, bearing in mind that the Hillsborough verdict was quashed based on the fact that new evidence -especially the ‘how’ – which had not been considered during the original inquest, have been brought to light, this leads me to conclude that the current Hillsborough inquest would be very effective under Article 2.
