The Independent Panel on the Hillsborough disaster makes for very sorry reading. The press response has focused on a South Yorkshire Police (SYP) cover up. For lawyers and their regulators it should be of significant concern because lawyers are alleged to have assisted in one of the key mechanisms for that cover up. With a clamouring for police prosecutions, there is a very clear sense that one of the fingers of blame will be pointed at those lawyers. A key question will be: did they do anything wrong?
Let’s look at some of the key findings from the report. South Yorkshire Police were represented by Hammond Suddards (a firm now merged into a bigger, more International commercial firm) with advice from leading and junior counsel. The report tends to concentrate on one (then) partner at Hammond Suddards, Peter Metcalf; one assumes because he had day to day conduct of the matter. His role was also the most likely to be documented.
The day after the Hillsborough Disaster, senior police officers agreed to alter the normal police approach to recording their own evidence. Rather than officers record notes of their evidence in their police notebook and then be interviewed for the drawing up of a Criminal Justice Act statement, it was agreed that handwritten notes would be written and then typed up. It appears this step may have been agreed without legal advice. Shortly afterwards, following or at a meeting with their legal team, it was agreed these statements would be reviewed by SYPs solicitors and certain types of material excised. Advice from leading counsel was that that police should treat themselves as the accused. The team also advised (possibly erroneously) that the officer’s written notes would be privileged and so not subject to scrutiny. This was a crucial step, it sought to ensure evidence was collected and managed with maximum secrecy.
The purpose of this evidence gathering changed rapidly. Initially it was to be a “warts and all” account for SYP only; but it quickly became apparent that the statements would form the main basis by which the police submitted evidence to the West Midland Police investigation and Lord Taylor’s inquiry into the tragedy. The prepared statements were accepted by the Inquiry, without reference to or disclosure of – on almost all occasions – any earlier drafts. Nor, it seems from the report, were police officers cross-examined on their earlier statements. The Inquiry knew statements had been altered but appear to have been told that these statements only or principally differed with regard to the removal of opinion and hearsay evidence.
A very large volume of statements was altered. The Report states:
“116 of the 164 substantially amended statements removed or altered comments unfavourable to SYP. These included 41 statements in which alterations downplayed or removed criticisms made by officers of their leadership and of the police response to the disaster. These commonly included any indication or impression that senior officers had lost control of events, or that they were ill-equipped to respond to the unfolding tragedy. The amendments also frequently included deletions of references relevant to the failure to effectively monitor the pens and close the tunnel once Gate C was opened.”
One issue is whether such statements amounted to opinion or hearsay evidence which would not be helpful to the Inquiry and should therefore be deleted. Anyone who wishes to believe that argument needs to read the report carefully. A number of alterations are dissected. Statements such as the following were deleted:
“I at no time heard any directions being given in terms of leadership. The only messages I heard were those requesting assistance of one sort or another, and where appropriate, their acknowledgements.”
“I have to state that even at this stage and this location and with a number of higher ranks in the area nobody seemed to be organising the injured.”
“The Control Room seemed to have been hit by some sort of paralysis’”
“[T]he organisation of this event was poor, as has been the case for most of the season. Too little notice had been taken of current trends and football intelligence and too much reliance has been placed upon previous information held.”
“Too many non-operational supervisory officers were in charge of important and critical parts of the football ground.”
“The deployment of officers around the crucial time needs to come under scrutiny, too many were sat around in the gymnasium whilst others were rushed off their feet.”
One can see how some of these could be generously interpreted as opinion evidence but they also contain key recollections about the police response to events. Similar concerns were expressed about police radios and poor communication between senior SYP officers and their colleagues. Some of the alterations related to a crucial incident at the previous year’s FA Cup Semi-Final where “SYP officers referred to crushing in the outer concourse area”. Police were, “asked by the SYP solicitors, Hammond Suddards, to reconsider and qualify their statements.” It was a key area, relating to the claim that the Police knew of the safety risk posed by the Hillsborough stand and that SYP had previously controlled entry to the pens where fans died but did not on the fateful day. References to ‘chaos’, ‘fear’, ‘panic’ and ‘confusion’ were also altered or deleted from statements.
Even if the evidence had been solely opinion evidence, the process would have been problematic. For one thing, Senior Counsel to the Inquiry has had made it clear there was no reason at all why opinion evidence could not be considered. For a second, derogatory opinions about Liverpool fans were not excluded from the statements. The Report notes opinion consistent with the SYPs narrative about drunken Liverpool fans was not removed. It was a process defined by the need of the SYP to defend itself against attack: “the removal of conjecture or opinion was highly selective and officers’ comments on the hostility of the crowd remained as a statement of fact.”
Conversely, the solicitor is sometimes found to be saying comments unhelpful to his client’s case may have to stay in statements. When this occurs the report notes he is also seen to specifically leave open the possibility of the police officers changing their recollection of events. Several officers had made, “comments about the severity of the crushing outside the turnstiles in 1988… ….He stated that the comments were ‘not particularly helpful to our case, but if they represent factual recollections then they will probably have to stay in… … But they could be ‘qualified in one or more of the following ways’. First could be a ‘clear comment to the effect that the ingress of mounted officers eased the problem’. Second, an ‘indication that the problem was relatively short-lived, e.g. by 2.45 p.m. the crush had eased, if this is the case’; and finally, ‘an indication that the Officers have watched the 1988 and 1989 videos and that the 1988 situation was clearly not as bad as that in 1989’.” The evidence is being shaped in a particular direction. It raises an important question: is the lawyer here just ensuring full and fair witness statements that cover all the eventualities or is he suggesting lines of defence to witnesses which amount to coaching?
A point relevant to our understanding of the process is how the police themselves perceived it. The report states, “a significant number,” expressed concerns about, “the methodology adopted in reviewing and altering their initial accounts” and “the role of the SYP solicitors in this process.” These were concerns Senior SYP officers, including the Chief Constable, were aware of and sought to “assuage”. The report states somewhat gnomically on my reading, “An SYP inquiry liaison team was available to provide junior officers with ‘necessary information and assistance’ prior to giving evidence to the Taylor Inquiry.”
The Report itself describes the process as “unprecedented”explaining as follows: “In contrast to their professional training, officers were instructed not to record their experiences in pocket books and ‘anyone who was involved yesterday take time to sit down and make some notes’.” The unprecedented nature can be explained by the undoubted uniqueness of the situation or it can be explained as part of a conspiracy. Consider the following statement. “The briefing officer asked if officers had ‘made a pocket book brief’. None had. The briefing officer continued: ‘Do not start making pocket book entries. Yesterday was the most traumatic experience of my life and large chunks of it I cannot remember. I am sure it must be the same for many of you’.” In the immediate aftermath, a written narrative account by officers makes sense, the trauma would have been real and the claim to forgetting is plausible. Yet, contextualise that with subsequent management of the process by a small team of SYP officers and the solicitors and the forgetting becomes more worrying. It was almost entirely information helpful to the Liverpool fans case which was forgotten or clarified. A process by which the police could get their stories straight and ensure that they did not give ammunition to their opponents was formed early and developed.
In judging whether the lawyers did anything wrong it is important to remember that the legal background to the evidence collection evolved quickly. The status of the officers evidence changed (an early expectation is that they would all be interviewed by an outside force but this quickly became clear it would not occur). They were collecting, managing and disclosing evidence to an Inquiry but with half an eye, at least, on Inquests, as well as potential criminal charges and civil claims. Senior counsel advised the police should regard themselves as the accused. That implies rights to silence and defences against self-incrimination. The solicitor also clearly advised some unhelpful information should not be excluded from statements (but might be qualified).
In one sense, the lawyer is just doing their job: mounting a defence of their clients; trying to ensure their case is put with maximum clarity and not damaging to them. They took advantage of any uncertainty around their need to disclose damaging opinion or fact mixed with opinion. Equally, and conventionally, they took their instructions from the senior officers who had most to fear from negative findings. It is a classic conflict of interest, which the profession is rarely willing to address. My client is the organisation but I take instructions from the people who may have harmed my client. How do I then act in the best interests of my client?
This conflict has lead to a very unhappy place, both for their clients and now possibly for the lawyer(s) themselves. In seeking to represent their clients he (or perhaps they) actively assisted in the production of statements which were, if one accepts the analysis of the Independent Panel’s Report, misleading. Solicitors and barristers professional rules have long forbidden attempts to deceive or knowingly or recklessly mislead the court. Courts include Inquiries such as Lord Taylor’s. It is strongly arguable that the statements mislead, but was the misleading “knowing or reckless”? More importantly, in human if not in legal terms, is the presentation of the evidence in the narrative that blamed Liverpool fans and a cover-up compounds their harm. It is incumbent on the professional regulators that they take a long hard look at this and consider how to act.
It might be argued that the prior investigation by Lord Justice Stuart-Smith has considered these issues and decided that the lawyers did nothing wrong. That inquiry found evidence of material that should not have been removed and doubt was raised about, “the objectivity … of the person vetting” the material by a police officer reporting to Stuart-Smith LJ.
Stuart-Smith LJ found amendments removed comments “unhelpful to the police case” and that (occasionally) matters of fact were excluded but this was “at worst … …an error of judgement” and an “understandable desire” to protect the interests of SYP. He found that there were no, “irregularity or malpractice or negative consequences for the Taylor Inquiry, the criminal investigations, the disciplinary proceedings or the coronial inquiry.” It is difficult to square this finding with the findings of the Independent Panel on the statements, but it does not necessarily mean he was wrong in his conclusion.
Equally, it may be argued that the Police Lawyers were acting within the rules of the game. Rules which were shifting somewhat as the legal framework became clearer. The Taylor Inquiry could have demanded unamended statements; but chose not to. They saw it as unnecessary, or perhaps (and I speculate here) they acceded to arguments about legal privilege. An important area of inquiry is whether they were misled about the nature of the amendments and if so by whom? They accepted statements on the assumption that changes from the original related to opinion evidence. It was an unfortunate decision particularly as it would have been clear that opinion evidence supportive of the police case was contained in the statements.
Lawyers in adversarial situations are not normally expected to mount their opponent’s case for them. Advice given by lead counsel said the police should regard themselves as the accused. This would have heightened the assumption in the solicitor’s mind that an adversarial or defensive approach to the submission of the police case was appropriate. The way that statements developed from internal documents to submitted evidence added to the problem. The solicitors were having to calibrate their duties against a rapidly shifting legal situation. Ultimately though, it all returns to one issue: did the solicitors attempt to knowingly or recklessly mislead the Inquiry in altering the evidence in the way that they did. Stuart-Smith LJ says not, but his review of the evidence is less detailed than the Independent Panel’s. The Panel is clear that the evidence was not the whole truth and it is plain that on occasion that the evidence was misleading. They do not, however go as far as saying that the solicitors knew or were reckless. Their approach is to put the facts out there and let others decide.
The solicitors’ approach is concerning, but there is evidence that they perceived it as legitimate and, indeed, there is an argument that it is indeed legitimate. If the professional regulators were accept that defence it raises another set of questions: professional zeal for one’s client is not supposed to trump the public interest in the administration of justice, but it seems to have done so here. If such adversarial tactics are seen as legitimate, then one question is whether the professional culture and approach is part of the problem?