Hillsborough: it was absolutely important that no facts were hidden

I have written before on the solicitor instructed by South Yorkshire Police in the aftermath of the the Hillsborough disaster.  The Independent Panel report made a number of  criticisms of the conduct of evidence management for the Police, especially (although not solely) the amendment of witness statements by the solicitor, Peter Metcalf.  It seems from the Coroner’s summing up that much of that amendment process was overseen and conducted by Mr Metcalf personally.  It was also done under considerable pressure of time and of circumstance.

You can read the Coroner’s summing up where he deals specifically with Mr Metcalf’s evidence here and here. It is a fascinating account, which reveals amongst other things that Mr Metcalf saw himself, or portrays himself, as representing individual police officers collectively when he plainly was not: he was instructed by the police force. If his claim is an accurate depiction of his state of mind at the time, I would argue he did not know who his client was or deal properly with the conflicts he was operating under. It’s an important point because at the time the Police were obliged to be candid with Lord Woolf investigations.

We can see something of the confusion about who the client was in the Coroner’s, Sir John Goldring, summing up:

Mr Metcalf agreed there was a responsibility on South Yorkshire Police to present the facts, warts and all.  He said South Yorkshire Police was not a corporate body, but a group of individuals.  As I understood what Mr Metcalf was saying, it was that he was representing  the individuals.  He had to think about them.  He said he did not approach his role like that of a traditional insurance lawyer who would have said that, “We say nothing … do nothing … give nothing until it is asked for.”

He said he never felt any tension or conflict between his duties as described in the letter to Lord Justice Stuart-Smith and the responsibility of candour which South Yorkshire Police owed.  He said, with the benefit of hindsight, it was “possible” he was operating under something of a tension or conflict.  If so, he said, it was not deliberate.

The most important allegations are the way in which evidence was managed.  Police officers were told not to write accounts in their notebooks (as  was standard practice) but to write plain paper statements. As far as I am aware, Mr Metcalf was not the instigator of that decision. Questions of Mr Metcalf’s conduct come later in relation to his amendment of draft statements from witnesses.

One of  the claims made by Mr Metcalf is that he sought to remove opinion or hearsay evidence which would not be helpful to the Inquiry, or would very occasionally he conceded he had removed factual information, but he said those facts were red herrings he was justified in removing to protect his clients.  Anyone who wishes to pursue that argument should read the Independent Panel Report which calls into question this argument.  Here’s what the Independent Panel noticed:

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.

A number of the 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.”

As I said when I blogged on this previously, 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”. On  these 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.

We can get a further sense of the problems in this account from the Coroner.  As noted already an issue of concern was whether officers in SYP had, and knew about, a policy (it was called the ‘Freeman policy’) of tunnel closure to protect against influxes of fans of the sort that led to this tragedy but which was not activated in 1989.  A Chief Inspector Creaser had, “said at the deputy chief constable’s debriefing meeting [on the 19th April] that he knew of the Freeman policy” before 15 April (the date of the disaster).  On 2 May, “Mr Creaser saw Mr Metcalf when Mr Metcalf went to Snig Hill to speak to the senior officers whose statements had been requested.  On 3 May 1989, Mr Creaser made a statement.  The Coroner notes, “It did not mention previous closure of the tunnel.  It did mention he had been on duty at both the 1987 and 1988 semi-finals.”  The Coroner then says this:

Mr Metcalf agreed that, in retrospect, it was surprising that previous tunnel closure did not appear in his first statement.  Mr Metcalf said there was no connection at all between him seeing Mr Creaser on 2 May and Mr Creaser not mentioning tunnel closure in his statement of 3 May.

The Coroner continues:

On 2 June 1989, Sergeant Higgins made a statement. In that statement, he said that at the 1988 semi-final he had been instructed to close the tunnel gates and divert fans to the outer pens.  On 5 June, three days later, in other words, Inspector Creaser gave evidence to the Taylor Inquiry.  Sergeant Higgins’ statement was not before the inquiry, a statement, in other words, in which he said he had been instructed in 1988 to close the tunnel gates.

Mr Creaser spoke, when giving evidence, of the previous closure of the tunnel at the previous semi-finals.  He said Sergeant Higgins had been involved.  Chief Superintendent Mole and Sergeant Goddard had given evidence before Mr Creaser.  Each had said the tunnel had not previously been closed, as Mr Creaser had said.

That was on 5 June, so, again, recapping the dates: 2 June, Higgins’ statement, 1988 semi-final, said he had been instructed to close the tunnel gates to divert the fans to the outer pens; 5 June 1989, Mr Creaser gave evidence to the inquiry, the inquiry did not have Mr Higgins’ statement of 2 June.  Mr Creaser told the inquiry of the previous closure and said Sergeant Higgins had been involved.

Mr Mole and Mr Goddard had given evidence previously. Each had said the tunnel had not previously been closed. On 12 June, Mr Metcalf asked that Sergeant Higgins’ statement about tunnel closure be reviewed to see whether it was dealing with duties during phase 2 of the match, that is to say, after kick-off.  On 7 July, Mr Metcalf advised: “Is it the case that my suggested alterations were not acceptable to ex-Police Sergeant Higgins?  If so, we shall have to think what to do.”

Mr Higgins’ statement ultimately went to the inquiry on 12 July 1989, after the evidence hearings were over.

Mr Metcalf agreed it should have gone before.  He said he could not say why it did not.  He did not accept this sequence of events was an example of him trying to control the narrative which went to Lord Justice Taylor.

Members of the jury, I want now to deal with a letter that Mr Metcalf wrote on 13 June to the Municipal Mutual Insurance Company, which were the insurers of South Yorkshire Police.

On 13 June, Mr Metcalf wrote to the insurers to advise them about developments in the inquiry.  He commented that statements recently collected described officers barring access to the tunnel in 1988.  He said this was “most unhelpful evidence, from our point of view”, and that they were asking that the officers concerned “be asked to review these statements carefully before they are submitted”.

Mr Metcalf did not agree that these comments amounted to twisting and turning, as it was put to him, to avoid criticism and responsibility of South Yorkshire Police.

Rather than comment, I am going to give the last word to Mr Metcalf as represented by the Coroner. We should bear in mind, before deciding whether we accept this version or not, that Mr Metcalf was operating in a most unusual situation and one imagines under significant pressure when he dealt with all the police statements in the aftermath of the terrible events at Hillsborough .

When asked whether there was anything about his approach to preparing and presenting evidence to the Taylor Inquiry that was not satisfactory, Mr Metcalf said this: “I think I would say, first, I deeply wish I hadn’t been in that position in the first place.  Secondly, yes, I have no doubt I have made mistakes.” He said he did not feel that at any point he was in a position of having to put forward evidence which supported a particular case for South Yorkshire Police.

No senior officer, directly or indirectly, gave the impression he ought to be doing that.  Mr Metcalf did not accept that he used the Salmon letter as a checklist for areas in which he was going to try and sanitise the evidence.  He was not engaged in a concerted effort, he said, with senior officers to try and protect the force at all costs. Mr Metcalf agreed that it was imperative that South Yorkshire Police should be entirely upfront and honest and tell the whole truth to the public inquiry.  Mr Weatherby suggested it was imperative they did not try to hide anything or act defensively.  Mr Metcalf said that the issue of acting defensively was a bit more tricky.  He thought the attitude at the start was to say that it was not simple, rather than South Yorkshire Police holding its hands up.  This did not mean they were defensive in the sense of being dishonest.  It was absolutely important, he said, that no facts were hidden.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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5 Responses to Hillsborough: it was absolutely important that no facts were hidden

  1. Mark Brandon says:

    Richard, I always enjoy reading your pieces, but I have to confess that I’ve read through both lengthy pieces from you on this point and I’m no clearer as to what you actually think. With all due respect – and you are due great respect for this site, I think – your self-declared mission on here is to comment on matters of interest to the legal profession, and I – for one – am interested in what a leading thinker actually thinks.

    I have not been an avid follower of the Hillsborough saga, but having watched it, horror-struck as many were, live on TV at my dad’s house, I have followed it with some interest since. However, it has never really occurred to me to think about the role of SYP’s solicitor until you wrote about it. I am none the wiser having read and re-read the posts, but I think leaving the ‘last word’ to Metcalf (via the Coroner) is a bit of a cop-out, if I’m being honest, and feels like you’re fence-sitting.

    Can you illuminate?

    • Richard Moorhead says:

      This is fair comment Mark. I’m not sure I want stop fence sitting on this one, but I did want to draw attention to the Coroner’s summing up. If I get more time, id like to have a proper go at what I think but it will take a lot of time. And I am sure you are sensitive to the need for me not to be too hasty in my judgments, at least occasionally.

      • Mark Brandon says:

        Ah, I’ll let you off on that one…time to reflect is good, and a fair point, and as you say, drawing attention to the Coroner’s summing up is something a specialist such as yourself can do where the nationals may gloss it or ignore it completely. I do hope you will consider posting again, not least because I would love to know whether my initial reaction was just off-beam and I have misjudged Metcalf.

        I think you have to be more careful than I do (and are in a much better position to make a finer judgement), but here’s my – non-lawyer – thoughts.

        I guess I was left feeling profoundly uncomfortable at the list of statements which were deleted by Metcalf, on the basis that they weren’t “facts”. Maybe I just don’t understand the rules on admission of evidence. I was rather under the impression that witnesses stood up and said what they saw or heard, although clearly in this case that would have been devastating to SYP’s case.

        I think the public would think “it stinks”, whatever the “rules” say.

        I think in view of the actual verdict, Metcalf looks to have been essentially complicit – whether he actively intended to be or not – in one of the most sustained campaigns of dishonesty by any public institution in my lifetime. The removal of “opinion or hearsay” *he* judged to be of no help to the Inquiry, or facts *he* judged to be “red herrings” seems to me to be an ongoing attempt to manipulate rather than simply to defend his clients from some horrific (and, it turns out, accurate) charges.

        It must have been apparent to him exactly what was going on as statement after statement contradicted his client’s chosen (dishonest, distorted) position, and yet he seems to have done everything he could not to persuade them to ‘fess up, but to get them off the hook. That – for me – is where ethics “lives”, and it wasn’t exactly a gold medal winning performance…

        I guess I’m not on the fence on this one!

        [by the way, what did happen to the 2012 SRA investigation into his conduct?]

      • Richard Moorhead says:

        Mark, I agree with what you say in broad terms. The wrinkle for me is around two things.

        One is the rules around the initial inquiry and how the lawyers were to approach it were a bit of a moving target, although it was made clear – I think but I am not absolutely clear at what stage – that hearsay was admissible. As I understand it hearsay helpful to the police was left in their statements. The hearsay and red herring arguments are, I think, red herrings themselves. Pretexts for lawyerly evidence management.

        The second is related to this: is such lawyerly evidence management permitted? It is conventional not to require a lawyer to have to disclose unhelpful facts as long as they do not mislead in so doing. Whether this was what happened, in the context of an inquiry (as opposed to an adversarial) process, is something which requires a careful weighting of all the evidence. There are other questions, such as whether there were attempts to jnfluence witness evidence.

        My view is that there is more than enough to require a proper investigation, and that it should be done and the SRA should disclose the outcome of its investigation (they may say the rules preclude it if they decide not to prosecute). I am not personally much interested in seeing Mr Metcalf punished, but the Hillsborough families, and the greater health of the justice system, deserve that his behaviour is investigated and that lessons are learned. This leads to my last point.

        I think many lawyers would see in Mr Metcalf’s behaviour a normal, legitimate ‘client first’ approach to such investigations. On what I have read, I think they would probably be wrong, but I would really need to grapple with the detail to be sure.

        I think the profession should use an inquiry into Mr Metcalf’s conduct and the subsequent investigations to think again about what is the right approach in such Inquiries. I do not want to prejudge what the outcome of that should be, but I think there should be some fundamental soul searching and careful thinking about what can be learned. One of the key things I think to emerge from Mr Metcalf’s evidence is that he did not seem to think at all, at the time, about his ethical obligations. The ethical issue around evidence management is the most important thing but he seems confused about who he was representing and he may have misunderstood privilege. Unusual time and emotional pressures aside, it was business as usual for him in his approach to the case. That is a mindset which infects almost all of the ethical scandals I look at. Complacency and a lack of knowledge of ethical obligations and key law on lawyering – alongside business drivers t please the client – are almost always in the mix. For me this is an educational and professional failure. It is a good time to address it.

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