Given the importance of the case, and that I have written about it before twice, I thought I should probably comment on the decision that there was no case to answer in the Hillsborough prosecution of SYP’s then solicitor, Peter Metcalf. The judge’s reasoning can be found here, alongside the press summary, and the important appendix which sets out a closer analysis of some of the amendments made to police evidence in the aftermath of the Hillsborough disaster. You can also get a very good, if self-consciously uncritical, summary of the judgment from the Secret Barrister.
I have a few concerns and questions about the judgment.
It is worth stating that the case was a tough one to bring if one accepts, as the judge and the parties apparently did, that the judge-led inquiry inquiry (the Taylor Inquiry) was not a course of public justice covered by the offence of perverting the course of justice. I am not going to delve into that question here, but I should acknowledge its counter-intuitiveness grates with me. One could conspire to mislead the inquiry and not be guilty of a criminal offence, or this criminal offence at least. The judge appears to take a similar view with regard to Inquests; although interestingly his reasoning here falls away rather inconclusively (see para 49 of the judgment; he does not deal with whether an Inquest is a judicial process for instance).
What the prosecution appears to have done is run a case mainly on the basis that misleading the Taylor Inquiry was a part of plan to influence (if legitimate) pervert (if not) the course of future proceedings, especially criminal and civil cases which could be expected to ensue, and the inquests. In general terms, the plausibility of this is obvious, I think, but underlined by Mr Metcalf being instructed, from the off, by South Yorkshire Police’s insurers “to advise in relation to any legal process which might follow on those tragic events”. The insurers would have been concerned to minimise civil liability. As a matter of course they would ensure representation at the Inquest, and they would do this for commercial reasons directly related to the civil cases that would be likely to ensue.
There is a more specific allegation in relation to contribution proceedings, where it was said that Mr Metcalf did the following:
On 19th July 1990, Mr Metcalf wrote to DCC Hayes concerning the question of monitoring of pens. Mr Metcalf suggested that there had been ambiguity in the evidence of the officers who gave evidence before Taylor LJ about this issue and that those officers who had dealt with it in a way adverse to SYP’s interests on the point should be asked to review their evidence.
Mr Metcalf went so far as to send a draft statement that he had himself composed, setting out what he wanted the officers to say. It is right to say that the letter concluded by observing that there was no point in any officer putting forward evidence which he did not think he could honestly sustain in cross examination. The point is, however, that Mr Metcalf was seeking to put words into the mouths of officers, changing evidence that they had given to the Taylor Inquiry, when he had no idea of what they might actually wish to say.
There were three elements to the impropriety alleged here which the prosecution said showed an intention to pervert the course of justice. 1. SYP “had a duty of candour to the Taylor Inquiry” as public servants responding to a public inquiry. 2. That it was, “improper to put words into the mouth of a witness, by amending a statement, and then ask[ing] the witness to sign it, especially if pressure is put on a witness to do so.” And 3. That Mr. Metcalf had a conflict of interest in representing the South Yorkshire Police and individual officers.
In the interests of brevity, I won’t go into the detail of how the process was arrived at but Metcalf advised on 437 accounts, 167 of which were altered, and 57 of those were relied upon, as a sample I think, by the Prosecution in this case. He did this alone and in the context of advice from leading counsel advising SYP at the time that “we must at this stage present our evidence in the most appropriate manner having an eye to the future”. Mr Metcalf wanted to stick to straight factual accounts, and officers were told, “general criticism of Liverpool supporters should be avoided save where there was an example of specific behaviour. He also said that criticism of senior officers was being removed from factual statements because it was necessarily subjective.” And, “passages critical of other officers of whatever rank would not be allowed to stand unless they were direct factual observations as opposed to matters of impression.”
The way the judge deals with the expert evidence on Mr Metcalf’s duties interests me. The judge in fact gets the solicitors duties wrong, I think, and that may help him to be too quick to dismiss the prosecution witness, Gregory Treverton-Jones QC. He says the solicitor’s primary duty is to the client; and it is not and I don’t think it ever has been – although it is often understood this way. It is one of the primary duties, but does not have pre-eminence especially where it conflicts with other duties. There is a rather brutal dismissal of Treverton-Jones’ opinion that there was a duty of candour given the nature of the Inquiry, which conveys the impression of not giving proper credit to the argument or its basis (in the judgment, I am not suggesting this is how it was dealt with in court). I’d love to see the actual argument now.
Perhaps the worst bit of reasoning was the claim that a trade union solicitor getting written instructions and then drafting a statement was the same as what Metcalf was accused of. Metcalf was querying evidence previously given to the Inquiry and suggesting an alternative; he was not simply having a first go at a statement based on the witnesses initial notes. The two are different, and Metcalf’s behaviour has to be contextualised in the light of all the other evidence suggestive of pressure or design. It strikes me as a part of the judgment which can be properly criticised as hasty, and potentially wrong.
The prosecution put the case on the basis that pressure was implied or applied through this process and the judge does not really deal with that. Instead, the judge regards the process as entirely innocent because something like it is done in other, I would say different, contexts without problem. I do not find this a persuasive argument, whereas the judge seems to think it is conclusive. Perhaps as importantly in some ways, the dismissiveness strikes me as most unwise given the nature of the case, as does the odd way the judge deals with expert evidence on coronial proceedings. In so far as the judge makes a point at all it is not one clearly explained. What is the judge saying by finding the evidence is not expert evidence (para 70)?
On the broader point as to whether the amendments to the witness statements might amount to a perversion of subsequent civil cases, the judge relies on a view that the solicitors’ action can only be wrongful if they lead to a misleading of the court. And, “no proper basis has been established to show that any omission from any account rendered misleading what remained.” I find this a little bit odd, given that the Appendix to the judgment indicates that the judge’s analysis of amendments to witness statements found that amendments to four statements would have provided a case to answer had it been possible in law for the Taylor Inquiry to be the subject of a perverting the course of justice charge. That means the judge thinks there is a case to consider that they were misleading. The judge does not explain or explore this discrepancy. My guess would be, and he may be right about this, that the nature of the amendments in this case would not be sufficient to have a significant impact on any civil cases that might have been within the contemplation of SYP and its legal team at the time. But we do not know. Similar arguments are made about the possibility of perverting criminal cases and with greater clarity.
I suppose at root, I have some sympathy with the judge’s view that it is very hard to show, on the facts here, civil or criminal processes were likely to be perverted. Nevertheless, the judge’s description of amendment processes and the justifications for amendments is very credulous of the defence position. This might be because the prosecution did not present the case well, witnesses did not give evidence as expected, or evidence that the Independent Panel (who reported on the cases back in 2012) could look at was not admissible. This latter point seems unlikely to me. There are various examples of the judge reading the amendments in a way which I think might be overly generous to the defence. There is some general dilution of evidence which the judge regards as fine because other witnesses give the kinds of critical evidence that has been taken out. And there is evidence that some police had hostile attitudes to Liverpool fans which was taken out (presumably the judge thinks this is okay because there is no duty of candour, but I wonder if the police were presenting to Taylor as not hostile to them). Similarly there was evidence that an Inspector made frankly ridiculous claims that things had been well run in previous years and on the fateful day in 1989 (up to a point) which would have undermined his credibility. They took this out of the statement. The judge described the evidence so removed as favourable to SYP. This claim I find most perplexing.
That said, the judge makes a good point that the weight of evidence suggests amendments on whole were fair and proper, if his analysis of evidence is fair and balanced. My concerns above are not strong enough to claim he has not. It is worth putting the alternative view of what the amendments showed. The Independent Panel’s view was quite different:
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. Blame was minimised. If the Inquiry was to be regarded as a part of the course of public justice, then there might well have been a case to answer. The question I avoided at the beginning of the post is the one that needs answering. Is the judge’s view (and the judge who’s view he agreed with) on the law here the right one? This needs proper consideration alongside the question of a duty of candour. Companies who are the subject of emergency injunctions have the benefit of opponents with duties of candour as do parties to judicial review proceedings. If we can try to make lawyers more ethical when dealing with freezing corporate assets why not not when dealing with judicial inquiries? Still more so when those inquiries involve 96 lives. And without it, do we not provide one more tool to the organisations who seek to ‘manage’ blame in the face of scandals, when we should be encouraging transparency, accountability and fairness?
Postscript: I should add that the possibility that Mr Metcalf knowingly or recklessly misled the Inquiry are relevant to the ongoing SRA interest in the matter, as reported in the Liverpool Echo. It would be interesting if the duty of candour argument got another run out before the SDT, where the obligation to behave with integrity might play a role. My guess would be, though, that this ends with the already retired and elderly Peter Metcalf coming off the Roll and paying a small fine.
*You can read the rest of this post here and get a sense of what the Coroner thought at the second inquest, which took a very different course to the first one.