“The interests of justice must be served … The facts must be investigated and re-analysed in a fresh inquest when, however distressing or unpalatable, the truth will be brought to light. In this way, the families of those who died in this disaster will be vindicated and the memory of each victim will be properly respected.
“That is now our task; to investigate the facts, to reveal the truth in a public forum and to reach conclusions on the basis of the evidence presented. It will be a full and thorough investigation.”
– Lord Justice Goldring, 1st April 2014.
I was 3 days old when the Hillsborough Disaster occurred. On the 15th April, 1989, 96 Liverpool fans died from injuries sustained during the FA Cup Semi-Final against Nottingham Forest, crushed in the overcrowded central pens of the Leppings Lane terrace.
Nearly 27 years later, families of the victims have still not received a proper answer as to why their relatives died. After a wealth of new evidence was revealed by the Hillsborough Independent Panel, a new inquest into the disaster began in 2014, headed by Lord Justice Goldring. After the longest case hearing in British legal history, On Wednesday the jury was finally dispatched to determine the cause of the crush, and whether the deceased were “unlawfully” killed due to gross negligence on the part of South Yorkshire Police.
ten nine jurors have been given a 31-page questionnaire, containing fourteen questions to be answered. After hearing 276 days of evidence over two years, the jurors’ responses will establish a new official account of Hillsborough, and specifically decide “by what means and in what circumstance did the 96 people come to their deaths.”
Write your answer in the space provided
The questionnaire has been made publicly available (I found it on this Guardian page), and the Coroner for South and West Yorkshire has provided specific instructions for the jury to follow. Point 9 leaps out at me.
9. When considering what should have been done on the day of the Disaster or beforehand, please bear in mind the following points.
(a) You should apply the standard of conduct of the time. So, when deciding whether individuals should have acted differently in 1989, you should apply the standards of 1989, not those of today.
(b) You should consider what those involved could and should realistically have done in the circumstances which they were facing.
(c) You should not make judgments which are based on hindsight, but should consider what those involved could reasonably be expected to do at the time.
Legally speaking, what point 9 asks of the jury is necessary – an action that may be considered ‘gross negligence’ today could have been seen as standard practice in 1989, just as said action could have been considered ‘unlawful’ then as of now. Yet difficulties arise from this instruction, due to the nature of this inquiry, its origins, and its purposes.
The primary purpose of the Goldring inquiry is to establish a history of the Hillsborough Disaster, to reconstruct, to the fullest possible extent, an account of the tragedy, in response to an increasing amount of new evidence previously unavailable to old investigations. The official nature of the jury’s task lends their conclusions an authority over the matter of historical truth, yet what becomes history is constructed from impartial evidence, and efforts to fill in the gaps to create a narrative are affected by prejudices. According to the late historian Michel Rolph-Trouillot, what is viewed and preserved as ‘evidence’ is itself selected through the workings of power. In the case of Hillsborough, evidence attained has been largely sought from (and provided at the discretion of) South Yorkshire Police, the emergency services, and Sheffield Wednesday football club.
3:06pm, 15th April 1989.
For the jurors, to send their thought processes back to 1989 holds major difficulties when tackling the standards of the day. Let’s unpack this. As established by the Taylor Inquiry of 1990, the crush occurred after congestion outside the Leppings Lane End led to an unmanned “exit” turnstile being opened to allow fans into the ground, leading them into pens already near-full capacity. In desperation fans attempted to climb up to the top tier, or scaled the fence between them and the ground. After six minutes the game was halted. Hundreds were injured, and 96 died as a result of the crush.
Immediately after the Disaster, South Yorkshire Police began to distance themselves from any hint of blame, instead suggesting that the crush was caused by the behaviour of the Liverpool fans. Police Chief Superintendent David Duckenfield, who had given the order to open the turnstile against previous precedent for matches at Hillsborough, initially claimed that the fans had forced the gate open. South Yorkshire Police subsequently emphasised observations of fans drinking, and suggested that many had showed up late and without tickets, planning to rush the gates to gain access.
The idea of Liverpool fans as culpable chimed with the contemporary popular imagination, fed by a decade of images of violence in football, especially those of the Heysel disaster of 1985. During the European Cup final in Brussels, a group of Liverpool fans rushed the adjoining “neutral” section of the ground, comprised mostly of Juventus fans, and the subsequent flight of fans from the area put too much pressure upon a wall in the rickety old ground, causing a collapse that killed 39 fans, mostly from Italy. The following day UEFA observer Gunter Schneider declared that “only the English fans were responsible,” and Margaret Thatcher agreed, requesting that English clubs be barred from subsequent European competition. Just five days after the match, the ban was put in place. Subsequent analysis of Heysel suggested that along with the aggressors (of which fourteen would be found guilty of manslaughter), police and organisers were also culpable, but the prevailing attitude in 1989 was that Liverpool fans were dangerous. This was only exacerbated by class and regional prejudice against working-class Liverpudlians – Middle England has long held the stereotype of the Scousers as vandals, thieves and arsonists. To many in 1989, a person from Liverpool was seen as an inherent criminal.
It was no surprise, that the English press, long-time peddlers of such filth and nonsense, exacerbated the narrative that found the fault in the victims of Hillsborough. Underneath The Sun’s famous headline, “The Truth,” lay lurid, false claims that Liverpool fans, “drunken,” had pickpocketed the dead, and urinated on the police. Scousers no longer buy The Sun, but other publications such as the Sunday Times also insinuated blame, highlighting the popularity of the opinion. It went all the way to the top – UEFA president Jacques Georges immediately blamed hooliganism for Hillsborough, characterising Liverpool fans as “beasts,” before later retracting the claim.
Such ideas have remained strong from 1989 to the present-day. The Hillsborough Independent Panel of 2012 noted the endurance of the narrative of fan aggravation as cause. Just last month in their Europa League match at Anfield, a few Manchester United fans taunted their opposition with a chant saying “The Sun were right, you’re murderers.“ I’ve spoken to too many people who dehumanise the victims of Hillsborough as “typical violent scousers,” rather than attempting to find any sympathy with those who died simply for attending a football match.
The point is that to “apply the standards of 1989” is a historical, as well as a legal, exercise. In 1989, the idea that Liverpool fans were dangerous was commonplace and it was capitalised upon by South Yorkshire Police. Yet fans, relatives of the victims and victim solidarity groups have always rejected this widely-held and powerfully-backed notion. The Taylor Report, examining the available evidence, placed the primary cause of the Disaster on a breakdown of police practice as opposed to fan action, yet saw these failings as existing in poor administration rather than in negligence. The official verdict was, and remained, “accidental death.”
Yet as more evidence surfaced, in no small part thanks to the efforts of tireless Hillsborough justice campaigners, many of the claims made by Duckenfield and South Yorkshire Police have unravelled. The notion that the crush was caused by ticketless fans was placed in doubt by the Taylor Report which highlighted that the stand as a whole was still under-capacity at 15:06. Duckenfield’s claim that fans broke through the Exit gate was shown to be false, and as further observations were collected (and heard), levels of drinking by the standards of the day were generally seen to be much lower than would be expected.
Over the past ten years momentum has slowly built up as those who campaign for Justice for the 96 have continued undeterred, and found increasingly sympathetic voices in positions of power. The Hillsborough Family Support Group (led by Trevor Hicks, father of two of the victims) had pressed for the release of documents previously disclosed, arguing that their release could greatly change the public memory of the Disaster. The Hillsborough Independent Panel was formed in 2009 to investigate this claim, and three years later released its findings along with 450 000 pages of documents relating to the crisis. It concluded that Liverpool fans held no responsibility for the tragedy, but its findings were damning for South Yorkshire Police.
It found that 164 witness statements had been altered, of which 116 had been changed to remove negative comments regarding police behaviour. It found that police had conducted an active search for information to smear the victims, and had run blood alcohol tests on the bodies (38 of the 96 were children). It found that the Sun’s “The Truth” article had been sourced from false comments by the Conservative MP of Sheffield Hallam, Irvine Patnick. Its most chilling conclusion was that up to 41 of the deceased still had sufficient heart and lung function at the time the emergency services reached them, and perhaps might have been saved were it not for failings in an emergency response previously exonerated by the Taylor Report. The Independent Police Complaints Commission has since uncovered a further 55 altered statements. This evidence caused such a stir that it led David Cameron to apologise to the victims on behalf of the government, and in the resulting fallout it was decided a new official inquiry should take place.
The Historical Sorcery of a Legal Judgment
Therefore when our jury is instructed to ignore hindsight in its verdict, it is required to remove from its considerations two decades of historical sorcery conducted by South Yorkshire Police and those in the media and parliament who sought to protect them. This suggestion of a cover-up, beginning on the afternoon of the 15th April 1989, is at the very least evidence that Duckenfield and South Yorkshire Police were aware that their failings that day were far greater than a system failure.
Once again, I wish to express sympathy with the legal thinking of Point 9, yet the primary aim of this inquiry is to establish an authoritative historical account, inspired by the quashing of the original “accidental death” verdict and the subsequent acceptance of later findings as admissible evidence following the HIP investigation. An inquiry that refuses prior acknowledgement of the two decades of gagging histories of Hillsborough that dissent from the SYP narrative must continually compete with ideas of fan culpability. Subsequent to the findings of HIP and the IPCC, Our questionnaire is designed to assess responsibility in various groups including and beyond SYP, including the emergency services and Sheffield Wednesday Football Club.
Question 7, however, asks the jury to consider whether there was “any behaviour on the part of football supporters which caused or contributed to the dangerous situation at the Leppings Lane turnstiles,” and recommends that the jury consider “whether or not some supporters at the Leppings Lane turnstiles behaved in a way which was unusually forceful or resistant to police control.” To answer said question without hindsight, in light of what has become apparent since, is not only counterproductive to an inquiry that was launched specifically in response to ‘new’ evidence previously withheld, but also an incredibly difficult task given the events of the last few years.
Duties of Care
Question 6 is the most important question to be answered.
“Are you satisfied, so that you are sure, that those who died in the Disaster were unlawfully killed?”
It comes with two pages of guidelines, importantly explaining that a juror “must be sure that Chief Superintendent Duckenfield owed a duty of care to the 96 people who died in the Disaster.” This too is a question difficult to answer using the “standards” of 1989. The 1990 Taylor Report, for example, wrote that “hooliganism at and associated with football matches has strongly influenced the strategy of the police.” The report deems this strategy “understandable and indeed commendable,” but notes the subsequent “imbalance” in police duties between “the need to quell a minority of troublemakers and the need to secure the safety and comfort of the majority.”Therefore, to ask whether Duckenfield owed a duty of care to those who died in the first place is to ask a complicated question.
If he did, by the standards of 1989, hold a duty of care to the Liverpool fans then the idea that killing could be described as unlawful due to gross negligence immediately gains strength. However, if one doubts that Duckenfield did not owe a duty of care, a possible scenario when judging the “lawfulness” of their actions, a juror thus opens the sinister historical question as to what the true purpose of the presence of South Yorkshire Police was that day.
Through this logic one might conclude that, whatever the answers to the other questions, the Goldring inquiry consequently endorses the notion that because of the dominant (though never universally-held) opinion that Liverpudlians were criminals and hooligans, the true purpose of South Yorkshire Police was to guard the rest of the world from Liverpool fans. This position would, historically speaking, implicitly legitimise institutional violence based solely on the modal attitudes of a period. Even if the inquiry finds the SYP and Duckenfield at fault for the Disaster, to answer question six in the negative would legally exonerate them. The question of “duty of care” is loaded with historical and legal meaning.
Historical justice needs legal justice
Gramsci wrote that “truth is always revolutionary.” In history, truth is always multiple and contestable due to the partial and subjective nature of the archives, and what is known as history is so often affected by the workings of political and social power. The revolutionary truth of Hillsborough can be attained by shattering the decades of myths and manipulations that have distracted attention away from failings in the response and accentuated the actions of the victims. That requires the use of “hindsight.”
Can this inquest provide that truth? It is certainly possible, especially in the investigation of individual times and circumstances of death that can highlight potential failings in the emergency response, and in the reconsideration of evidence previously redacted from previous inquiries. Much depends on the
ten nine jurors and their interpretation of the questionnaire guidelines and of Point 9, and in what manner the fourteen questions are answered.
However, the legal, moral and historical questions posed by the Hillsborough Disaster are so intertwined that if the actions of the South Yorkshire Police are not deemed unlawful it will be difficult to demolish the two-decades of historical manipulation to the benefit of the SYP, yet without the latter, legal justice for the 96 may prove difficult. It may prove beyond the scope of the jury’s decision to achieve this lofty task, but its conclusions will carry a weighty authority, and in this moment there is a chance that the Goldring Inquiry could yet bring vindication for the victims of Hillsborough and those who survive them.
They’ve been waiting for twenty-seven years.