It was never going to be easy. From the moment that Police Chief Superintendent David Duckenfield met with Graham Kelly, Chief Executive at the FA in 1989 and told him that during the Hillsborough disaster, Liverpool fans had “forced” open Gate C, causing the crush – you knew this was never going to be easy.
When the first coroner’s report explained that all victims were dead (with the exception of Tony Bland, who died in 1993 after being in a coma for nearly 4 years) by 3.15pm, negating the need for any investigation into emergency service response – you just knew this was never going to be easy.
On 30 June 1997, as the Labour Government learned that the South Yorkshire Police changed 164 officers’ accounts of the Hillsborough disaster and Tony Blair wrote a note saying “why bother” in response to opening a new enquiry – you knew this was never going to be easy.
In just 152 words I have conveyed 3 examples (though there are many more) of how the families of the Hillsborough victims have been let down by the Establishment at almost every possible opportunity. Duckenfield admitted that his assertion regarding Gate C was a lie and the coroner’s report in respect of the 3.15 “cut off” was proved inaccurate after a long fight by Anne Williams, who’s son Kevin, was proved to be alive in the gymnasium as late as 3.45pm.
Following an extremely painful trial in which David Duckenfield has been cleared of gross negligence manslaughter, it is difficult to shake the feeling that it is all happening again.
Why are individuals in the dock?
One of the problems with the Hillsborough disaster is that much of the blame lies at the feet of two major entities. The FA, in holding an FA cup semi-final at a stadium without a valid safety certificate, has much to answer for. The South Yorkshire Police, for their many organisational failures (specifically their communications with the emergency services – 44 ambulances were outside the stadium but were denied entry, explaining why the 3.15pm cut off was leaned so heavily) also, has much to answer for.
Unfortunately, the iteration of the current 2007 Corporate Manslaughter Act in 1989 relied heavily on a concept called the “identification doctrine”. The principle was established in a case called Lennard’s Carrying Company Ltd V Asiatic Petrolium Co. Ltd  AC 705 and stated that ‘a corporation is an abstraction’, incapable of thinking, speaking or acting for itself. Behind whatever decisions contribute to the failings of a given company, this law stated that behind any corporation was an individual responsible for policies and decisions. This law was incredibly dated in 1989 and had heralded very few successful prosecutions.
The new law is far more robust, centred around a principle of aggregation, inviting a given jury to ‘consider the extent to which evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failures’ (2007 Corporate Manslaughter Act s8(3)a). Unfortunately, with the disaster happening in 1989, the skewed attitude of the South Yorkshire Police as a whole could never be collectively prosecuted and the Crown Prosecution Service have been forced to lean on old and inadequate law. They had to instead rely on a charge of gross negligence manslaughter and go after the individuals in charge that day.
Duckenfield found not guilty
A charged of gross negligence manslaughter requires the following elements to be proved:
a) The defendant owed a duty of care to the deceased;
b) By a negligent act or omission the defendant was in breach of the duty which he owed to the deceased;
c) The negligent act or omission was a cause of the death; and
d) The negligence, which was a cause of the death, amounts to gross negligence and is therefore a crime;
By his own admission in the initial inquests, Duckenfield “froze” and did not consider where people would go once he had opened gate C. You can make your own judgements on whether all 4 criteria above are satisfied but I feel that admission goes some way to satisfying at least 3 of them. When we add to this that Graham Mackrell (Turnstile Safety Officer) was fined £6,500 for the turnstile arrangements (he would have been imprisoned for 2 years if tried under today’s laws), we see that the turnstile safety officer seems to have a higher duty of care than Duckenfield, who oversaw the entire event. The problem comes when the judge direction in this retrial is considered alongside that Duckenfield (now suffering from PTSD) has been unable to give evidence. The Guardian states that the direction given to the jury by Sir Peter Openshaw was to disregard any previous inquest findings as “quite irrelevant” because “the rules and procedures were very different to a criminal trial”.
So what we are saying is that anything from the previous inquest and any admission from Duckenfield is deemed inadmissible at a time he is unable to give any evidence himself? The judge direction seems very odd and it would seem the defence team wasted no time in pedalling out the same old myths and stereotypes that people have spent 30 years fighting. David Conn writes in the Guardian:
“So a blank page was presented to a new jury, as if no truths had been accepted over 30 years, through the families’ fight, fury and an infinity of tears. Repeatedly, Myers (defence lawyer) was on his feet alleging that Liverpool supporters had indeed arrived late; that many were without tickets and many had had a drink; that they pushed, misbehaved, refused to accede to police instructions and tried to cheat their way into the ground.“
What was the point of the Taylor Report, absolving fans of blame? What was the point of the inquest? Why even bother fighting? Openshaw’s direction to the jury is the 3.15pm cut off reborn, it is the sly note passed from Blair to Straw. It is the establishment once again disregarding the truth of what happened. By directing the jury to ignore any evidence which arose during the inquest, Openshaw allowed old myths to resurface in a court of law. He allowed the Duckenfield lie to remain unchallenged. When the prosecution began insinuating that Liverpool fans were to blame, he should have kept them in check. The courtroom became yet another facet of the establishment complicit in a very damaging and very hurtful lie.
The verdict reached yesterday is extremely sad. The families of the 96 victims have been let down by the establishment at almost every level. The legal system, in not having an adequate Corporate Manslaughter Law up until 2007, has failed them on a historical level. It would also appear to have failed them on a current level, following an analysis of Openshaw’s bizarre direction and concluding comments. The establishment as a whole has failed these families. It has dragged their names through the mud, fought their appeals at every opportunity and clung to Kelvin Mackenzie’s lies published in The Sun. ‘The Truth’ has never had its day and even the current prime minister has remarked upon the ‘victim status’ of those in Merseyside, not comprehending the hurt this can cause.
In spite of all the above, Margaret Aspinall’s reaction to the verdict was typically dignified. She alluded to the inquests, which as we know stipulated that Liverpool fans were unlawfully killed. The dichotomy of this verdict leaves the justice system in a quandary. In reaching a not guilty verdict, the justice system has told us that 96 fans were unlawfully killed by no one. It once again shows the general public that there are individuals within the establishment who operate at a level above justice.