Hillsborough: The Final Injustice For The 96

by | Jun 2, 2021

“This court is not a court of morals,” said barrister Jonathan Goldberg QC, last Wednesday, in a temporary court at Salford’s Lowry Theatre. “This court is not a court of common decency.” Goldberg was right, in the legal and general senses of those phrases. But the rest of his utterances were, to use a more wretched of his phrases, “perfectly appalling.”

Also last Wednesday in the ‘perfectly appalling’ column, former Prime Ministerial ill-advisor Dominic fucking Cummings grabbed headlines with a spiteful, hypocritical revenge mission on former colleagues at two parliamentary select committee hearings. And he grabbed most headlines from the collapse of probably the final legal proceedings in the 32-year battle for “Justice for the 96,” the football fans unlawfully killed at Sheffield Wednesday Football Club, on 15th April 1989.

The trial of South Yorkshire police (SYP) officers Chief Superintendent Donald Denton, Detective Chief Inspector Alan Foster and former SYP solicitor Peter Metcalf collapsed when presiding judge Mr. Justice William Davis ruled that the “course of public justice” could not have been perverted by the trio when they amended witness statements to Lord Justice Peter Taylor’s April-July 1989 inquiry into the deaths. This was because the inquiry was not a statutory public inquiry and there was therefore no “course of public justice” to pervert. No. Really.

Davis noted that while “chaired by a senior judge, the inquiry was carrying out an administrative function for the Home Secretary” and thus “was not a process of public justice.” This, taken non-legalistically, has been clear for years. Equally clear was Davis’s note that while “an inquest is a form of public justice,” the “ambit and purpose” of inquests “was limited,” while “the evidence called in relation to (them) was very limited.” Too limited, the families of the 96 have always claimed. And Davis ruled, as importantly, that the prosecution “could not demonstrate how the defendants acts’ had the tendency” (i.e. the intent) “to pervert any investigation into any offence.”

The major issue was the editing of 58 written accounts given by SYP officers. Taylor, Davis wrote, had requested “factual evidence” to “contribute to his understanding” of the disaster “and not comment and non-expert opinion.” And as “many accounts” had “both, some form of editing was necessary.” The prosecution said “passages were removed” which referenced “(SYP) failings” and that “matters…set out” in “a preliminary indication of the criticisms likely to be levelled at (SYP)” were also cut. But Davis ruled that “no amendment of any account was positively misleading” and that omitting matters entirely “was (and is) permissible” (my emphasis).

Davis knew his ruling would not stimulate universal joy. He ‘knew’ that a number of aspects of the legal proceedings since an April 2016 inquest ruled that the 96 were killed unlawfully had “caused very considerable anxiety and distress amongst those most affected.” But “whatever the anxiety and distress, I have to determine whether there is evidence to support the criminal offence” with which the trio were charged. “That is all I do,” he concluded, in semi-apologetic self-justification.

But his blanket acceptance of the defence case, before it was made, scrutinised or challenged in court, will have stuck in craws too, however legally legitimate it might be. Because the brief summary of the collapsed trial’s events is that three people were charged, the prosecution presented their case, the defence said there wasn’t a case to answer, and Davis said “you’re right, there isn’t.” And the upshot is that while the 96 were unlawfully killed, the twin brother of HG Wells’ Invisible Man might as well have done it, given the inability, the FAILURE, of the English justice system to apportion direct individual OR corporate responsibility.

Indeed, the only responsibility that English justice could discover, was that of Sheffield Wednesday’s then club secretary, Graham Mackrell, fined £6,500 for breaches of the Health and Safety at Work Act, which Judge Sir Peter Openshaw rightly ruled were not a “direct cause” of the disaster.

This is a moral, commonly indecent nonsense, with both constituent parts produced directly by the workings of that system, and worse, by the PROPER workings of that system. And it is what Goldberg meant by his “not a court of…” stuff. Court is about “the letter of the law, fella, the letter of the law,” as a decent, fictional police officer recently said on telly (not that I’m directly correlating police decency with fiction). Which begs the question “what is responsible when such a gap appears between the law and common, moral decency?” Nothing, if Judge Davis’s ruling is a guide.

The ruling, legally legitimate though it is, sounds like the product of a search for a way to collapse the trial, as if prosecuting the trio would echo the view of Lord Denning during a previous, subsequently proven miscarriage of justice (see “Birmingham Six” for details). Denning called the very concept of police impropriety in legal proceedings “such an appalling vista that every sensible person in the land would say that it cannot be right” that actions against them for those improprieties “should go any further.”

Davis not only found a way to collapse a trial but also provided a blueprint for anyone wanting to do so again. However, it wasn’t legal news to the Crown Prosecution Service (CPS), who were warned, by Openshaw, during previous Hillsborough proceedings that Davis’s ruling was on the legal cards. And much of the conduct, from all ‘sides,’ since the killings were ruled unlawful has been, let’s say, difficult to reconcile with a desire for justice.

The CPS director of legal services, Sue Hemming, hardly helped matters by understating that it was “surprising to many” that “a publicly-funded authority can lawfully withhold information from a public inquiry” or “that a solicitor can advise such a withholding, without sanction.” This “may be a matter which should be subject to scrutiny,” she further understated, as she explained that the CPS would, erm, “not appeal the ruling,” thereby scuppering an obvious opportunity to “subject” the “matter” to “scrutiny.”

Davis’s reasoning had one echo of previous failed proceedings. The then-Celtic boss Neil Lennon was attacked during a match at Hearts in May 2011. As I wrote that September, when Hearts fan John Wilson was convicted of a “breach of the peace” but was “not proven” to have committed a sectarian attack: “Remember when Neil Lennon was assaulted, live on Sky Sports? Never happened, apparently.” Then, as now, a key issue emerged from one word, “sectarian,” as Wilson denied saying “Fenian Bastard” while breaching the peace of Lennon’s skull, it being assumed that Wilson was motivated by purely footballing concerns. Because that happens a lot, doesn’t it? (No).

But the most disheartening aspects of the post-inquest proceedings has been the Stalinist revisionism, from some determinedly non-Stalinists, of the disaster’s legal history. The periodical re-emergence of the legally disproven claims that Liverpool fans bore any responsibility for it and that police had perverted no course of justice at all. Plus the inexplicable reluctance to call out these lies and, the worst example by a stretch, the lying liar not only still telling them but trying to pass them off as “badly misunderstood” and, yawn, “taken out of context.”

Metcalf’s representative, Goldberg, told BBC Radio Five Live’s Adrian Chiles last Wednesday that victims’ families had “been wound up with just these awful political statements that had no basis in reality. Over 32 years, there’s never been anything like it. It’s a complete conspiracy theory that’s a nonsense. This was cock-up, not conspiracy.” Whether you accept that or not, and I don’t, had Goldberg said only that, his subsequent claim that “my comment was intended to refer to the evidence given in the course of the prosecution case” would have rung true.

But, seconds earlier, he stated that his client was “accused of covering up criticism of the police” when “what he in fact did was cut out criticism of Liverpool fans, whose behaviour was perfectly appalling on the day, causing a riot that led to the gates having to be opened, that…let in the people who crushed to death the complete innocents at the front of the pens, who had arrived early and were not drunk and were behaving perfectly well.”

After the phrase “what he in fact did,” every word, EVERY WORD, of that is garbage, to the point of libel if individuals were named. Yet Chiles, an experienced broadcast journalist and genuine football fan, let it pass unchallenged on-air. He later admitted that he “should have pulled him up as he said it. That’s essentially a myth that’s been debunked.” But only after the inevitable social media storm which ensued from those extremely “wound up” by Goldberg’s “just awful statement that had no basis in reality.” Not the BBC’s ‘finest hour,’ even if it wasn’t the worst part of their last fortnight.

Goldberg claimed, in response to criticisms of his comments, that his “offence” was “in not making it clear that I was referring to actual evidence heard at the Metcalf trial, which my client to his credit cut in 1989. I was not endorsing it.” This doesn’t wash. Of all the world’s professionals, lawyers have to be about the most careful with words and their delivery. The only interpretation of his words and their delivery here is the one drawn by everyone who read and/or heard them.

In fact, and sorry to be a grammar bore here, his use of “whose” as a conjunction, rather than a phrase such as…well…“such as,” makes it abundantly clear that he was expressing his own opinion, not quoting someone else’s. If we are to believe his explanation, then he is not very good at his job. But Goldberg is VERY good at his job. And if they really were views Metcalf cut from evidence to the 1989 inquest, it seems remarkable that they remained the dominant narrative of the legal proceedings until the 2016 inquest focused on challenging that narrative, with ultimate success.

I understand why a Donald Trump, with his dishonesty tourettes, would revise history so. Indeed, Goldberg’s “never been anything like it” claim is straight from the Trump playbook. And I understand why craven bias news media such as America’s Fox News would not just leave his falsehoods unchallenged but actively punt them as news. However, Goldberg has some serious questions to answer here. Not the least of which is, and please excuse the legalese: “Why don’t you fcuk off?”

In fact, if all the acquitted trio’s lawyers were not professionally obliged to react as they did after last week’s ruling, then they all have a serious question to answer. Naturally, Goldberg referenced a “witch-hunt” which “has continued to resurrect the same tired accusations by prosecuting three old men” (as if there was an age-limit on such prosecutions).

But Denton’s solicitor Mike Rainford referenced “the myth of the Hillsborough cover-up,” WRD by “years of lies, half-truths and rumours,” words to trigger a global irony shortage. Foster’s rep, Paul Harris claimed that “the narrative of an alleged cover-up was not borne out by the evidence,” even though, as any impartial observer would instantly observe, that was not what Davis ruled, or the prime reason why. So, the serious question they have to answer? “Why don’t you fcuk off, an’ all?”

There is a not-uncommon view that, in cases of police killing unarmed black people, justice system failures are a by-product of deliberate historic design rather than individual error or prejudice. And the failings of the English justice system in the post-Hillsborough inquest cases make it hard to dismiss the possibility that it is designed to fail, when success can lead to prosecutions of the ‘wrong’ people.

And last week’s aborted trial was the latest of many legal failures. The biggest remains the failed prosecution in 2019 of Chief Superintendent Richard Duckenfield, the Hillsborough matchday commander, even though he said “Yes, sir” at the 2016 inquest, when asked if his failure to close the tunnel leading to where the 96 were crushed “was the direct cause” of their deaths.

Goldberg could not credibly claim ignorance of such a headline-grabbing admission. Which makes his lies last week even more contemptible. It was also a twist of justice miscarriage fate. Nearly half-a-century after false confessions secured convictions of innocent Irishmen, a true confession failed to secure the conviction of a guilty policeman. That global irony shortage just became a drought.

For reasons beyond “justice for the 96,” Davis’s ruling on what constitutes “public justice” should be made to have an impact on future legal conduct. The government has promised an inquiry into their pandemic strategy, with all the sincerity they can muster. And, even leaving the politics aside, current public evidence suggests that many versions of the “truth” exist among policy-makers and advisors of the time, who will not baulk at “withholding information” from said inquiry, or “advising such a withholding,” if they know they can do so “without sanction.”

Cummings’ parliamentary performance not only grabbed headlines from the Hillsborough trial collapse, but was also a timely example of the type of disregard for the truth displayed by representatives of the English justice system in connection with the disaster, Goldberg being merely the latest in a long line of blatant truth disregarders, both before and since

Campaigning for a “Hillsborough Law” has thus been refuelled. It’s scope has been widened by the involvement of the Covid-19 Bereaved Families for Justice Group in calls for equal legal funding for bereaved families and the imposition, remarkable though it is that it doesn’t already exist, of a “duty of candour” on public authorities at “courses of justice,” public or not.

And, writing in the Observer newspaper at the weekend, Manchester mayor and veteran campaigner for the bereaved Hillsborough families, Andy Burnham, added that “criminal trials that follow inquests must be based on the findings of those inquests,” to avoid “the disproved slurs” about Liverpool fans being “advanced as credible evidence in court once again, despite having been comprehensively disproved at the inquest.” As happened at Duckenfield’s trial, where the slurs could not but have influenced the jury which acquitted him, despite his admission of responsibility at the 2016 inquest.

The legal battle for justice for the 96 seems to be at an end, “after years of lies, half-truths and rumours,” which seems as if it may never end. If football fans had unlawfully killed even one police officer, justice would have been urged and served, quickly and properly. But in five years since the legal ruling that 96 football fans were unlawfully killed and a senior police officer publicly admitted that his decision-making directly caused their deaths, justice was rarely urged and has demonstrably not been served.

Because while the phrase ‘one law for the rich and another law for the poor’ was coined in 1830, 191 years of social justice progression appear not to have made it redundant. The courts are not courts of morals. The courts are not courts of common decency. And that remains perfectly appalling.