Jean-Yves Gilg

Editor, Solicitors Journal

Hillsborough inquest: Acting for Liverpool

Hillsborough inquest: Acting for Liverpool


Mark George QC and Marcia Willis Stewart talk to John van der Luit-Drummond about handling the logistics, and the emotions, in one of the grossest miscarriages of justice the world has ever seen

'It could have been any of us,' says Mark George QC, who, on 15 April 1989, was playing football with his sons in a local park as the horrific events at Hillsborough unfolded on national television and radio.

On that fateful day, 24,000 Liverpool supporters arrived at
the home of Sheffield Wednesday Football Club for an FA Cup
semi-final match with Nottingham Forest. What had been a highly anticipated game between two of the country's leading teams quickly became the UK's worst stadium disaster, as 96 men, women, and children died or were fatally injured in a crush behind the goal at the Leppings Lane end of the ground.

Amid accusations that the fans themselves had been responsible for the deaths - along with other unsavoury allegations contained under the Sun's infamous 'The Truth' headline - what followed was a 27-year fight by the families of the 96 killed to unravel the truth. The 1989 public inquiry by Lord Justice Taylor, which blamed a 'failure in police control' for the tragedy, was followed by the 1991 inquest that controversially returned a verdict of accidental death. A private prosecution of the match-day commander, David Duckenfield, in 2000 was subsequently stayed after the jury failed to reach a verdict.

Twelve years later, the Hillsborough Independent Panel (HIP) report cast doubt over the original inquest verdict, discovered the alteration of 116 police statements, and found no evidence to back up allegations of misbehaviour by Liverpool fans. The High Court's quashing of the accidental death finding just a few months later paved the way for the opening of a new inquest in 2014 under
Sir John Goldring. Two years later, on 26 April 2016, a new jury concluded that it was the actions of South Yorkshire police that had been the principal cause of the Hillsborough disaster. The verdict, heard around the world, found that the 96 victims had been 'unlawfully killed'.

Team building

With the families of the 96 granted legal representation for the first time under a government scheme - in addition to those advising the various interested parties and the coroner's legal team - the specially built coroner's court at Birchwood Park, Warrington, resembled a bustling hive filled with some of the best and
brightest legal minds in the country.

Representing family members of by far the largest group at the inquest - the Hillsborough Family Support Group (HFSG) - Marcia Willis Stewart, managing partner of Birnberg Peirce & Partners,
had a logistical challenge on her hands. Building her legal team practically from scratch, she elected to form eight sub-teams,
each comprising one solicitor and three barristers, plus paralegal support, and each tasked with representing ten of the deceased.

Willis Stewart explains that, as well as managing their assigned clients, each team had an issue to deal with, covering critical matters such as stadium safety, the police and ambulance responses, and pathology. 'When we finished all the issues, I reconfigured the team,' she continues. 'I would look at each topic and what the next stage would be. The teams didn't just drop off; they had their issues but they also had their clients. We had the particulars of how the individuals came to their deaths. Each team had to be focused.'

Of course, dealing with so many competing voices - both clients and other lawyers - was never going to be easy. 'From day one, we said we would never get into political differences: we would act together,' explains Willis Stewart.

The Broudie Jackson Canter, EAD, and Butcher Barlow triumvirate, representing families of the Hillsborough Justice Campaign (HJC), organised its team in completely the opposite way to Birnberg Peirce. A traditional pyramid structure with a welter of paralegals
at the bottom filtered work up to three junior counsels and two
silks from Garden Court North, George and Pete Weatherby QC. Weatherby, the leading counsel, had been involved in Hillsborough for a number of years and was involved in the application to
the High Court to quash the original verdict in 2012. George became involved the following summer. In addition to working collaboratively with each other, the families' legal teams also formed an 'unholy alliance' with their counterparts acting for the Police Federation, as George explains: 'Tactically, we thought it would be a good idea to draw a distinction between the rank and file, many of whom did their best to save lives, and senior officers who failed utterly. It was a good way of putting the boot into senior officers, including Duckenfield.'

The decision paid off, with the Federation's counsel realising that George and his colleagues had bigger fish to fry. Under intense questioning on the sixth day of his evidence, the former Hillsborough commander, Duckenfield, admitted to a series of propositions from Paul Greaney QC, representing the Police Federation, which, according to George, effectively 'filleted and kippered' him in front of the jury. Asked five times whether he had frozen in the crucial minutes before deciding to open the Leppings Lane exit gate, Duckenfield eventually replied: 'Yes, sir.' Asked if the failure to close off the tunnel caused the deaths of the 96, Duckenfield again responded: 'Yes, sir.'

'It was one of those moments where you look at each other and say: "Did he really just say that?"' recalls George. 'It was one of those moments when you realise your jaw has dropped. He was just making clearer and clearer admissions and it seemed to us that he'd admitted all of the elements of the offence. As one of my colleagues put it, he was "toast".

'Real legal cases do not have the dramatic effect that television
or film reconstructions sometimes pretend they do, but this was a moment of highest drama. Getting the man who has always been linked with the Hillsborough disaster to actually admit he had failed
so comprehensively, and that it did amount to gross negligence,
was a real moment of drama.'

Fan behaviour

This was not the only point of high drama and emotion, however. At a preliminary hearing in February 2014, lawyers for senior police officers convinced the coroner that the suggestion of drunkenness among fans, and its part in the tragedy, should be explored at the inquest.
This was despite the HIP report finding no evidence that alcohol 'played any part in the genesis of the disaster'.

The decision came as a shock to George, who recalls the words
of the then Lord Chief Justice, Igor Judge, who, when quashing the
first inquest verdict, said: 'We should deprecate this new inquest degenerating into the kind of adversarial battle which... scarred
the original inquest.'

'There was no dispute that these 96 people died unnaturally,' says George. 'Quite what relevance the fact that some people had been drinking - as everyone accepts people do at football matches - had to do with the deaths always seemed to be little less than a smokescreen and a rather unpleasant attempt by the police to evade their responsibilities.' The decision to allow this controversial line of questioning led to the coroner's team's optimistic nine-month timeframe for the inquest flying out the window. 'Even then they completely underestimated how long it would all take,' says George. 'When the jury arrived on 31 March 2014, it was told the inquest should be over by the end of the year and might just go into 2015.'

Though the lawyers sharpened their arguments and prepared for what was to come, the provocative questions asked by Duckenfield's barrister - John Beggs QC - stung the families and survivors. 'I've seen John Beggs reduce witnesses to wanting to jump out the witness box and strangle him,' says Willis Stewart. 'He did this with the families and it was horrible. It's a myth to think inquests are not adversarial; they're not supposed to be, but it's about the way the police, or the state, present their case. It's to destroy, to annihilate. We were not surprised; we were disgusted at how they behaved and it went against the so-called apology.'

Institutional denial

While the South Yorkshire police and its senior officers bore
the brunt of criticism for their tactics, George singles out the now defunct South Yorkshire metropolitan ambulance service (SYMAS) for what he describes as one of the most distasteful aspects of the entire inquest: the expert evidence into the timings and cause of death.

At the first inquest in 1991, a controversial cut-off time was imposed. The coroner, Dr Stefan Popper, held that those who died received their injuries before 3:15pm - the time the first ambulance arrived on the pitch - and that even if they lived beyond that time, 'the damage was done'. The findings of the HIP report poured cold water over that decision, which, it said 'led to the mistaken belief that an effective emergency services intervention could not have saved lives'. That, however, did not stop SYMAS rehashing the same old argument in
the fresh inquest.

'In virtually every one of the 96 cases, the ambulance service made
the point that they were all dead anyway, or beyond help, by the time
it could have reasonably done something,' explains George. 'Nobody
has anything bad to say about the ambulance service. Yet here it was pointing the finger, joining in with criticism of the fans, and avoiding its responsibilities. Trying to make out the 3:15 cut-off was justified, because everyone was dead or beyond help when they arrived, was probably the most distressing part of the proceedings for the families to listen to.'

This line of questioning by SYMAS's counsel was contrary to an apology issued by the service following a publication of the HIP report,
a point that has not gone unnoticed by George, who rails against the institutional defensiveness and denial that was displayed not just by SYMAS but by the police as well. 'Organisations can easily publish apologies; it's very political to do that,' says the silk. 'But if they don't
really mean it then how can we, as members of the public, be sure those organisations have learnt their lessons and won't make mistakes again? It's like a naughty schoolboy saying: "I'm only sorry because I've been caught." That is the attitude from the police and ambulance service.'

The verdict

Summing up the case in January 2016, Sir John explained to the jury that they would have to complete a 14-section questionnaire. Despite attempts to manage expectations by their legal teams, question six - whether the 96 had been unlawfully killed - and question seven - whether the behaviour of the fans contributed to the crush - were
seen as the most important for the families.

'We spent a lot of time trying to dampen down expectations,' explains George. 'We tried to help them understand that the law on unlawful killing is defendant-favourable and that we may not get it.
But if we got verdicts that were critical of the police, the club, and ambulance service, they could declare victory.'

Unlawful killing had to be decided on Duckenfield's actions and omissions alone, as he could not be held responsible for anybody else's actions. Surely this was a given, considering his car crash appearance before the jury? 'If the jury had been asked the day after his evidence they would undoubtedly have said "yes, unlawful killing", but they had to wait a year before deciding on it,' replies George. 'We were worried its impact would be lost by the passage of time. It was never in the bag.'

The cheers that erupted as the jury forewoman delivered the crucial verdict that the 96 had been unlawfully killed, by a majority of 7-2, quickly subsided as the families and their lawyers awaited the answer to question seven. Willis Stewart, who represented the family of Mark Duggan in the inquest into his death, was equally cautious.

'We couldn't say we were comfortable getting the result,' she says. 'Because of the "Duggan experience", I wanted to make sure we were grounded in reality; the sting in the tail was the question about fan behaviour. Our instructions were clear: if we got unlawful killing, but the fans had contributed in any way, it would not have been a victory.'

'It was suddenly a question of whether we were about to see victory snatched from our grasp,' adds George. 'If the jury said the fans did bear some responsibility, the outcry from everybody within the court and listening elsewhere would have drowned out the conclusion on unlawful killing.'

Yet these fears did not materialise. The jury's unanimous verdict that the fans did not contribute to the disaster brought further cheers and tears in the packed courtroom and a sense of relief to the lawyers. 'It just went completely bonkers with the world's press camped outside,' recalls George. 'It was a hectic day. I still find myself stopping short when I hear something on the television or read something in the paper and realise what we achieved. It will take some time to sink in.'

Justice delivered?

In the weeks since the landmark verdict Willis Stewart and George have had time to decompress and reflect on their success and the emotional toll it has taken on them, the families, and the jury. After two years
of hearing horrific evidence, given at a relentless pace, I ask if they became desensitised to the tragedy of Hillsborough or if they still
carry it with them? 'It was hard,' admits George. 'I'm not saying we
need therapy, but I do wonder about the jury. As lawyers, we get
used to seeing some pretty dreadful cases, but it is different for juries.
I know it was tough for them. There were lots of tears throughout different stages of the evidence.'

For Willis Stewart, the most emotional part of the inquest was hearing the deeply moving 'pen portraits' - personal statements from the families - of victims of the disaster: 'People talk about lawyers being emotionless. We couldn't be. We cried often. When you hear of the little ones who died,' she pauses, 'painful.' Evidence from the survivors was also heart-rending: 'One survivor, who was blind, was recounting the events in colour. Another was talking about not breathing, he was going back to that place, and we were all not breathing with him.'

While preparing for oral evidence, George realised that the poignant statements made by the survivors was the closest the world would get to hearing from the dead. 'These people suffered in exactly the same way as those that died,' he says. 'It was just a quirk of circumstance they didn't go that extra inch and die too. It was very hard reading and listening to their accounts, but I thought it was cathartic for them to do it.'

As a criminal lawyer by specialism, George has never held to the
idea of being dispassionate and explains that he has always tried to empathise with his clients, to look at events from their side of the fence, and to get emotionally involved - but, he admits, Hillsborough was a case like no other: 'We spent a lot of time looking at the terrible footage you see from behind the goal at the Leppings Lane end. You suddenly realise you are looking at a pile of bodies, they look asleep. They are overwhelmingly young. You just think of the tragedy of these bright young things with their whole lives in front of them who suddenly had it snuffed out. Every time I looked at that footage or read one of those statements it confirmed in my mind that we had to get those people the right result.'

With the inquest now concluded, at least one civil claim launched, and criminal prosecutions expected by the end of the year, I wonder whether the families of the 96 have finally obtained justice, or if this is just another step along the already long road to redressing the wrong perpetrated 27 years ago?

'In many ways this is probably the high point,' proffers George. 'It's a total victory for the families. I'm not sure it is going to get much better. There wasn't a sense of vengeance. The families wanted accountability.'

'I wouldn't say it's the end,' replies Willis Stewart. 'Some may choose to stop here. Our clients can now collect a death certificate. Their loved ones can rest in peace, there is something about that.

'This has touched people's hearts. At the very beginning I told the team: "You think we're acting for the 96? We're acting for Liverpool."
I felt the weight of the city. It goes deep into the psyche of the people. The city was made to feel ashamed and that has been lifted.'

John van der Luit-Drummond is deputy editor for Solicitors Journal @JvdLD