The Human Rights Act: securing justice for the Hillsborough families

Please note this guest blog was originally published in 2016 and some of the information may be out of date.

After an inquest jury found that those who died at Hillsborough stadium in 1989 were unlawfully killed, Anna Morris, one of the lawyers representing their families, looks back at the longest jury case in English legal history and reflects on the role the Human Rights Act had to play.

On April 26 of this year, I hugged two of my clients in elation after a jury of 9 set the record straight about what happened at Hillsborough stadium 27 years ago, on April 15 1989. Moments later, they looked at each other and said, without missing a beat, “so, what do we do tomorrow?” They hadn’t dared believe there would be a day when their fight to clear the names of their loved ones, and for justice, would be won. This had been a life-defining struggle for a generation of children, wives, parents and siblings of the 96 people who died on that day.

The jury’s conclusions finally saw their families achieve something they recognise as justice. Much has rightly been reported about their tenacity, commitment and patience. I want to say something about their humanity.

The families have endured the longest jury case in English legal history: 319 days of witnesses, evidence and submissions. For many, attending Birchwood Business Park had become a full time job. Employers who asked “haven’t you got over it yet?” had to be negotiated with; childcare had to be arranged; health problems had to be managed, and life continued to be put on hold. But when they could be there, they were there: sitting, listening, waiting.

Many approached the process with caution after decades of being repeatedly let down by lawyers, judges and politicians. They had no reason to trust us, their lawyers, but as they sat there in our conferences, polite and knotted tense with questions and anger, their thoughts were never just of themselves.

“Who will look after the jury?”

“What about the survivors, who speaks for them?”

“How do I find the man who helped our brother? I want to thank him.”

We could only tell them that we would try to answer their questions; that we hoped we could.

On many occasions, our clients looked after us, using their 27 years of pain to help us navigate our way through the sea of changing emotions. From flasks of pea-whack soup served from the boot of a car, to cups of tea in their homes, the warmth and respect they showed us was truly humbling.

During the proceedings I was mother to one young boy and pregnant with a second. One morning, the morning of her young son’s inquest, a client presented me with a bag full of hand-knitted clothes specially made for my baby. I have a drawer full of beautiful blankets and clothes, made by those strong women of Liverpool. Nothing could make me prouder.

And when my youngest son finally made his first trip to Birchwood, he was passed from mother to mother, bounced on knees and fussed over as if he was one of their own. It only struck me later, like a tidal wave, that I had been swapping teething, sleeping and feeding stories about children who would never grow old.

There are many small moments that made the Hillsborough inquests more than just an inquiry into the circumstances of how 96 people died that day. The pen portraits that painted with humour and dignity the real pictures of 96 cherished loved ones who attended a football match and never came home. The vigorous handshake in the corridor between a father and the off-duty Metropolitan Police Officer who pulled his son from the pen. The damp-eyed slap on the back for the fellow fan that carried someone’s brother on a stretcher and wished he could have done more. The sympathetic words for colleagues who also lost loved ones during the months of the inquests. The jurors who were each hugged by the families, each thanked for their commitment when they were discharged as court concluded for the last time. I hope that those witnesses, relieved of their burden after 27 years, were the lighter for it.

No one can now deny the success and the power of the families’ campaign for justice all these years. They are the reason that 96 verdicts of ‘accidental death’ were quashed. We should never be in doubt that this is the reason families should be at the heart of the inquest system. It is their demands that ensured the truth has now been heard.

The role of the Human Rights Act

So how has the Human Rights Act (HRA) played a part in securing justice for the 96? The HRA gives effect to a key right in the European Convention of Human Rights and changed radically the face of inquest law and procedure since the Act’s came into force in the year 2000.

The right to life (protected by Article 2) imposes a duty on a state not to take an individual’s life, but it also contains what is often referred as an “investigative duty” to fully and fearlessly investigate the circumstances of any death that occurs at the hands of the state, in state custody or with a nexus to state involvement. This duty is carried out by the state in the form of a Coroner’s inquest. In 2003, the UK’s highest court (then the House of Lords) ruled that an Article 2 inquest must ensure that:

“… the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.”

The first Hillsborough Inquests in 1989 refused to look at anything that happened after 3:15pm on 15 April 1989 and took a very narrow view of the causes of the disaster. Because of the disclosure of new evidence by the Hillsborough Independent Panel including evidence that some of the 96 may have been alive at or after 3:15pm, the High Court ruled in 2012 that Article 2 required that the first inquest verdicts of “accidental death” be quashed and ordered that fresh inquests take place.

Because the 2014 inquests into the deaths of the 96 were required to comply with the Article 2 investigative duty, they were able to analyse the broad causative circumstances of the disaster which would not otherwise have been in scope including the structure of the stadium, planning for the match, emergency medical and police response and the amendment of police witness statements.

The Article 2 investigative duty also recognises the importance of allowing families to engage in the Coroner’s inquest by receiving disclosure of the documents and to question the evidence and witnesses. In the Hillsborough inquests, this meant that the families were finally able to see all the evidence that the Coroner disclosed, which ran to hundreds of thousands of pages and were able to instruct their legal team to properly ask probing questions of witnesses on their behalf.

However, this particular aspect is currently under threat within the Coronial system at large as the Legal Aid Agency continues to take an increasingly restrictive view of when a family needs funded legal representation. There is a real issue nationally around allowing families to actively participate in their loved one’s inquest.

Without the Human Rights Act the 2014 Hillsborough Inquests would not have been able to engage in such a full inquiry into what happen on that dreadful day. It was only that full inquiry that allowed the jury to come to detailed conclusions identifying key failings by not only the Match Commander, but also the South Yorkshire Police, the architect at Sheffield Wednesday Football Club and the South Yorkshire Ambulance Service.

The families and justice demanded this level of investigation and these detailed conclusions. The Human Rights Act helped the families to make it possible.