Commons Urgent Question
The following Answer to an Urgent Question was given in the House of Commons on Thursday 10 June.
“I am sure that the whole House would want to join me in paying tribute to the immense courage, determination and patience of the families of the 96 people who died in the Hillsborough disaster, and of those injured who, 32 years on, continue to grieve about the events of that truly terrible day.
The collapse of the case concerning two former police officers and a solicitor who are charged with perverting the course of justice for allegedly having altered statements to be provided to the 1990 Taylor inquiry was the final opportunity for the families seeking justice for what happened at Hillsborough. As the House will have seen, the trial judge in that case ruled that the offence of perverting the course of justice could not have been committed because the inquiry was carrying out an administrative function for the Home Secretary and was not a process of public justice. As such, the prosecution was not able to establish a key element of the offence of perverting the course of justice and the case was unable to proceed any further. Of course, as Lord Chancellor, it is my duty to respect that decision.
Since the Taylor inquiry, the Inquiries Act 2005 was introduced, which allows inquiries to take evidence on oath and to compel witnesses to give evidence and to produce documentary evidence. Section 35 of that Act also makes it an offence to commit acts that intend to have the effect of distorting, altering or preventing evidence from being given to the statutory inquiry. It is also an offence intentionally to suppress or to conceal a relevant document or to destroy such a document.
Members will be rightly concerned as to what, if any, effect this may have on current public inquiries, such as the Grenfell inquiry, the Undercover Policing Inquiry and the Independent Inquiry into Child Sexual Abuse.
Each of those are statutory inquiries and each has been set up under the aegis of the 2005 Act, which means that, should someone seek to distort, destroy, conceal or suppress evidence in any of those inquiries, that Act provides that those actions will constitute a specific criminal offence. Indeed, the common-law offence of perverting the course of justice may also be an appropriate offence to charge if the elements of that offence are made out.
We recognise the need for those in public office to act responsibly and to discharge their duties with both honesty and integrity. As we continue to consider the judgment in the latest Hillsborough trial and its implications, we will of course always consider opportunities to review the law and how it operates. I want the families to know that there will be no exception in this case. We are carefully considering the points made by former Bishop of Liverpool James Jones in his 2017 report on the experiences of the Hillsborough families, including in relation to the proposed duty of candour. Our focus now, after the trial’s conclusion, will be on publishing the Government’s overarching response to that report, after having further consulted all the families.
Irrespective of the outcome of this case, the Government continue to be committed to engaging with the survivors and the bereaved families. It is critical that the lessons of the Hillsborough tragedy—the Hillsborough disaster—are not only learned but consistently applied so that something similar can never be allowed to happen again. The Government are absolutely determined to do just that.”
My Lords, following the collapse of the trials relating to the Hillsborough disaster, on 10 June in response to the UQ in the Commons the Lord Chancellor said that he would very carefully consider
“the points made by the … Bishop of Liverpool …. in his 2017 report”
and the conclusion of the trials, and publish an
“overarching response … having further consulted … the families.”—[Official Report, Commons, 10/6/21; cols. 1128-29.]
In addition to this, the Government have undertaken to respond to the Justice Committee’s report on the coroners service by the end of July this year, specifically to its recommendation that bereaved families should be legally aided at inquests where public authorities are legally represented. Does the Minister accept that, in these two responses, the overriding concern should be that bereaved families and victims feel that their interests come first, and that no public authority or individual working for that public authority is above the law?
My Lords, on a personal note, I was still living in Liverpool at the time of the Hillsborough disaster. I remember listening to Radio Merseyside that fateful Saturday evening as the news of the deaths came in and the figure mounted higher and higher. I have nothing but admiration for the families and their supporters who sought justice for the 96 over so many years and in the face of so many obstacles. In response directly to the noble Lord’s question: yes, the overriding concern must be that bereaved victims and families feel their interests come first. We want to place them at the centre of our response to the inquiry under the former Bishop of Liverpool. Certainly, I agree that no public authority or individual working for that public authority is above the law.
My Lords, Mr Justice Davis held that the offence of perverting the course of justice did not apply to a public inquiry, because it is an administrative function of the Government rather than a process of public justice. If that is the current state of the law, even given the specific offence under the 2005 Act mentioned by the Lord Chancellor, will that not undermine the whole point of public inquiries and destroy public confidence in them? Will the Government urgently amend the Inquiries Act to reverse this decision, particularly in view of the impending inquiry into the handling of the pandemic, where we know there will be significant conflicts of evidence?
My Lords, we will of course keep this point of law under consideration but not for the reasons the noble Lord gives, if I may say so respectfully. The Prime Minister has already confirmed that the Covid inquiry—if I can call it that—will be established on a statutory basis with full formal powers. That means that Section 35 of the Inquiries Act 2005 will apply. That makes it an offence to commit acts that tend
“to have the effect of … distorting … altering … or preventing … evidence”
from being given to a statutory inquiry.
Will the Minister confirm that the DPP himself advised on charges brought in the trial and on the surprising decision not to appeal the trial judge’s terminating ruling? Will the DPP follow the practice of publishing his advice in important cases? Will the Minister explain why alternative charges of misconduct in public office were not brought against all three defendants, as they could have been?
My Lords, the CPS sought advice from senior Treasury counsel pre-charge. Decisions on appropriate charges were made after consideration of that advice. Those decisions were taken in 2017, predating the current director’s term of office. As far as misconduct in public office is concerned, that charge was not available for Mr Metcalf, the solicitor for South Yorkshire Police’s insurers. The allegations against the two officers were related closely to his conduct. Therefore, it was considered that the same charge against each was appropriate. The CPS did not appeal the decision because, having carefully considered it, it concluded there was not a proper basis to appeal to the Court of Appeal. As for the point about the director publishing advice, he does not sit under the Ministry of Justice, as the noble Lord will be aware, but I will pass that point on to the director, whom I note is appearing before the Justice Select Committee tomorrow.
My Lords, having flown up to the ground on the day of the tragedy as Minister for Sport, I spent time in the gymnasium that was divided into three: principally, an area for the dead; an area for families and friends to identify their lost ones through photographs; and an area for counselling and statements. I have rarely spoken about the appalling tragedy and the lasting effect it had on all of us involved, but does my noble friend the Minister agree that for all the criticisms levelled and questions about the decisions made by those in charge, the support given in tragic times to the bereaved, and the respect for those who had died—lying there in the gymnasium—has rarely been recognised? Does he accept that everyone I met that day, many in a state of profound shock, including many young police officers, did their level best to assist in harrowing circumstances?
My Lords, in cases like this, it is important to distinguish between the institutional response—which in many cases was either lacking or appalling—and the individual response of individual police officers, emergency service workers and others who went out of their way to assist in the most distressing of circumstances.
My Lords, what have the Government learned about the process of justice and public confidence in law, when a trial can collapse one day and a defence counsel stands in the street outside the court and maintains unequivocally that this proves that there has not been a cover-up, yet almost the next day the police admit such cover-ups and compensation is duly paid?
My Lords, as Prime Minister David Cameron said when he made the apology in the other place, the families
“suffered a double injustice: the injustice of the … events”
“the failure of the state to protect”
“and the indefensible wait to get to the truth;”
and also the offence of
“the denigration of the deceased.”—[Official Report, Commons, 12/9/12; cols. 285-86.]
When I was at the Bar, it was generally regarded as unwise or sometimes improper to comment publicly about your cases. I certainly commend that approach to anybody who says anything about the acts of the Liverpool fans. The Sun itself had to provide a full apology. It well behoves everybody else to read the Bishop Jones inquiry if they want to find out what the truth actually is.
My Lords, those of us who have been campaigning in support of the Hillsborough families for many years welcomed the positive and sympathetic response of the Lord Chancellor in the other place, and it has been echoed today by the Minister. Does he agree that it is time to meet the demand of the Hillsborough families—that no one similarly bereaved in a public disaster in the future will have to suffer what they suffered for so long? Does he also agree that the Public Advocate Bill, as first set out in the 2017 Queen’s Speech, will meet that demand by giving the bereaved real agency in the aftermath of such disasters and the ability to set up a Hillsborough-type panel to ensure that the truth is never again covered up?
My Lords, the Government fundamentally recognise the importance of placing the bereaved at the heart of any investigation that follows a public disaster. The noble Lord has worked in this area for a number of years and a Bill on this has been proposed. There was a government consultation in 2018, the responses to which were somewhat varied. As the Lord Chancellor confirmed in the other place last week, we will work at pace to ensure that we have a proper, full consultation on this important topic. He also reiterated that we will work on this on a cross-party basis. It is important that the independent public advocate does three things: first, it has to be independent; secondly, it must have the confidence of those who use it; and thirdly, and most importantly, it has to make a practical difference.
My Lords, even before the Hillsborough disaster of 15 April 1989, I had written to the Government questioning the safety of the ground. With the deaths of Liverpool constituents, including a child, and permanent brain damage to another constituent, I have waited patiently, along with the families, to see justice. This is justice delayed and justice denied. Reverting to the question asked by my noble friend Lord Carlile, presumably the Director of Public Prosecutions thought the perverting charge sustainable in law. Did he review the case himself, given its huge public importance, and will the CPS now consider prosecution for misconduct in public office for at least some of the three acquitted men? Does the Minister agree that the possibility of a private prosecution for other offences remains?
My Lords, at the time of these events, I was living in the constituency next door to the noble Lord’s and I remember his significant leadership in the city then. Respectfully, I shall pass the question on the director to the director for him to respond to the noble Lord. CPS charging decisions must be a responsibility of the CPS and totally independent of government. It would be unwise for a government Minister to provide legal advice from the Dispatch Box on the sensitive topic of private prosecutions.