ECHR Article 2-1
Allegedly ineffective investigation into deaths of football supporters in the Hillsborough disaster in 1989: inadmissible
Facts – In 1989 ninety-six football supporters were killed in a crush at a football stadium. Inquests into the deaths ended in 1991 after the coroner’s jury reached a majority verdict of accidental deaths in all cases. An independent inquiry by Lord Justice Taylor concluded in 1990 that the main cause into the tragedy had been the failure of police control. No criminal proceedings were brought against any of the police officers responsible for the policing of the stadium at the time and disciplinary proceedings against the two most senior officers were discontinued. In February 1998 Lord Justice Stuart-Smith, who had been appointed by the Secretary of State for the Home Department to ascertain whether any new evidence existed, published a report finding there was no occasion for further investigation. In September 2012, following the disclosure by the Government of new information at the insistence of the victims’ families, an independent panel (the Hillsborough Independent Panel) reported that the risks of overcrowding and crushing at the stadium had been known and were foreseeable at the material time. It also expressed concerns about the emergency response to the events which unfolded at the stadium. Subsequent to the publication of that report the original inquest verdicts were quashed and new inquests were ordered. At the date of the European Court’s decision, the new inquest proceedings were under way and a new criminal inquiry and investigation was being conducted into allegations of police misconduct in the aftermath of the tragedy.
In their application to the European Court, the applicants, who are relatives of supporters who died in the disaster, complained under Article 2 of the Convention that the original inquests had been inadequate and that, although new inquests had been ordered, they had been required to wait for over 24 years for an Article 2 compliant investigation into the deaths.
Law – Article 2: The flawed character of the original inquests had now been recognised, two decades on, by the Hillsborough Independent Panel, the Government and the High Court in the light of newly disclosed information. The findings of the Panel constituted new evidence and information which cast doubt on the effectiveness of the original inquest and criminal investigations. In these circumstances, the authorities were under an obligation, pursuant to Article 2, to take further investigative measures. Indeed, even where no Article 2 procedural obligation existed, it was in the interests of governmental transparency and of justice in the wide sense for a government to arrange for a further review in connection with a national tragedy in response to concerns of victims or their families who were not satisfied with the results of the terminated investigations carried out in accordance with national law, notwithstanding that the tragedy had occurred many years earlier.
It was clear in the instant case, however, that extensive investigative measures were underway. Less than three months after the Panel published its report, the Attorney General had applied to the High Court to have new inquests ordered and that application had been granted a week later. A senior judge had swiftly been appointed as coroner and a number of preliminary hearings had taken place, the first only four months after the original inquest verdicts were quashed. The full inquests were scheduled to begin on 31 March 2014. Simultaneously, a new criminal inquiry had begun and the Independent Police Complaints Commission was investigating allegations of police misconduct in the aftermath of the disaster. The steps taken were notable for both their haste and their comprehensive nature and there was nothing to indicate that the respondent State has failed to satisfy the investigative obligations which had arisen as a consequence of the Panel report. There was also no reason currently to doubt that the inquests and other investigations would be able to establish the facts and determine the lawfulness or otherwise of the deaths in question.
As to the specific complaint about the alleged twenty-four year delay, it was important to recognise that this was not a case where criminal investigations or inquest proceedings had dragged on for a number of years and never reached any conclusion. The Director of Public Prosecutions had decided in 1990 not to pursue criminal charges. The original inquests, which had opened within days of the tragedy, were completed in 1991, following the publication of the Taylor Inquiry report and after hearing from a large number of witnesses. Disciplinary proceedings against two police officers had terminated in 1991 and 1992 respectively. Any complaint concerning the compliance of those investigations and proceedings with Article 2 should have been made at the time. Likewise, to the extent that a fresh investigative obligation had arisen at the time of the Stuart-Smith scrutiny review in 1997, the Court had already found in its Williams v. the United Kingdom decision that it had been discharged by the review and the report subsequently published, and that any complaints about alleged procedural failings of that review ought to have been brought within six months of the report’s publication.
In terms of the Convention, the Panel’s findings in 2012 could be taken to constitute a new element that revived the positive obligation of the respondent State to carry out adequate investigations into the cause and circumstances of the Hillsborough tragedy. However, it would be wrong to see the revival of the procedural obligation incumbent on the United Kingdom under Article 2 following the emergence of new relevant information as the continuation of the original obligation to investigate, bringing with it the consequence that the State could be taxed with culpable delays going back many years. Attaching retroactive effect in this way was likely to discourage governments from taking any voluntary steps that might give rise to the revival of the procedural obligation under Article 2 in the first place.
Having regard both to the understandable absence of criticism by the applicants of the prompt and effective measures taken so far by various authorities of the respondent State to further investigate the deaths of the Hillsborough victims following the setting up of the Panel and to the pending inquests and investigations, the applications had to be regarded as premature and inadmissible pursuant to Article 35 — 1 and 4. If the applicants become dissatisfied with the progress being made or, upon the conclusion of the investigations and inquests, were not content with the outcome, it remained open to them to lodge further applications with the Court.
Conclusion: inadmissible (premature).
Updated: 03 December 2021; Ref: scu.526030