Today, at the Crown Court at Manchester (sitting in a temporary “Nightingale Court” at the Lowry theatre in Salford), the trial of three men accused of offences arising out of the Hillsborough disaster was brought to an abrupt halt, when the judge ruled at the close of the prosecution case that the defendants had “no case to answer”.

This ruling by Mr Justice William Davis came as a surprise to many outside observers; moreover, there have been instinctive suspicions – understandable given the lengthy history of state failings and misconduct that has defined the aftermath of 15 April 1989 – of further cover-up, and of justice denied.

So what happened in this case, and why is this trial over before the defence case has started?

 

What was the trial about?

Peter Metcalf – a retired solicitor – and Donald Denton and Alan Foster – both retired police officers – were charged with committing acts tending and intended to pervert the course of public justice. The prosecution case was that each of the men had deliberately amended witness statements given by police officers present at Hillsborough on 15 April 1989, with the intention of removing material likely to cause embarrassment or invite criticism at the inquiries that would inevitably follow. Mr Metcalf was also accused of having drafted a template witness statement for four police officers in relation to civil court proceedings involving (among others) South Yorkshire Police and Sheffield Wednesday Football Club, effectively telling those officers what to say.

 

What is ‘perverting the course of justice’?

 Doing an act tending and intended to pervert the course of justice is a common law offence (i.e. not set out in legislation). It is most commonly charged in relation to criminal proceedings – such as where a person makes a false complaint of a crime, or attempts to destroy evidence of a crime. But any act which carries a significant risk of perverting (or corrupting) the course of public justice, and which the defendant intends to pervert the course of justice, falls within the scope of this offence.

 

What were the defendants said to have done?

On 17 April 1989, the Home Secretary announced an independent inquiry into the events of 15 April, to be conducted by Lord Justice Taylor. West Midlands Police were appointed to investigate, and to collate evidence to be used at the Taylor Inquiry, evidence which would also be available to the Coroner at any subsequent inquest proceedings. It was obvious that South Yorkshire Police (SYP), the police force responsible for the policing of Hillsborough, would be under close scrutiny, and in anticipation the insurers of SYP lawyered up, instructing a solicitor called Peter Metcalf. Mr Metcalf advised SYP that witness statements should be taken from as many officers on duty at Hillsborough as possible, for forwarding to West Midlands Police. This was done. So far, so good.

Then, at the end of April, Lord Taylor said that he wished to have statements from all witnesses, but without any opinion evidence (i.e. – just setting out what the witnesses saw and heard, not their opinions or how the events made them feel). Because many SYP police officers had included opinion in their witness statements, Mr Metcalf advised that the statements needed editing. Again, in itself entirely uncontroversial. Witness statements are often edited to remove irrelevant or inadmissible material before being submitted to a court. The process was that Mr Metcalf would advise Donald Denton – a Chief Superintendent – on what editing was required, and Alan Foster – a Chief Inspector – would carry out the editing.

But. The police witness statements were not only edited to remove inadmissible opinion. Before they were submitted to West Midlands Police, fifty eight statements were amended, the prosecution alleged, to remove references to failings on the part of SYP. A letter – called the “Salmon letter’ – had already been issued by the Inquiry setting out the criticisms that SYP might expect to face. Material which featured in that letter found itself being removed at the hands of Mr Foster, at the behest of Mr Denton and on the advice of Mr Metcalf. Mr Foster did the same in relation to a further nine witness statements, acting on his own initiative. The individual police officers concerned each then approved their amended witness statement, before it was forwarded to West Midlands.

All of this was with an eye, the prosecution said, not just on the Taylor Inquiry, but on subsequent coronial, disciplinary, civil or criminal proceedings that might follow. The defendants were preparing the groundwork, seeking to minimise SYP’s culpability by omitting inconvenient evidence of serious operational failings. The prosecution relied upon expert evidence as to the duties of a solicitor (as they applied in 1989), which asserted that Mr Metcalf had a “duty of candour”, a duty which he had breached by seeking to cover up the critical parts of the police witness statements.

A further charge against Peter Metcalf alone related to separate proceedings – what are known as “contribution proceedings”, where a party found liable in civil litigation seeks a ‘contribution’ to the damages they are ordered to pay, from another party also alleged to be liable. Mr Metcalf produced a draft statement for four ranking SYP officers relating to the issue of who at Hillsborough was responsible for monitoring the standing pens – i.e. was it the football club or the police. By drafting ‘templates’, Mr Metcalf was, the prosecution said, putting words in the mouths of the witnesses.

 

How can there be ‘no case to answer’ when there was enough evidence to bring the case to trial?

A “submission of no case” is a legal argument sometimes advanced at the end of the prosecution case in a criminal trial. If a judge finds that there is no evidence to support the prosecution case, s/he must stop the case. Likewise, if a judge finds that there is some evidence, but that taking the evidence at its highest, a jury properly directed could not properly convict, the judge must stop the case and direct a not guilty verdict. This is a safeguard designed to avoid truly weak cases going before a jury and risking wrongful conviction. It is a submission which we criminal defence lawyers lose far more than we win, because usually there will be enough for a judge to say “I think a jury could properly and safely convict on this evidence, so let’s get on with the defence case”.

Given that a case should only be prosecuted by the Crown Prosecution Service if there is a realistic prospect of conviction on the evidence, you may fairly wonder how these scenarios come about. The answer is that trials are dynamic processes – often evidence changes because of unexpected answers that witnesses give, or sometimes somebody spots a novel legal point that hadn’t been identified before. You can never predict what will happen in a criminal trial.

 

What was the reason for the judge’s decision?

There are several reasons, helpfully summarised in this press summary released by the court. Let’s take the defendants in turn.

 

Peter Metcalf

Whatever was in Mr Metcalf’s mind, his actions did not, the judge ruled, carry a significant risk of the course of justice being perverted. It was agreed by all parties that the Taylor Inquiry was not itself a “process of public justice” as defined by the law. It was an administrative inquiry set up by the Home Office, so even if the editing of the witness statements were intended to pervert the course of the inquiry and/or risked doing so, it would not amount to a criminal offence of perverting the course of public justice.

Therefore the prosecution case was – had to be – that Mr Metcalf must have anticipated future civil, coronial or criminal proceedings, and that his acts were intended to and risked perverting those prospective proceedings.

However.

Coronial proceedings in 1989 did not allocate blame – their purpose was much more limited at that time. So any attempt to avoid blame, however malign, could not pervert the course of coronial proceedings. During the prosecution case, the court was not presented with evidence as to how these proceedings could realistically have been perverted.

Witness statements in civil proceedings are allowed to be self-serving. Often they omit things that don’t support the party’s case. This is why witnesses attend court for cross-examination by the other side, so that the parts that the witness doesn’t want to mention can be explored/exposed in open court. Mr Metcalf’s actions would not have perverted any civil proceedings.

As for criminal proceedings, the prosecution were unable to show how his actions would have actually made a criminal investigation any more difficult. Mr Metcalf did not advise that the original statements be destroyed – indeed, West Midlands, in what was an infamously shoddy investigation, knew that some SYP statements had been edited, and could have asked for the originals if they’d been so minded.

The judge said that therefore, whatever may have been in the mind of Mr Metcalf – i.e. however impure or improper his motives may have been – no jury could properly find that his actions carried a significant risk (or “tendency”) of perverting the course of justice.

As for the template witness statements that Mr Metcalf drafted for the contribution proceedings, evidence emerged that these had been provided to the police officers with an express indication that the officers should not agree them unless the contents were accurate. So they were really little more than drafts, and, again, there is nothing wrong with a solicitor drafting witness statements for a client to approve and/or amend as appropriate.

 

Donald Denton

Firstly, Mr Denton could not properly be convicted for the same reason as Mr Metcalf. Secondly, the evidence upon analysis showed that Mr Denton was little more than a “postbox”, passing on the legal advice from Mr Metcalf to Mr Foster. He was simply acting on advice from his solicitor. This too would not be enough for a jury to convict, as it would not establish an intention to pervert the course of justice.

 

Alan Foster

Firstly, the same reason as applies to his co-defendants. Secondly, there was no evidence that Mr Foster knew or believed that the witness statements would be used for any purpose other than the Taylor Inquiry, which as we’ve seen is not, in law, something that amounts to “a course of public justice”. It was established that he was not privy to the discussions between senior SYP officers and the legal team, and so could not have known that the statements he was editing might be intended for use in other proceedings – therefore he could not have intended to pervert the course of justice.

 

So what now? Is that the end of the case?

As ever in this blog, I offer no comment on whether this decision was right or wrong, although it is perhaps worth noting that the Crown Prosecution Service have indicated that they do not intend to appeal the judge’s decision to the Court of Appeal, which suggests that there is a degree of acceptance of the legal merits of the ruling. There has been criticism of the Crown Prosecution Service for the charges they selected and the prosecutions they chose to pursue. I don’t profess enough knowledge to offer any informed view on that, but I would recommend following David Conn, whose reporting on and knowledge of the Hillsborough case and the linked proceedings is first rate.

There is no doubt, as the judge observed, that the amendment and alteration of the accounts “has caused very considerable anxiety and distress amongst those most affected by the Hillsborough disaster”. There are enduring feelings of justice having been denied, of culpability evaded and accountability hollowed, and this case will do little to assuage beliefs that the criminal justice system has failed to ascribe criminal responsibility in circumstances where plainly it should.

But, limited comfort though it may be, it is perhaps worth bearing in mind the very particular reasons for this ruling.

“What was in Mr Metcalf’s mind is not the issue”, the judge said in reaching his decision. In other words, however improper or pure his motive may have been – and there was no finding on that front – his actions simply didn’t carry a significant risk of perverting any proceedings that would, in law, amount to “the course of justice”. As a matter of law, the court found that the charges that the CPS had chosen to pursue could not be proved.

This was an acquittal. Not moral absolution.

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