“And the Sun Shines Now” – a review

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The title is a quote from the BBC’s Peter Jones at the end of his commentary on the day of the Hillsborough disaster. The author was in pen 3 on the Leppings Lane terrace that day. His experience was that of those who died except that by some twist of fate he didn’t die. So you might expect that this book published shortly after the conclusion of the recent Inquests would be about the Hillsborough disaster. But as the subtitle “How Hillsborough and the Premier League Changed Britain” suggests it is about a lot more than Hillsborough alone.

 

Having said that, the book both starts and finishes with Hillsborough. In the first chapter the author relates in terrible detail the experience of those caught in that deadly crush, how it felt and how it smelled when you think you are going to die. Then there was the indifference of the watching police officers to the plight of those thousands packed into a space that should have held about half the actual number present. In the final chapter the author deals with the recent Inquests themselves. He explains the impact of the Coroner’s controversial decision, [entirely unnecessary in light of the strong words of Judge LCJ when quashing the original verdicts, about not allowing the new Inquests to descend into an adversarial quagmire] to allow the police teams led by the Match Commanders yet again to raise the tired old theme that drunken, late, ticketless fans were to blame for the disaster. He explains how he and other survivors faced the dawning realisation that the Inquests could end up officially laying part of the blame for the disaster at the feet of the fans who themselves only just survived the crush. This was a dangerous game played by the Coroner which, no thanks to his judgment, ended with formal verdicts from the jury which entirely exonerated the survivors of the disaster. So Hillsborough bookends both the start and end of this story and provides the backdrop against which the author considers the impact that the Hillsborough disaster had on football.

 

Adrian Tempany considers how Lord Taylor’s report on the disaster provided the impetus for all-seater stadia in England’s top two divisions. Three years later the top clubs broke away from the Football League to form the Premier League. Adrian charts in detail the resistible rise of Rupert Murdoch and Sky TV when football decided to sell its soul to the highest bidder. Rising ticket prices, allegedly to pay for better stadia, led to the commodification and gentrification of football. It’s a tale many football fans will easily recognise.

 

There is an excellent chapter on the football magazines and fanzines that became so popular in the 1980s.   One of my favourite passages explored how the role of football and terrace culture in the passage between childhood and manhood should not to be overlooked. In one interview, a Sunderland fan explained the importance of kids seeing how grown men could behave in a completely different way when released from the constraints of normal life and experienced the unconfined joy of seeing their team score a goal and watching men who didn’t know each other “shouting and screaming and hugging one another”.   As the author says “there is terrace culture but there is no such thing as seat culture.”

 

The book also explores the extent to which clubs both in England and abroad have attempted to re-engage with the communities within which their grounds are located and the author has considered at some length the German model of fan ownership and participation in the running of their clubs.

 

Overall this is a fine book, obviously the result of a lot of detailed research and full of thought provoking arguments and it is absolutely no reflection on it that I remain pessimistic about so called top-flight football.  Those of us who regularly attend Premier League games are addicts who can’t kick the habit. I readily include myself in this as a season ticket holder at my club.   We’ve seen our clubs high-jacked by an assortment of crooks, spivs, tyrants, fraudsters and Mafiosi. Ticket prices make a trip with the kids to a Premier League game about as costly as a week’s holiday on the Med. Kick-off times are arranged not for the supporters attending the game, many of whom have to travel a hundred miles or more to get there but for the world wide audience [customers not supporters] mainly in the Far East. This season’s latest indignity is Friday evening kick-offs requiring major adjustments to work and family life just to attend. A game that is supposed to be about escapism from the rigours of work and the druggery of much of life now requires planning not unlike an expedition to the South Pole.

 

But if we are addicts we are also cowards. For all my dislike of Manchester United I am in awe of the several thousand Stretford Enders who decided that they had had enough when their club became the victim of a takeover by an American family who probably didn’t even know the shape of a football before they bought it. They spoke of buying not the football club but the franchise, as if Manchester United was a car dealership or a fast food outlet. It takes courage to walk away from the club you love especially when it happens to be the most successful club in the Premier League era and start all over again. The tale of FC United of Manchester and the fight by true fans to ensure that they keep their club because it is theirs and not some businessman’s toy is an inspiration and I hope that a future edition of this book will look in more detail at how the club was set up and has achieved what it has so far in the few years since its formation.

 

After almost three years of working solidly on the Hillsborough Inquests you might think this book would have been a bit of busman’s holiday for me. Not a bit of it. I got so into it that I had to slow down so as to allow the various arguments more time to take hold in my head. Even so I read it in three days and loved it. If you love football, if you hate the direction of much of modern game and if you still have a feel for injustice then this book has it all. Do yourself a favour and get a copy.

“And the Sun Shines Now” – a review

The title is a quote from the BBC’s Peter Jones at the end of his commentary on the day of the Hillsborough disaster. The author was in pen 3 on the Leppings Lane terrace that day. His experience was that of those who died except that by some twist of fate he didn’t die. So you might expect that this book published shortly after the conclusion of the recent Inquests would be about the Hillsborough disaster. But as the subtitle “How Hillsborough and the Premier League Changed Britain” suggests it is about a lot more than Hillsborough alone.

 

Having said that, the book both starts and finishes with Hillsborough. In the first chapter the author relates in terrible detail the experience of those caught in that deadly crush, how it felt and how it smelled when you think you are going to die. Then there was the indifference of the watching police officers to the plight of those thousands packed into a space that should have held about half the actual number present. In the final chapter the author deals with the recent Inquests themselves. He explains the impact of the Coroner’s controversial decision, [entirely unnecessary in light of the strong words of Judge LCJ when quashing the original verdicts, about not allowing the new Inquests to descend into an adversarial quagmire] to allow the police teams led by the Match Commanders yet again to raise the tired old theme that drunken, late, ticketless fans were to blame for the disaster. He explains how he and other survivors faced the dawning realisation that the Inquests could end up officially laying part of the blame for the disaster at the feet of the fans who themselves only just survived the crush. This was a dangerous game played by the Coroner which, no thanks to his judgment, ended with formal verdicts from the jury which entirely exonerated the survivors of the disaster. So Hillsborough bookends both the start and end of this story and provides the backdrop against which the author considers the impact that the Hillsborough disaster had on football.

 

Adrian Tempany considers how Lord Taylor’s report on the disaster provided the impetus for all-seater stadia in England’s top two divisions. Three years later the top clubs broke away from the Football League to form the Premier League. Adrian charts in detail the resistible rise of Rupert Murdoch and Sky TV when football decided to sell its soul to the highest bidder. Rising ticket prices, allegedly to pay for better stadia, led to the commodification and gentrification of football. It’s a tale many football fans will easily recognise.

 

There is an excellent chapter on the football magazines and fanzines that became so popular in the 1980s.   One of my favourite passages explored how the role of football and terrace culture in the passage between childhood and manhood should not to be overlooked. In one interview, a Sunderland fan explained the importance of kids seeing how grown men could behave in a completely different way when released from the constraints of normal life and experienced the unconfined joy of seeing their team score a goal and watching men who didn’t know each other “shouting and screaming and hugging one another”.   As the author says “there is terrace culture but there is no such thing as seat culture.”

 

The book also explores the extent to which clubs both in England and abroad have attempted to re-engage with the communities within which their grounds are located and the author has considered at some length the German model of fan ownership and participation in the running of their clubs.

 

Overall this is a fine book, obviously the result of a lot of detailed research and full of thought provoking arguments and it is absolutely no reflection on it that I remain pessimistic about so called top-flight football.  Those of us who regularly attend Premier League games are addicts who can’t kick the habit. I readily include myself in this as a season ticket holder at my club.   We’ve seen our clubs high-jacked by an assortment of crooks, spivs, tyrants, fraudsters and Mafiosi. Ticket prices make a trip with the kids to a Premier League game about as costly as a week’s holiday on the Med. Kick-off times are arranged not for the supporters attending the game, many of whom have to travel a hundred miles or more to get there but for the world wide audience [customers not supporters] mainly in the Far East. This season’s latest indignity is Friday evening kick-offs requiring major adjustments to work and family life just to attend. A game that is supposed to be about escapism from the rigours of work and the druggery of much of life now requires planning not unlike an expedition to the South Pole.

 

But if we are addicts we are also cowards. For all my dislike of Manchester United I am in awe of the several thousand Stretford Enders who decided that they had had enough when their club became the victim of a takeover by an American family who probably didn’t even know the shape of a football before they bought it. They spoke of buying not the football club but the franchise, as if Manchester United was a car dealership or a fast food outlet. It takes courage to walk away from the club you love especially when it happens to be the most successful club in the Premier League era and start all over again. The tale of FC United of Manchester and the fight by true fans to ensure that they keep their club because it is theirs and not some businessman’s toy is an inspiration and I hope that a future edition of this book will look in more detail at how the club was set up and has achieved what it has so far in the few years since its formation.

 

After almost three years of working solidly on the Hillsborough Inquests you might think this book would have been a bit of busman’s holiday for me. Not a bit of it. I got so into it that I had to slow down so as to allow the various arguments more time to take hold in my head. Even so I read it in three days and loved it. If you love football, if you hate the direction of much of modern game and if you still have a feel for injustice then this book has it all. Do yourself a favour and get a copy.

How SYP lies about Hillsborough convinced David Blunkett

David Blunkett seems to be one of many who have been misled by police lies about those who died at Hillsborough.  When contacted recently by the Liverpool Echo here Blunkett sent a note that said:

“Please see speeches in the Commons, which included a clear reiteration on several occasions that those killed and maimed in the disaster had by the very nature of their location in the ground, been at the match very early and could never be blamed in any way for what happened.”

This seems to be based on one of the myths about the Hillsborough disaster that was peddled by the South Yorkshire Police as part of their plan to divert blame away from themselves and on to other Liverpool fans.  According to this myth those who died had been in the ground very early on the afternoon of the disaster.  A number of police officers claimed in their witness statements and evidence that those arriving early were as they described them “decent family types” and included children, family groups and older spectators.  In the make-belief world of the SYP it was these people who were killed when a “tanked up mob” consisting mainly of drunken younger men arrived at the ground close to kick off in such large numbers that the police were overwhelmed and had little choice but to open an exit gate.  That allowed a tide of people to enter the stadium, many of whom rushed down the tunnel and killed the innocent fans at the front nearest to the perimeter fences.

The CCTV footage from the day, available to the police at the time, showed this was complete nonsense.  Those who were in the pens from early on that afternoon were just the same as those who came in later in the day.  They were ordinary football fans of different ages, predominantly young people, men and women.   The CCTV footage and still photographs of the crowd also showed many of those who died were still outside the turnstiles at around 2.50pm that day, just ten minutes before kick off.

One of those who had peddled this SYP particular lie for as long as any was a certain Paul Middup.  At the time of the disaster he was national chairman of the Police Federation representing 100,000 officers.   He seems to have had little hesitation in appearing on television in the days after the disaster giving vent to his opinions about the responsibility of the Liverpool supporters for the disaster.  When he gave evidence to the recent Inquests in February 2015 it was apparent he still believed the old police lies and hadn’t bothered at any point in the intervening twenty-six years to try to educate himself as to what really happened.

In a witness statement he had provided Mr Middup had said:

“When the order was given finally for the gate to be opened, the fans rushed in and went down the tunnel, something like a human train, and forced the people at the front onto the fencing.”

When questioned on 13th February 2015 the following exchange with Mr Middup took place:

Q. You were completely ignorant, weren’t you, that amongst these fans that you described as a mob were people who died in the pens a few minutes later?   A. I didn’t know that until yesterday.

Q. Well, that is what I was going to ask you next. Do I understand this, Mr Middup, that, at least until yesterday, your view of this disaster was that these fans had rushed in through this exit gate, down the tunnel, like, as you described it in your interviews, a “human train”, had crushed the innocent people at the front who had been in the ground in good time onto the fencing, and that’s how they died? A. Yes.

Q. So this is the group, is it, this “mob”, “tanked up”, as you elsewhere describe them, who are, at least in your view, partly to blame for this disaster?  A. That’s the view — that was the view of my members and, yes, I did believe it to be partly to blame for it, yes.

Q. But yesterday, apparently for the very first time, you learnt that, in fact, some of those who died in those pens were part of those very fans you describe as the mob rushing into the ground? A. I heard that yesterday for the very first time, but I still don’t know how many of those people were affected.”

The truth that for so long Mr Middup couldn’t be bothered to face is that many of those who were caught in the deadly crush and barely escaped with their lives only entered the ground after 2.52pm when the exit gate C was opened on the orders of Chief Superintendent Duckenfield, the match commander.  Somewhere between a quarter and a third of the 96 who died entered the ground in that way.

So the evidence as heard by the jury, but which people like Mr Middup could have discovered at the time, showed that the police fiction was just that and bore no relation to the truth.  Such myths, sufficient to persuade politicians like David Blunkett of their truth, became part of the widely accepted narrative of the disaster and it is one of the great achievements of the recent Inquests that this, along with many other lies peddled by SYP for so many years, can now be consigned to the dustbin of history.

It’s alright Jack, like taxes, the rule of law is only for the little people

Cripes! That was close.  For a minute or two there I thought that Sir Mark Allen and maybe even Jack Straw were in serious trouble.  Kidnapping and conspiracy to commit GBH is no laughing matter.  I mean Allen pretty much gave the game away when he was foolish enough to write a letter to Moussa Koussa, Colonel Gaddafi’s foreign minister admitting with obvious pride the part that he had played in the kidnapping and rendition [that’s security services talk for torture, its sounds less brutal] of two of Gaddafi’s opponents.  Of course that letter was never intended to be made public.  Imagine therefore the irony.  That letter only found its way into the public domain after NATO, with support from the UK government, bombed the Colonel’s compound in Tripoli.  Just goes to show that when  you bomb a foreign country you really should ensure that you do the job properly!

Its not likely that Allen went to all that trouble on his own initiative and without getting the approval of his boss, the then foreign secretary Jack Straw.   Trouble is poor old Jack’s memory’s not all it used to be. And anyway he was far to busy to remember if he did give his approval.  If he did Allen would have probably been in the clear thanks to s.7 of the Intelligence Services Act 1994.  The so-called “James Bond” clause protects MI6 officers from prosecution for acts done anywhere in the world that would otherwise be illegal providing they were authorised in writing by the Secretary of State which in this context means Jack Straw.

Anyway, after a four year investigation by the police, described as “thorough and painstaking”, that generated a file running to about 28,000 pages, Sue Hemming, head of the CPS’s special crime and counter-intelligence division has decided there is insufficient evidence.   Mind you just to be on the safe side she did get an opinion from the First Senior Treasury Counsel, Richard Whittam QC confirming there was indeed insufficient evidence. Phew, what a relief.  I mean when you consider the size of the prosecution file that Knacker of the Yard had put together it was always going to be a tall order to be able to pass that lot off as not being enough?   But happily our top prosecutors have come through.

It seems after all that like taxes, the rule of law is only for the little people.   Good job its not the same Sue Hemmings who is charged with making decisions about the prosecution of former Chief Superintendent Duckenfield of Hillsborough fame and other senior figures involved in the disaster and subsequent cover-up.  Oh, wait a minute…

Let’s be clear, Patnick was NOT the Hillsborough MP

Last Saturday’s Guardian Review section carried a review by Andy Beckett of Adrian Tempany’s new book “And the Sun Shines Now” about football since the Hillsborough disaster.  It was an excellent review of a book I can’t wait to read over the summer.  There was however one detail that Andy got wrong.  It’s a mistake that others have made before but it is important and it needs to be corrected.  I wrote a letter to the Guardian but as far as I can tell they have neither published the letter nor printed a correction to the review.  So here is the letter I wrote:-

“In his otherwise excellent review of this important new book on the Hillsborough Disaster, Andy Beckett makes an unfortunate but important error in describing Irvine Patnick as “the Hillsborough area’s MP”.  Patnick was not the local MP. He was instead MP for a neighbouring constituency in Hallam.  The error suggests that Patnick’s presence on the evening of the disaster at the police facility at Niagara Sports ground had a legitimacy that is does not deserve.  This was not the local constituency MP offering his support – he managed to completely ignore the families who gathered near the ground that evening  – this was the local Tory MP choosing to offer his support to the police force responsible for the disaster. Patnick used the opportunity to gather many of the more lurid accounts from police officers and he was largely responsible for helping to publicise many of the worst lies and calumnies heaped on the Liverpool fans, including in the notorious article later that week in The Sun.   As one of the barristers who represented 22 of the families at the recently concluded Inquests I hope you will correct this error.”

Playing with People’s Lives – Due Process in Alabama

The Equal Justice Initiative [EJI] has been fighting to save Jerry Smith’s life for many years now.   Mr Smith was convicted of capital murder and sentenced to death in 1998. Remarkably on 3rd June 2016 his death sentence was overturned for the fourth time and he now faces a fifth sentencing hearing.  The history of this case indicates an extraordinary lax attitude on the part of the State courts towards due process and basic fairness in a criminal justice system where the stakes could not be higher.

Alabama is one of only three states in the Union [the others are Delaware and Florida] where the jury merely makes a recommendation as to the appropriate sentence, which is then decided by the judge.  The concept of “judicial override” was overturned by the Supreme Court in Hurst v Florida 577 U.S. ___ (2016) in January of this year.  That in turn raises serious doubts about the Alabama death sentencing scheme which is likely to become a further complication in this case.

Mr Smith’s original death sentence was reversed by the Alabama Supreme Court because the trial court improperly excluded mitigating evidence from the jury’s consideration.  A second sentencing hearing was ordered.   By this time Smith had new attorneys from EJI.  The purpose of the punishment hearing was to decide whether Smith deserved the death penalty or whether he would be sentenced to life imprisonment.   During jury selection it became apparent to the defence attorneys that members of the family of one of the victims had been sitting outside the court talking with the jury panel and that the mother of one of the victims had been saying “he killed my son” and “he needs to die.”   When the venire panel entered the courtroom the family members came in with them and again sat with them unchallenged.  At one point a family member again said aloud “he needs to die. He took my son’s life.”  The prosecutor who obviously knew the family members from the previous proceedings had said nothing before the matter was raised in jury selection.  The State argued that no prejudice had been caused and the motion for a mistrial was rejected by the trial judge.  Five of the jury members selected had heard the prejudicial comments. Following a third death sentence, the judge’s ruling was upheld in the Court of Criminal Appeals who also considered that no prejudice had been caused.   Happily the Supreme Court of Alabama was not so sanguine and in October 2010 allowed Smith’s appeal.

A third penalty phase proceeding before a jury begun in January 2012,  This too ended in another death sentence for Mr Smith.  However because, on this occasion, the judge allowed the prosecution to rely on an aggravating factor that did not exist at the time of the offence this sentence was also overturned by the Court of Criminal Appeals.

In September 2014 Alabama tried again, for a fourth time.   It may be that on this occasion the court had in mind the unfortunate opportunity for interaction  between the jury panel and the general public that had caused the second penalty phase proceedings to be rendered null and void. However the court’s remedy for this was to exclude the public from the entire jury selection process.  Unlike in the UK where jury selection usually only takes a few moments jury selection in a capital case can last for days and includes individual cross-examination of prospective jurors to assess their suitability to serve on a capital jury.

After all the previous trouble you might have thought that on this occasion the court would have taken careful note of the objections made by Smith’s attorneys.  Amongst other things they pointed out that the judge was thereby excluding members of Mr Smith’s own family as well as the press.  Since the Sixth Amendment to the US Constitution explicitly requires “a public trial”, readers can probably see which way this was going to turn out.   Once jury selection had been completed the public were admitted to the court for the remainder of the hearing.  As before, the jury recommended a sentence of death by 10 votes to 2 [another aspect of the death penalty scheme that operates only in Delaware and Florida – in all other states a unanimous jury decision is required] and the court duly obliged.

It was this decision that was overturned on 3rd June this year.  In Presley v Georgia 558 U.S. 209 (2010) the US Supreme Court held that the Sixth Amendment right to public trial included the jury selection process. It was therefore not a hard task for the Court of Criminal Appeals to conclude that yet again Mr Smith’s death sentence was unconstitutionally obtained and had to be overturned.

Other important issues arise in Mr Smith’s case but have not so far been addressed.   The original trial jury was all-white, as so regularly happens in the deep South.   Mr Smith’s lawyers have raised this as an issue arguing that the prosecutor unconstitutionally eliminated potential black jurors.  A second important issue relates to whether Mr Smith is mentally competent to be executed due to his intellectual disability .  His lawyers from EJI raised this issue as long ago as 2008 when they  presented evidence that he was placed in special education classes.  There is evidence from a number of experts, including one working for the State, who have determined that he is intellectually disabled with an I.Q. of 67 and he cannot read or write.

As if that was not quite enough to raise serious doubts about whether Mr Smith has received his constitutional right to due process, the fallout from Hurst v Florida means that Alabama will also have to confront the question whether its death penalty statute remains constitutional and if not how it proposes to remedy that situation.  All in all, quite a mess.

When Life Means Life you gotta tell the jury – even in Arizona

In its decision in Simmons v South Carolina 512 U.S. 154 (1994) the US Supreme Court held that where the State is seeking the death penalty and argues that the defendant represents a future danger to society, and where state law prohibits the release on parole of a person sentenced to life imprisonment the due process clause of the Fourteenth Amendment requires the court to instruct the jury that the defendant is parole eligible.

It is clear from the transcript that the jury in Simmons imposed the death penalty because they were worried that the defendant might eventually be paroled.   After deliberating for an hour and a half they sent a note to the judge asking the question “does the imposition of a life sentence carry with it the possibility of parole?”   The true answer  would have been “No”.  Instead, the jury were then instructed by the judge that they were not to consider the question of parole or parole eligibility and that this was not a proper consideration for them as the jury.   25 minutes later the jury returned with a sentence of death.

In case anyone hadn’t quite understood the significance of the decision in Simmons, it wasn’t long before the Supreme Court got another chance to emphasise its ruling. In Shafer v. South Carolina 532 U.S. 36 (2001), the jury, having been in retirement for almost 3 ½ hours, sent a note to the judge asking if there was “any remote chance” of parole.   In spite of repeated requests from Shafer’s counsel that the judge should tell the jury what the South Carolina Code actually says about the meaning of a life sentence, the judge’s response was to instruct them that “parole eligibility or ineligibility is not for your consideration.”

With that unhelpful instruction ringing in their ears, which probably left the jury believing that Shafer would be paroled if given a life sentence, the jury then sentenced Shafer to death.   The Supreme Court, following its earlier decision in Simmons, again overturned that direction.   It is clear that in both cases the jury’s decision to vote for death was strongly influenced by the fact that they believed that this was the only way to be sure that the defendant would never be released. It also seems reasonable to conclude that in both cases, the jury might well have voted for a life sentence if they had been reassured that South Carolina law meant a life sentence did not carry with it any prospect of parole.

Granted that it is a long way from Washington to Arizona it is still curious that the Arizona Supreme Court in Lynch v Arizona 357 P. 3d 119 (2015)  felt that the Simmons decision and its progeny did not apply in that state.  The Arizona Supreme Court found that the State had put Shawn Patrick Lynch’s future dangerousness at issue during his capital sentencing proceeding and acknowledged that Mr Lynch’s only alternative sentence to death was life imprisonment without parole, 357 P. 3d 119, 138 (2015). But the court nonetheless concluded that Mr Lynch had no right to inform the jury of his parole ineligibility.

This was in fact the third time that Mr Lynch had been sentenced to death for offences committed in 2001.  It is worth noting that after Mr Lynch had been convicted, before the penalty phase trial began, the State moved to prevent his counsel from informing the jury that the only alternative sentence to death was life without the possibility of parole.  The court granted the motion.  Mr Lynch’s first penalty phase jury failed to reach a unanimous verdict.   A second jury was convened and sentenced Lynch to death. On appeal, the Arizona Supreme Court vacated the sentence because the jury instructions improperly described Arizona law.  The court did not address Mr Lynch’s alternative argument that the trial court had violated Simmons. On remand, a third penalty phase jury sentenced Mr Lynch to death.

The Arizona Supreme Court affirmed, this time considering and rejecting Mr Lynch’s Simmons claim. The court agreed that, during the third penalty phase the State argued that Mr Lynch could be dangerous.   The court also recognised that Mr Lynch was parole ineligible under Arizona law because parole is available only to individuals who committed a felony before January 1, 1994, and Mr Lynch committed his crimes in 2001.  Nevertheless, while “[a]n instruction that parole is not currently available would be correct,” the court held that “the failure to give the Simmons instruction was not error.”  357 P. 3d, at 138.

The Arizona Supreme Court thought Arizona’s sentencing law sufficiently different from the others this Court had considered that Simmons did not apply. It relied on the fact that, under state law, Lynch could have received a life sentence that would have made him eligible for “release” after 25 years.  But under state law, the only kind of release for which Lynch would have been eligible—as the State does not contest—is executive clemency. And Simmons expressly rejected the argument that the possibility of clemency diminishes a capital defendant’s right to inform a jury of his parole ineligibility.

On 31st May 2016, in a 6-2 vote, the US Supreme Court held that the conclusion of the Arizona Supreme Court conflicts with the Supreme Court’s precedents including Simmons and Shafer.  Since the Arizona Supreme Court confirmed that parole was unavailable to Mr Lynch under its law, the decision in Simmons and its progeny establish Mr Lynch’s right to inform his jury of that fact. Accordingly the judgment of the Arizona Supreme Court was reversed, and the case was remanded to the Arizona courts for further proceedings not inconsistent with the Court’s opinion.

A fitting legacy for Hillsborough – an end to institutional denial

In a previous posting here I discussed the failures of the ambulance service at Hillsborough. In this blog I want to consider the conduct of the Yorkshire Ambulance Service [YAS] at the recently concluded Inquests into the deaths of 96 Liverpool football club supporters.   It seems to me that their conduct, along with that of organisations like South Yorkshire Police raises important issues about how public authorities should conduct themselves during Inquiries and Inquests.  In particular it is my contention that such organisations need to turn their backs on what has been described as “institutional denial” and adopt instead policies of openness and transparency.    Failure to do so means that the chances are that lessons from previous errors and failures are less likely to be learned. We might even call this change “Hillsborough Law”.

Yorkshire Ambulance Service did not exist at the time of the Hillsborough Disaster in 1989. It was only created in 2006 following the merger of a number of regional ambulance services including the now infamous South Yorkshire Metropolitan Ambulance Service [SYMAS] which failed so badly on the day of the disaster.

When the report of the Hillsborough Independent Panel was published in September 2012 the then Chief Executive of YAS, David Whiting issued the following statement:-

“First and foremost, on behalf of the Trust, I would like to extend my sympathy to the bereaved families of the 96 Liverpool supporters who lost their lives as a result of the Hillsborough tragedy on 15th April 1989. I understand this will be a very difficult time for the many people who remain affected by the tragedy, including a number of our current and former staff….The trust remains committed to openness in the process and we welcome and fully accept the findings highlighted within the Panel’s report.  I sincerely apologise for the shortcomings identified in the report relating to the way in which the incident was managed in its early stages.  Twenty-three years on from the Hillsborough tragedy, the ambulance service is very different…”

It’s not often anyone has a bad word to say about the ambulance service and no doubt most people at the time will have taken Mr Whiting’s fine words at face value.   So when YAS was granted Interested Person status for the new inquests no one could imagine that they would wish in any way to go behind their apparently sincerely meant statement of regret.  They had accepted that SYMAS had failed, at least in the early stages of the emergency response.  By 2012 SYMAS no longer existed and YAS was simply a successor organisation.  YAS had no legitimate interest in seeking to explain the failures of SYMAS in the wake of the disaster.  They could legitimately have been expected to have come to the Inquests and made it clear they did not intend in any way to detract from their apology.

In the event the jury’s conclusions in respect of SYMAS were that there were errors or omissions by SYMAS which caused or contributed to the loss of lives in the Disaster.   By way of additional comments the jury added “SYMAS officers at the scene failed to ascertain the nature of the problem at Leppings Lane.  The failure to recognise and call a Major Incident led to delays in responses to the emergency.”

As if to emphasise their contrition, immediately after the jury had delivered those conclusions YAS again apologised, this time in the words of Rod Barnes, the new Chief Executive who had taken over during the Inquests. The YAS statement said, “we fully accept the jury’s conclusions that after the crush began to develop there were mistakes made by the ambulance service; lives could have been saved on 15th April 1989 had the emergency response been different.”  Then seemingly in anticipation that the conduct of YAS at the inquests might be about to attract criticism they added, “as one of the successor organisations of SYMAS, we had a responsibility to ensure a full and fair evaluation of their response. We have done our best to make sure all relevant evidence about the ambulance service response has been put before the Court, placed in context and properly explored in an open way.”

That last sentiment will have a particularly hollow ring to anyone who listened to the case being put on behalf of YAS during the Inquests.   As anyone in court could attest YAS continually acted contrary to their previous apology.  They began by denying they had failed, then, when their own witnesses accepted they had failed their counsel continued to try to downplay the admitted errors. YAS’s approach seemed essentially to be trying to resurrect the old and discredited 3.15pm cut-off point and to suggest that any failings made no difference to the outcome.  The approach taken by YAS not only increased the length of the hearings but added significantly to the distress suffered by the families.

No one is suggesting that Interested Parties [IPs] do not have the right to defend themselves from undue criticism.   The families had no difficulty with any IP fighting their corner to avoid unjustified criticism.   But where that organisation has already made admissions as to its failures and apologised that organisation cannot then conduct itself in Inquests in wholesale disregard of the apologies it has made.

Readers will already have detected in YAS’s conduct unhealthy parallels with the behaviour of South Yorkshire Police [SYP] who similarly made apologies and then ignored them in the Inquests. I have previously written about the conduct of SYP at the Inquests here.  

The question remains therefore in the light of the statements and apologies made by YAS both before and after the Inquests why did YAS try falsely to blame the fans for impeding the rescue effort, why did YAS try to pretend the failures by SYMAS on the day were not responsible for the high number of deaths and why in particular did YAS instruct their lawyers to intervene repeatedly during the final pathology phase of the Inquests in an attempt to suggest that all the 96 were either dead or beyond assistance by shortly after 3pm?

Blaming the supporters

Given the offensive launched at the Inquests by the match commanders with wholesale blame being alleged against the supporters all the other institutional IPs knew full well the likely impact of joining in.  The extent of the attack on supporters by YAS was not on the same scale as the match commanders but the impact was the same.  Here was another institution seeking to avoid taking responsibility by blaming the most vulnerable group present on the day, namely the victims and survivors of the disaster.

Examples include allegations of hostility from the crowd, entirely refuted by the CCTV footage of the rescue effort and claims that fans impeded the rescue effort which is a bit rich coming from an organisation that was conspicuous by its absence from the Hillsborough pitch.   It was even suggested that the fact it was fans who moved the dead and injured across the pitch was something the ambulance service was not responsible for. It had evidently slipped the mind of counsel for YAS that without the heroic effort of fans, most of whom had only just escaped the crush themselves, there was little likelihood of anyone else carrying the casualties across the pitch, especially not from SYMAS.  What legitimate interest did the Chief Executive of YAS in 2014/16 have in instructing his counsel to conduct his case in this way?

Going behind the apologies

Both Station Officer Eason, one of the senior ambulance officers on the ground before the disaster and the Chief of SYMAS Albert Page made significant concessions in their evidence that the response to the disaster by SYMAS was poor and inadequate.  Despite this counsel for YAS repeatedly questioned witnesses suggesting that such concessions were only a reflection of hindsight and not criticisms of the organisation on the day.  Other witnesses who were critical of the SYMAS response were challenging in an apparent attempt to minimise criticism of the organisation despite these concessions and the apology issued in 2012.

Liaison between SYP and SYMAS

As one would expect, the major incident plans of both SYP and SYMAS emphasised the importance of early liaison between the emergency services.   On behalf of the families it had been repeatedly suggested that one of the obvious benefits of early liaison would have been that the police could have assisted SYMAS staff by ensuring that a large area of the pitch was kept free of people to enable the injured to be treated and their life chances assessed.   This idea was treated with near derision by counsel for YAS who asked a senior SYMAS officer how he imagined his directing police officers would have been received, inviting the reply that he did not think the police would take orders from him.   Why would counsel acting for YAS and instructed by its Chief Executive have tried to rubbish the perfectly sensible idea that the two emergency services needed to liaise and that if they had arrangements could easily have been made that might have resulted in fewer deaths?

“Even if, which is not admitted, we were rubbish, it didn’t matter anyway”

A particularly distasteful aspect of the case presented by YAS at the Inquests amounted to suggesting that even if, contrary to their first line of defence, the jury thought that SYMAS had failed to respond to the unfolding disaster in anything like an adequate fashion, it didn’t really matter because there was nothing that even the best response could have corrected and anyway most of the deceased were dead at a very early stage.

To this end during the expert overview at the start of phase 2 [the movements of the 96 individuals who died] YAS sought to establish that the time between respiratory arrest in the crush and cardiac arrest was likely to be so short that any failures by SYMAS would not have made any difference.   During phase 2 YAS’s questioning of witnesses was designed to emphasise that death was likely to have occurred at an early stage of the crush.

During the individual pathology hearings YAS intervened in almost every one of the 96 cases.  The same line was repeated endlessly to seek to diminish SYMAS’s responsibility. So it was suggested that the lack of medical equipment, for which SYMAS was largely responsible, made no difference to the outcome.   Witnesses were questioned to emphasise that even good quality CPR was usually not successful and therefore lack of it in other cases made no difference.

Intervening in almost all of the 96 cases in this way did nothing to advance a legitimate case for YAS and it seems extraordinary that the Chief Executive should have instructed his counsel to conduct the case in the way it was.

A need for reform – time for “Hillsborough Law”

This is why I believe that it is essential that public organisations such as the police and ambulances service but also local authorities whose whole raison d’etre is service to the public must be required to exercise openness and candour. The current practice of institutional denial is unacceptable. Such conduct delays justice and adds further to the distress of the families of the bereaved and all for no good or sufficient reason given that the organisation has previously admitted its failures and apologised.   The same expectation would also apply to bodies such as football clubs, which whilst they may be private rather than public entities, nonetheless derive significant income from inviting large numbers of members of the public into their stadia and to whom they owe a duty of care for their safety and comfort. Again such organisations should be required to act with frankness and transparency and not denial.

It’s not enough that the lessons of the disaster itself should be learned, although hopefully they were learned a long time ago now and most football stadia are very different places to what they were in 1989.  But is seems pretty clear that in other ways lessons have not been learned by the authorities who ostensibly exists in order to serve the public but all too often seem to put their own institutional reputation before their duty to the public.  It would be a fitting tribute to the dead and injured of the Hillsborough disaster and the families who fought so long and so valiantly to get justice if this case saw an end to cover-ups and denials and a recognition by public authorities and other institutions that they must be open and transparent in the future. When they make mistakes however serious they may be the onus must be on them to own up.  Only that way can we really be sure these institutions do learn the lessons of their mistakes.  If “Hillsborough Law” achieved that, it would be a very welcome reform.

 

 

6 yards that might as well have been 6 miles – the failures of SYMAS at Hillsborough

Since the jury’s conclusions were delivered after the Hillsborough Inquests the focus has rightly been on the failures of the South Yorkshire Police in general and the senior officers in particular.   After all the jury concluded that the SYP were mainly responsible for the disaster and the terrible loss of life.   But the South Yorkshire Metropolitan Ambulance Service [SYMAS] also failed badly that day and as a result of those failures the death toll was higher than it would have been if a competent and effective rescue effort had been launched.

In a subsequent article I will consider the role played by the ambulance service in the Inquests but before that I want to consider the response by SYMAS to the disaster itself.

Until the publication of the Hillsborough Independent Panel [HIP] report in September 2012 the ambulance service thought they had got away with it at Hillsborough.   Lord Taylor, no doubt with his eye on the actual causes of the disaster rather than the aftermath, exonerated SYMAS in his report.    As a result of the crass decision of the Coroner at the original Inquests in 1990-91 to impose a wholly artificial cut-off at 3.15pm, SYMAS again escaped any scrutiny of their actions or lack of them.  As a result Mr Page, the Chief Officer of SYMAS was able to declare “victory” after publication of the Taylor report.  In a review published by Mr Page he claimed that “The Hillsborough Disaster in terms of Ambulance Service provision and response was a successful exercise.”   The insensitivity and lack of insight displayed in that choice of language tells you all you need to know about the arrogance of many public authorities when things go wrong.

The truth of course is rather different.  In answering question 14 in the jury questionnaire in 2016 the Hillsborough Inquests jury found that errors or omissions by SYMAS caused or contributed to the loss of lives in the Disaster.   By way of explanation for their answers the jury added that “SYMAS officers at the scene failed to ascertain the nature of the problem at Leppings Lane.” They also noted that “The failure to recognise and call a Major Incident led to delays in responses to the emergency.”

By way of supplement to the St John Ambulance volunteers, some of whom it should be recorded did more than could be expected of them that day, SYMAS provided one ambulance and four members of staff at the semi-final match.  The ambulance was parked near the gymnasium.  The four members of staff were stood behind the goal line at the Kop end close to the north-east corner.  A photograph taken by a supporter in the north stand at 14.59 [the scoreboard clock can be clearly see in the photo] shows all of the gates in the perimeter fences open and a serious crush taking place in the central pens.  Mr Page agreed during questioning that the photo showed an emergency situation. He also agreed that a major incident should have been declared by the police at 14.59.

Having apparently seen something afoot at the Leppings Lane end, at 15.03 two SYMAS officers can be seen on the CCTV footage taking a leisurely stroll down the pitch in front of the north stand towards Leppings Lane taking over a minute to cover approximately 90 yards.  When they arrived at the Leppings Lane end they then walked along the track behind the goal past pens 6 and 5 before reaching pen 4.  Watching their progress it seems as if they were more interested in the fans who had already escaped the crush and were sitting on the ground just off the pitch.  Somehow or other the two ambulance staff managed, or at least so they claimed, not to see the crush happening literally beside them or hear any of the anguished cries of people being crushed to deaths a few feet from them.

By the time Superintendent Greenwood, the senior officer under Mr Duckenfield, with responsibility for the inside of the stadium had run onto the pitch to get the referee to stop the match, Station Officer Eason and Qualified Ambulanceman Chippendale had made their way around the back of the goal at the Leppings Lane end, meaning they were by then close to the gate to Pen 3 where many of the dead and dying were packed.  In one of the most poignant moments of that day’s events and in an act that perfectly encapsulated the staggering incompetence on display that day Messrs Eason and Chippendale walked across the penalty area just as Greenwood was coming the other way.  The dimensions of the penalty area allow us to plot their positions precisely.  Just as Eason and Chippendale cross the six-yard box the CCTV footage shows Greenwood was standing more or less on the penalty spot.  In  other words the two parties, one being the senior police officer inside the ground and the other being the senior SYMAS staff member on duty, were no more than 6 yards apart.  For all the difference it made they might as well have been 6 miles apart.  On the CCTV it can clearly be seen that neither group even acknowledged the existence of the other never mind taking the obvious opportunity to stop and inquire of the other party, what was happening, what needed to be done to deal with the situation and who was going to ensure that a major incident was immediately declared.   So much for the importance of liaison between the emergency services and the need quickly to establish command and control of which the Major Incident Plans of both organisations made such great play.

So it was that a further chance to save those caught in the crush was wasted as more vital minutes slipped by with no adequate response from either the police or the ambulance service.    In fact it was not until 15.21 that Mr Eason finally called a major incident over the radio in his ambulance to SYMAS HQ.

Photographs of the pitch as the disaster unfolded that afternoon show an increasingly chaotic situation.  Fans escaping the crush had nowhere else to go and before long hundreds of police officers had joined them on the pitch.  But for several minutes immediately after the players had left the pitch was almost entirely empty.    If proper command and control procedures had been implemented the police had plenty of officers there who could immediately have staked out a large area of the pitch at the Leppings Lane end into which the injured and the dead could have been taken.  But because neither police nor ambulance service had the wit to organise anything that day, when the increasingly badly injured were eventually taken out of the pens from about 3.15 onwards the pitch was already full of people and the dead and dying where simply dropped wherever a small space appeared.  As the numbers of injured increased so the scene came more and more to resemble a battlefield. Causalities were too close to each other giving insufficient space for rescuers to work properly on them.

There was no proper system of triage where casualties are assessed as to their prospects of survival and accordingly prioritised for transport to hospital.  Again due to the chaos that the hopeless inefficiency of SYP and SYMAS caused, only four ambulances, one of which was the St John Ambulance, ever got on to the pitch, leaving over 30 stranded and virtually useless outside the ground on Penistone Road.  Farcically, a number of SYMAS officers tried to make all sorts of excuses for not bringing ambulances on to the pitch, claiming they might get bogged down on what was manifestly a dry pitch or would be besieged by desperate supporters, claims that with proper organisation were as ridiculous as they were insensitive.  The result was that the dead and dying had to be carried a distance of about 150 yards from the pitch to the gymnasium behind the north stand.  As is well known the lack of stretchers meant that fans had to tear down advertising hoardings to use as makeshift stretchers.  And as the CCTV footage so amply shows large numbers of Liverpool supporters, comfortably outnumbering those police officers who did at least join in rather than standing around looking totally useless, did the bulk of the heavy carrying of their fellow supporters.  So much for Liverpool fans being drunk that day.

The urgent need to get the injured out of the pens should have been obvious therefore by no later than 14.59.  The SYMAS ambulance already at the ground that day, as well as other emergency ambulances, carried amongst its equipment bolt-cutters, normally used surprisingly enough for cutting bolts on locks but also helpful to release trapped passengers from cars involved in traffic accidents.  In other words pretty robust items. Again any half-witted emergency officer should have thought that they might be rather useful to cut down the perimeter fences.  But they were never deployed that afternoon.  A number of SYMAS officers, to their eternal shame, claimed that the bolt-cutters would not have been able to cut through the fences at the front of pens 3 and 4!  Such farcical and utterly pathetic excuses entirely ignore the CCTV evidence that in fact the fences were eventually torn down at about 15.18 literally with their bare hands and feet by supporters assisted by some police officers.

No one blames SYMAS for causing the disaster itself and once SYMAS HQ began to understand what was happening many ambulances were despatched to Hillsborough. But the hopeless failures of the senior SYMAS staff already at the ground fatally compromised the rescue effort.   There was overwhelming evidence from the Inquests that with a speedy and efficient emergency response many of those who died would have had a better chance of survival and the death toll would not have been so high.   And that is the measure of the appalling failures of SYMAS that day.

 

A reply to some questions from Obiter J

These questions were raised in a comment on my blog on 28th April about the former Chief Constable of South Yorkshire David Crompton.

Q.2 I agree that getting individuals and especially organisations to face up to their responsibilities rather than routinely denying them is a problem not least of all because of the financial implications of admissions and the view insurers take on the making of any admissions.   However I think we do need to look at the position of public authorities at least to see if a way can be found to try to tackle the culture of what has been described as “institutional denial”.  Public authorities exist in order to serve the public.  They owe a duty of openness and transparency to the public.  If they always react defensively, if they refuse to admit when they get things wrong it is hard to see how we can ever be confident that lessons really have been learned.  It may be that as part of this exercise we would have to consider whether for example there should be a financial cap on the liability in damages of such organisations as a way of trying to encourage greater openness.  It is one thing to recognise a problem but I accept the answers are not necessarily easy to identify.

Q.4 In order to be granted Interested Person status at an Inquest a party has to establish that they have a sufficient interest in the outcome of the proceedings for this to justified.    Since there was no Police and Crime Commissioner [PCC]  in 1989 it would be hard to see how such a claim could be made out.  No criticism of the PCC was ever likely to be made.

Q.5 I can’t really answer this question as I am not very familiar with the relationship between PCCs and Chief Constables.   You would like to think that since the PCC was, as a I understand it, largely responsible for funding the representation of the Chief Constable [CC]  at the Inquests that he might have said to the CC that he assumed the CC would be taking a very limited part in proceedings in light of the full apology made in 2012.  Whether there was any such conversation I simply do not know.

Q.6 As David Conn wrote in the Guardian on Wednesday, Elkan Abrahamson, the solicitor for 22 families informed the Home Office on 16th March this year that the families would be calling for the Chief Constable to be sacked after the Inquests because of the part that counsel instructed by him had played in trying to blame the fans.  His decision to stand down later this year was announced a week later.  Coincidence?  I don’t think so.  I expect the news of what we were planning reached him via the Home office pretty quickly.  In any event his fate was sealed by (a.) making another apology immediately after the verdicts despite taking the part he had which made the apology appear entirely insincere and (b.) making a further announcement trying to justify the stance he had taken at the Inquests. To use the vernacular, Crompton was “toast” by then.  The PCC may have acted with a heavy heart but in reality Crompton had by then sealed his own fate.

I hope this helps

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