Call for a new ‘Hillsborough Law’

Rachel Lyne, Browne Jacobson

We are all sadly aware of the tragic consequences that occurred when an exit gate was opened shortly before kick-off at the cup semi-final game between Liverpool FC and Nottingham Forest at Sheffield Wednesday FC’s ground on the 15 April 1989. 96 Liverpool FC fans sustained fatal injuries with a further 766 fans injured.

After various inquiries, reviews, an overturned first inquest and a failed private prosecution, a second inquest started on 31 March 2014 and concluded almost 2 years later on the 26 April 2016.

As a direct result of the second Inquest the families of those affected have now submitted a draft bill, entitled the Public Authority Accountability Bill, which will be considered by the Rt Revd James Jones, who following the juror’s verdicts at the resumed Hillsborough Inquests is undertaking a review of the lessons to be learned from the Hillsborough tragedy and enquiries which followed.

Their proposed ‘Hillsborough Law’ outlines five key principles in essence aimed at ensuring public authorities engaging with any court proceedings, inquiries or investigations are open and candid. These suggested principles are:

  • Acting with proper expedition
  • Acting with transparency, candour and frankness
  • Acting without favour to their own position
  • Making full disclosure of relevant documents, material and facts
  • Setting out the core position on the relevant matters at the outset of proceedings, inquiries or investigations and providing further information and clarification as ordered by a court of inquiry.

These proposals also call for all public bodies to adopt a code of ethics and to make it a criminal offence for any public servant to intentionally or recklessly fail to comply with a duty of candour.

As with all new proposed legislation it raises important questions. It is well known that there are two investigations looking at potential criminal prosecutions against the background of the Hillsborough tragedy. Those investigating will be considering statements provided to the Inquests and inquiries as well as evidence given. This highlights the tension between an open and transparent process that encourages acknowledgement of fault where appropriate, and apology, and the fact that such acknowledgements and apologies could subsequently be used to prosecute individuals for serious criminal offences. Whilst in any new law there are mechanisms to incorporate protections for individuals such as the privilege against self-incrimination, the practical application of such mechanisms, in the open and transparent culture which the Hillsborough law seeks to engender is often difficult.

Whether the Rt Revd Jones recommends a ‘Hillsborough Law’ remains to be seen. What we do know is the ‘duty of candour’ is already enshrined in legislation, Regulation 20 of the Health and Social Care Act 2009 (Regulated Activities) Regulations 2014, and so it is possible that a ‘Hillsborough Law’ will be enacted in some form.