In the Crown Court at Manchester
Sitting at Salford Quays
This ruling will be handed down at 10.30 a.m. on 26 May 2021 which will deemed to be the point at which the decision is made.
It is provided now to allow the parties time to consider what if any steps to take as a result of the ruling. It is embargoed until 10.30 a.m. on 26 May 2021 with consideration of the same being strictly restricted to counsel, instructing solicitors, the Crown Prosecution Service and the defendants.
See Also: Annex to this Ruling
As is apparent from the particulars this count relates to the alleged amendment or alteration of accounts. The immediate context of the advice he provided was the Public Inquiry into the Hillsborough Disaster conducted by Lord Justice Taylor (as he then was). The West Midlands Police (WMP) was the investigative force in relation to the Inquiry. The accounts were provided to the Inquiry.
Count 2 is particularised as follows:
PETER CHARLES METCALF, on or before the 19th day of July 1990, with intent to pervert the course of public justice, did an act which had a tendency to pervert the course of public justice in that he drafted an addendum statement and advice in respect of the account of four South Yorkshire Police officers concerning the monitoring of pens in the stands at Hillsborough Stadium and sent the said advice and addendum statement to Peter Hayes.
The statement and advice provided by Mr Metcalf on this occasion was in relation to contribution proceedings. SYP had admitted liability to those killed or injured in the disaster. The force was seeking contribution from other parties in the context of the civil proceedings. The addendum statement was proposed for use in the context of those proceedings.
DONALD DENTON, between the 15th day of April 1989 and the 2nd day of August 1989, with intent to pervert the course of public justice, did a series of acts which had a tendency to pervert the course of public justice in that he ordered the amendment or alteration of accounts of South Yorkshire Police officers in respect of the events at Hillsborough Stadium on 15th April 1989 that were provided to West Midlands Police.
It is alleged that he ordered the amendment of SYP officers accounts.
Count 4 is in similar terms but it relates to the provision of amended or altered accounts to WMP.
DONALD DENTON, between the 15th day of April 1989 and the 2nd day of August 1989, with intent to pervert the course of public justice, did a series of acts which had a tendency to pervert the course of public justice in that he provided to West Midlands Police accounts of South Yorkshire Police officers in respect of events at Hillsborough Stadium on 15th April 1989 that he knew had been altered or amended.
The allegation is that, once amended or altered, he provided the accounts to WMP in full knowledge of the amendments or alterations.
ALAN FOSTER, between the 15th day of April 1989 and the 2nd day of August 1989, with intent to pervert the course of public justice, did a series of acts which had a tendency to pervert the course of public justice in that he amended or altered the accounts of South Yorkshire Police officers in respect of the events at Hillsborough Stadium on 15th April 1989 that he knew were to be provided to West Midlands Police.
The allegation is that Mr Foster amended or altered accounts. Count 6 concerns accounts where he ordered the amendment or alteration.
ALAN FOSTER, between the 15th day of April 1989 and the 2nd day of August 1989, with intent to pervert the course of public justice, did a series of acts which had a tendency to pervert the course of public justice in that he ordered the amendment or alteration of the accounts of South Yorkshire Police officers in respect of the events at Hillsborough Stadium on the 15th April 1989 that he knew were to be provided to West Midlands Police.
These three tried to minimise the blame that might be heaped upon the South Yorkshire Police at the many different forms of enquiry that followed that dreadful day. They did this by altering accounts given by police officers who were present on the day. They knew that those accounts were inevitably going to end up being sent to a number of Inquiries that would follow the Hillsborough disaster: for example, an inquiry into the safety of football grounds, the inquest, civil proceedings and criminal proceedings.
The effect of the alterations was to mask failings on the part of South Yorkshire Police in their planning and execution of the policing of the football match. 
... between 10th May and 1st August, Mr Metcalf sent a total of 28 faxes advising amendments to officers' accounts. The amendments were heavily focused on amending the parts in the accounts of officers which were critical in the areas set out in the Salmon letter. 
Although the accounts were amended for the Taylor Inquiry, it is clear that the process was put into place with wider considerations in mind. Everyone knew that there would be inquests, civil claims, police disciplinary proceedings and a criminal investigation. 
It is important to understand that the vetting process was targeted at reducing or removing references to failings by the SYP with specific reference to the topics set out in the Salmon letter. 
On 19th July 1990, Mr Metcalf wrote to DCC Hayes concerning the question of monitoring of pens. Mr Metcalf suggested that there had been ambiguity in the evidence of the officers who gave evidence before Taylor LJ about this issue and that those officers who had dealt with it in a way adverse to SYP's interests on the point should be asked to review their evidence.
Mr Metcalf went so far as to send a draft statement that he had himself composed, setting out what he wanted the officers to say. It is right to say that the letter concluded by observing that there was no point in any officer putting forward evidence which he did not think he could honestly sustain in cross examination. The point is, however, that Mr Metcalf was seeking to put words into the mouths of officers, changing evidence that they had given to the Taylor Inquiry, when he had no idea of what they might actually wish to say. [177/178]
... .amending witness statements in the manner that I have described is, the prosecution say, improper and in breach of the duties of a solicitor.  ..Peter Metcalf's conduct was improper, to use a neutral word, in a number of respects:
(i) The SYP had a duty of candour to the Taylor Inquiry. The SYP are a taxpayer-funded organisation and the officers are public servants. A public inquiry set up at public expense is entitled to expect that public authorities participating in it will assist the Inquiry in reaching the truth. You may think that this is especially important when the Inquiry has been set up specifically to find out what went wrong and to make recommendations to ensure the future safety of people attending football matches.
(ii) It is improper to put words into the mouth of a witness, by amending a statement, and then ask the witness to sign it, especially if pressure is put on a witness to do so.
(iii) There were obvious conflicts of interest since Mr Metcalf was representing the interests of the South Yorkshire Police as well as individual officers. Protecting the interests of one party might well have conflicted with the interests of another. 
The Factual History - Counts 1 and 3 to 6
The Factual History - Count 2
The legal framework
"How then should the judge approach a submission of 'no case'? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case."
"(1) in all cases where a judge is asked to consider a submission of no case to answer, the judge should apply the 'classic' or 'traditional' test set out by Lord Lane CJ in Galbraith. (2) Where a key issue in the submission of no case is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence.
(3) However, most importantly, the question is whether a reasonable jury, not all reasonable juries, could, on one possible view of the evidence, be entitled to reach that adverse inference. If a judge concludes that a reasonable jury could be entitled to do so (properly directed) on the evidence, putting the prosecution case at its highest, then the case must continue; if not it must be withdrawn from the jury."
An inquisition— (a) shall be in writing under the hand of the coroner and, in the case of an inquest held with a jury, under the hands of the jurors who concur in the verdict; (b) shall set out, so far as such particulars have been proved— (i) who the deceased was; and (ii) how, when and where the deceased came by his death; and (c) shall be in such form as the Lord Chancellor may by rules made by statutory instrument from time to time prescribe.
The ambit of a Coroner's Inquest since the introduction of the Human Rights Act 1998 has widened. Where Article 2 considerations arise, Section 5 of the Coroners and Justice Act 2009 requires the inquest to investigate the circumstances of the death as well as how the deceased died which is a much narrower question. Plainly the Human Rights Act and the 2009 Act were not in force in 1989.
To be punishable as conduct tending to pervert the course of justice the conduct must be such as can be properly and seriously so described. "Pervert" is a strong word (cf. "corrupt" and "outrage" as explained in Knuller).
But assuming, as we must, that the harmful tendency of a contract must be examined, what is meant by tendency? It can only mean, I venture to think, that taking that class of contract as a whole the contracting parties will generally, in a majority of cases, or at any rate in a considerable number of cases, be exposed to a real temptation by reason of the promises to do something harmful, i.e., contrary to public policy; and that it is likely that they will yield to it.
Reading across to the offence, I conclude that, for an act to have a tendency to pervert the course of justice, there must be a significant risk that it will have that effect.
The expert evidence
Mr Justice William Davis
24 May 2021