AS TO THE ADMISSIBILITY OF
by Anne WILLIAMS
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 17 February 2009 as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 3 August 2006,
Having deliberated, decides as follows:
The applicant, Mrs Anne Williams, is a British national who was born in 1951 and lives in Chester. She was represented before the Court by Mr E. Abrahamson, a lawyer practising in Liverpool.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The background facts
The applicant is the mother of Kevin Williams who died, aged 15 years old, at Hillsborough football stadium.
On 15 April 1989, Kevin Williams went to Sheffield to watch Liverpool play in the semi-final of the Football Association Cup at Sheffield Wednesday’s football ground, Hillsborough Stadium. The kick-off of the match was scheduled for 3p.m. Prior to kick-off there was a huge build-up of supporters outside the Leppings Lane entrance to the ground which in turn caused pressure on those trying to get into the ground through the turnstiles.
At 2.52p.m. Chief Superintendent Duckenfield, who was the police officer in charge of crowd control at the match, decided to authorise the opening of the exit gates at the Leppings Lane entrance in order to relieve the pressure at the turnstiles. The opening of one of the gates, gate C, resulted in a sudden influx of about 2,000 supporters into the ground, the majority of whom continued through a tunnel into the central spectator pens, 3 and 4. Each of these pens was capable of holding just over 1,000 people but both were already full when the gate was opened. The result of the sudden influx was the build-up of intolerable pressure on supporters at the front of the pens.
Notwithstanding the late arrival of supporters, Chief Superintendent Duckenfield decided not to delay kick-off. The match started as scheduled at 3p.m. Shortly after the match began, the pressure in the pens intensified and supporters were crushed against the wall at the front of the pens and suffered severe crush injuries. The match was stopped at 3.06p.m. At 3.15p.m. the first St John’s Ambulance crew arrived. A major incident vehicle was called at 3.29p.m. and arrived at 3.45p.m. The applicant’s son was certified dead at 4.06p.m. 96 supporters died following injuries sustained in the disaster, including the applicant’s son.
2. The domestic proceedings
a. The Taylor Inquiry
On 17 April 1989, the then Secretary of State for the Home Department ordered Lord Justice Taylor (as he then was) to conduct an inquiry. His terms of reference were:
“To inquire into the events at Sheffield Wednesday Football Ground on 15 April 1989 and to make recommendations about the needs of crowd control and safety at sports events.”
The West Midlands police were appointed to investigate the incident and gather evidence for the Taylor Inquiry and assisted Her Majesty’s Coroner for South West Yorkshire, Dr Popper, who was to conduct the inquests.
Lord Justice Taylor’s interim report was published on 4 August 1989. His final report was published in January 1990. Lord Justice Taylor heard oral evidence from 174 witnesses on a wide range of issues leading to the disaster. He also received a number of written submissions. He found that there were a number of causes for the disaster but that the immediate cause was the failure, when gate C was opened, to cut off access to the central pens which were already overfull. Lord Justice Taylor concluded, at paragraph 278 of his interim report, that:
“The main cause of the disaster was the failure of police control.”
b. The inquests
On 18 April 1989, the Coroner formally opened and adjourned the inquests into the deaths of the 95 victims of the disaster (the 96th victim suffered severe brain damage that left him in a persistent vegetative state and died in 1993). The Director of Public Prosecutions (“DPP”) had been asked to consider bringing criminal charges arising out of the incident and the Coroner decided that the inquests could not be completed until the DPP had reached a decision on whether criminal proceedings would be pursued.
In February 1990, following consultation with the DPP and a solicitor connected to the Hillsborough Steering Committee, the Coroner decided that the inquests could resume on a limited basis. Although the question of “how” the deceased died would be reserved for a later date, the questions of “who”, “when” and “where” could be dealt with before the DPP’s decision. The Coroner recognised that care would have to be taken to ensure no prejudice to any future criminal prosecutions.
Preliminary inquests (“mini-inquests”) were held for each of the individuals who had died between 18 April and 4 May 1990. At the mini-inquests, West Midlands police officers summarised statements relating to each of the deceased, covering the evidence they had gathered in the course of their investigations. The officers’ evidence was given orally and on oath. The written summaries themselves were not read in evidence. Evidence was also heard from pathologists who had carried out all the autopsies within 48 hours of the incident. In the majority of cases, the cause of death was given as traumatic asphyxia and it was said that the individuals would have been unconscious within a matter of seconds and would have died within a matter of minutes thereafter.
On 2 May 1990, evidence from a statement made by Special Police Constable (“SPC”) Martin on 8 May 1989 was summarised at the mini-inquest into Kevin Williams’ death. SPC Martin had helped carry Kevin off the pitch into the gymnasium. Her evidence suggested that Kevin was still alive at 4p.m. Her statement indicated that Kevin had opened his eyes and muttered the word “mum” after he had been taken to the gymnasium. A statement from Police Constable (“PC”) Bruder was also orally summarised at the mini-inquest. His evidence suggested that Kevin was possibly still alive after 3.32p.m. PC Bruder reported having seen Kevin after that time have convulsions. PC Bruder also thought he had felt a pulse and said in his statement that he had seen Kevin vomit. Despite this evidence, the pathologist considered that Kevin’s death must have occurred before SPC Martin attended him.
On 3 May 1990, PC Bruder amended his statement. He accepted that the “convulsions” he had witnessed may merely have been “twitching”. He also accepted that he may have been wrong about feeling a pulse and that while he had thought he saw Kevin being sick, it may have been merely spittle or phlegm.
In September 1990, the Coroner was advised that the DPP had decided not to prosecute anyone in connection with the incident. The inquest into the question “how” the deceased died began on 19 November 1990. Prior to this, the Coroner advised that he had decided to impose a cut-off time for evidence which he would hear in relation to the incident. Accordingly, he would hear evidence of events which took place before 3.15p.m. only. He was of the view that on the pathological evidence available to him, permanent irrecoverable damage had by then been suffered by all the deceased. In reaching this view, the Coroner took into account the interim report of the Taylor Inquiry. Counsel for 43 of the families argued against the cut-off point, primarily on the ground that there was evidence to suggest that not all the victims were dead by 3.15p.m. He argued that there had been no investigation or systemic analysis of the organisation or planning of the emergency response and what might have made a difference. The Coroner rejected these submissions.
The resumed inquest heard evidence regarding the arrival of supporters, their approach to the football ground, the entrance to the ground and the build-up of supporters, the opening of the gates, the internal layout of the ground and a broken crowd barrier. No evidence was heard during the resumed inquest regarding the emergency response, its planning or its possible effect on the death of Kevin Williams.
The mini-inquests and the resumed inquest heard, in total, around 200 witnesses. In summing up, the Coroner left to the jury the verdicts of unlawful killing, accidental death and open verdict. On 28 March 1991, the jury reached a majority verdict (9-2) of accidental death in all cases.
Following the inquest, SPC Martin and PC Bruder both stated that they changed their statements following visits from West Midlands Police. SPC Martin claimed that she had changed her statement as a result of harassment by a police officer. Medical evidence prepared in 1992 and 1994 by specialists at the Department of Forensic Medicine at Guy’s Hospital in London and the Department of Forensic Pathology at the University of Liverpool respectively suggested that the officers may have been correct in their original statements and that Kevin Williams may have been alive after 3.15p.m. and even spoken a word or two.
c. Judicial review
On 6 April 1993, relatives of six of the deceased, including the applicant, were granted permission to judicially review the inquest verdict of accidental death. On 5 November 1994, the Divisional Court refused to quash the verdict.
d. The criminal investigations
The DPP was instructed to consider bringing criminal charges in respect of the incident. In 1990, he decided not to pursue any criminal proceedings.
e. Civil proceedings
In June 1990, the applicant lost her civil claim for pre-death suffering because the pathological evidence given at the inquest was that none of the deceased would have felt any pain.
f. Disciplinary proceedings
The Police Complaints Authority (“PCA”) appointed the West Midlands Police to supervise a disciplinary investigation into the conduct of South Yorkshire Police officers. In July 1991, the PCA directed the South Yorkshire Police to prefer disciplinary charges against Superintendent Murray, for one charge of neglect of duty, and Chief Superintendent Duckenfield, for four charges of neglect of duty and one of discreditable conduct. However, in November 1991, Chief Superintendent Duckenfield was allowed to retire on health grounds. The disciplinary charges against him were accordingly discontinued as under police regulations, a disciplinary hearing could not proceed when a police officer retired. The PCA decided on 13 January 1992 to withdraw the charge against Superintendent Murray because it considered that it would have been unfair to pursue what was, in effect, a joint charge in the absence of the more senior officer.
g. First request to Attorney General for new inquest
Under section 13 of the Coroners Act 1988, the Attorney General may grant leave to apply to the High Court for another inquest to be held. That power can be exercised where there has been insufficiency of inquiry, where new facts have been uncovered or where it is necessary or desirable that a new inquest be held.
In 1992, a first request for leave was made to the Attorney General on the basis of new evidence. This request was rejected in August 1992.
h. Lord Justice Stuart-Smith Inquiry
In June 1997, the Secretary of State for the Home Department ordered a “scrutiny” of new evidence uncovered since the Taylor Inquiry. Lord Justice Stuart-Smith was appointed to:
“ascertain whether any evidence exists relating to the disaster at the Hillsborough Stadium on 15 April 1989 which was not available:
(a) to the Inquiry conducted by the late Lord Taylor; or
(b) to the Director of Public Prosecutions or the Attorney General for the purpose of discharging their respective statutory responsibilities; or
(c) to the Chief Officer of South Yorkshire Police in relation to police disciplinary matters;
And in relation to (a) to advise whether any evidence previously not available is of such significance as to justify establishment ... of a further public inquiry; and in relation to (b) and (c) to draw to their attention any evidence not previously considered by them which may be relevant to their respective duties; and to advise whether there is any other action which should be taken in the public interest.”
Lord Justice Stuart-Smith received a number of written submissions and evidence in the course of his inquiry. He also heard oral evidence, including evidence from SPC Martin and PC Bruder. Although he sat in private, his report was published in February 1998 and set out in detail the evidence and his findings. He concluded:
“I have come to the clear conclusion that there is no basis upon which there should be a further Judicial Inquiry or a reopening of Lord Taylor’s Inquiry. There is no basis for a renewed application to the Divisional Court or for the Attorney General to exercise his powers under the Coroners Act 1988. I do not consider that there is any material which should be put before the Director of Public Prosecutions or the Police Complaints Authority which might cause them to reconsider the decisions they have already taken. Nor do I consider that there is any justification for setting up any further inquiry into the performance of the emergency and hospital services. I have carefully considered the circumstances in which alterations were made to some of the self-written statements of South Yorkshire Police officers, but I do not consider that there is any occasion for any further investigation.”
i. Private prosecutions
In June 1998, the Hillsborough Family Support Group commenced private prosecutions against former Chief Superintendent Duckenfield and Superintendent Murray, alleging two specimen charges of unlawful killing and wilful misfeasance in public office. They were committed to stand trial at Leeds Crown Court on 6 June 2000. The trial took place between 6 June and 24 July 2000. Superintendent Murray was acquitted on 20 July 2000. On 24 July 2000, the jury announced that they could not reach a verdict on Chief Superintendent Duckenfield and were discharged. On 26 July 2000, the Hillsborough Family Support Group made an application for re-trial of Chief Superintendent Duckenfield. The application was refused on the grounds that he would not get a fair trial.
j. Second request to Attorney General for new inquest
Following the entry into force of the Human Rights Act 1998, the applicant made a second request to the Attorney General in 2006 to have her case referred to the High Court. The application was made on the basis of the alleged insufficiency of the inquiry into Kevin Williams’ death on the ground that there had been no Article 2-compliant investigation; and on the basis of new evidence. Her request was refused on 12 February 2006.
B. Relevant domestic law and practice
The Coroner’s Act 1988 provides as follows:
“13 Order to hold inquest
(1) This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner (“the coroner concerned”) either—
(a) that he refuses or neglects to hold an inquest which ought to be held; or
(b) where an inquest has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held.”
The applicant complained under Article 2 of the Convention that the United Kingdom authorities failed to investigate properly the circumstances of her son’s death. She alleged that there was no effective investigation, in particular (i) that there was no independent public investigation into the emergency response and planning; (ii) that there was no independent public investigation into whether any failings by state agents had an impact on the death of her son; and (iii) that no criminal or disciplinary charges were pursued by the authorities against the two police officers involved. The applicant complains about the lack of independence of the West Midlands police, the narrow scope of the inquest, the inadequate opportunities for participation and cross-examination in the inquiries, the fact that the inquiries were not public and the fact that the impact of new evidence on the death of Kevin Williams has not been adequately considered.
The Court must first determine whether the applicant has complied with the admissibility requirements in Article 35 § 1 of the Convention, which stipulates:
“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against a State to use first the remedies provided by the national legal system, thus allowing States the opportunity to put matters right through their own legal systems before being required to answer for their acts before an international body. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Assenov and Others v. Bulgaria no. 24760/94, § 85, ECHR 1999-VIII). The Court observes that the requirements contained in Article 35 § 1 concerning the exhaustion of domestic remedies and the six-month period are closely interrelated.
The Court notes that the purpose of the six-month rule is to promote security of the law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. It protects the authorities and other persons concerned from uncertainty for a prolonged period of time. Finally, it ensures that, insofar as possible, matters are examined while they are still fresh, before the passage of time makes it difficult to ascertain the pertinent facts and renders a fair examination of the question at issue almost impossible (see Kelly v. the United Kingdom, no. 10626/83, Commission decision of 7 May 1985, Decisions and Reports (DR) 42, p. 205; Baybora and Others v. Cyprus (dec.), no. 77116/01, 22 October 2002; and Denisov v. Russia (dec.), no. 33408/03, 6 May 2004).
The Court recalls its extensive case-law to the effect that an application for retrial or similar extraordinary remedies cannot, as a general rule, be taken into account for the purposes of applying Article 35 § 1 of the Convention (see, e.g., Denisov, cited above; and Galstyan v. Armenia, no. 26986/03, § 39, 15 November 2007). Furthermore, remedies the use of which depends on the discretionary powers of public officials and which are, as a consequence, not directly accessible to the applicant cannot be considered as effective remedies within the meaning of Article 35 § 1 of the Convention (see Tumilovich v. Russia (dec.), no. 47033/99, 2 June 1999; and Gurepka v. Ukraine, no. 61406/00, § 60, 6 September 2005). Similarly, remedies which have no precise time-limits, thus creating uncertainty and rendering nugatory the six-month rule contained in Article 35 § 1 of the Convention, are not effective remedies within the meaning of Article 35 § 1 (see Denisov, cited above; and Galstyan, cited above, § 39).
In the present case, the legislation allowing an application to the High Court for a new inquest leaves full discretion to the Attorney General as to whether or not to refer the matter to the High Court. Furthermore, no time limit is imposed on the making of a request to the Attorney General. In the circumstances, the Court finds that the procedure whereby a request can be made to the Attorney General for leave to apply for a new inquest is akin to an application for retrial and other similar remedies which cannot normally be considered effective remedies under Article 35 § 1. The Court does not find that special circumstances exist in the present case which would justify a different conclusion.
Notwithstanding this finding, the Court must examine whether there is a continuing obligation on the national authorities to investigate the death of the applicant’s son, arising from the emergence of new evidence, which would bring the application within the six-month time limit set out in Article 35 § 1.
The Court recalls its case-law to the effect that where information purportedly casting new light on the circumstances of a death comes into the public domain, a new obligation to investigate the death may arise (see Hackett v. the United Kingdom (no. 34698/04, (dec.) 10 May 2005; and Brecknell v. the United Kingdom, no. 32457/04, §§ 66-67, 27 November 2007). In this regard, the Court emphasises that it cannot be the case that any assertion or allegation can trigger a fresh investigative obligation under Article 2 of the Convention. However, where there is a plausible, or credible, allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of individuals responsible for an unlawful killing, the authorities are under an obligation to take further investigative measures. The nature and extent of any subsequent investigation required by the procedural obligation will inevitably depend on the circumstances of each particular case and may well differ from that to be expected immediately after the death has occurred The lapse of time will, inevitably, be an obstacle as regards, for example, the location of witnesses and the ability of witnesses to recall events reliably and the importance of the right under Article 2 does not justify the lodging, willy-nilly, of proceedings. Furthermore, the extent to which the requirements of effectiveness, independence, promptness and expedition, accessibility to the family and sufficient public scrutiny apply will again depend on the particular circumstances of the case, and may well be influenced by the passage of time (see, mutatis mutandis, Brecknell, cited above, §§ 68-72).
In the present case, the Court observes that the scrutiny review conducted by Lord Justice Stuart-Smith was expressly instructed in order to assess new evidence which had emerged since the original Taylor Inquiry. A number of written submissions were considered and oral evidence was heard. A report was published in February 1998. The Court further observes that all the new evidence to which the applicant refers in the present case was known at the time of the scrutiny review conducted by Lord Justice Stuart-Smith. The Court therefore concludes, without finding that there was in the present case a continuing obligation as a result of the new evidence, that any continuing obligation was discharged by Lord Justice Stuart-Smith’s scrutiny review and 1998 report. To the extent that the applicant complains of Lord Justice Stuart-Smith’s failure to hear or consider properly the new evidence, such a complaint should have been brought before this Court within six months of the publication of Lord Justice Stuart-Smith’s conclusions and is accordingly substantially out of time.
It follows that the application has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Lech Garlicki