Chapter 9: The generic hearing, Judicial Review and continuing controversies

The Stuart-Smith scrutiny

2.9.124 In November 1997 Dr Popper met LJ Stuart-Smith accompanied by Michael Burgess of the Coroners' Society.[48] While their discussion of the imposition of the 3.15pm cut-off is considered in Chapter 10, LJ Stuart-Smith covered a range of other related issues raised in meetings with the bereaved.

2.9.125 LJ Stuart-Smith summarised the procedure at the mini-inquests. It was his 'impression' that, in relation to each of the deceased, WMP summarised the evidence 'culled from various witnesses' tracing the movement from leaving home to the last point of contact.

2.9.126 This included:

where he was in the pens; where he was last seen alive; the attempts to resuscitate him, either on the terraces or behind, or on the pitch; and then, so far as he could be, traced to the gymnasium or hospital; and a sequence of people certifying death, police officers being with them, and so on, until they were eventually identified, and then through to the post mortem.

2.9.127 Dr Popper confirmed this process, noting that two WMP officers had presented evidence. One officer had read the summaries circulated to enable families and their legal representatives to 'know what was coming' and to 'comment if they thought there was anything wrong'. The second officer had provided identification information from photographs taken in the stadium.

2.9.128 LJ Stuart-Smith noted that the 'thing that seems to be bugging families now is that in some cases they don't know whether their relative died at 6 minutes past 3 in the pen, or 20 minutes later somewhere else'. Dr Popper responded, stating that the visual and witness evidence was varied for each of the deceased.

2.9.129 He considered it 'hard on families when you cannot pinpoint to the minute what happened, but the fact of the matter is that the evidence was not there and I was in no position to invent it for them'. The 'objective' had been 'to say as much as we possibly could about each one, to try to narrow it down and pin it down as closely as we could, and we succeeded in many cases'.

2.9.130 Dr Popper recounted ten cases in which witnesses were called at the generic stage of the inquests to respond to questions and inconsistencies raised by families and their legal representatives. In presenting these cases he made it clear to LJ Stuart-Smith that he (Dr Popper) was committed to resolving issues relating to attempted resuscitation in the period beyond 3.15pm.

2.9.131 In one case at the inquest he had re-called the senior pathologist, Professor Usher, because a claim had been made that a particular individual was alive beyond 3.15pm. While he could not recall Professor Usher's evidence he thought 'he was not impressed ... he felt it made no difference'. LJ Stuart-Smith commented, 'I imagine that in some cases there is a bit of wishful thinking?' Dr Popper replied, 'I am afraid so'.

2.9.132 LJ Stuart-Smith was concerned that families might have been 'misled ... into thinking that any questions that might not have been answered then [at the mini-inquests] would be answered at the full Inquest. Speaking for myself I have not found anything to suggest that, and I have not really been referring to anything, but it is say [sic] that this is the implication of what is said'. While LJ Stuart-Smith expressed reservations about the 'fairness' of the question, he asked if Dr Popper would 'like to comment'.

2.9.133 Dr Popper declined, stating that he would 'stand by what I said in the transcripts' and his 'general remarks when I opened the Inquests'. He proceeded to describe the sequence of negotiations at the business meeting with legal representatives when he had requested suggestions for witnesses to be called.

2.9.134 This had drawn 'a whole load of names and witnesses who they raised and they also raised quite a lot of questions on things which had happened at the mini Inquests where there was some concern'. Consequently 'extra witnesses' had been called and 'whenever somebody raised a point they were not happy with, we looked at it'.

2.9.135 He continued:

Sometimes it was dealt with at the Inquest. Sometimes I refused to call witnesses. Sometimes I think somebody explained what was said and what had happened. It is a matter of interpretation. I do not know whether I did mislead them. I cannot comment on that I just don't know. I don't remember.

2.9.136 He stated that his objective at the generic stage of the inquests 'was to ... tidy up and correct errors which could have occurred [at the mini-inquests], or where I felt that the families had a legitimate reason'. LJ Stuart-Smith asked if Dr Popper could provide further examples of the attempt to 'deal' with matters raised by families, commenting:

It is no criticism of you, but it is perfectly obvious that the thing [the inquest and the number of witnesses] got out of control in a way. It took far too long largely because people kept on asking repetitive questions, and they were trying to push the frontiers of what is legitimate at an Inquest beyond what they should have been and so on. It seemed to me that it is very unfair on a Coroner to have to deal with a situation like this.

2.9.137 Dr Popper stated that it was his decision to call witnesses and he had considered 'that if we were going to put to the jury - and I knew I had to in a way - the possibility of an unlawful killing verdict, and bearing in mind the standard of proof is the criminal standard ... that I had to do a pretty comprehensive job in order that at the end of the day the jury had information from different sources, different people, so that they could try and reach a justified verdict'.

2.9.138 Yet he had not followed the 'strict rules of evidence', admitting evidence 'which in any other court would have been thrown out'. LJ Stuart-Smith replied, 'if I may say so, you bent over backwards to put the supporters' point of view because you called innumerable supporters who all said exactly the same thing, were all asked the same questions by counsel and so on'. According to LJ Stuart-Smith, Dr Popper had erred 'on the side of caution'. It was 'absurd' that there should be a long inquest when there had been a full judicial inquiry.

2.9.139 The discussion also considered the relationship between public inquiries and coroners' inquests in such high-profile cases. LJ Stuart-Smith concluded that it would have been 'sensible in this case' to have 'confine[d] the Inquest to what took place at the mini Inquests ... which was who, when and where, and leave the how to Taylor LJ'. This would have eliminated 'any problems about cut off points or suggestions that you should enquire into the adequacy of the emergency services, and so on, which had all been done by Lord Taylor'.

2.9.140 A further issue related to a comment made by LJ Stuart-Smith in a letter to Dr Popper regarding the holding of 'material' gathered for the inquests. While LJ Stuart-Smith had stated it had been held at a 'local police station', Dr Popper commented that it had been held by WMP at their Sheffield location (Furnival House) 'because we obviously did not want our material to be with the local police for obvious reasons'.

2.9.141 However, Dr Popper thought 'they did have access' and there had been 'problems'. He recalled correspondence with CC Sharp 'because he wanted to release certain material for disciplinary proceedings and I was very reluctant that we should do that because I thought it would give an unfair advantage'.

2.9.142 LJ Stuart-Smith had been under the impression that his information had come from the CPS who had been advised by Dr Popper. At this point in the meeting the Coroners' Society representative interjected: 'It may be more correct, sir, to say the rest of it was kept locally'.

2.9.143 LJ Stuart-Smith simply repeated the word, 'Locally'. The Coroners' Society representative added, 'Without necessarily identifying where'. 'Unfortunately', stated Dr Popper, 'I cannot remember what we actually did. I know we had a store room, a secure room, for the legal representatives so they did not have to carry everything'.

[48] Hillsborough Scrutiny conducted by LJ Stuart-Smith, evidence of Dr SL Popper, with Michael Burgess in attendance, 17 November 1997, SPP000001180001, pp1-41.