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

Preparation for the generic stage of the inquests

2.9.6 On 1 April 1990 Leslie Sharp, Chief Constable of Cumbria, was appointed to take overall responsibility for the criminal and disciplinary investigations, replacing Geoffrey Dear, the outgoing West Midlands Police (WMP) Chief Constable. CC Sharp would head the WMP team with Detective Chief Inspector Nick Foster at his side. The context and significance of the change of management was discussed between Michael Kennedy and Christopher Newell within the Crown Prosecution Service.[2] 

2.9.7 Mr Newell was concerned whether there was 'any more to this than meets the eye'. It seemed anomalous that a senior investigating officer would be appointed to manage investigations conducted by WMP. He asked: 'What's going on?!' Mr Kennedy replied there was 'nothing sinister' about the newly promoted Deputy Chief Constable Mervyn Jones' secondment. It had been agreed a year earlier in anticipation of an earlier end to the inquiry. Normally CC Dear's replacement would have been the new West Midlands Chief Constable but he had been at Hillsborough as a spectator; hence CC Sharp's appointment.

2.9.8 DCC Jones, however, continued as principal coroner's officer. Yet, in an extraordinary move, CC Sharp informed DCC Jones, 'I'm taking you off the Hillsborough Inquiry ... I've discussed it with the Coroner, and this is what he wants'.[3] Dr Popper denied this and DCC Jones raised his concern that CC Sharp had misrepresented the position to Dr Popper, stating he wanted to retain coronial duties to assure continuity and impartiality.
 
2.9.9 DCC Jones also questioned CC Sharp's position. He noted that CC Sharp had 'investigated' Peter Wright (South Yorkshire Police (SYP) Chief Constable) and senior SYP officers and 'no further action' was taken. He asked, 'Is that likely to taint the objectivity of the inquests, some may ask?' Both CC Sharp and DCI Foster 'could be material witnesses - should they retain a distance?'

2.9.10 Further, should the jury 'return a certain verdict, could it be that the investigation has to be re-opened?' and 'Should Mr Sharp and Mr Foster retain the objectivity to deal with that?' He concluded, 'I thought you would like early notice of what was coming to you'. Keen to continue working with DCC Jones, Dr Popper privately wrote to CC Dear to inform him of the situation. While no further action was taken, the events were 'noted'.

2.9.11 On 14 August 1990, with the Director of Public Prosecutions' (DPP's) decision regarding criminal prosecution imminent, Dr Popper met DCC Jones and senior WMP officers to consider the inquests' resumption 'on the assumption' that there would be no prosecutions.[4] The potential impact of civil proceedings, due in October, was also discussed.

2.9.12 Should the inquests be postponed further to await the conclusion of the civil cases, it 'might take any heat out of the [inquest] proceedings'. Dr Popper anticipated polarised inquests between those who would 'try and obtain a verdict of Unlawfully Killed' and those seeking to 'redress the balance ... with regard to the involvement of the fans'.

2.9.13 He noted that while it was 'understood and acknowledged that strictly speaking a Coroner's Inquest should not seek to determine either civil or criminal liability', the 'possibility of a verdict of Unlawfully Killed' made it 'necessary to carry out a fairly extensive inquiry'. The choice was 'to do virtually nothing, or probably a very extensive investigation'.

2.9.14 Dr Popper reflected on the scope of the inquests, returning to the analogy of a road traffic accident. He also commented on the importance of crowd behaviour and the need to consider the significance of alcohol consumption: 'In particular, we had to try and deal with the reasons if any why there was the pressure outside the turnstiles and the outer perimeter gates. The effect if any of alcohol on this as well as the effect of mass behaviour (Mervyn's point)'.

2.9.15 He considered the 'broken barrier' in pen 3 'was seen to have played quite a part in the number of the deceased' and 'equally it was important to try and deal with what seemed to be the case that a lot of the people who died actually came in fairly late on'.

I felt that it was essential that we should actually get this pinpointed accurately. I also felt that it might be worth then, having analysed alcohol levels to see if [sic] a. what they showed and b. whether any statistically interesting matters would be drawn. I felt that in the interests of justice and fairness, one had to try and weave together the behaviour mood of the crowd, the effect if any of alcohol in crowd behaviour on them and the contagion which this might have spread to everybody there. The effect if any that this might have had on officers, the physical nature of the stadium together with assigning turnstiles etc., the broken barrier and finally and by no means least, the organisation and policing efforts which had been put in place.

2.9.16 While he acknowledged that the condition of the stadium and police assumptions about alcohol consumption were issues, the blood alcohol levels of those who died, late arrival of fans, crowd behaviour and 'contagion' would be explored in contrast to 'what had happened' at the Taylor Inquiry.

The status of evidence

2.9.17 In late August 1990 Dr Popper met DCC Jones and other WMP officers.[5] At the meeting there was concern that SYP would be 'seeking to establish as much evidence as they can so far as the culpability of those who attended the match ... to illustrate that the fans contributed to the outcome and that drunkenness and disobedience to directions played a major part'.

2.9.18 The SYP focus would be 'ticketless fans who were perhaps motivated to force the situation where the gates were opened'. Further, SYP would emphasise 'the culpability of the club in as far as the capacity, signing, stewarding and issuing of tickets are concerned ... on Eastwood and Partners on barrier and turnstile issues ... [and] the nepotism of Sheffield City Council in the licensing arrangements'.

2.9.19 These issues would also 'assist their [SYP's] civil case which may be heard by the time the inquests take place'. Individual officers represented at the inquests would be motivated 'to defend themselves against any police disciplinary proceedings and, of course, any criminal proceedings which may follow a voluntary bill of indictment'.

2.9.20 On 30 August 1990 CC Sharp notified Dr Popper that the DPP had decided there was insufficient evidence for the criminal prosecution of any individual and his report would be submitted to 'the Chief Constable of South Yorkshire Police so that he ... can consider whether any officer should face disciplinary charges'.[6]

2.9.21 Dr Popper challenged the decision to submit the report, arguing that it 'would form the basis of the evidence which will be used at the inquests' thus giving SYP 'potential advantage'. This would not 'be fair and ... is, or gives the appearance of being, against the rules of natural justice'.[7]

2.9.22 Further, disciplinary issues could also arise from the evidence given at the inquests. As 'Hillsborough' was 'highly charged', he considered that CC Sharp should reconsider his decision to release his report to SYP.

2.9.23 Dr Popper and CC Sharp disagreed about the appearance of bias. According to Dr Popper's notes, CC Sharp's explanation was that while WMP had technically 'carried out the investigation, this had been done following a request by South Yorkshire'. Thus, 'in a sense the West Midlands Police were merely an extension of the South Yorkshire Police effort'. Dr Popper accepted this but objected because the 'South Yorkshire Police had been the subject of criticism'. CC Sharp responded 'that strictly speaking, he should have submitted the documents to South Yorkshire, even before the D.P.P. had given his decision'.[8]

2.9.24 Reluctantly Dr Popper acceded, but remained 'anxious that as far as possible things should be done correctly, but if the decision was that information had to be disclosed, then so be it'. Should that occur, 'I might find that I could not successfully resist confirming that I had no objection to releasing information to other parties'.[9]  In other words, he might disclose to the families' legal representatives.

2.9.25 CC Sharp also suggested that should police officers be called to give evidence, 'we might have to obtain new statements from them'. Dr Popper disagreed, 'because the statements apart from a very few had originally all been taken for Lord Justice Taylor and for my benefit, and I felt myself free to use them if I wanted to'.[10] CC Sharp had consulted with the SYP Chief Constable, Richard Wells, and with the South Yorkshire Police Authority, suggesting 'it might be a wise thing to discuss the position with me and in particular not to use statements in any way prejudicial to the inquest'.

2.9.26 CC Sharp confirmed his decision, taken in consultation with 'appropriate members of the Police Complaints Authority'.[11] He stated that the 'reports, supporting papers and documents' would be 'passed to the Chief Constable of South Yorkshire Police'. In his view the papers were simply to be used for disciplinary purposes, and it would be quite improper for them to be used during and as part of the inquest proceedings. He apologised for not being able 'to accede' to Dr Popper's 'request to delay such a move, but the Chief Constable is aware of your interest in the matter'.

2.9.27 While this discussion was in progress, DCC Jones wrote to the Head of the Police Complaints Division at the Home Office informing him that he had resumed responsibilities as coroner's officer. He had been 'kept briefed by Mr Sharp and Mr Foster as to the developments, albeit I do not know the intimate detail as to what went on in the [criminal] interviews ... both Dr Popper and myself would appreciate early intimation, especially if you intend to take no further action'.[12] 

2.9.28 Soon after, DCC Jones confirmed to Dr Popper he had 'formally resumed' his 'role as your Coroner's Officer following the announcement of the Director of Public Prosecutions not to take further action in the criminal courts'.[13] CC Wells had stated 'that it is proper for the West Midlands Police to continue to support your Inquests until their completion'.

2.9.29 DCC Jones assured Dr Popper that there would be 'a smooth transition between criminal/ disciplinary investigations and the coronal enquiry'. CC Sharp, DCC Jones noted, would continue to be responsible for disciplinary investigations 'until such a time that he and Mr Wells have agreed that there is nothing further to be considered'.

[2] Notes between Mr M Kennedy and Mr C Newell, 17 and 18 June 1990, CPS000004700001, pp2-3.
[3] Papers relating to the position of coroner's officer, SYC000009880001.
[4] 'File note of meeting, with M. Jones, S. Beechey, C. Highton and S.L.P. [Popper]', 14 August 1990, SPP000001610001, pp1-4.
[5] 'MEETING HELD ON 31 AUGUST 1990 AT NECHELLS GREEN POLICE STATION TO DISCUSS THE PROPOSED INQUESTS INTO THE HILLSBOROUGH DISASTER 1989', 31 August 1990, SYC000001360001, p114.
[6] Letter from CC Sharp to Dr Popper, 30 August 1990, SYC000001360001, p126.
[7] Letter from Dr Popper to CC Sharp, 31 August 1990, SYC000001360001, pp122-123.
[8] File note, 'TELEPHONE CONVERSATION WITH MR SHARP AT ABOUT 2 P.M.', undated, SYC000001360001, p86.
[9] File note, 6 September 1990, SYC000001360001, p84.
[10] File note, 'TELEPHONE CONVERSATION WITH LESLIE SHARP', 10 September 1990, SYC000001360001, p13.
[11] Letter from CC Sharp to Dr Popper, 10 September 1990, SYC000001360001, p12.
[12] Letter from Mr Mervyn Jones to Mr Colin Cleugh, Head of Police Complaints Division, Home Office, 24 August 1990, CPS000004910001, p1.
[13] 'HILLSBOROUGH CORONIAL INQUIRY - PROGRESS REPORT' from M Jones to Dr Popper, 12 September 1990, SYP000118480001, p29.