HILLSBOROUGH AND WITNESS STATEMENTS 1 (A REPEAT): THE INITIAL PROCESS AND SUBSEQUENT AMENDMENTS
This is a repeat of a post first written on this blog in April 2016. There is always a danger in writing about a tragedy that the human consequences, the pain and suffering of the victims and family members are overlooked, but the aim here is to go some way to prevent future suffering. Hopefully we will never have another Hillsborough. It is possible (even probable) that there will be circumstances in which lawyers are involved in the large scale collection of evidence. The second inquest put the evidence gathering that took place after Hillsborough under close scrutiny. The solicitor responsible for gathering (and suggesting amendments) to the witness statements was subjected to several days of cross-examination of the process – some 25 years after the event (at the inquest). This should serve as a salutary warning to all those responsible for taking witness statements. It highlights the need for clear records and transparency when lawyers are taking statements and suggesting amendments to statements. The lawyer will never know if, and when, the whole process will be scrutinised. All internal documentation and attendance notes were laid bare.
It is clear that in Hillsborough the process of obtaining evidence and amending that evidence was greatly flawed. This flawed process led directly to the problems that perpetuated many of the enquiries that took place over the following 32 years. A simple, honest and accurate evidence system of taking statements at the outset would have reduced, greatly, the misery involved caused by the protracted process of unpeeling the truth.
“no CRITICISMS’ should be ‘levelled at anyone in the text of your summary’. Further, there ‘should be no mention of the word CHAOTIC or any of its derivatives which would give rise to the assumption that complete control had been lost at the ground … All these items come from the express wish of DI King’.”
I am presenting a webinar: Witness Statements and Gathering Witness Evidence: the lessons that lawyers must learn from Hillsborough on the 19th July 2021. Booking details are available here.
THE RELEVANCE OF THIS EVIDENCE GATHERING PROCESS TODAY
One key question is what would happen if a similar enquiry took place today. Issues relating to the obtaining of evidence, alteration of witness statements and the inclusion of “opinion” evidence remain highly relevant topics today. It is important that the process of obtaining evidence, and in particular making amendments, is wholly transparent. This protects and the witness, and also protects the lawyer.
THE INITIAL PROBLEM: WE WANT YOUR OPINIONS
The key problem for Sheffield Police arose at once. Immediately after the incident the police officers involved were asked to “prepare a note of their recollections in the form of a statement, but including also matters of comment and impression, whether or not this amounted to evidence as we normally understand the term.”
It is this requirement to give “comment and impression” that, thereafter, dogged the police authority for the next 25 years.
Short factual statements as to what happened, what was seen and what was said would be unobjectionable. They could have been released generally without any difficulties.
However, some (it appears many) of the statements made by police officers were critical of the police hierarchy. It was felt necessary to edit, and generally remove, these to omit critical references.
Inevitably there was some concern that this “editing” was not a wholly impartial process.
THE HILLSBOROUGH INDEPENDENT PANEL
The Hillsborough Independent Panel had an entire chapter on review and alteration of statements: The summary of that chapter reads:
“126. From the documents disclosed to the Panel it is apparent that the decision to gather self-taken recollections from SYP officers, rather than following the standard procedure of contemporaneous pocket-book entries as the foundation for formal Criminal Justice Act statements, originated in the immediate aftermath of the disaster on 16 and 17 April. The initial justification was to provide SYP and the Force solicitors with candid, ‘warts-and-all’ accounts from officers that would be used to inform SYP’s submission to the Taylor Inquiry.
127. What followed, however, was an extensive process of review and alteration of the recollections and their transition to multi-purpose statements. The disclosed documents reveal confusion about the purpose of recollections, initially taken for SYP ‘internal’ purposes, and their subsequent use by the WMP investigation. It was brought into stark relief in the confusion surrounding the status of statements presented to the Taylor Inquiry and the Inquiry’s acceptance of the ‘final versions’ of the reviewed and altered statements.
130. A significant number of SYP officers were uncomfortable with the methodology adopted in reviewing and altering their initial accounts and with the role of the SYP solicitors in this process. Senior SYP officers, including the Chief Constable, were aware of these concerns and the disclosed ‘Hillsborough updates’ demonstrate their attempts to assuage these concerns. An SYP inquiry liaison team was available to provide junior officers with ‘necessary information and assistance’ prior to giving evidence to the Taylor Inquiry.
131. Examination of officers’ statements shows that officers were discouraged from making criticisms of senior officers’ responses, their management and deficiencies in the SYP operational response: ‘key’ words and descriptions such as ‘chaotic’ were counselled against and, if included, were deleted.
132. Some 116 of the 164 statements identified for substantive amendment were amended to remove or alter comments unfavourable to SYP.”
SOME OF THE AMENDMENTS IN DETAIL
Police response or inadequate leadership
2.11.56 Beyond the issues of language, more significant alterations were made changing the meaning or balance of statements. Some 116 of the 164 substantially amended statements removed or altered comments unfavourable to SYP. These included 41 statements in which alterations downplayed or removed criticisms made by officers of their leadership and of the police response to the disaster. These commonly included any indication or impression that senior officers had lost control of events, or that they were ill-equipped to respond to the unfolding tragedy. The amendments also frequently included deletions of references relevant to the failure to effectively monitor the pens and close the tunnel once Gate C was opened, as discussed in Chapter 3 from paragraph 2.3.121.
2.11.57 The following account had the first sentence deleted:
I at no time heard any directions being given in terms of leadership. The only messages I heard were those requesting assistance of one sort or another, and where appropriate, their acknowledgements.
2.11.58 Similarly, an observation about the role of senior management was deleted:
I have to state that even at this stage and this location and with a number of higher ranks in the area nobody seemed to be organising the injured.
2.11.59 Police Constable John Hood was critical of sergeants and inspectors and the following was deleted from his original statement:
Sergeants and Inspectors appeared to be aimlessly milling about and direct radio control appeared to be lost. There did not appear to be any leadership.
2.11.60 Police Constable Maxwell Groome’s observation that ‘The Control Room seemed to have been hit by some sort of paralysis’ was deleted. Concerned by what he identified as poor management overall, he considered the decision to replace C/Supt Mole as match commander shortly before the match should be scrutinised. The following material was deleted:
(7) The decision to replace Chief Superintendent Mole before the semi-final needs to come under some scrutiny. This man had many years experience of policing big matches at Hillsborough.
(8) Compared to other semi-finals held at Hillsborough, the organisation of this event was poor, as has been the case for most of the season. Too little notice had been taken of current trends and football intelligence and too much reliance has been placed upon previous information held.
(9) Too many non-operational supervisory officers were in charge of important and critical parts of the football ground.
(10) The deployment of officers around the crucial time needs to come under scrutiny, too many were sat around in the gymnasium whilst others were rushed off their feet.
2.11.61 His statement was one of those most extensively altered. In his initial version he stated:
It was noticeable that the only supervisory officers above the rank of Inspector on the pitch were Chief Inspectors Beal and Sumner and Superintendent Greenwood. Certain supervisory officers were conspicuous by their absence. It was utter chaos.
2.11.62 Altered, this read ‘On the pitch were Chief Inspectors Beal and Sumner and Superintendent Greenwood’. A three-paragraph deletion included PC Groome’s comments regarding the overcrowding in the central pens, the failure to delay the kick-off, the reduction in police numbers compared with the 1988 Semi-Final and the pressures on Control Room staff.
2.11.63 While these latter concerns reflected his broader opinion of events on the day and policing Hillsborough, his commentary on senior officers’ presence or absence was his observation of appropriate police leadership and response.
2.11.64 Alterations to Police Constable Alan Wadsworth’s original recollection also removed criticism of senior officers. The following passage was deleted:
There was no leadership at the Leppings Lane end following the disaster either in person or on the radio. The only officer I heard on the radio with any form of organisation and method was Ch Supt Nesbit who did not arrive until later.
2.11.65 References made by five officers to disorganisation in the police response were altered or removed from their recollections. The following deletion is indicative:
Through out [sic] the time I was on the pitch or at the rear of the stand I saw no officer above the rank of sergeant other than Ch Insp Beal who was attempting to organise action on the playing area.
2.11.66 Several officers explicitly criticised the lack of coordination in the police response to the emergent crisis. References to senior officers’ failure to coordinate the response were removed from these statements, including those of Inspector Derek Burgess who stated that, although urgent assistance had been requested, there was no officer ‘of senior rank … co-ordinating such assistance’.
2.11.67 Police Constable Philip Foster noted: ‘No one was co-ordinating what we should do or saying where to go’. His original recollection was altered to read: ‘I could not see anyone co-ordinating what we should do or saying where to go’. This change in emphasis was, in fact, a change in meaning.
2.11.68 Police Constable David Frost’s emotional and graphic account was heavily edited, including the following deletion:
Notice for the first time the gaffers are now about. Where have they been. Why was the organisation so late. Thought. Anyway, good to see them in with the lads.
Deletion of references to ‘chaos’, ‘fear’, ‘panic’ or ‘confusion’
2.11.83 Twenty-three officers had references to ‘chaos’, ‘fear’, ‘panic’ and ‘confusion’ altered or deleted from their original recollections. Five officers had references to ‘chaos’ deleted. Nine officers’ statements were amended to remove the word ‘panic’ and there were 11 deletions of the word ‘confusion’.
2.11.84 A brief, undated, note to officers with guidance on how to complete statements illustrates the policy underpinning these alterations. The note states that ‘no CRITICISMS’ should be ‘levelled at anyone in the text of your summary’. Further, there ‘should be no mention of the word CHAOTIC or any of its derivatives which would give rise to the assumption that complete control had been lost at the ground … All these items come from the express wish of DI King’.
2.11.85 Police Constable Glyn Dunn had a significant section of his initial account deleted as follows:
It appeared to me this year that one single senior officer appeared to be attempting to take control of the situation, that could at times be only called chaotic. I am also surprised that from the position of the ground control room, that no one in there could see what was happening inside the Leppings Lane stand and that officers on the perimeter of the pitch were unable to assess the situation correctly and out swiftly from it.
2.11.86 The following sentence was deleted from Police Constable Martin McLoughlin’s original recollection: ‘As time went on this became thousands of people leaving the ground, streaming onto Penistone Road, which was full of ambulances etc. Basically it was chaos.
2.11.87 The following passage was deleted from an officer’s statement, including sentences that had already been edited:
The messages being passed became more and more frantic and Repeated requests were made to have the gates in that area opened to avoid what the officer making this request called ‘a disaster’. It was shortly after this [sic] after the requests were becoming more and more urgent. and a note of real fear and panic was in the voice of the officer requesting this that We started to travel from where we were …
2.11.88 References to ‘panic’ were also removed or altered, many of which pertained specifically to panic among the senior officers on duty. The following paragraph was deleted:
The thing that strikes in my mind about those first few minutes is the state of panic that appeared to set in and apparently overcame senior officers. The command structure of the force totally broke down for several minutes and no one appeared to grasp the severity of the situation and take command. Everyone was busy doing his own thing and that didn’t help or anything.
2.11.89 A reference to Superintendent Roger Marshall’s request to the Control Box to open exit gates was removed from an officer’s statement: ‘Once outside, rear of South Stand, heard Supt. Marshall on radio requesting permission to open gates. Voice full of panic.
2.11.90 Similarly, another officer’s account was altered: ‘It became apparent to me that something serious was happening at the Leppings Lane end of the ground because what transmissions I could hear on the radio now had a real feeling of urgency and sometimes panic in them. The emphasis shifted from ‘panic’ to ‘urgency’.
2.11.91 References to confusion were also deleted. The following deletion, from PC Stephen Sapsford’s account, is indicative:
My overwhelming reaction to the incident is one of utter confusion I personally did not hear any radio communication regarding any orders. I can also recall that I did not see any of the Sheffield Wednesday stewards during the incident.
RETENTION OF CRITICISM OF THE FANS
Whilst some criticisms of the fans were removed this was not universal and was selective.
2.11.96 The stated rationale for the review and alteration of police statements was the removal of comment and opinion in order to provide ‘factual’ accounts of police officers’ experiences. While many amendments related to ‘comment and opinion’, the deletion of such material was inconsistent and selective.
2.11.97 As part of the vetting process, Mr Metcalf named several officers who had made ‘comments about the severity of the crushing outside the turnstiles in 1988’. He stated that the comments were ‘not particularly helpful to our case, but if they represent factual recollections then they will probably have to stay in’.
2.11.98 But they could be ‘qualified in one or more of the following ways’. First could be a ‘clear comment to the effect that the ingress of mounted officers eased the problem’. Second, an ‘indication that the problem was relatively short-lived, e.g. by 2.45 p.m. the crush had eased, if this is the case’; finally, ‘an indication that the Officers have watched the 1988 and 1989 videos and that the 1988 situation was clearly not as bad as that in 1989’.
2.11.99 In another example, Inspector John Harvey’s statement was reviewed and the following deletion requested:
Many many officers, some of whom I have mentioned, carried out acts worthy of the highest praise. If I may be allowed to select one individual officer whose actions were outstanding for his command of the situation, organisation and physical effort, then I select Chief Supt Nesbit, Operations and Traffic Division.
2.11.100 In another officer’s statement, however, the following personal observation and opinion remained untouched:
From what I witnessed inside the terraced end of the West Stand, I can only visualise as mass hysteria. I am positive that many of these fans were not aware of being trampled, crushed or killed OR if aware, did not care. Perhaps on reflection they became animals, fighting for survival in the heavy atmosphere being created by body heat.
2.11.101 In PC Grant’s recollection, the following was retained:
I am aware that it is inevitable that there will be criticism of various aspects of the incident at Hillsborough. I feel, however, that given the circumstances, the decisions taken, particularly in relation to opening gates were correct. I fully support them and feel it was the only course of action to take.
There is little point in ‘iffing’ and ‘butting’ about Police action. The circumstances were something that could never have been prepared for and I am sure if it happened tomorrow, most officers would behave in the same manner. Very little, if anything, could have been done to prevent the tragedy.
2.11.102 Yet the following sentence was deleted:
However I feel that the rescue operation may have flowed more smoothly if more radios had been issued to officers – communication was very poor and consequently supervision of officers near impossible.
2.11.103 In the recollection provided by PC Robert Burkinshaw, the following paragraph was marked for deletion:
Again I have heard other officers’ comments about the policing outside the ground which include statements that there was no other option open to Mr Marshall but to open the gate and relieve the pressure on the wall. Others have commented that there were not enough officers outside the ground at that point to cope with the numbers arriving. These were no doubt depleted by the taking of prisoners. The general feeling is that the …
2.11.104 Yet part of the final sentence was retained and reconstructed as a discrete sentence:
The fans arrived too late, and a lot of them under the influence of drink, to get into the ground in time for the kick off.
2.11.105 Thus his ‘general feeling’ was transformed into a factual statement. Finally, Police Constable Anthony Lang’s recollection was amended as follows:
From what I could see throughout the incident the problem seemed to stem from the large number of people attending outside the ground at the same time. But when the gate was opened I felt at the time that we had transferred the problem into the ground and we would need a lot more PC’s to control it.
THE CONCLUSIONS OF THE INDEPENDENT PANEL
From the documents disclosed to the Panel it is apparent that the decision to gather self-taken recollections from SYP officers, rather than following the standard procedure of contemporaneous pocket-book entries as the foundation for formal Criminal Justice Act statements, originated in the immediate aftermath of the disaster on 16 and 17 April. The initial justification was to provide SYP and the Force solicitors with candid, ‘warts-and-all’ accounts from officers that would be used to inform SYP’s submission to the Taylor Inquiry.
What followed, however, was an extensive process of review and alteration of the recollections and their transition to multi-purpose statements. The disclosed documents reveal confusion about the purpose of recollections, initially taken for SYP ‘internal’ purposes, and their subsequent use by the WMP investigation. It was brought into stark relief in the confusion surrounding the status of statements presented to the Taylor Inquiry and the Inquiry’s acceptance of the ‘final versions’ of the reviewed and altered statements.
It was the Taylor Inquiry’s understanding that the ‘final versions’ of SYP statements differed from the initial ‘recollections’ only with regard to the removal of officers’ opinions. The Inquiry team considered there to be ‘absolutely no reason’ why opinion should be removed, but did not consider the process improper and did not raise any objection.
The process of transition from self-taken recollections to formal Criminal Justice Act statements was presented as removing ‘conjecture’ and ‘opinion’ from the former, leaving only matters of ‘fact’ within the latter. Disclosed correspondence between SYP and the Force solicitors reveals that comments within officers’ statements ‘unhelpful to the Force’s case’ were altered, deleted or qualified (rewritten by the SYP team).
A significant number of SYP officers were uncomfortable with the methodology adopted in reviewing and altering their initial accounts and with the role of the SYP solicitors in this process. Senior SYP officers, including the Chief Constable, were aware of these concerns and the disclosed ‘Hillsborough updates’ demonstrate their attempts to assuage these concerns. An SYP inquiry liaison team was available to provide junior officers with ‘necessary information and assistance’ prior to giving evidence to the Taylor Inquiry.
Examination of officers’ statements shows that officers were discouraged from making criticisms of senior officers’ responses, their management and deficiencies in the SYP operational response: ‘key’ words and descriptions such as ‘chaotic’ were counselled against and, if included, were deleted.
Some 116 of the 164 statements identified for substantive amendment were amended to remove or alter comments unfavourable to SYP.
THE EVIDENCE OF THE RELEVANT SOLICITOR
The solicitor for South Yorkshire Police was interviewed over several days. The interviews are available on the inquest website. (This was taken down temporarily whilst the criminal proceedings were pending. It may be reactivated in the near future).