• Andrew Tettenborn

Hillsborough is prosecution as naked political payback

Ninety-six people were killed when barriers collapsed at Hillsborough Stadium in Sheffield in 1989. On Friday, a judge opened the doors for David Duckenfield to be prosecuted on 95 charges of manslaughter. Duckenfield, now 73, was the police match commander in charge of security at the time of the disaster.

The judge also ruled that other officials would be prosecuted, including 68-year-old Graham Mackrell, Sheffield Wednesday Football Club’s secretary at the time of the disaster. Mackrell will face prosecution over allegations involving the stadium safety certificate and an alleged health and safety offence.

Three other defendants – retired police officers Donald Denton (80), Alan Foster (71), and retired solicitor Peter Metcalf (68), who acted for South Yorkshire Police following the disaster – are also set to face trial.

The commentariat will welcome this decision with open arms. It is, nevertheless, a very worrying one, and shows that we urgently need a criminal statute of limitations (as in not only the overwhelming majority of US states, but also in much of the European Union).

We urgently need a criminal statute of limitations.

Why do we need a limit? For one, prosecutions for historic crime are potentially highly unfair. Memories aren’t good after 30 years. Again, if someone has gone straight for that time, some might say that in any case the object of punishment has already been achieved. And times may have changed: something considered venial when done yesterday, may now, applying the puritanical standards of today, be regarded as deadly serious.

Applying the standards of 2018 in sentencing people for what they did in 1989 is plain unjust (not that this worries the courts: the official attitude is, preposterously, that the defendant has only himself to blame for not being a good citizen and turning himself in earlier). Moreover, it’s not clear what good to society is done by hauling old men out of retirement and clapping them in jail over events that happened many years ago (the record for age was a frail diabetic aged 101 given thirteen years in 2017 for offences committed 36 years earlier). Such a sentence serves neither prevention nor deterrence.

The social benefit of serving up a very cold dish of revenge, 30 or more years later is hard to see; the advantage of encouraging others to reopen old wounds with a view to having it served up even less obvious. And this is without the diversion of police time from investigating present crimes, which they say they do not at present have the resources to deal with.

The social benefit of serving up a very cold dish of revenge, 30 or more years later is hard to see.

Turning to Hillsborough, there must in addition be very severe doubts about whether these particular defendants will get anything like justice. Prime Minister Theresa May, to her shame, has said publicly that she welcomes the decision to reopen proceedings against them (a private prosecution was stopped as long ago as 2000); and there has already appeared an interview with the daughter of a Hillsborough victim from Liverpool saying in so many words that at last she was looking forward to seeing justice done.

No one has so much as mentioned contempt of court, and the judge in his wisdom has decided that there are no fairness problems (and that a just trial can be had near Liverpool, to boot). We shall see. But there is a much more serious issue. Until recently, prosecutions for very stale offences – say those committed over 20 years ago – were largely limited to child abuse, with the odd previously unsolved murder thrown in. This was just defensible on the basis that crime was crime whenever committed and that criminals should be brought to justice provided only that there could be a fair trial (though even then prosecution was curiously selective: we never heard of prosecution for, say, a major theft committed thirty years ago). Cases like Hillsborough, in contrast, show a dangerous tendency to mission creep. We’re not talking here about a high-minded desire to punish wrongdoing without discrimination. However strong the evidence, if you try to interest the police in 2018 in an ordinary case of negligence, health and safety breaches and record-keeping failures committed in the 1980s you’ll get a pretty short answer.

We’re not talking here about a high-minded desire to punish wrongdoing without discrimination.

Hillsborough is prosecution as naked political payback, aimed at buying off a pressure group complaining of a perceived political wrong, making a historical point, and marking symbolically the reversal of the original Hillsborough coroner’s verdict last year.

Mr Duckenfield, Mr Mackrell and the other defendants just happen to be the unlucky men caught in the cross hairs. If anyone in their position has to go through life fearing a hand on the shoulder over allegations of negligence or incorrect record keeping long after they have retired, something is seriously wrong. Nor, unfortunately, is this an isolated development. So far two military personnel face trial for events stuck deep in the history of the Troubles in Northern Ireland. In one, a retired soldier faces manslaughter charges arising out of a checkpoint shooting in 1988, having already been convicted at the time on a lesser charge and having manslaughter charges dropped.

Colonel Richard Kemp, a former commander of British troops in Afghanistan, said: ‘This British soldier was dealt with through properly constituted British legal process in 1990. Charging him again now is a vendetta against our troops facilitated by the British government.’

The rights and wrongs of history are not best debated

in courtrooms.

In the other case, an ailing retired Life Guard who is now 77 and is in ill-health is charged with a shooting as far back as 1974, nearly 45 years ago. Both prosecutions aim, one suspects, not so much at ensuring the guilty are punished as at satisfying the sensibilities of Sinn Fein and other pressure groups, and at restarting the stalled negotiations over legacy issues in the province. This is not to deny that governments ought to aim at truth and reconciliation concerning events many years ago, nor yet that victims demand ‘closure’. But the criminal courts are not the place to do it. The rights and wrongs of history are not best debated in courtrooms. And in so far as victims, whether in Liverpool or Ireland, want closure, we should assume they are mature enough to accept something short of the incarceration of septuagenarians as what can only be described as a vindictive exercise in retribution.

(Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as UKIP’s candidate in Bath).