Hillsborough, justice and the state

Hillsborough, justice and the state

Just over three years after the Hillsborough Disaster the reigning champions met in the cup semi-final against a smaller team in a stadium which was disastrously unfit for the crowds expected on the day. The teams on this occasion were the dominant French club of the era, Olympique Marseille, and the smaller Corsican outfit, SC Bastia. In order to try to maximise the profitability of the fixture against the country’s highest profile team, Bastia’s Stade Armand-Cesari de Furiani was expanded using temporary scaffold-like structures. Having qualified for the semi-finals only 13 days earlier the engineers and executives at Bastia had to demolish their North stand and build a 10,000 seat metallic structure in record time. On 5 May 1992, some 10 minutes before kick-off, the temporary stand collapsed killing 18 fans and injuring more than 2,000.

The similarities with Hillsborough are somewhat uncanny. The nation’s dominant team, from a port city past its prime, ignored economically and looked down upon by the rest of the country, playing in a cup semi-final at a stadium poorly engineered and improperly supervised by local government, ends in the death of innocent fans. However, the differences between the two disasters are perhaps more interesting. In particular the states’ different responses to the disasters are illuminating.

After both disasters an inquiry was set up within days. Just over three and a half years after the disaster in Bastia the criminal convictions of nine officials involved in the planning and building of the stadium were confirmed on appeal. Eight received suspended sentences ranging from 10-20 months and fines of between 15,000-30,000 francs (about £1,800-£3,600). One official, engineer Jean-Marie Boimond, received a 24-month sentence and was the only person to spend time in prison as a result of the disaster. Those convicted included engineers, local government officials, the vice-president of SC Bastia as well as senior officials from the Federation francaise de football and the Ligue corse de football.

While the whole investigatory and criminal process in France was done and dusted within 3 and a half years, those who lost loved ones at Hillsborough were not to experience such swift justice or accountability. Certainly the Furiani disaster was smaller, both in the number of people who died and the number of agencies who were involved, but this alone cannot explain the different waiting times. Although it took 27 years for a jury to find that the 96 had been unlawfully killed (that is that they had died due to manslaughter caused by the gross negligence of a known, but not named, individual), the road to accountability remains to be completed. Nobody has been held criminally responsible for Hillsborough, let alone sentenced to time in prison. Decisions about charges arising out of the disaster remain with the Crown Prosecution Service.

Why is it that for basically the same match, in the same era, French families had their cases resolved in 3 and a half years, while those in England waited 27+? There is a simple two-word answer: the police. There is no suggestion that the police were responsible at Furiani, but almost everybody knew they were to blame at Hillsborough, and knew this almost immediately. They knew it themselves and began a horrible smear campaign against the fans. It was a smear campaign to be taken on by the Murdoch press and local Tory MP Sir Ivan Patnick (who, along with the major architect of the cover-up, Sir Norman Bettison, never had his knighthood rescinded).

The mechanics of the smear campaign have been covered in detail elsewhere (notably by the Hillsborough Independent Panel), but at its most basic the police and their allies alleged that Liverpool fans arrived drunk, late and ticketless. This alleged misbehaviour overwhelmed the police, causing the crush outside and inevitably lead to the deaths. The problem for the police was that there was no evidence to support these allegations. There was no moment during the second Inquests when lawyers for the police were able to show alcohol being consumed in any meaningful quantity. The crush outside was building up before 2.45pm and the writing on the back of the match tickets asked supporters to arrive 15 minutes before the 3 pm kick-off. The third limb of the smear campaign, ticketlessness, is of course a complete red herring. Numerous experts have reviewed the footage and concluded that the numbers coming through the gates at Leppings Lane did not exceed the number of fans that could be safely accommodated on the terraces, if the police had spread them appropriately between the different pens. There was no evidence to support any of the aspects of the police smear.

The fact that the smear against the fans lasted for so long is testament to the police’s capacity to ‘prove’ what they want without relying on evidence. There is a scene in Rumpole where the eponymous character says to a judge: ‘My Darling, Old Lordship, anyone can get a conviction on evidence. It takes a legal genius to obtain one without it’. Viewed in these terms the South Yorkshire Police were phenomenally skilled and industrious in ‘prosecuting’ the fans, en masse, of hooliganism. A smear that was not fully overturned until the jury absolved the fans of blame in April 2016.

There is no doubt that there was a problem with football hooliganism in England in the 80s and it was a problem that required a thoughtful policing response. The division of the terraces on Leppings Lane into pens to separate supporters and allow a sterile area between home and away fans was a response to a problem of violence that was common at English football matches. Many techniques in crowd control, surveillance and the invasion of privacy were invented or initially road-tested on football fans. Segregating fans may be unique to football, but CCTV pervades all our lives. Other techniques such as ‘kettling’ and the infiltration of undercover officers have blighted peaceful protest movements consistently since they were introduced to control hooliganism.

These were often blind, poorly thought out, rage-induced responses to the problem of hooliganism. As it is almost universally agreed that hooligans are, or should be, marginalized, it becomes easy to de-humanise them and introduce measures that would otherwise be considered significant restrictions of civil liberties. Even today football fans across the country report unfair treatment at the hands of British police forces. As criminologist PAJ Waddington says of these severe interventions; ‘because those who were affected by these interventions were politically marginalized, the police felt they could do so with impunity’. Once the techniques are normalised on the marginalised, they can be steadily imposed on others within society, notably, as mentioned above, the political protester.

Hillsborough marked a high water mark in the use of the term ‘hooligan’ to justify cruelly mistreating people. There are innumerable examples of the myopia induced by the fight against hooliganism that had a terrible impact on the day. So obsessed were the police with controlling hooliganism that, once the fatal crush had begun, before calling for ambulances, the match commanders called for police dogs. The working assumption at all times was that any disturbance was a matter of public order rather than a matter of public safety. The stadium was built that way, the police planned for the match that way and they policed it that way, even when people were obviously dying in front of them. Fans were treated like cattle, herded into pens and manhandled by police. Through all of it, the police failed to see the humans and the human suffering because of their culturally engrained prejudice that football fans were hooligans.

However detestable football hooligans are, it is a dangerous road to take to allow football fans to be treated as one homogenous block. Indeed it is this type of prejudice against groups of people based on the behaviour of a few of their members that has lead to some terrible injustices and inhumanity throughout the years. In the case of Hillsborough, a widespread dismissal of football fans as hooligans allowed the police to perpetrate a smear campaign against the fans and the people of Liverpool. Having been heavily criticised in the first public inquiry, the police then ran their smear again in the original inquests, accusing fans of drinking and invoking the evils of hooliganism. Through the following years they continued to do so. Lobbying Parliament to that effect and allegedly spying on families as they fought for justice. Even in the Inquests that finished this year the SYP, having apologised for their failings before the Inquests, continued to run a case that blamed fans and exonerated themselves. After the jury returned its conclusions condemning the SYP’s failings, they apologised again. Between the apologies they continued to blame the fans and hide behind the horrors of hooliganism.

Hooliganism is repugnant, but prejudice is even more so. One of the main causal factors for the Hillsborough Disaster was the police’s inability to see that human beings were dying and trying to escape death. Because of their prejudices, the police assumed the fans were trying to cause disorder. As lawyers we have learned many things from the inquests including the importance of the Human Rights Act and proper victim representation. For those involved in the struggle to protect our civil liberties, it is also important to remember that ignoring the prejudice against and repression of marginalized groups, even those as repugnant as ‘hooligans’ (or ‘terrorists’) can lead to dangerous working assumptions with knock on effects.

The jury’s conclusions in April 2016 have put the Hillsborough families in the position they should have been in in 1990. The blame for that delay falls squarely with the police. We now wait for the CPS to decide if they will achieve some level of accountability and reach the point their Corsican counterparts got to in 1995.

James Mehigan is a barrister at Garden Court Chambers and lecturer in criminology at the Open University, he was part of the legal team that represented 77 families at the Hillsborough Inquests.

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