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The Hillsborough Disaster Report 2012 – Does the police have blanket immunity?

The Hillsborough Disaster Report 2012 – Does the police have blanket immunity?

On 15 April 1989 96 football fans tragically died at the Hillsborough Stadium in Sheffield. I remember as a teenager watching the match live on T.V and witnessing the events unfold. It is hard to believe that it has been 23 years since that fateful day.

In January 2010 the Hillsborough Independent Panel was appointed. Their terms of reference were: overseeing full disclosure of relevant information; consulting with the Hillsborough families; managing public disclosure; working with the Keeper of Public records and producing a report. On 12 September 2012 the report was published highlighting flaws in police operation. It was found that the 164 handwritten statements made by the police were amended and 116 negative comments about policing operations were removed. These amendments were made by South Yorkshire police officers and their solicitors.

Prior to the Hillsborough disaster Caparo Industries plc v Dickman [1990] UKHL 2 set out a three stage test determining liability for negligence. These were; was the act reasonable foreseeable; was there sufficient proximity and is it fair, just and reasonable to impose a duty, the social policy argument.

The social policy issues from Caparo were prevalent in the case of Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049. Here the victim’s mother wanted to sue the police for failing to arrest a criminal as a matter of them not carrying out an adequate investigation. The House of Lords refused to impose a duty on the police because of a lack of proximity. There was no reason to believe that the victim was in more danger than the rest of the public. Lord Keith argued that in ruling against the police there would be a danger of an adverse affect on the police in carrying out their duties due to the fear of liability.

Following the Hillsborough disaster Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 came before the House of Lords. A claim was made by 16 relatives and friends of some of the victims of the Hillsborough disaster. Two of the claimants were present at the stadium and the rest had either heard about the events on the T.V or radio. All claimants argued that they had suffered psychiatric harm as a result of seeing or hearing about the events.

A distinction was made in the case between those in the area of physical danger, primary victims, and those not, secondary victims. Alcock established a new four part test to determine liability for secondary victims. Firstly there must be a close tie of love and affection between the claimant and the victim. Secondly there must be sufficient proximity in time and space between the claimant and the incident or its immediate aftermath. Thirdly the claimant must have perceived the incident or its immediate aftermath with their own unaided senses. Fourthly the psychiatric harm suffered must have been reasonably foreseeable as a likely consequence of trauma of the incident or its immediate aftermath.

The House of Lords dismissed the appeal by the claimants. All five Law Lords agreed that a duty of care was not owed to the claimants because perceiving events through T.V or radio was the equivalent of communication by a third party. They had not satisfied the test.

It is evident from these decisions that immunity has been granted to the police and the law has been refined to mirror this. These cases have led to questions of a possible breach of Article 6 of the European Convention on Human Rights, the right to a fair trial. In Osman v United Kingdom [1998] EHRR 101 the European Court identified that the House of Lords had contravened Article 6. The decision in the case was based on the rule established in Hill and even though there was a duty, and proximity was established, the police were not liable due to social policy issues. The European Court decided that the House of Lords had not balanced social policy arguments with the rights of the public.

Another case brought before the European Court was Z v UK (2001) 34 ECHR 97. The case concerned four children whom the local authority had failed to protect against neglect and abuse for a considerable amount of time. Article 6 issues were discussed in the case however it was decided on a majority of 12 to 5 that the United Kingdom had not breached Article 6. The Osman decision was not followed.

This case caused confusion; in Osman the European Court highlighted the breach of Article 6 because of social policy issues. However in Z they argued that the claimants did not face obstacles in bringing their claims. The trial was sufficient for the purposes of Article 6 and it was considered that Osman was based on the law of negligence which had to be reviewed. In Z Judge Thomassen stated “there seem to have been no striking or significant changes in the law of negligence…the conclusion under Article 6 in this case must be the same” as Osman. Therefore the point made in Osman is still valid and arguably one which courts still have to consider.

Other cases have also considered these issues such as Buckley v Chief Constable of Thames Valley Police [2009] EWCA Civ 356 and the much more recent case of Alanov v The Chief Constable of Sussex Police [2012] EWCA Civ 234. Both cases are very similar and involve claimants arguing that they had been unlawfully arrested.

In Buckley the claimants were arrested because they were suspected of being involved in a hit and run and arrested. The Court of Appeal dismissed the claim stating that the threshold for establishing reasonable grounds for suspicion was a low one and it had been met by the police even though the claimants had not been involved.

In Alanov the claimant had been arrested after arousing suspicion he was involved in a rape. The claimant argued that he was unlawfully arrested. A principal issue raised in the case was whether the judge was right in deciding that the police officer was entitled to arrest the claimant without a warrant. Again this goes back to issues of conferring blanket immunity on the police. In the case it was held by the Court of Appeal that the threshold for reasonable suspicion had not been met.

The question that arises is have the police been conferred with blanket immunity? This question is not a simple one to answer. Apart from the issues which have been highlighted above it needs to be asked if anything will change. This is especially true now that the Hillsborough Report has been released and there are possible ensuing civil action cases against the police. In Alcock and Hill social policy arguments effectively provided safeguards to the police. These social policy issues have and will continue to be a very crucial element in the courts future decisions.

However in light of recent findings courts will have to show that they are balancing the rights of claimants with social policy issues. This is especially true in cases when there are real merits to the claimant’s case. The issue of blanket immunity is something which will not be accepted in these circumstances. Cases which have come before the European Court are evidence of this issue. However whether or not courts will deter from Alcock is something which we will just have to wait and see. This may be tested out if any of the families of the victims of the Hillsborough tragedy bring claims for civil actions against the police following the recent public disclosure.

Sajid Malik


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