The circumstances surrounding the Hillsborough disaster

are controversial. Lord Chief Justice Taylor first led a departmental

inquiry into the disaster in 1989, whose interim and final reports
established that the poor police crowd control led to the deaths.
However in 1991 the Director of Public Prosecutions held that there
wasnt sufficient evidence to amount to any prosecutions. The police
force and authorities were accused of causing death of victims by
their misconduct and negligence in performing their duties. The
inquest into deaths of victims held that the deaths were accidental.
The investigations into the deaths were considered ineffective due
to irregularity of proceedings and the controversial 3.15p.m cutoff.
The plea for fresh inquest was denied by judicial review and appeal
to the European court of human rights. For several years an
effective investigation into the disaster was denied. Only in 2013 a
fresh inquest into deaths has been granted based on the findings of
the Hillsborough Independent Panel by the High Court in AG v HM
Coroner of South Yorkshire1 and the home secretary granted a
criminal inquiry in 2012. Recent developments in the interpretation
and implementation of the European Convention on Human Rights
have influenced the grant and regulation of inquests. The
development in interpretation of ECHR provides more legal routes
for obtaining an effective inquest but there are a few ECHR and
domestic limitations that dont allow for the access to justice.
The Hillsborough disaster occurred in 1989 before the
Human Rights Act 19982 came into force. The UK complied with the
international law of European convention since 3 rd September 1953,
which entailed signatory states and individuals to petition to the
Strasbourg court when domestic remedies werent available for the
breach of convention rights. The HRA is the act of parliament that
incorporates convention rights contained in the ECHR. The HRA, s.
3(1), imposes a statutory duty on courts to interpret legislation
consistent with the convention rights, which includes legislation
passed before the it came into force. Sections 6 and 7 of HRA are
the most important provisions in upholding the convention rights.
Section 6 imposes a duty on all public authorities to act in
accordance with the convention rights and in s.7(1)(a) a victim is
given the right to bring proceedings at a domestic level against
public authorities if their convention rights are breached. The
individuals or the signatory states still have the right to appeal to
the European Court of Human Rights under HRA after exhausting
the domestic remedies. The Article 2 of convention rights protects
the right to life by law and prohibits the state from taking lives.
Article 2 is interpreted to impose the duty of state to
carryout investigations into suspicious death as a substantive
implied term. In McCann3 ECtHR held that the state not only had
1 Attorney General v HM Coroner of South Yorkshire [2012] EWHC 3783
2 Human Rights Act 1998
3 McCann and others v United Kingdom (1995) 21 EHRR 97

the substantive obligation to not kill people but when there is an

purported breach of Article 2 or another convention right, the State
is obliged to carryout an effective investigation into the
circumstances of deaths. McCann was the first case to set out the
requirement of an effective investigation, which caused a sea of
change in Strasbourg jurisprudence and influenced the subsequent
cases.4 The court has established that purpose of an investigation is
to implement domestic laws, which protect the right to life, and to
ensure states accountability for deaths occurring under its
protection. By this principle the investigation would have to lead to
a conviction for it to be effective but in Brecknell5 it was clarified
that an effective investigation is defined by the means taken by the
state to establish accountability rather than the ends attained.
Therefore the state is not entailed to prosecute to comply with
Article 2.
Although the victims of Hillsborough did not die due to
the use of lethal force by the state agents as in McCann there are
issues concerning the breach of obligations such as duty of care by
the public authorities. It can also be argued that the victims died
whilst under the care and protection of the state, which would also
call for an investigation into death under the Article 2 as held in
Keenan6 and Edwards7. The House of Lords have held that the
extensive investigative obligation under Article 2 is parasitic upon
the existence8 or principally dependent on the alleged breach of
substantive convention rights. In the Hillsborough disaster there was
an alleged breach of Article 2 on the grounds of death at the hands
of the state. That would not only call for an inquest but an inquest
compliant with the Article 2. For the investigation to be compliant
with the Article 2, the state must employ the type of inquest
established by Middleton9. Prior to the enforcement of HRA, which
legally came into force in 20th October 2000, the right to inquest and
procedural obligations of the state in carrying out inquests was
contained in Coroners Act 1988 10 and Coroners Rules11. In Middleton,
lord Bingham held that the how in s.11 (5)(b)(2) Coroners Act and
rule 36(1)(b) Coroners Rules must be interpreted in such a way not
only find the means of death but also the circumstances that caused
it. If an effective investigation, Middleton type of inquest, were not
executed there would be a breach of Article 2 in not carrying out an
effective investigation into the deaths as in Brecknell and McCann.
4 J Chevalier-Watts Effective Investigations under Article 2 of the European
Convention on Human Rights: Securing the Right to Life or an Onerous Burden on
a State? EJIL (2010) 21(3) 701-721
5 Brecknell v United Kingdom (2008) 46 EHRR 42
6 Keenan v United Kingdom (2001) 33 EHRR 38
7 Edwards v United Kingdom [2002] ECHR 4647/99
8 R v The Prime Minster and others [2008] UKHL 20
9 R (Middleton) v West Somerset Coroner [2004] UKHL 10
10 Coroners Act 1988
11 Coroners rules 1984

However the convention allows the discharge of Middleton inquest if

the state inquest is successful in achieving objectives set out by the
convention, for an effective investigation. This highlights the broad
interpretation of the term effective investigation which depends on
a particular case and the margin of appreciation given to the state
in complying with the convention rights. The duty to conduct Article
2 compliant inquest legislation is now contained in s.5 Coroners and
Justice Act12. S.5 and other provisions of CJA, which were not
enforced during the grant of fresh Hillsborough inquest, will not
govern the new inquest.
The initial coroners inquest into the deaths of
Hillsborough victims was considered to have ignored important
evidence. The 3.15 pm cutoff was controversial as it did not
consider medical evidence such as post mortem reports and
testimonies of several witnesses including police officers. The cutoff
did not allow for a fair inquest, as all the events that took place after
the time were not used to find the circumstances surrounding the
death which is not only incompatible with Article 2 but also s.11
Coroners Act. Dissatisfied with the inquests Anne Williams appealed
to the ECtHR in 2009 on the basis of breach of Article 2 on the
grounds of ineffective inquests, in particular no independent public
investigation into the impact of failings of the state agents on
victims death. The ECtHR found the appeal inadmissible because it
was brought too late and did not comply with article 35 s.1 and s.4
of the convention. The six-month rule was considered to promote
security of the law and to ensure the cases are dealt with within a
reasonable period of time. The court also stated the importance of
the right under Article 2 does not justify the lodging, willy-nilly, of
proceedings.13 The decision was based on the practical aspects of
judicial proceedings rather than the human rights issue. The new
inquest into Hillsborough deaths was granted in AG v HM coroner for
South Yorkshire by s.13 of the Coroners act, which gives attorney
general the power to call for a fresh inquest in cases where new
evidence emerges. The new inquest would have to follow a
Middleton approach to be compliant with the convention rights. Until
2011 the inquests into deaths that occurred before the enforcement
of HRA were not bound by law to be compatible with convention
rights. House of Lords decision in Mckerr14 held that there was no
procedural obligation for the state to investigate deaths compliant
to the convention rights if the deaths occurred before the HRA came
into force. Only in 2011, Supreme Court decision in McCaughey15
was contrary to the decision in McKerr. It was held in McCaughey
that an inquest into deaths that occurred before HRA came into
effect had an obligation under HRA to comply with the requirements
of article 2.
12 Coroners and Justice Act 2009
13 Williams v The United Kingdom [2009] ECHR 478
14 Re McKerr [2004] 1 WLR 807
15 Re McCaughey [2012] 1 AC 725

The Hillsborough independent panel discovered evidence

that supports a police cover-up, which has brought about criminal
proceedings. ECtHR decision in medical cover-up case of Powell16
held that the inquest was required to only examine the events
leading to the death and not allegations of a cover-up afterwards
but Khan17 distinguished the case and the Strasbourg court held that
the medical orchestrated cover-up by itself is a breach of article 2.
Following this principle the police cover-up of the Hillsborough
deaths can also be interpreted as a breach of article 2. The duty of
the state to carryout positive measures to protect the lives of
individuals may also be imposed by article 6 of ECHR as in Osman18.
The Judgment in Osman and Khan are recent developments in
interpretation of ECHR that has created new legal routes for inquest.
The previous coroners inquests found no criminal
liability of South Yorkshire police and contended that the
incompetence of the police force was not negligence. The new
criminal inquiry is investigating the unlawful killings and SYP could
be charged with manslaughter. However according to the legislation
during the period of the disaster, the police force was devoid of any
legal status as an organization or corporation and had a general
immunity from prosecution for involuntary manslaughter. The
unlawful killing caused by negligent conduct of the police force
could be prosecuted under s.3 HSWA19 but applied only in very rare
cases. Although corporate manslaughter didnt exist Organizations
could be charged with gross negligence manslaughter prior to the
CMCHA 200720 if a single person in a position of authority known as
directing mind was identifiably at fault. Nevertheless it is hard to
prove their fault, as the people of authority were not usually directly
responsible for negligent act that caused deaths. Therefore only few
organizations were charged with manslaughter in the 1980s. Like
most acts of parliament The CMCHA cannot be applied
retrospectively therefore the new criminal inquiry granted would
have to follow the old legislation by which the manslaughter charges
are difficult to establish however its compliancy with convention
rights may facilitate the upholding of human rights.
McCaughey applied the decision made in the ECtHR
case, Silih21 and did not follow the House of Lords decision in McKerr
by stare decisis. The Supreme Court held that the decision
depended on the development and changing interpretation of
convention rights and did not overrule McKerr. This indicates the
significant role convention rights play in upholding human rights as
highly persuasive precedents, sometimes even waiving the doctrine
of the judicial precedent, and the impact of the constantly
16 Powell v United Kingdom (2000) 30 EHRR CD362
17 R (Khan) v Secretary of state for health [2003] EWCA Civ 1129
18 Osman v United Kingdom (1999) 16 JP 725
19 Health and Safety at Work Act 1974
20 Corporate Manslaughter and Corporate Homicide Act 2007
21 Silih v Slovenia (2009) 49 EHRR 37

developing ECHR interpretation on the domestic legislation. The

ECHR can also be seen to govern the quality of inquests, which
could help in ensuring the access to justice for Hillsborough victims
in the fresh inquest but the gap in old legislation on charging
organizations with manslaughter may limit the new criminal inquiry.
Although the ECHR has been interpreted broadly based on the
textuality principle, some limitations imposed like article 35 have
not facilitated the access to justice as in the case of Anne Williams.
The pragmatic approach taken by ECHR towards proceedings and
lack of retrospective implementation of CMCHA has limited the
scope of upholding human rights.