Mackrell caught in Hillsborough net

On Wednesday 4th April, 2019, at shortly after 12.15pm, a jury of six men and six women trooped into Court 1 in Preston Crown Court for their final time.

They had been deliberating in the trial of Graham Mackrell and David Duckenfield for 29 hours and 6 mins. Aked for their verdicts, the jury foreman said his peers had failed to reach a verdict on count 1, gross negligence manslaughter, against Mr Duckenfield. For count 3, a health and safety breach by Mr Mackrell, a finding of guilty, by a majority verdict of 10 – 2. For count 2, another safety breach by Mr Mackrell, they had been directed by the judge, Sir Peter Openshaw DL, to return a verdict of not guilty. That formality was completed, before they were thanked ‘on behalf of the community‘ by the judge for their public service, and discharged.

The charges related to the Hillsborough Stadium Disaster which happened almost 30 years ago, when 96 Liverpool football supporters went to a football match and did not return. Mr Mackrell is the first person to be found guilty of any disciplinary, regulatory or criminal offence in the decades since that tragic day. He was the Sheffield Wednesday club secretary and, more crucially, their safety officer at the material time.

He will be sentenced by the judge on 9th May, 2019, after consideration of written submissions from both his own counsel, Jason Beer QC, and the Crown Prosecution Service’s leader, Richard Matthews QC.

The CPS has already indicated that they will seek a re-trial of Mr Duckenfield. Counsel for the defendant, Benjamin Myers QC, told the judge, at a short hearing which followed discharge of the jury, that he will apply to have such proceedings stayed as an abuse of process. A further hearing, to determine that stay application, is listed for 24th June, 2019, with a time estimate of 2 to 3 days.

Strict reporting restrictions remain in place in respect of the Duckenfield trial and its aftermath. This also impacts on the reporting of the Mackrell trial. Nothing can be said that prejudices any future trial of Mr Duckenfield, or another Hillsborough trial that involves three other defendants, Donald Denton, Alan Foster and Peter Metcalf, and is listed to begin in September, 2019. The first two named are retired South Yorkshire Police officers and Mr Metcalf was retained by the police as their civil litigation lawyer.

The proceedings against Graham Mackrell, still a leading light in football administration, after a glittering post-disaster career, began in Warrington Magistrates Court in July 2017. The first appearance at Preston Crown Court was in September, 2017 when he sat in the dock, along with five other men charged with a variety of offences arising from the disaster. Sir Norman Bettison was, subsequently, found to have no case to answer after the prosecution withdrew.

The substantive trial began on 14th January, 2019 in Preston. Mr Mackrell was allowed, by the judge, to sit in the well of the court, amongst his lawyers, throughout those proceedings. 

Mackrell, who did not give evidence during the trial, gave a no comment interview to Operation Resolve, a police led investigation, whose officers interviewed him in April 2017. He was charged two months later.

Shortly before he began summing up the trial, the judge had directed the jury not to draw adverse inference from the fact that Mackrell had chosen not to give evidence. It was found that none of the questions given to his lawyers, in an interview pre-brief, had made their way on to the indictment, as it then stood, nine weeks into the trial. One count had fallen away, and part of the second had decayed at that point.

No defence witnesses were called to give live evidence on Mackrell’s behalf. The court did hear read evidence from eight witnesses, of high standing in football and political spheres, who attested that the club secretary, a chartered accountant, was diligent and co-operative in that, and other footballing roles. No mention was made, by any, of how he carried out his job of safety officer. A point that would not have been lost on the jury.

The jury found him guilty of failing to take reasonable care of the safety of 10,100 spectators on the West Terrace of the Sheffield Wednesday stadium. A regular FA Cup semi-final venue, in spite of repeated incidents and complaints of crushing in that area. Most notably, in 1981 and 1987. Mackrell joined Sheffield Wednesday in December, 1986.

Only seven turnstiles were allocated to admit those spectators in that area in 1989 and, inevitably, a dangerous crush built up in the approach to the Leppings Lane entrance.

Eleven turnstiles had been in use for the same terraces in the 1988 semi-final match between the same two teams, Liverpool and Nottingham Forest. Nothing heard in evidence came close to explaining why Mr Mackrell did not challenge, in his role as the football club’s safety officer, the catastrophic change in turnstile arrangements. Instead, he relied on the more general proposition that he left such matters to the police to deal with in their operational order.

In that era, and the jury were directed to discount either the benefit of hindsight, or consideration of modern stadia and the policing of them, segretation of fans was a primary consideration to prevent hooliganism. The jury heard that led to the closing of turnstiles on the Penistone Road side of the stand to Liverpool fans in 1989. Access to the North Stand was funnelled through the Lepping Lane entrance, adding to the build up of Liverpool fans.

Throughout the trial, the jury did not see, or hear corroborated evidence of, one single incident of hooliganism, disorder or excessive drinking at that end of the ground.

The jury did see, however, graphic images and film of the developing crisis as the crowd built up from around 2.10pm. What is clear is that the jury rejected the submission of Mr Beer that the crowd arriving late was a more material factor than the number of turnstiles allocated. All the evidence heard, and the film and photographs viewed, concerning the charges against Mr Mackrell, pointed to the opposite: Fans arriving at the ground early – long before the invitation on the rear of their ticket stated – was a contributory factor in the disaster. He was directly responsible for the printing of those match day tickets. They stated on the rear that fans should be in the ground by 2.45pm. Fiteen minutes before kick off.  

Graham Henry Mackrell, by then a convicted criminal, was allowed to slip out of the back door of Preston Crown Court. An affront to open justice, the media who had waited for days at the front of the court, the public who were denied the opportunity of hearing what he had to say and, most crucially, the bereaved families and survivors who did not hear him offer contrition, or an apology.

Steve Kelly, who lost his brother Michael, told me that, in calmer waters than immediately after the verdicts, “I will support every bereaved family member, and survivor, who wants to see a re-trial go ahead – and in the meantime, continue to respect due process and try to ensure that nothing is done to prejudice any future Hillsborough trial”.

Jenni Hicks, who lost her teenaged daughters Sarah and Victoria, said, “We have been chasing rainbows for thirty years. But, of course, we cannot express fully how we feel until all the trials are over”.

Barry Devonside, who lost his 18 year old son Christopher, added, “As a magistrate for 20 years, I know how important it is for the integrity of the trial process to be preserved. But 96 people were found, unanimously, by an inquest jury, to be unlawfully killed and it is right that those responsible are held to account”.

Richie Greaves, who has campaigned tirelessly for almost 30 years on behalf of the survivors from pen 3 and 4, and the bereaved families, concluded, “The conviction of Mackrell is a step in the right direction, and I support the prosecution team, the families, and my fellow survivors, in aiming for a re-trial. Once all the trials are concluded, the Government is urged to fulfil their promises on the Hillsborough Law”.

The re-trial of David Duckenfield is listed for hearing on 7th October, 2019 and is expected to last for approximately eight weeks. It will again be heard in Court 1 at Preston Crown Court.

Page last updated on Sunday 4th August. 2019 at 0925hrs

Corrections: Please let me know if there is a mistake in this article. I will endeavour to correct it as soon as possible.

Right of reply: If you are mentioned in this article and disagree with it, please let me have your comments. Provided your response is not defamatory it will be added to the article.

Picture credit:  Crown Prosecution Service

© Neil Wilby 2015-2019. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

‘Bad on their merits’

In April 2012, David Crompton stepped out of the shadow of Sir Norman Bettison and took up the post of chief constable of South Yorkshire Police (SYP). It is a matter of public record that, after being rejected in the first round of applications, and interviews, by the South Yorkshire Police Authority, he walked into the job because no-one else wanted it when the post was, subsequently, re-advertised. The only other officer shortlisted was Stuart Hyde, who took up a post with Cumbria Police instead.

David Crompton had been a controversial deputy chief of troubled West Yorkshire Police (WYP) since 2006 – and the much criticised Bettison resigned from that force in October, 2012 when faced with gross misconduct charges. Hyde, incidentally, was also a former WYP senior officer, having served there between 1997 and 2003. He later spent a lengthy period suspended whilst serving at Cumbria. An investigation report did find breaches of procedure, but Hyde was cleared of gross misconduct, misconduct and criminality shortly before retiring.

The Crompton police career had started in 1982 with another perpetually disgraced force, Greater Manchester Police, following the footsteps of his father, Sir Dan Crompton [1].

That career ended ignominously with his forced resignation from SYP on 29th September, 2016 – and marked the end of a turbulent period during which he was never far from heated debate.

Some of the low spots being his responses to the publication of the Hillsborough Independent Panel report in September 2012; the publication of the Jay Report in August 2014 into the extent and nature of decades of child sexual exploitation in Rotherham; the Cliff Richard home search debacle earlier in the same month and the appearance before a Parliamentary committee that followed; and his response to the IPCC’s June 2015 publication of their scoping report into criminality and misconduct during the infamous Battle of Orgreave.

But his nemesis was, finally, to be the verdicts of the jury at the new Hillsborough inquests nearly four years after the Panel’s findings. Notably, that the fans of Liverpool Football Club bore no responsibility for the death of 96 of their fellow supporters in the stadium disaster on 15th April, 1989. That flew in the face of Crompton’s own entrenched views on the matter, as revealed in emails sent by him, and subsequently published in the national press, following a freedom of information request made by fellow investigative journalist, Jonathan Corke.

The controversy over Crompton’s reaction to the inquests verdicts – and two press statements he made on successive days in April 2016 – is still rumbling on and is set to be played out in the hallowed halls of the Royal Courts of Justice (RCJ) on London’s Strand. A two day hearing is listed for 28th and 29th March, 2017.

On 7th October, 2016 a judicial review (JR) permission application was filed at RCJ, on behalf of David Crompton, by Adam Chapman a former Treasury solicitor who is now a partner and Head of Public Law at Kingsley Napley (this firm also represented Bettison at the time of his resignation and for a period afterwards). The documents in support of the claim form run to over 1,000 pages and challenge four decisions made by South Yorkshire Police and Crime Commissioner (PCC), Dr Alan Billings under Section 38 of the Police Reform and Social Responsibility Act, 2011 and, by which, the PCC first suspended his chief constable and then, ultimately, required him to resign.

David Crompton with Dr Alan Billings following his election to PCC in October, 2014. Within minutes of being elected Billings was praising his chief constable in a BBC interview.     Photo credit: BBC

The statement of grounds has been drafted by well known police regulatory lawyer, Hugh Davies QC, and they take issue with the rationality and proportionality of the PCC’s decisions that, sequentially, led to the final sanction of, effectively, dismissal from his chief constable post. It also sets out four considerations that the claimant contends to be irrelevant in the decision making process: The conduct of the new Hillsborough inquests; the College of Policing led Peer Review conducted into the state of SYP after Crompton’s suspension, child sexual exploitation and the possible investigation into Orgreave.

Declaratory relief and/or a quashing order over the four decisions is sought, together with costs of the action.

It is set out that declaratory relief in this action would go some way to restoring the ‘grossly unfair’ destruction of the reputation of David Crompton, after what Davies says is some 30 years police service (it appears, by my reckoning, that he has over 34). The pleadings are, curiously, silent over the number of other high profile and well rehearsed failings that have, cumulatively, led to the demolition of his good standing as a police leader. They do advance the oblique proposition, however, that the PCC’s actions may have been influenced by ‘ill-informed public opinion‘.

The claim is heavily dependent on three documents produced by Her Majesty’s Chief Inspector of Constabulary, Sir Thomas Winsor, during the Section 38 process and in which the Police Commissioner is variously, and in parts, heavily criticised. They can all be viewed here: [2]

Indeed, joined as an Interested Party (IP) to the claim, Winsor has instructed Clive Sheldon QC and Christopher Knight to draft summary grounds in support of Crompton’s claim. These address the following areas: The wider importance to policing of the claim; the Section 38 process; the alleged irrationality and disproportionality of the PCC’s decision; and the rationale concerning the participation/role of HMCIC.

The submissions conclude by saying that the judicial review application should proceed to a substantive hearing, by way of permission from the Court, as it is ‘of real significance to David Crompton and of wider significance to the functioning of the police service of England and Wales’.

The sub-text is that Tom Winsor has taken exception to Dr Billings’ willingness to ignore HMIC’s input into the decision-making process that, ultimately, led to David Crompton’s removal. On any reasonable interpretation, Winsor would welcome a common law finding that would rein in the powers of PCC’s and, in effect, give him (or his HMCIC successor) the last word on whether a chief constable should be removed, or not.

But, that niggle aside, the submissions are meticulously set out and will, no doubt, be helpful not only to the court, but to those of us who are interested both in the deeper workings of police misconduct regulations and processes – and an important insight into the mindset of one of the nation’s most important ‘watchdogs’ who oversees just the one very specific part of them.

A robust defence to the claim has been mounted by the Police Commissioner and is being marshalled by Virginia Cooper, Litigation and Regulatory partner at Bevan Brittan (best known for her recovery of huge sums of public authority funds following the collapse of Icelandic banks). Summary grounds have been drafted by Jonathan Swift QC (assisted by experienced junior counsel, Joanne Clement).

It is, of course, entirely a matter for the court to assess the overall merits of the respective arguments put forward by the two main protagonists in this action, but one cannot fail to be attracted by the crispness of the presentation of summary grounds by counsel for the PCC: Particularly striking is the phrase employed in the curt dismissal of the claims concerning the first three of the decisions under challenge: ‘Bad on their merits‘. So much so, it has been adopted as the headline for this piece. The PCC’s position is that only the final decision (to formally call for resignation) falls for public law challenge. Counsel also maintain that ‘proportionality’ is not a recognised ground for judicial review.

There is also the moot point that the JR application concerning the first decision (to suspend Crompton) was filed outside of the three month time limit. Administrative courts are generally strict on this deadline and it may well be that part of the claim falls at the first hurdle. At first blush, the argument advanced on behalf of the claimant for late service does not strike the informed observer as particularly persuasive.

Apart from the arguments as to whether one, or four, decisions should be open to challenge by the claimant, the essential thrust of the PCC’s case is that the decision he made – and subsequently sanctioned by the South Yorkshire Police and Crime Scrutiny Panel (PCP) – was one fairly and properly open to him to make. Which is, of course, for those familiar with public law challenges, a routine public authority defence in judicial review proceedings.

Counsel deals with the HMCIC’s three contributions to the Section 38 process on the basis that he must take those into account, but is not in any way bound by them.

The evidence-free proposition by Tom Winsor that confidence in South Yorkshire Police had not been adversely affected by the second of Crompton’s two post-Hillsborough inquests press releases is also countered, firstly, by reference to local and regional feedback to the contrary. Secondly, by reference to pronouncements in Parliament by the then Home Secretary, Theresa May, who was blistering in her condemnation of the second Crompton media offering.

Home Secretary Theresa May tears into South Yorkshire Police over their response to the verdicts delivered by the Hillsborough inquests jury                                                              Photo credit: BBC TV

Former Shadow Home Secretary, Andy Burnham, also features strongly in pleadings from claimant, defendant and HMCIC (as first interested party). It was Burnham who called, in Parliament, the day after the Hillsborough inquests verdict, for SYP heads to roll over the controversial manner in which the police case had been presented at the Warrington courtroom. Most particularly, by the defence team of the SYP match commanders David Duckenfield, Roger Greenwood and Roger Marshall, and in whose cause the traditional lines of blaming drunk, ticketless and non-compliant Liverpool football plans was relentlessly, and ferociously, pursued by their ‘attack dog’ counsel, John Beggs QC [3].

The other named interested party is the aforementioned PCP but the lawyer who acts for the Panel’s host authority – Rotherham Borough Council – has indicated that they will, for now, adopt only a ‘watching brief’. Mainly, in the interests of proportionality and constraining legal costs funded by the public purse.

Dermot Pearson, the Council’s senior lawyer has, however, in a measured response, invited the court to note that ‘the claimant is not asking the court to adjudicate on the lawfulness of the PCP  recommendation, or the conduct of its procedures’. He goes on to submit, on behalf of the PCP, that there is no good reason why the court should scrutinise the actions of the PCP – and gives an allegation of risk of bias by way of the political composition of the Panel (All Labour Party councillors save for one independent Member), short thrift.

The Chief Police Officers Staff Association (CPOSA) has been approached regarding the source of funding of David Crompton’s claim. It is estimated that the services of his lawyers has cost somewhere in the region of £20,000, so far. The costs to the PCC were noted at the time of filing the defence as over £17,000. HMIC’s costs are likely to be in the order of £7,000, so far, as there appears to be no instructed solicitor. These costs, to all parties, will rise sharply, of course, at the end of what is likely to be at least a two day hearing.

Judicial review applications are normally determined by a single judge on the papers.  If permission is refused at the first stage then the losing party can apply for an oral renewal, which takes place in open court, normally within a short time afterwards. If permission is given for judicial review a substantive hearing takes place. In this particular matter, the hearing will be presided over by two judges: Lady Justice Sharp and Mr Justice Garnham.

Whichever way the court’s decision falls, this is a controversy that will very likely run for some time yet. Fuelled to some degree by the findings of the same two judges at a hearing at the beginning of the month, at which an application from representatives of five bereaved Hillsborough families (Dorothy Griffiths, Barry Devonside, Becky Shah, Wendy Hamilton and Charlotte Hennessy) to be joined to the action, as interveners, was rejected. It was submitted, on their behalf by barrister, Kate Stone, that the families could assist the court by giving evidence concerning the way SYP evidence was presented at the new inquests.

A costs order was also made against the families, reported to be in the region of £28,000. Crowdfunding has been set up in an attempt to alleviate the burden [4].

Page last updated Monday 27th March, 2017 at 1015hrs

[1] Neil Wilby May 2015 – David Crompton: The South Yorkshire Years

[2] Her Majesty’s Inspectorate of Constabulary 29th September, 2016 – Section 38 South Yorkshire Police

[3] The Guardian 26th April, 1989 – Hillsborough: Deadly mistakes and lies that lasted decades

[4] Liverpool Echo 1st March 2017: Hillsborough familes told ‘YOU must pay ex-chief’s legal bill’

Corrections: Please let me know if there is a mistake in this article — I will endeavour to correct it as soon as possible.

Right of reply: If you are mentioned in this article and disagree with it, please let me have your comments. Provided your response is not defamatory it will be added to the article.

Copyright: Neil Wilby 2015-2017. Unauthorised use or reproduction of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from and links to the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.