Following the announcement in August 1989 of a criminal investigation into the disaster, on 11 September 1989, Hammond Suddards sent instructions to Mr Payne, who had taken over the role of Counsel for SYP from Mr Woodward, who had represented SYP during the Taylor Inquiry.
The instructions related to the various claims for damages received by SYP. Hammond Suddards requested advice on the likely liability for paying the claims, including how this might be split between the four parties against whom claims had been made: SYP, SWFC, Eastwood & Partners and SCC. Hammond Suddards also asked what further evidence might be needed to increase the share carried by the other parties. Mr Payne was asked for his view on the idea of settling the claims (in other words, paying compensation without going to court).
Mr Payne responded on 15 September 1989. He advised that, based on the findings of the Taylor Interim Report and the press statement of CC Wright in response to it (in which he said that he and SYP accepted those findings), the likely apportionment of damages in the civil case was about 55% against SYP and 15% against each of the other three parties.
On 2 October 1989, further instructions were sent to Mr Payne by Hammond Suddards to request advice on the evidence available around responsibility for public safety and the level of liability based on this evidence. In particular, advice was requested in respect of the Taylor Interim Report finding that SYP had “de-facto accepted responsibility for the packing and monitoring of the West terraces”.
On 11 October 1989, there was a meeting at the barristers’ chambers where both Mr Woodward and Mr Payne were based. Both attended, as did DCC Hayes and Mr Metcalf. DCC Hayes was recorded as making a point very early in the meeting that while CC Wright had publicly stated his acceptance of Lord Justice Taylor’s report, this did not mean SYP accepted everything in the report. He added that “as far as the police were concerned liability remained to be determined in civil proceedings.” Further into the discussion, he was documented to be “much concerned” that an admission of de facto (in practice) responsibility would amount to de jure (by law) acceptance for the future.
Mr Payne pointed out that “to defend the matter at a trial would be difficult in view of the Harris-v-Sheffield United case where SYP asked for money and were awarded money for crowd control.” [Emphasis in the original meeting notes.] He also pointed out that this case had been concluded just a few years before the disaster.
The topic moved to a discussion of SYP’s potential admission of liability. DCC Hayes was recorded as accepting that there “was some liability on SYP” and that it would be “nonsensical” to dispute it. He added that the legal team “had given the same advice on this point and he [DCC Hayes] accepted it”. However, he said the “amount of liability” was still to be decided. Three broad options for SYP were discussed:
to continue to openly defend themselves against the claims
to formally admit liability and allow judgment to be entered “with damages to be assessed”
to come to an agreement with the other parties as to the proportion of blame each party would take, which would remove the need for a court hearing
It was agreed that at the forthcoming pre-trial review SYP would not offer any admission of liability. However, it was further agreed that if it became clear that a negotiated settlement was not going to be reached, SYP may need to reconsider.
Following this, on 18 October 1989, DCC Hayes, ACC Anderson, Ch Supt Denton and Ch Insp Bettison attended a meeting with Mr Metcalf, who advised them that Mr Payne had recommended admission of liability at an early stage. This was on the basis that SYP “would, perhaps attract 25% or more of liability in any civil case”. He said Mr Payne had further argued that SYP should “admit those aspects of the claims to which we have no defence on the basis that doing otherwise might be seen as weak, indecisive, and flying in the face of Taylor.”
Mr Metcalf was reported as saying that he did not believe “it would be as bad” as Mr Payne had suggested. He argued that non-admission of liability at this stage would provide time to negotiate a settlement with the other parties. The officers also raised the impact that admitting liability would have on force morale.
At the pre-trial hearing on 26 October 1989, the High Court rejected SYP’s application that a civil case should not be allowed to proceed until after the criminal investigation and any trials had finished. A provisional date for hearing the first claims was set for 11 June 1990.
This led to SYP’s announcement in November 1989 that it would settle claims out of court, though the announcement made clear this was not an admission of liability. A large number of payments were made, although as the HIP Report identified, “In cases that concerned the death of children, their parents received no more than the statutory bereavement allowance of £3,500 and funeral expenses.” Some families of those who died did not make a claim.
In the announcement made on 30 November 1989, SYP stated that it had asked the other parties if they would join the force in settling these claims; however, it noted that all had refused to do so.
SYP subsequently issued contribution claims against all three organisations, asking them to contribute towards the sums it had paid out. They all declined, so again the matter proceeded to court. On 15 December 1989, the High Court determined that contribution proceedings would be held in October 1990.
The actual court date was confirmed in May 1990, and SYP began to prepare. On 25 May 1990, Mr Metcalf wrote to DCC Hayes to inform him that a date had been set for the contribution proceedings. Mr Metcalf explained that, on the instruction of the Court, “each party is to mark up copies of the interim and final Taylor reports by underlining those aspects of the report which they do not [Emphasis in original.] admit for the purposes of trial.” Mr Metcalf also wrote that “a small team of Officers would be of great assistance” in preparing for the contribution proceedings.
On 30 May 1990, Mr Metcalf met DCC Hayes to discuss this further. DCC Hayes agreed to provide a team of officers under Ch Supt Wain to assist and made a list of tasks for the team. The first of these was to review the copy of the Taylor Interim Report that had already been examined and marked up by Mr Metcalf to identify whether there were any further aspects of it which they believed SYP should not accept.
There was a specific request to review the issue of tunnel closure and in particular the evidence of PS Higgins that at the 1988 Semi-Final he had received orders to close the tunnel. Further notes on this topic read: “Who was on duty at that end of the ground in 1988? What do any of these officers remember of the tunnel closure and alleged verbal order to do that? It may be that the instruction to close the gate came from the Club. If it can be shown that many stewards were involved then the Club through their agents (stewards) should have known of this and their arrangements subsequently, ie 1989, seemed to have failed to take account of the 1988 experience which increases their liability.”
Though Ch Supt Wain and Ch Insp Bettison were both appointed to the team, the majority of tasks appear to have been performed by Detective Inspector John Cleverley (DI Cleverley).
In a report to Ch Supt Wain on 2 July 1990, DI Cleverley dealt with the question of if and why the tunnel to the centre pens had been closed by the police at the 1988 Semi-Final. DI Cleverley reported that he had reinterviewed the officers who closed the gates to the tunnel. He wrote that they had indicated that “the instructions to do so came from police sources, not the club so far as they knew.” None of the officers he had interviewed were able to identify who these police sources were. He commented: “the operation seems to have been simple and low key, with not much more than three officers involved.”
The evidence identified by DI Cleverley appeared to reduce the possibility of SWFC accepting a greater share of liability in relation to tunnel control, as Mr Metcalf had hoped.
On 12 July 1990, Ch Insp Bettison provided a written update to DCC Hayes that confirmed the nine tasks had been completed. He also mentioned that on 11 July, he and DI Cleverley had met with Mr Metcalf and identified some further required actions. This correspondence indicates that DCC Hayes and Ch Insp Bettison were both fully aware of the actions being undertaken in preparation for the contribution proceedings.
Also on 12 July 1990, Ch Supt Wain instructed DI Cleverley to “interrogate the system” to identify the officers who could give the best evidence about issues such as “Unruly behaviour by Liverpool fans”, supporters attending without valid tickets and alcohol consumption. This was noted as being in preparation for the inquests, rather than for the contribution hearings.
When he gave evidence to the Goldring Inquests, Ch Supt Wain was questioned about this request. He stated he had no recollection of it and that he was “shocked” to see it. He said he could only think that it “was a request from the legal team.” When Mark George QC, representing some of the families of those who died, described it as “clear evidence of an attempt to denigrate the fans”, Ch Supt Wain replied: “I must agree with you.”
On 19 July 1990, Mr Metcalf wrote to DCC Hayes outlining his intention to challenge Lord Justice Taylor’s finding that SYP had accepted responsibility for monitoring the capacity of the pens. He noted that while several officers had said “they believed the duty extended only to keeping an eye on the crowd and reacting to any signs of distress…”, some officers had gone further. He identified Ch Insp Creaser and three other inspectors, all of whom had stated that they were aware of the police tactic to close the tunnel when the pens were full, or that they had been involved in police action to do so.
Mr Metcalf proposed that the officers should be asked to review the transcript of their evidence to see whether it gave “the true flavour of what they meant to say.” If not, he suggested that they could provide a further statement to clarify. He provided a draft statement that could be used as the basis for this, which began with the clarification that the officer “did not expect any police officer to be making a deliberate numerical or overall visual assessment of the numbers of fans entering each of the individual pens.”
DI Cleverley approached the four officers as requested. All confirmed they were happy with the evidence they had given, and none made a further statement.
Having received the responses, on 16 August 1990, Mr Metcalf wrote to Ch Supt Wain stating that it remained his intention not to accept SYP was responsible for monitoring the numbers in the pens, but “realistically, we must face the likelihood of this issue going against us, as it did at the inquiry.”
The approach used by Mr Metcalf, including the pre-drafting of a template statement for officers to complete, led to one of the charges of perverting the course of justice against him. This was considered in the trial of Mr Metcalf, Ch Supt Denton and DCI Foster in 2021.
On 26 May 2021, the judge, Mr Justice William Davis, ruled that there was no case to answer. He ruled that, in drafting statements for witnesses to sign, Mr Metcalf was acting in accordance with accepted practice, as long as the witness confirmed the information submitted in their name was accurate.
On 12 September 1990, DCC Hayes had a discussion with Mr Metcalf about the contribution proceedings, the generic hearing and the disciplinary investigations. In his file note, DCC Hayes said that Mr Metcalf “made specific reference to the lack of certified crowd capacity numbers for the individual Leppings Lane pens; the ineffective escape routes; the radial fences; the ineffective barriers; incompetent signing; the failure to close the tunnel; non-ticket holders; the recognition of overcrowding; and, other matters.”
As can be seen, many of these issues cited by Mr Metcalf related to the ground layout—for which SWFC, rather than SYP, had primary responsibility. One related to supporters: the presence of non-ticket holders. Only two could be deemed to relate directly to the police operation: the failure to close the tunnel and the recognition of overcrowding, both of which SYP had already sought to demonstrate were not its responsibility.
On 21 September 1990, DCC Hayes attended a five-hour meeting with Mr Payne, Mr Metcalf and claims officers from SYP’s insurers, Mutual Municipal Insurance. In notes he made following this meeting, DCC Hayes stated that Mr Metcalf had already met with the judge who would preside over the contribution proceedings. According to Mr Metcalf, the judge had “made it clear that on his reading of the evidence available to him at this time, he was of the view that the police were clearly negligent, especially in view of the very clear view they had over the terraces and he was surprised an out of court settlement had not been arrived at yet.”
In his note, DCC Hayes also wrote: “I reacted very strongly against any acceptance that the police had, even de facto, accepted responsibility for monitoring the relevant pens if this was assumed to mean counting in, checking for overcrowding, taking remedial action if this was likely or seen to have occurred, as this would have been impossible.” This echoed the stance DCC Hayes had taken from the earliest meetings in preparation for the contribution hearings.
As the case was settled out of court, these arguments did not need to be made. However, the IOPC identified that they showed a consistent approach from SYP, building from the Taylor Inquiry onwards, in rejecting the suggestion that officers had responsibility for monitoring safety in the pens.
