Is the private prosecution of the Hillsborough disaster a model for the U.S.?

April 15

Today marks the 25th anniversary of the Hillsborough disaster, in which 96 Liverpool soccer (or “football”) fans were crushed to death and 776 others were injured.  The disaster has been blamed primarily on a police decision to allow too many fans to enter the stadium.  Even today, ultimate responsibility for the disaster remains a point of contention in England.  Good overviews of the disaster are available many places, including an excellent book by Phil Scraton, “Hillsborough: The Truth.”

One part of the aftermath of the disaster is little known in the United States: the resulting private prosecution.  After the tragedy, considerable evidence developed that the deaths resulted from grossly reckless actions by the senior police officers involved.  Yet public prosecutors in England declined to file criminal charges (i.e., involuntary manslaughter charges) against those officers.   Unlike this country, however, crime victims in England have the clear opportunity to bring their own criminal cases by initiating a “private prosecution.” Such an opportunity is not unfettered.  As I understand English criminal procedure, public prosecutors are free to intervene in such a private prosecution for the purpose of dismissing charges that are not well-founded.  Similarly, a judge has to review the privately-field charges to determine whether a reasonable basis exists for moving forward.

In the Hillsborough disaster, the surviving victims families brought a private prosecution against the two senior police officers most directly responsible for the disaster: Bernard Murray and David Duckenfield, who gave the order to open a gate allowing hundreds of fans to be herded on to the already crowded standing terraces at the stadium in Hillsborough.  Among the evidence available to the prosecution was Duckenfield’s later — false — claim that the Liverpool fans had forced the gates open.  Scraton’s book reports that “[t]he private prosecution was not about scapegoating or vengeance, but about establishing appropriate criminal liability in a court.  There was no overwhelming desire to see individuals punished, but a shared need to have culpability recognized through a guilty verdict.” The crown prosecution declined to intervene to have the charges  filed by the private prosecutor dismissed, and a judge approved the prosecution moving forward to jury.

Following a jury trial at which considerable evidence was presented, on July 24, 2000, Murray was acquitted and the jury was unable to reach a verdict on Duckenfield. Two days later, the judge refused the private prosecutor’s application for a retrial of Duckenfield.

At one level, this private prosecution might seem to have been a failure since it did not ultimately result in convictions.  At another level, however, the prosecution appears have been a success.  The trial shed valuable, public light on the events surrounding the disaster and police efforts to conceal government culpability in the decisions that lead to the deaths.  For example, Scraton’s book reports that after the private prosecutor concluded his opening statement “there was quiet satisfaction among the many bereaved families who filled the court.  For the first time the essence of the case had been articulated in full and in public, without interruption. This was the ‘day in court’ that so many had anticipated for so long.”

I think it is worth discussing whether we might more broadly allow crime victims to have their “day in court” through private prosecutions in this country, particularly in situations where public prosecutors are essentially tasked with investigating other government officials.  This country has a long tradition of private prosecution.  As the Supreme Court recently explained in Rehberg v. Paulk, 132 S.Ct. 1497 (2012), during the 19th century “it was common for criminal cases to be prosecuted by private parties.  See, e.g., Stewart v. Sonneborn, 98 U.S. 187, 198 (1879) (Bradley, J., dissenting) (‘[E]very man in the community, if he has probable cause for prosecuting another, has a perfect right, by law, to institute such prosecution, subject only, in the case of private prosecutions, to the penalty of paying the costs if he fails in his suit’).

Today private prosecution remains at least a theoretical possibility in many states. For example, in my home state of Utah, a little-known provision in the state Constitution provides that “[i]n all cases where the attorney for any county, or for the State, fails or refuses to attend and prosecute according to law, the court shall have power to appoint an attorney pro tempore.”  Utah Const., art. VIII, section 10.  If, heaven forbid, a Hillsborough-style disaster were to occur here and prosecutors did not pursue criminal charges against responsible public officials, the courts would appear to have the authority to appoint a private prosecutor (although I am not aware of a recent case in which this has been done).

Private prosecutions can perform a particularly valuable purpose where the alleged crime was committed by government officials — as in the Hillsborough case.  An illustration of the point from this country may come from a 1973 case styled as Inmates of Attica Correctional Facility v. Nelson A. Rockefeller, in which abused prisoners attempted to force the filing of criminal charges against prison guards who had beaten prisoners following the infamous Attica prison riot.  The Second Circuit refused to review the decision of federal and state prosecutors not to pursue such charges.  In my crime victims casebook and class,  we discuss whether there should have been some way for the prisoners in Attica to secure judicial review of the prosecutors’ decisions not to prosecute their abuse.

Of course, allowing private prosecutions does pose certain risks.  The Supreme Court discussed these risks in a recent, anomalous federal case involving a private prosecution (Robertson v. U.S. ex rel. Watson)  where several dissenting justices asserted that “a basic step in organizing a civilized society is to take that sword out of private hands and turn it over to an organized government, acting on behalf of  all the people.”  But these concerns can be ameliorated if crime victims are required to obtain judicial approval before proceeding with their case and if the prosecutions are limited to appropriate circumstances, such as when public authorities cannot be expected to investigate their own.

At the end of the day, it is interesting to ask what the world would look like if the U.S. generally allowed private prosecutions.  The answer is it would look like …. well … England.  England seems to have successfully allowed a tradition of private prosecutions to survive, reserving such prosecutions for exceptional cases like the Hillsborough disaster.  Our country would do well to think about whether to restore that tradition here.

Paul G. Cassell teaches criminal law, criminal procedure, and crime victims' rights at the S.J. Quinney College of Law at the University of Utah.
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David Kopel | April 14