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Source: (consider it)
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Thread: Justice (for the 96)
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Alan Cresswell
Mad Scientist 先生
# 31
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Posted
The point about what a "reasonable person" may be expected to do is another reason why a jury trial is important - it is upto a group of ordinary citizens to decide what may be expected of a "reasonable person". Of course, the defense will put forward arguments why a reasonable person could not have foreseen the consequencies of their actions, and the prosecution why a reasonable person should have - but it's the verdict of ordinary people that actually decides what's reasonable.
In this case, would a reasonable person in charge of policing a major sporting fixture walk around the ground to familiarise himself with the layout? Would a reasonable person review past incidents of congestion at the Leppings Lane entrances, and other incidents of relevance to the fixture?
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Don't cling to a mistake just because you spent a lot of time making it.
Posts: 32413 | From: East Kilbride (Scotland) or 福島 | Registered: May 2001
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Russ
Old salt
# 120
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Posted
Alan,
Think back, if you would be so kind, to the last time that you took your children out to a public place that you had not been to before. The Globe theatre, a sporting event, a concert, whatever. Did you go through any records to ascertain whether or not any incidents had occurred there which might mean that it wasn't a safe place to take your children ? Did you personally reconnoiter the place beforehand ?
You didn't ? But you were responsible for their safety. You had a duty of care. How could you possibly be so unforgivably reckless as to not take the most elementary precautions to check what was known about the safety of the place. Or check what would be obvious from a simple visual inspection ? Did you have a total disregard for your children's safety ?
My guess would be that - just like most other people - you assumed it was safe because you had no particular reason to think otherwise. You knew that people had been holding this sort of event in the same venue for some time, and you'd never heard any media reports of any safety issue.
You might, if the event was recent, have kept an eye out for people of Middle-Eastern appearance acting suspiciously...
Nothing personal, just trying to make the point that what now seems to you reasonable is inevitably coloured by your knowledge of what happened.
Because you know that this disaster happened, your idea of what "crowd control" involves now includes guarding against safety risks. So your idea of "reasonable behaviour" for a person with crowd control responsibility now includes pro-actively seeking out safety risks and guarding against them.
But that's not what you personally do in situations where the story that's playing in your head isn't a story about safety.
The underlying story in the heads of the police on that day was probably a story about preventing petty crime and public disorder. Keeping the peace, keeping rival groups of fans apart and keeping groups of angry fans from trashing the neighbourhood. Focussing on the sort of things that happened at the dozens of matches they'd been to before.
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Wish everyone well; the enemy is not people, the enemy is wrong ideas
Posts: 3169 | From: rural Ireland | Registered: May 2001
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Alan Cresswell
Mad Scientist 先生
# 31
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Posted
But, there is a big difference between an individual going to a football match and having the reasonable expectation that the worse that can happen is their team losing, and a senior police officer being in charge of the crowd control issues of the game.
But, if we change situations. How many of us remember fire drills at school? Certainly they were common before Hillsborough and aren't a modern safety-conscious society construct. Would you expect that the people given the tasks of ensuring all the children get out onto the playground know where the emergency exits are? Would you expect them to regularly check they aren't blocked? Would you expect them to know that they may need to make sure there's someone at the stairs telling people to take care, because there have been occasions when someone tripped on one of the steps? As reasonable people, when we send our children off to school we don't ask whether the teachers and other staff know the emergency exit routes and the alternatives if the nearest one is blocked - we have a reasonable expectation that the staff know that and will act to keep our children safe in the event of a fire.
Why is it unreasonable to expect that those staffing a football match have the corresponding knowledge of how crowds move through their ground? And, more importantly, why is it unreasonable to expect the person in charge to have that knowledge?
Because the alternative interpretation of your comment is that the fans should have done that research themselves. That they should have known that the Leppings Lane tunnel gets congested. And, do what exactly? Get there early to avoid the delays that causes? Well, it was the fans who were there early who died? Say "they've opened that gate, but we don't trust them to know what they're doing and our research says it's unsafe for us to enter the ground that way"?
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Don't cling to a mistake just because you spent a lot of time making it.
Posts: 32413 | From: East Kilbride (Scotland) or 福島 | Registered: May 2001
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chris stiles
Shipmate
# 12641
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Posted
quote:
Originally posted by Russ:
The underlying story in the heads of the police on that day was probably a story about preventing petty crime and public disorder. Keeping the peace, keeping rival groups of fans apart and keeping groups of angry fans from trashing the neighbourhood. Focussing on the sort of things that happened at the dozens of matches they'd been to before.
Further to what Alan says above, it was known to the police that crowd control was problematic around that particular ground. It was further known that there were issues around the Leppings Lane end - with a crush in 1981 causing multiple injuries leading to alterations to the terrace. There were issues with overcrowding in 1987 and 1988 - again at Leppings Lane.
And so it's not accurate to imply - as you do above - that it should not have been at the forefront of their minds.
Posts: 4035 | From: Berkshire | Registered: May 2007
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la vie en rouge
Parisienne
# 10688
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Posted
Don’t have children of my own, but, thinking about the last time I took my friends’ children out for the day…
When I turned up at the zoo with them, I assumed that we could walk around safely without them getting charged by a bison or bitten by a snake because the people running the zoo are aware that they have dangerous animals on the premises and have taken suitable precautions. The reason I didn’t personally check that the anaconda was appropriately secured is not that I hadn’t thought about the danger. It is that I assumed that the people running the zoo had done so and therefore I didn’t need to. Had a dangerous animal escaped and harmed one of the children you can bet your life that their parents would sued the living daylights out of the zoo. Not knowing that an enclosure was unlocked, for example, wouldn’t get them off the hook. They should have checked.
The senior police officers at Hillsborough are not in the position of me, the lowly punter turning up at the zoo with a couple of small children. They are in the position of the zoo owners, who are expected to take reasonable precautions for the safety of the paying public and who should expect to get in trouble if they don’t and someone gets hurt.
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Posts: 3696 | Registered: Nov 2005
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BroJames
Shipmate
# 9636
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Posted
quote:
Originally posted by Russ:
quote:
Originally posted by BroJames:
There is quite a lot of case law on this, not easily summarised, but those interested in reviewing it can find more here.
Thanks for the link, BroJames. Picking a sentence out of the first case cited:
"In order to establish criminal liability the facts must be such that in the opinion of the jury the negligence of the accused... ...showed such disregard for the life and safety of others as to amount to a crime against the State"
To disregard something is an action. This says that you can't convict someone for a risk they should have known about, they have to know it and actively disregard it. You can't disregard what you don't know.
Picking a sentence out of the first case cited is not the best way of managing the material presented. The key cases are Bateman and then Adomako with some clarification from the Attorney General's Reference No. 2 of 1999. The four points established by Adomako indicate the importance of the breach of duty question to the inquest jury quote:
The prosecution [must] establish that the defendant:
- Owed a duty of care to the victim
- Was in breach of duty
- The breach of duty caused death
- The defendant's conduct was so bad in all the circumstances as to amount in the jury's opinion to a crime.
The point is that disregard can be an act of negligence (i.e. an omission rather than a positive action). It is not required that the defendant knew of the risk and ignored of it. It is enough that the defendant ought reasonably to have known of the risk, but was so grossly negligent in his actions that (whether by failure to identify the risk, or failure to take reasonable precautions to prevent it) he was responsible for the death.
In effect the legal situation is that a person cannot advance a defence that they did not, in fact, know of the risk, when as a matter of fulfilling their duty they simply ought to have been aware of the risk.
Posts: 3374 | From: UK | Registered: Jun 2005
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Enoch
Shipmate
# 14322
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Posted
quote:
Originally posted by la vie en rouge:
... The senior police officers at Hillsborough are not in the position of me, the lowly punter turning up at the zoo with a couple of small children. They are in the position of the zoo owners, who are expected to take reasonable precautions for the safety of the paying public and who should expect to get in trouble if they don’t and someone gets hurt.
Not quite. The directly comparable role is occupied by the managers of the football ground.
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Posts: 7610 | From: Bristol UK(was European Green Capital 2015, now Ljubljana) | Registered: Nov 2008
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rolyn
Shipmate
# 16840
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Posted
The more one looks into the the Hillsbourgh disaster the more it becomes apparent it was foreseeable. But as with most of the safety cock-ups through Thatcher's reign, it was a case of action then reaction. NOT --- Oh, this is avoidable, we'd better try and avoid it from happening.
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Change is the only certainty of existence
Posts: 3206 | From: U.K. | Registered: Dec 2011
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Gee D
Shipmate
# 13815
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Posted
quote:
Originally posted by BroJames:
The four points established by Adomako indicate the importance of the breach of duty question to the inquest jury The prosecution [must] establish that the defendant:
- Owed a duty of care to the victim
- Was in breach of duty
- The breach of duty caused death
- The defendant's conduct was so bad in all the circumstances as to amount in the jury's opinion to a crime.
Surely step 2 in that list ought to be "What was the content of that duty"? Determination of the content of a duty of care is an essential in tort law and equally so in crime. From an Aust perspective, the reasoning of the Law Lords is not persuasive, and in particular the manner in which R v Syemour was distinguished.
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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BroJames
Shipmate
# 9636
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Posted
quote:
Originally posted by Gee D:
quote:
Originally posted by BroJames:
The four points established by Adomako indicate the importance of the breach of duty question to the inquest jury The prosecution [must] establish that the defendant:
- Owed a duty of care to the victim
- Was in breach of duty
- The breach of duty caused death
- The defendant's conduct was so bad in all the circumstances as to amount in the jury's opinion to a crime.
Surely step 2 in that list ought to be "What was the content of that duty"? Determination of the content of a duty of care is an essential in tort law and equally so in crime. From an Aust perspective, the reasoning of the Law Lords is not persuasive, and in particular the manner in which R v Syemour was distinguished.
I agree that in order to decide whether there was a breach of duty, the content of that duty has to be established. Indeed, some content for the duty may need to be established in order to answer the question whether the defendant owed a duty of care at all. My reading of their lordships decision on Seymour was that, in essence, Seymour is effectively a development on Lawrence. Lawrence was about the construal of the word 'reckless' in the Road Traffic Act 1972, and that is not relevant to the offence of manslaughter by gross negligence.
In the Hillsborough inquests, the guidance to the jury is set out on page 30 of the General Questionnaire to the jury. It does, as you suggest it needs to, set out the content of the duty of care.
Posts: 3374 | From: UK | Registered: Jun 2005
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Gee D
Shipmate
# 13815
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Posted
Thanks for that link to the general directions. The original events at Hillsborough did make the headlines here, but none of what seems to have been gong on since has - barely a mention of the inquest findings. I did not know that the directions were available.
I am not sure that the High Court here, nor the NSW Court of Appeal, would agree with your second sentence though - it's not an area I practice in, but my reading of cases over the last decade or so has been that the conflation of the content of a duty into determining the very existence of one is an error.
I had read the Lords' decision - not a very strong one and the attempt to use a change in legislation to justify distinguishing a general statement is not convincing.
[ 13. May 2016, 22:22: Message edited by: Gee D ]
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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