A former senior police officer, David Duckenfield, who was in charge on the day of the Hillsborough disaster, will this week find out whether prosecution proceedings against him can continue.
Prosecutions against others allegedly involved in the Hillsborough tragedy began in July 2017, but Duckenfield’s case is different as earlier proceedings against him were stayed in 2000 after a failed private prosecution. A stay acts to prevent a case continuing.
Crown Prosecution Service lawyers, in a 2-day hearing before Sir Peter Openshaw, sitting at Preston Crown Court, will argue for a Voluntary Bill of Indictment. If successful, the stay will be removed, and prosecution proceedings can continue.
Applications to remove a stay on proceedings are relatively rare, as is a request for a Voluntary Bill of Indictment, a special procedure whereby a High Court Judge can authorise crown court proceedings to begin, bypassing other formalities.
A similar application was made against Paul Gadd, better known as Gary Glitter, in 2014. In that case, Mr Justice Globe allowed prosecutions to continue, ultimately resulting in a lengthy prison sentence for Gadd.
What are the criteria?
The Criminal Practice Direction of the Lord Chief Justice states:
“The preferment of a voluntary bill is an exceptional procedure. Consent should only be granted where good reason to depart from the normal procedure is clearly shown and only where the interests of justice, rather than considerations of administrative convenience, require it.”
In R v Arfen 176 JP 682 QBD, without attempting to give an exhaustive list, Mr Justice Nicol identified various circumstances that would justify the granting of leave, namely, if there had been a dismissal without regard to a relevant statutory provision or judicial authority, or there had been an error of law, or if the crown had new evidence which made a significant difference to its case, or if the decision to dismiss lacked a rational foundation.
It is likely that the findings from the Hillsborough inquests will form a major part of the prosecution application.
Are there other considerations?
It is likely that the legal team for Duckenfield will argue that he cannot have a fair trial due to prejudicial press coverage and delay. It would be pure speculation to comment on the likely success of those applications.