Why Sheffield Wednesday cannot be charged over Hillsborough

David Conn on 15 May 2019

Bereaved Hillsborough families’ last sight of accountability from the football establishment for the deaths of 96 people at an FA Cup semi-final was the then Sheffield Wednesday secretary and safety officer, Graham Mackrell, driving away in a taxi from Preston crown court on Monday having been fined £6,500. Mackrell was convicted of having criminally breached his safety duties when he allocated dangerously few turnstiles – seven – for all 10,100 people with standing tickets to support Kenny Dalglish’s brilliant Liverpool team against Brian Clough’s Nottingham Forest in the sunshine of 15 April 1989.

Mackrell said in a statement after Monday’s sentencing hearing that the judge, Sir Peter Openshaw, had “recognised” that his negligence “did not cause or contribute to” people dying. Openshaw did say that while Mackrell’s criminal offence was not “a direct cause” of the deaths, it was a direct cause of the crush at the turnstiles, which “set the scene” for the deadly crush inside on the terrace’s central pens.

Openshaw reduced Mackrell’s fine based on evidence that apart from his negligence leading to the dangerous turnstiles’ crush on the day of the disaster, he had “a good health and safety record”. Openshaw also referred approvingly to good character references provided by seven football administrators who have known Mackrell during his unbroken career in the game since 1974, which included roles for the Football Association, Premier League and Uefa after the Hillsborough disaster.

Howard Wilkinson, the former Sheffield Wednesday manager and chairman of the League Managers Association where Mackrell has worked since 2009, described Mackrell at the LMA as “competent, proficient, trustworthy, highly capable, knowledgable, drawing expertly on 40 years’ experience in the game”.

Stephanie Conning, who was caught in the crush at the turnstiles and went through the opened exit gate C with her older brother, Rick Jones, then 25, and his partner, Tracey Cox, 23, both of whom were killed in the crush inside, was in the court 30 years later hearing the character references read out.

“I found it intensely painful listening to these glowing testimonies about Graham Mackrell from senior football people, as part of his defence to such a serious offence,” she said. “It illustrated the fine career he went on to have after our relatives were killed and most of it was about his work after that, nothing to do with the charge.”

The Guardian asked Wilkinson for his perspective on providing the character reference in these circumstances but he declined to comment.

Sheffield Wednesday, for whom Mackrell had lobbied to host FA Cup semi-finals again after he arrived in 1986, was not charged, despite the CPS saying there was enough evidence to do so, following a new five-year police investigation, Operation Resolve. Sue Hemming, responsible for the Hillsborough prosecutions at the CPS, explained in June 2017 that charges could not be brought because the club company in 1989, Sheffield Wednesday Football Club plc, now exists “only on paper”. The current club company, Sheffield Wednesday Football Club Ltd, which certainly exists at Hillsborough where the club has played without interruption, “is a different company”, Hemming said.

Graham Mackrell, left, looks on as the Liverpool chairman, John Smith, talks to a fan at Hillsborough.
Graham Mackrell, left, looks on as the Liverpool chairman, John Smith, talks to a fan at Hillsborough. Photograph: Colorsport/Rex/Shutterstock

Trevor Hicks, whose two daughters, Sarah, then 19, and Vicki, 15, were killed in the hellish crush at Hillsborough, says he does not accept that, and that it was important to families for Sheffield Wednesday to be held accountable. He and many families recall not only the dire state of the Leppings Lane end but the response of the club and Mackrell after the disaster. The Hillsborough Family Support Group struggled to persuade the club to put up a memorial and families always remember the first offer: a plaque on the wall outside the toilet next to the tunnel.

“I never accepted that CPS explanation that the current Sheffield Wednesday is a different company; I find it extremely unsatisfactory,” Hicks says. “Sheffield Wednesday were profiting in 1989 from holding the semi-final and selling us tickets but the conditions were unsafe and our loved ones died. It would have been significant for families to have accountability. Sheffield Wednesday still exists, playing at Hillsborough, and I believe the club should have been charged.”

Mackrell’s trial heard of failings at Hillsborough that included the tunnel to the central terrace pens being too steep, an unsafe layout of crush barriers in the pens, the too few turnstiles and inadequate signs to direct people to the side pens. An expert structural engineer, John Cutlack, told the court the club’s ground engineers, Eastwood and partners, had catastrophically over-calculated the Leppings Lane terrace capacity to allow far too many people in.

The CPS said in June 2017 that Eastwood and partners could also not be charged now because “the relevant companies from the time of the disaster have been dissolved”.

Sheffield Wednesday is understood to have been considered for prosecution for breaching duties under the Health and Safety at Work Act and Safety of Sports Grounds Act. The club companies were rearranged in 1997 when Mackrell, a qualified accountant, was still there. It was a restructuring widely carried out during the financial boom which came after the disaster, as clubs sought to attract investment and make money for their owners by floating on the stock market. Long-established FA rules limited the dividends shareholders could be paid and a holding company, plc structure was commonly used, which would leave shareholders free of those FA rules.

Hillsborough as it looks in 2019.
Hillsborough as it looks in 2019. Photograph: Ryan Crockett/JMP/Rex/Shutterstock

At Hillsborough under the chairmanship from 1990 of Sir Dave Richards, the club company, Sheffield Wednesday Football Club Plc, was renamed Sheffield Wednesday Plc and became the holding company. A subsidiary company was named Sheffield Wednesday Football Club Ltd and the plc transferred to it – “hived down” – its whole “undertaking of a football club”: all the club’s assets, including Hillsborough, membership of the FA and Premier League, employment of all players and staff, and all liabilities except the debts to the Co-op Bank. The document announcing the restructuring and an initial £17m investment in the plc by a merchant bank, Charterhouse, with the aim of a stockmarket float in two or three years, explicitly stated that the FA rules would apply to the subsidiary company, not the plc.

It was this financially motivated reorganisation that created the structure the CPS ultimately found to consist of different companies, so that Sheffield Wednesday could not be charged.

The club did not make it to the stock market; it struggled, was relegated in 2000, then had a decade of financial difficulties. When Milan Mandaric bought the club in 2010, he took over Sheffield Wednesday Football Club Ltd, the subsidiary company, for £1, from Sheffield Wednesday plc. That is how the plc ended up as “only a paper company”.

To the outside and football world, there has been no real difference; the club continued playing at Hillsborough, with the disaster and all the failings that caused it part of its history. When the Hillsborough Independent Panel began its review of documentation in 2009, the current Sheffield Wednesday Football Club Ltd had all the files and initiated the process of disclosing them. Sheffield Wednesday then became a legally recognised “interested party”, represented by lawyers led by Jason Beer QC, at the inquests which followed the 2012 publication of the panel’s report.

One source with knowledge of the process said the legal costs in 2014-16 were paid under an insurance policy taken out in 1989 by Sheffield Wednesday plc, now the “paper company”. A spokesman for Sheffield Wednesday said he was not able to explain whether the current club was in effect the interested party and was involved in giving instructions to the lawyers.

Beer and the same firm of solicitors, Davies Wallis Foyster, which specialises in acting for insurance companies, proceeded to conduct Mackrell’s defence through the police investigation after the inquests and the trial. Nobody acting for Mackrell was prepared to explain how his defence was funded; inquiries were directed to a public relations company, Alder, whose managing director replied: “This is not a matter on which Mr Mackrell wishes to comment.”

One authoritative source with knowledge of the process, however, said Mackrell’s legal costs – which would have been considerable paying for Beer, another QC, Simon Antrobus, a further barrister and DWF – were paid by the same Sheffield Wednesday insurance policy originally taken out in 1989. In which case the club could not be charged because that company exists only on paper, but an insurance policy it took out could still pay for the legal representation to contest the club or Mackrell being held liable for the disaster.

Tributes at Anfield in 1989.
Tributes at Anfield in 1989. Photograph: Liverpool FC via Getty Images

Mackrell’s fine was assessed according to sentencing guidelines, his offence categorised as creating a low risk of causing life-changing injuries or death despite police officers’ warnings on the day that the crush at the turnstiles was life-threatening. Beer argued for the fine to be reduced and Openshaw did so, owing to the evidence of Mackrell’s good character, the 30-year delay in prosecuting him and, the judge said, a “campaign of vilification” that meant “the disaster and its aftermath has had a serious and lasting effect upon him and his family”. He set it at £6,500.

Some bereaved families immediately divided that by 96, lodging in their minds an amount of £67.70 per victim, payable by the only football man to be held criminally liable in relation to the disaster at Hillsborough, 30 years on.

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