Lessons from preparing a big case

As the child abuse inquiry continues to buckle under varied pressures, Pete Weatherby QC describes the practical challenges of running inquiries and other high-volume cases – being a techie geek is a bonus

‘But can’t we just run off one copy?’ was the plaintiff cry of one of the team. 

With something like 1.2m pages, ‘just one copy’ is an avenue of trees more than a rainforest. If you were lucky enough to find that crucial document, the follow-on memo it referred to would probably be in the next room. The future, my friends, is paperless. We have reached that moment when, like 65.5m years ago, the dinosaurs shuffled off into oblivion.

For more than 20 years the Hillsborough families had been terribly treated and were naturally both well-acquainted with legal processes and cynical about them. When the Hillsborough Independent Report was published in September 2012 their fight for justice had finally and suddenly broken through. It was headline news and it shocked the country. No longer were the families victims who could not let go. They were beginning to be vindicated and expectations were naturally running high. Up to this point the families’ lawyers had largely given their time pro bono or worked on discrete claims where some funding was available. At the original inquests the families, or those who could, chipped in to provide a skeleton legal team with one barrister: there was no public funding. With the Hillsborough Independent Panel (HIP) came two key developments: disclosure of a mass of documents which exposed what really happened and the attempts to cover it up; and funding for legal teams to help the families get the justice so long denied.

Mass of data and disclosed material

One consequence of justice being delayed for more than two decades was that in the period after the disaster there followed a number of significant legal developments, not least the Human Rights Act 1998 (HRA 1998) and the evolution of jurisprudence regarding Art 2: the right to life. By the time of the HIP and then the new inquests it was well established that there had to be the fullest of disclosure. Disclosure was a key part of the righting of the Hillsborough miscarriage. Secondly, the HRA 1998 had freed inquests from the narrow affair that they had become and opened them up to full inquiries to establish not only the cause of death but the circumstances in which death had occurred. In Hillsborough the original coroner had strictly limited the ambit of inquiry and the existing law restricted disclosure to a minimum and left the jury with a choice between unlawful killing and accident. The new inquests determined 14 questions relating to the historical context and missed opportunities, police and other planning for the day, the police operation, unlawful killing, the role of supporters, the role of the Club, their engineers and the licensing authority and finally the role of the police and ambulance service in the failed emergency response.

From those developments came inquests with a mass of disclosed material and hundreds of hours of footage. Such volume of material was exceptional but not unique. Many other high volume cases have reams of records – perhaps bank statements or official forms – and telecommunications data, and a limited number of topics. Hillsborough was different because the material related to a long menu of issues relating to two police forces, a football club, the Football Association, the ambulance service, the local council, stadium engineers and the government of the day, including Margaret Thatcher. This included historical material, a plethora of reports and investigations, transcripts of other proceedings, expert reports, insurance claims, witness statements, interviews, medical records, minutes of meetings and much more. In essence it was a series of cases merged into one.

Organisation is vital: the caseplan

In approaching any case, organisation is fundamental. Line up the resources, make a plan, evolve the plan, and manage it. The first job was to determine a caseplan and establish a working relationship with the funders. This involved maximum explanation of why resources were required and where the funding was going. Given the nature of the proceedings there were solicitor and counsel teams. The managing solicitor dealt with funding but with a series of counsel’s opinions to assist in communicating the plan. The teams were recruited on the basis of what was needed. Hillsborough required lawyers experienced in inquests but also public law, human rights and criminal law. A commitment to righting a miscarriage of justice was a given. Being a techie geek was a bonus.

The solicitor and counsel teams were then assigned a number of families so that all clients had as full access as possible to dedicated members of the team. Given that a lack of funding had prevented most of them having access to lawyers in the past and the number of knockbacks they had suffered, client care was more essential than ever. Regular families meetings and individual conferences were held throughout for the same reason and to take instructions on the multitude of issues that were to arise.

Beyond client care the solicitor team was then split between eight different areas of work from audio visual (AV) analysis to stadium safety to operational matters and pathology. The inquests were in two phases. Phase one was generic and followed a series of topic areas. Phase two involved following the evidence as to what happened to each of the deceased and the pathology. As the generic topics concluded, the teams were reassigned to deal with the experiences of each of the deceased.

Paperless: getting the IT right

Having (correctly) estimated that the volume of material would run to well over a million pages, an early decision was to be as paperless as possible. Though some of us may have been dragged-up in a time before Facebook and Twitter, indeed, in some cases before Amstrads and Pong (the original tennis computer game), it would be simply impossible to work from hardcopy in these circumstances. At 300 pages per ringbinder the material would run to not much short of 3,500 files. Apart from the sheer volume of material, the team was located in four different cities.

If the team was to be paperless, and capable of working multi-site, it would have to work out an IT solution which would facilitate efficient working. Although there are various database systems available, it is important to note that they all do things differently and a system that fits one case might well not serve another well. Get the IT wrong and a difficult case may turn into a nightmare. One system might be appropriate to a case with a few lawyers on one site but in another case a more dynamic system might be necessary. Hillsborough had the additional problem that many of the documents were old and were therefore not digital. Although there are tools designed to rectify this issue, in our experience they did not always work perfectly – or at all.

Choosing a database system and functionality

Disclosure came to us through a particular IT system. Having received training on the system we realised that it was not going to work for the way our team was operating. The system was well known and no doubt perfectly good for some cases or indeed the way some other teams worked. However, the system would not allow us to work on our own documents within its structure and crucially would not allow linking from documents within and outside of the system. One or the other was essential. So we sourced another system, Opus Magnum, and given the complexity and size of Hillsborough, persuaded the provider to make certain changes. This allowed for us to have the disclosed documents quickly uploaded from the inquest system and allowed us to link to our working documents in another system. Given the sensitivity of the material and undertakings to the court we had to get a warranty from the provider that their system was as secure as that used by the court. We also insisted on 24-hour maintenance and assurances on reliability.

The database therefore gave us secure access to all the disclosed documents, from anywhere, via the internet, with the functionality we required. We could upload our own documents into the system although we could not work on them there. Neither system would cope easily with the huge amount of footage we had, particularly given that much of it was ‘uncompressed’ broadcast quality, and therefore consisting of very large data files. In order to solve the first problem – how to locate working documents – we used a well known cloud-based system which allows multiple users to access and work on documents from different locations at the same time. Again, given the context, we used the highest security settings available and obtained an expert report assuring us that the system was sufficiently secure to be used for these purposes. Not only was that common sense and required by undertakings to the court, but there are regulatory consequences if security is not taken seriously.

Crucially, the ‘working document’ system allowed us to compile our own analysis documents and hyperlink from them to as many of the disclosed documents as required, in the Opus Magnum database. For example, one such document was linked to about 800 disclosed documents within the secure database.

Back-up and wider lessons learned

Hillsborough was the most televised of disasters and any proper understanding of the case had to follow detailed analysis and reference to the footage and photographic material. Whereas uploading footage to both of the used databases was technically possible, it would be expensive and the sheer volume made this impractical. So we obtained external hard drives with huge memories and simple USB connectivity.

Finally, we worried that internet provision in the purpose-built court complex would buckle under the strain of the number of users involved in the inquests, particularly given the chequered history of coverage supplied by the Ministry of Justice elsewhere, and therefore arranged a mobile back-up system. In the event we did use it occasionally but contrary to expectation, the court system held up well.

The Hillsborough inquests were unique in many ways. For us, the lessons were to constantly re-assess organisation and allocation of resources and intelligently use IT. For the wider picture, Hillsborough shows that rectifying wrongs is a costly business and a mixture of proper public funding and efficient use of resources is essential to a functioning justice system. ●

Contributor Pete Weatherby QC, Garden Court North

KEY POINTS

  • Paper is over-rated.
  • IT sometimes works.
  • Proper public funding avoids catastrophic errors… and saves money.
  • Having a clear plan and organising resources is the key to everything that follows.
  • Transparency, candour and disclosure are the plasma that gives a justice system integrity.
Author details: 
Pete Weatherby QC

Pete is a human rights barrister at Garden Court North, Manchester. He specialises in inquests, inquiries, public and European Convention law, prison and criminal defence cases, in this jurisdiction and internationally.