Law: Relative trauma

How do you codify the closeness of someone who witnesses the loss of a loved one? Judges should start by taking account of the changing nature of family ties, say Andrew Clarke and Stella Swain

In April 1989, 17-year-old Ian Glover was one of 95 people killed and more than 400 injured in the "crush" which developed as a result of poor crowd control by the police at the FA Cup semi-final game between Nottingham Forest and Liverpool at Hillsborough stadium, Sheffield. As well as the many thousands at the ground, there were millions watching the game by live television broadcast. John McCarthy, Ian's half brother, was in the crowd at the other end of the ground and witnessed the horrific events. As a result he suffered psychiatric illness. In the aftermath, the Chief Constable of South Yorkshire admitted liability in negligence for those who had suffered physical or psychiatric harm as a result of police negligence.

On 11 December 1996, some six-and-a-half years later, Mr Justice Sachs in the High Court awarded John McCarthy pounds 201,000 for post-traumatic stress disorder, suffered while witnessing the death of his half-brother.

How does the McCarthy case and other Hillsborough-related litigation reflect on the workings of the law and the deliberation of judges? A major concern for judges in the wake of Hillsborough was the spectre of an indeterminate number of people coming forward, claiming psychological illness after having witnessed the events that day, either at the ground itself or on TV. How, then, were the judges to keep the floodgates closed? They chose to measure degrees of suffering in relation to depths of love, and on that basis to award or deny damages for psychological trauma.

In a series of cases before Hillsborough, the courts had neatly hierarchised family relations, putting the parent-child and spousal relationships ahead of all others - an inner sanctum, as it were; and it was only those relationships for which psychiatric illness could be claimed. The key Hillsborough test case was Alcock v the Chief Constable of South Yorkshire (House of Lords, 1991) which involved 16 claimants who fell outside this inner sanctum. The Alcock plaintiffs included grandfathers, uncles, brothers-in-law, fiances and friends who had been at the ground and witnessed events. The court decided that they could not be compensated unless they could demonstrate, under disclose scrutiny, that their particular relationship was one involving special ties of love and affection. As a half-brother to Ian Glover, John McCarthy was required to go through this secondary trauma more than six years after Hillsborough. McCarthy succeeded because Mr Justice Sachs decided he had proved, on the balance of probabilities, that he had a "close and intimate relationship" with his half-brother, Mr Glover.

At first glance the McCarthy case, in which a half-brother can claim for psychiatric illness, represents a liberalising of the family values hierarchy imposed by the courts. The background to McCarthy, however, reveals judges grappling with complex emotional, psychological and social issues and exposes the courts, with their "evidential resolution" of conflicts, as an inappropriate forum for such matters.

The court decided that there were two possible approaches to determine which bonds in the "spectrum of human relationships" gave rise to claims of psychiatric illness: first, to decide the question on expert evidence (some of the barristers in fact proposed to the judges that they thought that examining different relationships would lead to uncertainty); or second, for the judge to "rely on his own opinion ... as fairly representative of that of the educated layman ... and treat himself as the reasonable man and form his own views from the primary facts". This second approach - "informed judicial opinion", as the judges called it - has been the approach adopted in the Hillsborough cases. Instead, therefore, of hearing possibly "confusing" evidence from sociologists, psychologists and other experts, the judges essentially relied on a combination of "common sense", "tradition" and taking refuge in positivist language. Referring to the difference in the quality of relationships, and the fact that parent-child relationships and those between spouses were on a higher plane than all others, they used such phrases as "experience has shown", "common knowledge", "recognised category", "the more traditional categorisations" and "logical necessity".

The court's difficulty is illustrated by Lord Keith, in Alcock, where he said that close ties "... may be stronger in the case of engaged couples than in that of persons who have been married to each other for many years". Another judge, however, said: "It is the normal instance of family life ... that the relationships between mothers and fathers, sons and daughters are of the closest known to mankind." The attempt to codify degrees of love between people is obviously deeply problematic, and reveals the limits of law and legal language.

The law prides itself on providing certainty, but what practical guidance does the McCarthy case provide? Other relatives in this secondary category have been specifically told by Mr Justice Sachs that the case was decided on its particular facts and that his decision "creates no precedent". This raises the possibility of other such relationships having to go through the poignant and absurd ordeal of proving their love publicly on the basis of a bizarre spectacle of letters, birthday cards and other "documents" together with testimony from grieving witnesses some seven years and more after the event. As Ian Glover's mother said, in December, "it is very emotional for us even after all these years"; and such sadness is surely violated by the court's insistence that relationships which do not come within the judicially approved inner sanctum have to go through these evidential hoops. Of those killed at Hillsborough the overwhelming number were young - 77 of the 95 dead were in their teens and twenties. Particular sensitivity is required in these circumstances. It is one thing for the courts to seek to limit the numbers of those receiving damages by hierarchising relationships on the basis of the court's "logical necessity" and "common knowledge" approach. It is surely the case that a more sympathetic approach could have been formulated in the time since the disaster.

The McCarthy case represents a post-modern crisis for the law. Deeply problematic concepts of the quality of love, families and the nature of relationships are made to seem given, natural and wholly agreed upon in a series of consensual arrangements. Adopting a discourse of authority and truth can appear insensitive in such circumstances; it also undermines the legitimacy of the law when the distance between the judicially imposed "truth" and the uncertainty of the "real" is so apparent. The judges' pronouncements cannot be disguised as universal principles. Who can say whether the quality of the relationship between a grandparent and grandchild is of a different order to that between a parent and child? The Hillsborough cases represent an unprecedented exposure of the point beyond which the so-called "traditional methods" and paradigms of "truth" fundamental to law are no longer credible.

The work of judges has never been more challenging, but if they are to deliver popularly recognisable justice (and avoid mapping a hermetically sealed and idiosyncratic view of the world) they will have to be more sensitive to changing social circumstances. Judged by their Hillsborough deliberations, they have a lot to do to win over a doubting public. The question for us all is whether judges and the courts are best equipped to decide such dilemmas. Arbitrating on the quality of love, on emotional ties between people, may be a task that is beyond the lawn

Andrew Clarke and Dr Stella Swain are lecturers at the University of Western England, Bristol and are writing a book, 'Law and Culture', that deals with the issues discussed in this article.