Safe conclusions in inquests: the beginning of the end for Galbraith Plus?

R.(Police Officer B50) v HM Coroner for East Yorkshire and Kingston Upon Hull [2023] EWHC 81 (Admin) (judgment here)

This case raised two very different questions of ‘safety’.

The first, to be decided by police firearms officers:

A man was in the street carrying an axe and walking with purpose. Police were aware the man had at least some mental health illness. He had not injured anyone, or directly threatened anyone. But he did not stop when police asked him to, or indeed after they Tasered him.

How close should police let a mentally ill, unpredictable man with an axe get to other persons on the street? To what extent should police risk their own safety, getting close enough to disarm him? For how long was it safe to permit this scenario to run?

Officer B50 ultimately discharged his firearm into the man’s back. The bullet hit him, but he did not stop. B50 shot a second time, again in the man’s back, and then wrestled him to the ground. Sadly the man died.

The second question of ‘safety’ was for the coroner, and ultimately the Divisional Court:

Was it safe to leave to an inquest jury the option of a conclusion of unlawful killing?

That would require the jury to answer one or both the following questions in the negative: did the officer honestly believe that the force he used was necessary? Was that force reasonable, in the circumstances as the officer honestly believed them to be?

At the inquest, B50 – supported by his separately represented Chief Constable – made a Galbraith ‘plus’ submission: the coroner should not leave to the jury the option of an unlawful killing conclusion, because there was insufficient evidence to support it. Perhaps not ‘no’ evidence; but insufficient evidence. B50 had undoubtedly been faced with a risk to the public, and he was undoubtedly seeking to protect the public. Why else would he have shot the man when he did?

But the coroner did leave unlawful killing to the jury, and that is the conclusion they reached.

The fact that the deceased had been shot in the back, and had not posed an immediate threat to anyone at that time he was shot, was undoubtedly significant in the analysis.

The judicial review

B50 challenged the inquest by judicial review, on the grounds that the coroner had not applied the Galbraith ‘plus’ test correctly and in any event his summing up was so defective as to render the jury’s unlawful killing conclusion unsafe.

The Divisional Court (Stuart-Smith LJ and Fordham J) rejected the claim. See especially (with emphasis added):

“[81] Although B50 points to the role of the ‘plus’ part of the [Galbraith] test as providing a “more subjective filter” than the first limb, comprehending situations where the interests of justice require a particular conclusion not to be left to the jury, we are not able to identify any feature of the case that required unlawful killing not to be left to the Jury despite there being a sufficiency of evidence …”

“[87] The strength or weakness of the evidence relied on both by B50 and by the Family depends on the Jury’s view of the reliability of the witnesses and, in particular, of their view of the reliability of B50 and [another officer], both of whom they were able to observe in detail as they gave their evidence …”

“[88] … we are unable to identify anything, either evidential or arising from the process of the inquest or otherwise, that suggests (far less shows) that it would not be safe for the Jury to reach such a conclusion. Adopting the compendious approach, this was a case where it would be safe for the Jury to come to conclusion that there had been an unlawful killing. Whether we would agree with such a conclusion or whether we think such a conclusion would or should have been more likely than not is not merely irrelevant but an impermissible trespass into the proper province of the Jury.”

As to the coroner’s summing up, this was acknowledged by all to be sub-optimal in some respects, and overly long, but not so defective as to give rise to a risk of an unsafe conclusion [101].

That is the case in a nutshell.

But of particular interest to inquest practitioners will be the detailed analysis by the Divisional Court of the origins and scope of the Galbraith ‘plus’ test.

Galbraith evolves

The effect of the ‘classic’ Galbraith test, in a criminal trial, is that the judge should withdraw a case from the jury if – and only if – there is no evidence upon which a jury could ‘properly’ convict. That is an evidential test, intended to preserve the constitutional function of the jury.

Applying the Galbraith test to inquest proceedings, Lord Woolf said in R. v HM Coroner for Exeter and East Devon ex. parte Palmer [2000] Inquest LR 78 that “The coroner’s duty is only to leave to a jury those verdicts which it would be safe for a jury to return. He is under a duty not to leave to a jury a verdict which it would be unsafe for them to return. To that extent he acts as a filter to avoid injustice”.

And from that judgment evolved the Galbraith ‘plus’ test.

To cut a long story short, in R. (on the application of the Secretary of State for Justice) v HM Deputy Coroner for the Eastern District of West Yorkshire [2012] EWHC 1634 (Admin), Haddon-Cave J said:

“[23] It is clear, therefore, that when coroners are deciding whether or not to leave a particular verdict to a jury, they should apply a dual test comprising both limbs or ‘schools of thought’, i.e. coroners should (a) ask the classic pure Galbraith question “Is there evidence on which a jury properly directed could properly convict etc.?” (see above) plus (b) also ask the question “Would it be safe for the jury to convict on the evidence before it?”. The second limb, arguably, provides a wider and more subjective filter than the first in certain cases. In my view, this extra layer of protection makes sense in the context of a coronial inquiry where the process is inquisitorial rather than adversarial, the rights of interested parties to engage in the proceedings are necessarily curtailed and coronial verdicts are at large” (emphasis in original).

That approach has been endorsed and applied since. It is currently reflected in the Chief Coroner’s Law Sheet No.2.

Has Galbraith plus had its day?

But in B50 the Divisional Court did not endorse that approach. See for instance:

“[37] It may reasonably be doubted whether Lord Woolf intended to add anything of substance to the test in Galbraith … [38] … it is not obvious that Lord Woolf was seeking to add some additional test …”

As to the statement of the test by Haddon-Cave J in the West Yorkshire case, the Divisional Court said:

“[56] We observe that the outcome in that case did not turn on that point, because there was a misdirection on the Galbraith test in any event”.

Nevertheless, following a close review of the leading High Court and Court of Appeal decisions, the Divisional Court concluded that it was bound to acknowledge that the Galbraith ‘plus’ test was something different – even if only slightly – to the Galbraith test applied in criminal trials. See the following passages in particular, with emphasis added:

“[64] As this review of the authorities shows, it is established by authority that is binding upon us that there is some (if small) distinction between the position of a coroner deciding what verdict to leave to a jury after hearing all the evidence and of a judge considering whether to stop a case after the conclusion of the prosecution case. The distinction flows from the differences in process between the two jurisdictions, as explained by Lord Woolf in Douglas-Williams at 348-349 and Collins J in Anderson at [21]-[22]: see [41] and [44] above. Although the Court of Appeal has identified considerations of safety as relevant to the coroner’s decision, there is limited guidance from the Court of Appeal about what should inform those considerations. Though he used the word “safe” at [46] of Palmer Lord Woolf MR provided no guidance in Palmer; and such guidance as he gave in Douglas-Williams suggested that questions of safety would involve considerations that were not directly related to the sufficiency of the evidence: see the italicised passage set out at [41] above. We reiterate that in Galbraith itself Lord Lane emphasised that “safe” and “unsafe” can mean sufficiency or insufficiency of evidence on which a jury could properly reach a guilty verdict. In contrast, Bennett suggests that the concept of safety is an evidential one: see [54] above. This seems to us to be in accordance with conventional principle and, in almost all cases, to provide the answer to Leveson J’s rhetorical question: on the face of it, if a verdict is (properly) open to the (properly directed) jury on the evidence how can it be said to be in the interests of justice that it not be left for the jury to consider? Any other approach, save for one based upon the wider interests of justice as suggested in Douglas-Williams runs straight into the risk of usurping the proper function of the jury. This risk is, to our minds, accentuated in the light of Maughan now that all short form conclusions, including suicide and unlawful killing, may now be reached on the balance of probabilities: see the Chief Coroner’s Leeming Lecture delivered on 22 July 2022, at paragraph 51.

[65] We are not strictly bound by other first instance decisions, but should follow them unless convinced that they are wrong. We doubt whether we would have formalised the “Galbraith plus” test as was done in the West Yorkshire case; but it has been endorsed by subsequent first instance decisions even though the parameters of the “plus” element have not been made clear. We are not convinced that the formulation is wrong; but the devil is in the detail of what may render it unsafe to leave a conclusion to the jury in a case where, without usurping the function of the jury, it appears that there is evidence sufficient to enable a properly directed jury properly to return that conclusion. What is clear is that it is not open to a coroner, in a case which passes the classic Galbraith test of evidential sufficiency, to withdraw a conclusion under the guise of lack of “safety” just because they might not agree with a particular outcome, however strongly. While being fully alert to the need for the coroner (and the court) to act as a filter to avoid injustice, we agree with the observation of Pepperall J that “where there is evidence upon which a jury properly directed could properly reach a particular conclusion or finding then it is likely to follow that the jury could safely reach such conclusion or finding.” Likely but not inevitable; and, on present authority, it appears that the categories of consideration that could (at least in theory) render it unsafe to leave a suitably evidenced conclusion to the jury are not closed.”

One cannot help but notice that the words proper/properly are used more than 60 times in the Divisional Court’s judgment (including quotes from other decisions) and appear in every variation of the Galbraith tests. ‘Proper’ is not a precise word; it gives scope to import subjective notions of appropriateness into an otherwise rigorous-sounding test.

Nevertheless, the analysis by the Divisional Court is impressive and it will be helpful to coroners and those making submissions to them on what short form conclusions may be left to the jury. The Galbraith ‘plus’ test remains. A coroner may exercise a discretion not to leave a conclusion which would be unsafe (erroneous, confused, unjust). But the Court has focused minds on the need to relate the concept of safety closely to the evidence, and ultimately to respect the function of the jury.

For those who believe that juries may sometimes not make the best decisions, that is the system we have. And it should not be forgotten that it is the jury that hears and sees the evidence in court, and lives in the communities where the events the subject of inquests take place.

Now that the lower degree of certainty applies (more likely than not, R.(Maughan) v HM Senior Coroner for Oxfordshire [2021] A.C. 454) it would not be surprising if there were more unlawful killing conclusions in inquests in the future.

Will the stigma of such conclusions be as powerful as it has been in the past, if they become more common? Will such conclusions carry the same weight with decision-makers in the Crown Prosecution Service?

Will the first type of safety question, posed at the outset of this blog, now be considered even more anxiously by firearms officers, at heightened risk of a manslaughter conclusion?