Does the Galbraith Plus Test Still Apply in the Coroner’s Court?

This blog reviews the “Galbraith Plus” direction in light of the recent decision in R (Police Officer B50) v HM Coroner for East Yorkshire and Kingston Upon Hull [2023] EWHC 81 (Admin) (judgment here).

In the case of B50, the Divisional Court considered whether it was safe to leave the conclusion of unlawful killing to an inquest jury. In still deciding the application, the court engaged in a detailed review of the authorities around Galbraith plus and its application in the coroners court. This decision is relevant for any practitioners making submissions to a coroner on Galbraith plus. It may have important implications for jury inquests, in a post-Maughan world, where unlawful killing and suicide may regularly and contentiously come to the fore.

Galbraith Plus: A Reminder

Those who practice in this area will be familiar with the Galbraith plus test and its genesis. But by way of background for those less familiar I will provide a broad overview.

In a criminal trial, where a judge concludes that the evidence is such that a jury, properly directed, could not properly convict upon it, it is their duty to remove the case from the jury. This is, in very simple terms, the Galbraith test.

A question then arose as to whether there was any distinction between the way in which this test was applied in the coroner’s court, as opposed to the criminal context. In R v HM Coroner for Exeter and East Devon ex  parte Palmer [2000] Inquest LR 78, applying Galbraith in inquest proceedings, Lord Woolf said:

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.

This added a second limb of ‘safety’ to the Galbraith test.

This second limb was, it seemed, crystallised by the decision of Haddon-Cave J in R (Secretary of State for Justice) v HM Deputy Coroner for the Eastern District of West Yorkshire [2012] EWHC 1634 (Admin) at [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”.

Ergo, Galbraith plus.

This has been the test that has been applied by coroners when deciding whether to leave a conclusion to an inquest jury, in accordance with the Chief Coroner’s Law Sheet No. 2.

Facts

This judicial review arose out of the inquest touching the death of Mr Lewis Skelton which was held in Hull between 7 September and 15 October 2021. The inquest had been opened in 2016 shortly after Mr Skelton’s death, but the final hearing was delayed until after the decision of the Supreme Court in R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [2020] UKSC 46.

Mr Skelton died on 29 November 2016 after he was shot by an Authorised Firearms Officer (“AFO”) serving with Humberside Police.

Mr Skelton had a long and significant history of mental ill-health, which included recorded periods of psychosis with paranoia and auditory hallucinations. The toxicology results post-mortem suggested that he had not been compliant with some of his medications. At approximately 9:15 am, Humberside Police received four 999 calls to report that Mr Skelton was walking down a street near his home “carrying” or “brandishing” an axe. It was reported that he was “waving it about” or “flapping it about”. He walked within close proximity of members of the public, but did not attempt to engage or interact with them. He had not threatened anyone.

Two officers went in pursuit of Mr Skelton: officer B50 and his colleague Charlie. When the officers attempted to engage with Mr Skelton by shouting, he ignored them. Seconds later, tasers were fired three times. The tasers did not have an immediate effect on Mr Skelton and he started to jog away from the pursuing officers. He was told to put the axe down; witnesses heard him say that he would not, with one witness giving evidence that he threatened to use it. The pursuit of Mr Skelton continued. He was at all times close to and being observed by the officers and at no point did he threaten any member of the public. The Taser was discharged for a fourth and final time to no effect before officer B50 shot Mr Skelton twice in the back at close range. He was taken by ambulance to Hull Royal Infirmary where efforts to save his life were unsuccessful.

The jury unanimously returned a conclusion of unlawful killing.

The Judicial Review

Officer B50 brought judicial review proceedings against the coroner challenging the decision to leave unlawful killing to the jury. In considering the appeal, the Divisional Court considered what, if any, differences there are or ought to be in applying Galbraith between criminal and coronial proceedings i.e. is there still purpose in the “Plus”.

The Claimant advanced three grounds:

1. The Defendant did not apply the Galbraith plus test correctly in his written decision to leave an unlawful killing conclusion to the jury and thereby erred in law. 
2. The Defendant’s decision to leave unlawful killing was an error of law even if he had applied the Galbraith plus test correctly because there was insufficient evidence to support it. 
3. The Defendant’s summing-up of the case to the jury was deficient and inadequate.

The Court dismissed all three grounds. For the purposes of this blog, we are only interested in the first ground on the interpretation and application of Galbraith plus. Before dismissing this ground, the Court reviewed the relevant authorities on the application of Galbraith by coroners when directing juries. The Court concluded at [64]-[65] that:

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.

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.

Please note, the above is not the full transcript of these paragraphs. These excerpts simply represent the conclusions. The relevance of this becomes clear below.

Thereafter, in dismissing the ground, concluded inter alia at [81]:

Although B50 points to the role of the ‘plus’ part of the 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 …

In summary, leaving unlawful killing to the Jury was safe: it reflected the thrust of the evidence (which was, of course, contested to varying degrees by IPs) and it would not confuse them.

So, Is There Still Purpose in the ‘Plus’?

In short, yes.

The court’s conclusions were that there is some distinction between the application of Galbraith by a coroner and by a judge ([64]). It was accepted that the distinction flows from the differences in jurisdiction, but that in relation to the additional limb of ‘safety’, there is no real guidance available on what this means:

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.

Of course, this is difficult to reconcile against the judgment of Lord Lane in Galbraith where he said that “safe” can mean sufficiency of evidence.

The Divisional Court appeared to, insofar as it was able, move away from the guidance given by Lord Woolf MR in Douglas-Williams by stating ([64]-[65]):

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.

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.

So, whilst the answer to the question posed is technically ‘yes’, the decision in B50 may have left the door open for further argument over the definition of ‘safe’ in the coronial context, and perhaps more pertinently, what considerations should, in practical terms, be considered by coroners in the application of Galbraith plus. The writer’s interpretation of the judgment is that it may be an invitation for clarification. One cannot help but conclude that, if the Divisional Court had not found its hands tied by the Court of Appeal, the answer to the question posed by this blog may have been different.

In practical terms, what can inquest practitioners take away from the decision?

In a post-Maughan world where the standard of proof for all short form conclusions at an inquest is the balance of probabilities, the application of Galbraith plus in cases of suicide and unlawful killing, in particular, is likely to become more frequent and more contentious. This judgment provides ammunition for practitioners to make meaningful submissions on the relevant considerations for the coroner on the application of Galbraith plus. In fact, it was recently deployed against the author of this blog in the context of submissions on neglect.

Finally, remember the warning that B50 has given to coroners: do not hide behind the guise of a conclusion being ‘unsafe’.