This is a very recent and interesting case which acts as a useful practical example of how the Galbraith (plus) test is applied in inquests and, in particular, Article 2 inquests. It also once again emphasises the pitfalls and difficulties with judicial review applications.
The facts
The inquest concerned the murder of Sabina Rizvi in March 2003 as she drove away from Bexleyheath Police Station with her boyfriend, Mark Williams. Ms Rizvi was fatally shot and Mr Williams sustained a significant brain injury. The assailants were never identified, but Paul Asbury was convicted of murder and attempted murder.
The very substantial delay in the inquest was it seems due, at least in part, to the criminal proceedings and the initial decision not to resume the inquest following Mr Asbury’s conviction and thereafter as a result of what is somewhat opaquely described in the judgment as “a number of evidential, procedural and administrative complexities.”
The basis for resumption was whether the acts or omissions of the police were an arguable breach of the Osman operation duty, in essence the questions for determination on the Galbraith basis for the coroner, HHJ Angela Rafferty KC, were:
a) Whether the Police knew or ought to have known at the time of the existence of a real and immediate threat to the life of Ms Rizvi.
b) Whether the Police knew that the risk arose from the criminal acts of Paul Asbury and his associates.
c) Whether the Police failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.
The coroner found on an Osman basis that there was a real and immediate risk to life, but that the Police did not know, nor should they have known that such a risk existed. Having found that, it followed that steps could not be taken to mitigate that risk.
The pitfalls in judicial review
The case illustrates, once again, that the time limits for judicial review applications are particularly strict and the test to quash a coroner’s decision is difficult to satisfy.
Even though he went on to consider the facts on a permission basis, Mr Justice Foxton found that the application was made out of time and declined to extend time. The relevant Galbraith ruling was made on 24 March 2024, but the relevant application for judicial review was not sent to the Administrative Court until 24 September 2024.
The time limit for issuing judicial review proceedings is tight, CPR 54.5(1) provides that:
“the claim form must be filed (a) promptly; and (b) in any event not later than three months after the ground to make the claim first arose.”
It should be noted, therefore, that the three months is a backstop.
The Family were, for a significant period of time after the ruling, without legal representation, but the court found there was nonetheless an unreasonable delay, albeit “not at the egregious end”. One can imagine that after the very significant delay in bringing this inquest to its conclusion, the Family may have felt quite aggrieved by this decision.
As to the burden on a party seeking to overturn a coroner’s decision on a Galbraith basis, it is particularly high and, in the absence of a mistake of law, what must be challenged is the process by which the decision is arrived at rather than the decision itself, with the Wednesbury test as a final fallback position.
The judicial review
As this was a permission hearing, the test was lower than that had it progressed to a full hearing, i.e. the Family had to prove their arguments were arguable. Whilst the limitation issue meant that the judicial review would fail in any event, permission was also refused on the basis that the grounds were not arguable.
The application was put on two grounds: firstly, that the coroner conflated and confused the issue of sufficiency of evidence with the test for the engagement of Article 2, and also mischaracterised the test of immediate risk necessary for an operational breach in a case involving criminality as “very high”; secondly, that the coroner elided the question of whether there had been a breach of the substantive Article 2 duties with the question of causation.
In respect of the first ground, the court found that the Family’s counsel was on an “island-hopping expedition in a sea of extensive evidence”. It was found that the coroner had addressed herself to the sufficiency of evidence point and had considered the two pieces of evidence principally relied upon to affix the Police with knowledge of the risk: firstly, an off-the-record conversation between Mr Williams and a police officer at the police station where Mr Williams discussed the criminality of others including Mr Asbury; secondly, the offer of a lift home by the Police which, tragically, the couple did not accept. The finding that this evidence was insufficient to leave the issue of knowledge to the jury was found not to be unreasonable on a Wednesbury basis.
Further, in terms of the assessment of the test of immediate risk, not only was it expressed correctly, but the coroner had in fact found that such a risk existed.
On the second issue, the court stated that:
“A causal issue for a coroner’s jury necessarily involves the identification of alleged acts or omissions which it has been suggested may be causative, and a finding as to whether they are by reference to the test in Tainton.”
And then importantly, how a coroner was to approach causation:
“Causation is not an issue which, in this context, could fairly or sensibly be approached in the abstract, but only by reference to acts or omissions alleged to be causative.”
This, the court found, was exactly what the coroner did, finding no alleged act or omission satisfied the Galbraith test. Further, that on the particular facts of this case, if there was no arguable breach of Article 2 then there could be no arguable causative breach, which (different) counsel for the inquest had accepted.
It follows that, in the absence of a mistake in law challenging a coroner’s decision on what should be left to a jury, or to themselves when sitting without one is, on a Galbraith basis, difficult indeed.
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