R (on the application of Officer B50) v. HM Coroner for the East Riding of Yorkshire and Kingston-Upon-Hull [2023] EWHC 81 (Admin)
The High Court reconsiders the ‘Galbraith Plus’ test in coronial proceedings, whether the ‘plus’ really adds anything, and if so, how it is to be applied in practice.
On 29 November 2016, Lewis Skelton died as a result of being shot twice by a police officer, who was identified in the judgment of the Court simply as ‘B50’. Mr Skelton – who had various mental health issues – had been reported to police as seen walking through streets holding a small axe, which he was sometimes seen waving around. Armed police attended the scene, and told Mr Skelton numerous times to drop the axe. When that failed, they attempted to tazer him, again to no effect. One witness, whose evidence was agreed at the inquest, heard Mr Skelton say ‘if you come anywhere near me, I’ll use it’. B50 shot Mr Skelton twice in the back, after which several officers took him to the ground. Mr Skelton later died in hospital. In evidence, B50 claimed that the threatening actions of Mr Skelton towards him personally, and the speed with which Mr Skelton was approaching a group of workmen further down the road, were crucial factors in his decision to open fire.
At the inquest, counsel for B50 and the Chief Constable of Humberside Police submitted that the only conclusions that could be left to the jury were a conclusion of lawful killing or an open conclusion. The Coroner rejected those submissions, and left as an issue for the jury to determine whether a conclusion of lawful killing or unlawful killing was appropriate. The jury reached a conclusion of unlawful killing.
Before the High Court, counsel for B50 and the Chief Constable contended that the Coroner failed to correctly apply the ‘Galbraith Plus’ test in determining that a conclusion of unlawful killing should be left for the jury to consider.
The Court (Stuart-Smith LJ delivering the approved judgment) embarked on a detailed examination of the history of what has by now become colloquially identified by all who practise in the coronial jurisdiction as the ‘Galbraith Plus’ test. It did so with one key question at the forefront of its considerations: does the ‘plus’ in the ‘Galbraith Plus’ test really add anything at all?
The story must, of course, begin with R v. Galbraith itself[1]. That case, in the criminal context, considered the circumstances in which a Judge could conclude that there was no case to answer and direct a jury to acquit. Rather interestingly, the Court in Galbraith considered two alternative schools of thought regarding whether and when a judge should stop a case. The first school of thought involved asking whether it would be unsafe or unsatisfactory for the jury to convict, whilst the second – perhaps more narrowly – involved asking whether there is sufficient evidence on which a properly directed jury could properly convict. Ultimately, the Court in Galbraith favoured the latter approach over the former, and emphasised that matters of weighing the evidence were matters for the jury.
The gloss applied to the test laid down in Galbraith in the coronial setting – the ‘plus’ in ‘Galbraith Plus’ – has its origins in the judgment of the Court in Palmer[2]. In that judgment, Lord Woolf MR observed:
‘If [the Coroner] reaches the conclusion that, because the evidence is so inherently weak, vague or inconsistent with other evidence, it would not be safe for a jury to come to the verdict, then he has to withdraw the issue from the jury.’
However, the Court in the instant case doubted whether Lord Woolf MR intended, by this judgment, to add to the Galbraith test when applied in coronial law. Rather, the judgment reaffirms that the test is a test of sufficiency of evidence, but expressed that test by the use of words like ‘safety’. That blurring of the lines between the two schools of thought identified in Galbraith, continued through a number of other judgments. But then, in R (Secretary of State for Justice) v. HM Deputy Coroner for the Eastern District of West Yorkshire[3], the Court held that a Coroner should ask not only whether there is sufficient evidence on which a properly directed jury could properly reach a given conclusion, but 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.’
This second limb of the ‘Galbraith Plus’ test was then adopted by the Chief Coroner in 2013 in his Law Sheet No.2, and has, as a result, become the accepted position since. The Court in the instant case, however, appears to have harboured some doubts about whether the ‘Galbraith Plus’ test actually adds anything to the process a Coroner undertakes in considering what conclusion to leave open to a jury. The court even went as far as to opine that it may not have formulated that test in the way it was formulated in West Yorkshire (and, by extension, in Law Sheet No. 2). The Court was reluctant to overturn the judgment in West Yorkshire or reformulate the ‘Galbraith Plus’ test enunciated in it, but made no attempt to identify or define any categories of cases in which, having concluded that there was sufficient evidence for a conclusion to be left to a jury, it would nevertheless be unsafe to do so.
We are left, then, with the rather unsatisfactory position of having to apply a gloss to the ‘Galbraith’ test in circumstances where it is not at all clear what that gloss adds in practice, if anything. This may be thought of as a missed opportunity either for the Court to recast the test for leaving conclusions to the jury in inquests in terms of ‘safety’, and define what is meant by that term in a manner which must of course include a consideration of the evidence, or to reject the gloss added by West Yorkshire as adding nothing of value. The examination the Court carried out of the treatment of this issue in the case law – which cannot be recited in full here – does nevertheless repay detailed reading when considering the application of the ‘Galbraith Plus’ test in difficult cases.
In terms of more concrete precedents set by the judgment, ultimately the Court concluded that where a Coroner determines that there is sufficient evidence upon which a properly directed jury could reach a certain conclusion, their failure to explicitly consider separately the question of whether it would be ‘safe’ to leave that conclusion to the jury would not be fatal to their decision to do so, thereby limiting the scope for challenging decisions by coroners to leave certain conclusions to juries.
[1] [1981] 73 Cr App. R. 124.
[2] [2000] Inquest Law Reports 78.
[3] [2012] EWHC 1634 (Admin).
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