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Is the 'Gailbraith plus' test's time up?

18 July 2023

Divisional Court handed down a judgment in R v. HM Coroner for the East Riding of Yorkshire and Kingston-Upon-Hull EWHC 81 following an application challenging an Assistant Coroner's decision to leave a conclusion of unlawful killing to the Jury. 

Earlier this year the Divisional Court ("the Court"), handed down a judgment in R (on the application of Officer B50) v. HM Coroner for the East Riding of Yorkshire and Kingston-Upon-Hull [2023] EWHC 81 (Admin) following an application made by an authorised firearms officer ("B50") challenging an Assistant Coroner's decision to leave a conclusion of unlawful killing to the Jury. The application failed even though parts of the summing up to the Jury were sub optimal.

Summary Background to the case  

Mr Lewis Skelton died on 29 November 2016 having been shot in the back twice by B50.  He was known to have a significant mental health history and was seen in a street passing members of the public "carrying" or "brandishing an axe". When B50 approached Mr Skelton he refused to engage with him and kept walking.  He was tazered by B50 and his colleague to no avail. Mr Skelton then walked into a road in which three builders were walking towards Mr Skelton, and B50 shot Mr Skelton in the back. This appeared to have no impact on Mr Skelton and he kept walking. B50 shot him again. Mr Skelton was apprehended to the ground and taken to hospital where he later died. 

The Gailbraith plus test

In 2013, the then Chief Coroner HH Judge Peter Thornton QC issued the Chief Coroner's Law Sheet No 2 on the Gailbraith plus test. He referred to the case  R (Secretary of State for Justice) v HM Deputy Coroner for the Eastern District of West Yorkshire ("the Yorkshire case") in which Haddon-Cave J ruled 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’ [as discussed in Galbraith], i.e. coroners should (a) ask the classic pure Galbraith question “Is there evidence on which a jury properly directed could properly convict etc.?” … plus (b) also ask the question “Would it be safe for the jury to convict on the evidence before it?’ [emphasis added]

In his guidance, the Chief Coroner went onto explain that "the word ‘safe’ is not defined or explained. It should therefore be given its ordinary English meaning, the Coroner exercising his or her own discretion judicially on a case by case basis". In the writer's experience most Coroner's have taken a pragmatic stance, indicating they are satisfied that leaving a conclusion of unlawful killing is 'safe' based on the sufficiency of evidence limb and that the two tests ('sufficiency of evidence' and 'safety') are inextricably linked rather than two distinct and separate tests. The courts detailed review of the case law around this area suggested that the emphasis on the word 'safe' reflected the need to distinguish the different approaches taken by the criminal court and the coronial court which is of course, inquisitorial.  

The Court confirmed, whilst they would not have formalised the test (as per the Yorkshire case) it stepped back from indicating the test was wrong. Instead the Court determined;  

"the devil is in the detail of what may render it unsafe to leave a conclusion to the jury in a case where, without the usurping the function of the jury, it appears that there is evidence sufficient to enable a properly directed jury to return that conclusion. 

What is clear, is that it is not open to a Coroner, in a case that passes the classic Galbraith test of evidential sufficiency, to withdraw a conclusion under the guise of lack of "safety"……. 

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;"

The Court then went on to consider whether there was sufficient evidence to leave a conclusion of unlawful killing to a Jury in this case. The Court accepted there was sufficient evidence that B50 genuinely believed that Mr Skelton posed a threat to lives of members of the public, and they gave full weight to the fact that Mr Skelton's mental health was such that he could behave unpredictably. The Court also concluded however that "the evidence was not all one way".  The Court found there was also sufficient evidence suggesting that B60's asserted belief that members of the public were in imminent danger was not genuinely held.  In dismissing the challenge that there was insufficient evidence to leave a conclusion of unlawful killing to the Jury, the Court reminded the parties that "whether we would agree with such a conclusion or whether we think such a conclusion would or should not have been more likely that not is not merely irrelevant but an impressive trespass into the proper province of the Jury." 

The final challenge that the Assistant Coroner's summing up was defective was quickly dismissed and is not considered further in this article. 

So what’s next?

Cases such as the above are complex and no one should under estimate how difficult these inquests are for all involved. Now that it is settled law that the standard of proof for returning a conclusion of unlawful killing is the civil test, we should expect to see more cases in which the question of whether a conclusion left to a Jury meets the 'Galbraith plus' test is challenged in the context of unlawful killing conclusions but also where a rider of neglect is also being considered. 

This case is also a timely reminder that even when the evidence might seem overwhelmingly in favour of one properly interested party, the test is whether there is sufficient evidence to leave a conclusion to the Jury in order to leave that conclusion to them

And finally, the 'Galbraith plus' test remains with us for now. But watch this space, most commentators predict that this judgment is an open invitation for the law in this area to be further challenged and clarified. 

If you wish to discuss any aspect of this article please contact the Police, Care and Justice team. 

Further Reading