GALBRAITH “PLUS” – DE MINIMIS REALLY?

Unlawful Killing conclusion stands after Divisional Court dismisses challenge Richard Wright KC and Janine Wolstenholme represent the coroner.

On 29 November 2016 Lewis Skelton was fatally shot by a Firearms Officer serving with Humberside Police. At the inquest into his death the Coroner decided the issue of unlawful killing should be left to the jury and, on 15 October 2021, the jury unanimously concluded Mr Skelton had been unlawfully killed.

The Officer brought Judicial Review proceedings against the Coroner challenging the decision to leave unlawful killing to the jury, principally on the grounds of Galbraith Plus and the summing up.  Richard Wright KC leading Janine Wolstenholme acted for the Coroner who adopted a neutral position on the substantive arguments, but participated in terms of general legal principles.  Lewis Skelton’s family and Humberside Police were Interested Parties.

Some have questioned the necessity and purpose of the “Plus” being a purported additional layer of protection in coronial proceedings, particularly post Maughan.  I.e. If there is sufficient evidence upon which a properly directed jury could reach its verdict (or conclusion), it should be left to them.  To do otherwise is to usurp the function of a jury and is unconstitutional.

This issue was considered extensively by the Divisional Court, and although important distinctions between the criminal and coronial jurisdictions acknowledged, the distinction between a coroner deciding which conclusion to leave to a jury after hearing all the evidence, and that of a judge considering whether to stop a case after the conclusion of the prosecution case, is small.  The Court determined notwithstanding the categories of consideration that could, at least theoretically, render it unsafe to leave a suitably evidenced conclusion to the jury are not closed, 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 the coroner might not agree with a particular outcome, however strongly”.

Following Maughan, unlawful killing will fall to be considered much more often and likely remain a significant area of contention.  As recent decisions show, the High Court will not hesitate to quash decisions that are not well reasoned (Conclusion reached at the inquest into the death of Yousef Makki quashed by the Divisional Court. – Park Square Barristers), and one can well imagine this will be the case where the threshold of evidential sufficiency is met, but a conclusion is withdrawn on the grounds of “safety”.

The challenge to the summing up was largely predicated on a comparison with the approach to be taken in the crown court, when directing a jury on reaching its verdict after trial.  Though other jurisdictions can provide valuable guidance and assist in developing practice and procedure, the fundamental distinction between coroners (or their jury), as investigators, and the function of a crown court jury cannot be overlooked, a point expressly acknowledged by the Court and relevant to the dismissal of this ground.

Though recent authorities warn against a coroner, as a defendant to Judicial Review proceedings, entering the fray, and the costs implications should they do so and lose, a neutral coroner does not have to be a silent coroner.  The distinctions between the coronial and criminal jurisdictions are important and when practices fall to be reviewed by appellate courts, it should be done in context.

See the following link for details of the final judgement: https://www.parksquarebarristers.co.uk/app/uploads/2023/01/2023-EWHC-81-Admin-CO-4304-2021-B50-v-Asst-Coroner-for-E.-Riding-of-Yorks-and-Hull-Approved-Judgment.pdf

Richard Wright K.C. is Head of Chambers and is Ranked in Tier 1 in The Legal 500, 2022 for Business and Regulatory Crime (including Health & Safety) and Band One silk for Crime (Chambers and Partners, 2022). He is instructed as Leading Counsel to the UKCovid-19 Public Inquiry and represented one of the witnesses to the Manchester Arena Inquiry.

‘A highly skilled orator, with an excellent intellect and impeccable judgement.’ Legal 500 (2023)  ‘He is able to analyse and digest complex regulatory matters very quickly, identify the crucial issues in a case, and reduce complex legal argument into a highly persuasive and easily understood format. He literally makes the senior judiciary sit up and listen.” Legal 500 (2022)

Janine Wolstenholme is joint head of the Inquest Team at Park Square Barristers.  She is Ranked in Tier 1  for Inquests and Inquiries in The Legal 500 (2022)  & Ranked  in Chambers & Partners as Band 2 for Inquests & Public Inquiries Chambers & Partners (2022) 

‘A consumate professional with excellent advocacy skills’ – Legal 500 (2020)

To instruct Mr Wright K.C. or Ms Janine Wolstenholme or discuss any aspect of their Inquest and Inquiry practice please contact:

Madeleine Gray on 0113 202 8603

Patrick Urbina on 0113 213 5250