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The High Court explores the adoption of the ‘Galbraith Plus’ test in inquests


Factual Background

Lewis Skelton died on 29 November 2016 as a result of being shot twice by a police officer, identified simply as ‘B50’. At Mr Skelton’s inquest the court heard that he had various mental health issues and was reported to police as having been seen walking through the streets holding a small axe, which he was at times seen waving around. Armed police attended the scene and ordered Mr Skelton to drop the axe on several occasions. Mr Skelton was then tasered, to no effect. A witness account recalled that Mr Skelton said: “If you come anywhere near me, I’ll use it.”

B50 shot Mr Skelton twice in the back before he was detained by several officers. Mr Skelton later died in hospital. It was B50’s evidence that the threatening actions of Mr Skelton towards him personally and the speed with which Mr Skelton was approaching a group of workmen were crucial factors in his decision to open fire.

At Mr Skelton’s inquest submissions were made on behalf B50 and the Chief Constable of Humberside Police that the only conclusions that could be left to the jury were those of ‘lawful killing’ or ‘an open conclusion’. The coroner rejected those submissions, and left for the jury to determine whether a conclusion of ‘lawful killing’ or ‘unlawful killing’ was appropriate. The jury reached a conclusion of unlawful killing.

At 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 High Court embarked on a detailed examination of the Galbraith Plus test and in particular it explored whether the ‘plus’ in this test really adds anything at all.

Galbraith Plus

The Galbraith Plus test emanates from the criminal case of R v Galbraith itself. That case considered the circumstances in which a judge could conclude that there was no case to answer and direct a jury to acquit. The court in Galbraith found that the appropriate consideration before stopping a criminal case involved asking whether there is sufficient evidence on which a properly directed jury could properly convict. The court in Galbraith emphasised that matter of weighing the evidence was for the jury.

The ‘Galbraith’ test was then applied in the inquest setting through various judgments culminating in the case of R (Secretary of State for Justice) v HM Deputy Coroner for the Eastern District of West Yorkshire, where 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 and has, as a result, become the accepted position since.

Analysis of the Galbraith Plus test

It is clear the High Court in the case of Mr Skelton had some reservations about whether the Galbraith Plus test adds anything to the process a coroner must otherwise  undertake when considering what conclusions should be available to the jury. The court did not however overturn the judgment in West Yorkshire, refine the parameters Galbraith Plus test established by it or seek to identify 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.

The High Court concluded that where a coroner determines 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. The judgment therefore limits the scope for challenging decisions by coroners to leave certain conclusions to juries.

This issue is perhaps more pertinent now than ever before following the Supreme Court’s judgment in R (Maughan) v HM Senior Coroner for Oxfordshire in which the Supreme Court held that the standard of proof for all conclusions at an inquest, including that of unlawful killing, is the civil standard, namely the ‘balance of probabilities’. That decision lowered the standard of proof for unlawful killing and suicide which could previously only be established if there was sufficient evidence that met the higher criminal standard of proof; ‘beyond reasonable doubt’.

David Rainey

David Rainey
Partner - Manchester
Health & Safety


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