R (Police Officer B50) v HM Coroner for East Yorkshire and Kingston Upon Hull  EWHC 81 (Admin)
The Divisional Court (Stuart-Smith LJ and Fordham J) considered a challenge to a Coroner’s application of the Galbraith test as to what conclusions can safely be left to a jury in an inquest into the death of Mr Lewis Skelton. Mr Skelton had been shot by a Police Firearms Officer, and the jury was left to consider a conclusion of unlawful killing. Their decision is a significant step towards a pruning back of the Galbraith Plus test to be essentially one of evidential sufficiency, bar in exceptional circumstances.
The Galbraith Plus test
The clearest expression of the ‘plus’ element of the Galbraith test is R (Secretary of State for Justice) v HM Deputy Coroner for the Eastern District of West Yorkshire  EWHC 1634 (Admin) where judicial review proceedings were brought to challenge the Coroner’s decision to leave verdicts of unlawful killing by murder and unlawful killing by gross negligence manslaughter to the jury. At - Haddon-Cave J reviewed Galbraith Plus and at  he provided his own formulation
“It is clear, therefore, 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’, i.e. coroners should (a) ask the classic pure Galbraith question “Is there evidence on which a jury properly directed could properly convict etc.?” (see above) plus (b) 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. In my view, this extra layer of protection makes sense in the context of a coronial inquiry where the process is inquisitorial rather than adversarial, the rights of interested parties to engage in the proceedings are necessarily curtailed and coronial verdicts are at large.” [Emphasis added]
Mr Skelton had a long history of mental ill health. On 29 November 2016 he was observed holding a small axe or hatchet while walking ‘with purpose’ down a public road. The police were informed and told he was ‘waving the axe around’, and were also made aware that he had at least some history of mental ill health. However, they were told that he had not actually approached or interacted with anyone. Police Officer B50, after an unsuccessful attempt to Taser Mr Skelton, shot him, believing that he had been threatened by Mr Skelton and that he potentially posed a threat to three members of the public.
The Divisional Court noted that the CCTV did not suggest that Mr Skelton had threatened Officer B50, and also did not suggest that Mr Skelton was threatening any members of the public at the point he was shot.
The core ground of challenge was that the Coroner had failed to apply the Galbraith test correctly in his decision to leave an unlawful killing conclusion to the jury.
The Divisional Court began its extensive review of the relevant case law at [32-35], noting that:
“32. The decision in Galbraith is important not merely because of the extremely well known statement of principle to be applied when assessing a submission of “no case” in a criminal trial but also because it authoritatively decided which of two schools of thought should be followed in carrying out that assessment. Giving the judgment of the Court, Lord Lane CJ identified the two schools and the overriding approach to be adopted at 1040G-H:
“There are two schools of thought: (1) that the judge should stop the case if, in his view, it would be unsafe (alternatively unsafe or unsatisfactory) for the jury to convict; (2) that he should do so only if there is no evidence upon which a jury properly directed could properly convict. Although in many cases the question is one of semantics, and though in many cases each test would produce the same result, this is not necessarily so. A balance has to be struck between on the one hand a usurpation by the judge of the jury’s functions and on the other the danger of an unjust conviction.”
33. At 1041B-C Lord Lane identified that adopting the first approach (“unsafe” or “unsatisfactory”) would involve the trial judge applying his views to the weight to be given to the prosecution evidence and as to the truthfulness of their witnesses and so on. That had been said by Lord Widgery CJ in Barker (1975) 65 Cr App R. 287, 288 to be clearly not permissible…
35…Lord Lane stated the correct principle at 1042B-E:
“How then should the judge approach a submission of “no case”? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence, (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred.
There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.”
The Divisional Court went on consider the origin of the ‘plus’ in the judgment of Lord Woolf MR in R v HM Coroner for Exeter and East Devon ex p Palmer  Inquest Law Reports 78. At  the Divisional Court held:
“The immediate issue in Palmer, which was a claim for judicial review of the coroner’s refusal to leave a verdict of unlawful killing to the jury, was what approach the courts should adopt when deciding whether to intervene with a coroner’s decision. That in turn involved the Court of Appeal in considering the proper approach of the coroner when deciding whether to leave an issue (in that case unlawful killing). In relation to that issue, Lord Woolf at  set out the classic Galbraith statement of principle which was agreed to be applicable to a coroner’s assessment whether to leave an issue. He then went on to consider how the Wednesbury unreasonableness test should be applied by the court where a Coroner’s decision to leave an issue is challenged:
46. In a difficult case, the Coroner is carrying out an evaluation exercise. He is looking at the evidence which is before him as a whole and saying to himself, without deciding matters which are the province for the jury, “Is this a case where it would be safe for the jury to come to the conclusion that there had been an unlawful killing?” If he 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. In most cases there will be only a single proper decision which can be reached on any objective assessment of the evidence. Therefore one can either say there is no scope for Wednesbury reasonableness or there is scope, but the only possible proper decision which a reasonable Coroner would come to is either to leave the question to the jury or not, as the case may be.
47. However, as was pointed out by the Lord Chief Justice in Galbraith, in these cases there will always be borderline situations where it is necessary for the Coroner to exercise a discretion. It is only in such a situation that he has any discretion. It follows, therefore, that the test of reasonableness enunciated in Wednesbury has to play in relation to decisions as to whether to leave a particular issue to the jury or not, a role which is extremely limited.
49. … The coroner’s duty is only to leave to a jury those verdicts which it would be safe for a jury to return. He is under a duty not to leave to a jury a verdict which it would be unsafe for them to return. To that extent he acts as a filter to avoid injustice.“
The Divisional Court commented at [37-38] that it was not obvious that Lord Woolf was intending to add anything of substance to the Galbraith test –
“To say that the evidence is so inherently weak, vague or inconsistent (a clear reference back to the language of Galbraith category 2) that it would not be “safe” for a jury to come to that verdict seems to us to be indistinguishable in context from saying that the evidence is so weak, vague or inconsistent that (without usurping the function of the jury) no jury properly directed could properly convict the defendant. His observations were directed to demonstrating how limited is the possible scope for the existence of a “discretion”; and, in consequence, how limited is the scope for the application of a test of Wednesbury reasonableness.”
The Divisional Court noted that nevertheless in R v Inner South London Coroner, ex p. Douglas-Williams  1 All ER 344 Lord Woolf MR had again revisited the question of the extent of the discretion of a coroner not to leave to the jury what is, on the evidence, a possible verdict, holding at 348J-349C that:
“The conclusion I have come to is that, so far as the evidence called before the jury is concerned, a coroner should adopt the Galbraith approach in deciding whether to leave a verdict. The strength of the evidence is not the only consideration and, in relation to wider issues, the coroner has a broader discretion. If it appears there are circumstances which, in a particular situation, mean in the judgment of the coroner, acting reasonably and fairly, it is not in the interest of justice that a particular verdict should be left to the jury, he need not leave that verdict. He, for example, need not leave all possible verdicts just because there is technically evidence to support them. It is sufficient if he leaves those verdicts which realistically reflect the thrust of the evidence as a whole. To leave all possible verdicts could in some situations merely confuse and overburden the jury and if that is the coroner’s conclusion he cannot be criticised if he does not leave a particular verdict.” [Emphasis added]
The Divisional Court went to review the subsequent significant decisions concerning Galbraith and Galbraith Plus (including in particular R (Bennett) v HM Coroner for Inner South London  EWCA Civ 617 and West Yorkshire). They conclude that:
“As this review of the authorities shows, it is established by authority that is binding upon us that there is some (if small) distinction between the position of a coroner deciding what verdict to leave to a jury after hearing all the evidence and of a judge considering whether to stop a case after the conclusion of the prosecution case. The distinction flows from the differences in process between the two jurisdictions, as explained by Lord Woolf in Douglas-Williams at 348-349 and Collins J in Anderson at -: see  and  above. Although the Court of Appeal has identified considerations of safety as relevant to the coroner’s decision, there is limited guidance from the Court of Appeal about what should inform those considerations…. We reiterate that in Galbraith itself Lord Lane emphasised that “safe” and “unsafe” can mean sufficiency or insufficiency of evidence on which a jury could properly reach a guilty verdict. In contrast, Bennett suggests that the concept of safety is an evidential one: see  above. This seems to us to be in accordance with conventional principle and, in almost all cases, to provide the answer to Leveson J’s rhetorical question: on the face of it, if a verdict is (properly) open to the (properly directed) jury on the evidence how can it be said to be in the interests of justice that it not be left for the jury to consider? Any other approach, save for one based upon the wider interests of justice as suggested in Douglas-Williams runs straight into the risk of usurping the proper function of the jury. This risk is, to our minds, accentuated in the light of Maughan now that all short form conclusions, including suicide and unlawful killing, may now be reached on the balance of probabilities: see the Chief Coroner’s Leeming Lecture delivered on 22 July 2022, at paragraph 51.
We are not strictly bound by other first instance decisions, but should follow them unless convinced that they are wrong. We doubt whether we would have formalised the “Galbraith plus” test as was done in the West Yorkshire case; but it has been endorsed by subsequent first instance decisions even though the parameters of the “plus” element have not been made clear. We are not convinced that the formulation is wrong; but the devil is in the detail of what may render it unsafe to leave a conclusion to the jury in a case where, without usurping the function of the jury, it appears that there is evidence sufficient to enable a properly directed jury properly to return that conclusion. 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 they might not agree with a particular outcome, however strongly. 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; and, on present authority, it appears that the categories of consideration that could (at least in theory) render it unsafe to leave a suitably evidenced conclusion to the jury are not closed.” [Emphasis added]
With regards to the decision under challenge, the Divisional Court held at [80-1] that while the Coroner had not expressly stated there was a sufficiency of evidence to leave the conclusion of unlawful killing to the jury, it would be verging on the unreal to say that he had not applied the correct test. There was a sufficiency of evidence, and therefore
“…this was one of the normal run of such cases where that sufficiency of evidence meant that it was safe to leave it…. we cannot persuade ourselves that the lack of a single sentence recording the Coroner’s view that the second limb of “Galbraith plus” was satisfied should lead to his ruling being set aside for want of reasons or other legal error. Although there has been a tendency to treat the “plus” safety aspect as a separate requirement, it is to be remembered that in Palmer, which is generally regarded as the origin of the “Galbraith plus” test, Lord Woolf expressed the test compendiously: “is this a case where it would be safe for the jury to come to the conclusion that there had been an unlawful killing?””
Further, there was no question that the interests of justice required that particular conclusion not to be left to jury despite that sufficiency of evidence – “Reverting to the limited guidance provided by the Court of Appeal in Douglas-Williams, it cannot be said that leaving unlawful killing to the Jury was liable to overburden or confuse them; or that it would not reflect the thrust of the evidence (albeit that the evidence was contentious and contested).”
The Divisional Court appear regretfully to have concluded that the ‘Plus’ element was too deeply entwined into the coronial jurisdiction to be entirely uprooted. Nevertheless, the strength of their critical analysis and extent to which they sought to prune back its wider application suggests that it will be a brave Coroner who on no other basis than a somewhat lack of safety decides not to leave a particular conclusion to the jury. The far safer ground will always be a lack of sufficient evidence.