Inquest blog series – Submissions at conclusion of inquest: Galbraith Plus and causation submissions

The evidence has been heard and, under Rule 23, it has been read.  Counsel for the interested persons (IPs) have asked the live witnesses the questions that they hope will paint the factual narrative favourably for their clients.  The coroner, or the jury, must now distil from the evidence factual findings to be placed on the Record of Inquest.  This part of the inquest is often rich with legal submissions, which seek to guide the coroner on what may appropriately and lawfully be entered onto the record, and on what may lawfully be put to the jury (if one is sitting).  In what are otherwise inquisitorial proceedings, this part of an inquest can feel distinctly adversarial, with different IPs often taking starkly different positions.

The Record of Inquest

Section 10 of the Coroners and Justice Act 2009 (CJA 2009) dictates what must be recorded at the conclusion of an inquest: “After considering the evidence given…, the senior coroner (if there is no jury) or the jury (if there is one) must make a determination as to the questions mentioned in section 5(1)(a) and (b)”.  Those questions are ‘who’ the deceased was, and ‘how’, ‘when’ and ‘where’ the deceased came by his or her death.  These determinations are recorded in what is called the Record of Inquest, which has 5 boxes to be completed:

1. The name of the deceased (if known).
2. The medical cause of death.
3. How, when and where, and for investigations where s.5(2) CJA 2009 applies, in what circumstances the deceased came by his or her death.
4. The conclusion of the coroner or jury as to the death.
5. Further particulars: date and place of death; name and surname of deceased, sex, maiden name (if applicable), date and place of birth, and occupation and usual address.

Boxes 1, 2 and 5 ordinarily are uncontroversial, with the requisite information drawn from public records and the post-mortem report.  The ‘when’ and ‘where’ parts of Box 3 ordinarily are uncontroversial too.  It is the ‘how’ / ‘in what circumstances’ parts of Box 3 and the conclusion at Box 4 that so often elicit substantial and contentious submissions from IPs.  Those submissions are fuelled by the non-family IPs’ desire to avoid criticism and the family’s desire for vindication, which may include a desire to bring a civil claim against other IPs.

Legal submissions: enabling or foreclosing what goes on the Record of Inquest

The legal issues for determination will, in part, be informed by the past decisions of the coroner at the pre-inquest review stage. (This is covered in Jennifer Wright's blog post here.)  Most pertinent will be the coroner’s past decisions on whether Article 2 of the European Convention on Human Rights (ECHR) applies and whether to empanel a jury under s.7 CJA 2009.  Article 2 applying may alter the nature, scope and tone of the entries at Boxes 3 and/or 4.  If a jury is empanelled, it is tasked with making the factual findings to enter into those boxes, whilst the coroner is tasked with directing the jurors and ensuring that their factual findings are lawful.  This may include the coroner deciding whether certain factual findings must be excluded from the jury’s consideration.  Legal submissions will be invited by the coroner to assist her on the parameters of what may be entered into Boxes 3 and 4.  In a jury inquest, these legal submissions will be made when the jurors are absent from the courtroom, and prior to the coroner’s delivery of her summary of evidence to them.

It is worthwhile briefly setting out the legal difference between an Article 2 inquest (sometimes called a Middleton inquest) and a non-Article 2 inquest (sometimes called a Jamieson inquest), and the likely differences that arise in terms of the entries to be made at Boxes 3 and 4.  Box 3 expressly refers to s.5(2) CJA 2009.  That statutory provision incorporates into domestic law Article 2’s imposition of an enhanced investigative duty “where there are grounds for suspecting that a death may involve breach by the State of one of the substantive obligations imposed by article 2”.[1]  In an Article 2 inquest, the ‘how’ question in Box 3 expands from “by what means” to “by what means and in what circumstances” the deceased came by his or her death.[2]   The Record of Inquest, therefore, may require expanded factual detail.  In Box 4, there is to be recorded either a short-form conclusion (such as ‘natural causes’, ‘suicide’ or ‘drug-related death’) or a lengthier narrative conclusion, or a combination of the two.  In an Article 2 inquest, a narrative conclusion is more likely.[3]  In an Article 2 inquest, the coroner has a power to record (or leave to the jury) for the purpose of a narrative conclusion circumstances that are possible but not probable causes of death.[4]  These possible causes may inform the content of a Report to Prevent Future Deaths.[5]

It can be seen that in an Article 2 inquest, public authority IPs are vulnerable to adverse findings of fact.  IPs can draw some comfort from s.10(2) CJA 2009, which prohibits the coroner or the jury from making a determination “framed in such a way as to appear to determine any question of (a) criminal liability on the part of a named person, or (b) civil liability”.  Yet, in an Article 2 inquest it is permissible for there to be “a judgmental conclusion of a factual nature, directly relating to the circumstances of the death”.^[6]  Judgmental words may be recorded at Box 3 or Box 4 or both.[7]  What is recorded could become a launchpad for civil proceedings against an IP, form the basis of a Report to Prevent Future Deaths concerning the IP’s acts or omissions, or at the very least result in bad press for the IP. 

Therefore, at the close of evidence legal submissions are made to enable or foreclose the opportunity for certain factual findings to be recorded in the Record of Inquest.  Common issues for which legal submissions are made include:

1. Whether a short-form or narrative conclusion should be recorded.

2. Causation – see further below.

3. In a jury inquest, what are to be the key questions of fact to be determined by the jury.

4. In a jury inquest, what legal directions are to be provided to the jury.  This may include submissions on whether certain conclusions must be removed from the jury’s consideration – see further below.

5. In some inquests, argument will be heard on whether Article 2 (still) applies.  After the evidence has closed, it may be necessary to re-visit the question of whether there are grounds for suspecting that the death may have involved a breach by the State of the substantive obligation at Article 2.[8]

Galbraith Plus

Expanding on point 4 above, in deciding whether to leave a conclusion to the jury, the coroner must make a judgment on the sufficiency of evidence.  IPs may take opposing views on which conclusion(s) the evidence properly leads to.  For example, a police IP may hold the view that there is insufficient evidence for a short-form conclusion of ‘unlawful killing’ and that the only determination that could properly be left to the jury is the choice between ‘lawful killing’ and an ‘open’ conclusion. The family may hold the view that the evidence properly leads to a conclusion of ‘unlawful killing’.[9]

The Galbraith Plus test is used to guide the coroner’s decision on which conclusions are to be left to the jury.  Galbraith[10] was a judgment of the Criminal Division of the Court of Appeal.  It held that when a judge concludes that the prosecution evidence, taken at its highest, was such that a jury properly directed could not properly convict, it is the judge’s duty to remove the case from the jury.  The ‘Plus’ part of Galbraith Plus is a second limb added by the courts for inquests.  Under the Galbraith Plus test, as formulated in R (Secretary of State for Justice) HM Deputy Coroner for the Eastern District of West Yorkshire,[11] the coroner must direct herself to two questions. Is there sufficient evidence upon which a jury properly directed could properly reach a particular conclusion?  If so, would it be safe on the evidence for the jury to reach that conclusion?[12]  The addition of the second limb has been justified on the basis of the different approaches in criminal courts and coroners’ courts: “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”.[13]  The two-stage exercise has been explained as follows: the first limb is a matter of “judgment” – “if there is insufficient evidence, the coroner does not have a true discretion to leave it to the jury”; whereas the second limb provides the coroner with “discretion in an appropriate case, and when the interests of justice require it, not to leave a [conclusion] to the jury, even though on the Galbraith test there is evidence to support it”.[14] 

The second limb raises the – not insignificant – questions of what is meant by ‘unsafe,’ and in what circumstances it is appropriate for a coroner to use her discretion to withhold a conclusion from the jury when there is sufficient evidence for that conclusion to be reached.  In the recent judgment of R (Officer B50) v HM Assistant Coroner for the East Riding of Yorkshire and Kingston Upon Hull,[15] the Divisional Court revisited the Galbraith test in the context of inquests and sought to address these questions.  Although the Court doubted that there should be a second limb bolted onto the Galbraith test, it ultimately held that “it is established by authority that is binding upon us that there is some (if small) distinction between the position of a coroner … and of a judge [at] the conclusion of the prosecution case”.[16]  The Court continued:

“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 [in R (Chidlow)] 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.”[17]

The Galbraith Plus test therefore survives – just about.  The coroner is to consider both limbs, although she may do so “compendiously”[18] and she must not “usurp[…] the proper function of the jury”.[19]   One cannot help but think that the Divisional Court would have abandoned the ‘Plus’ part of the test if it were not bound by the higher courts and that its judgment goes as far as was possible without expressly doing so.  What is clear from the judgment in Officer B50 is that reliance on the second limb is to be infrequent.  What is less clear is when it will be appropriate for a coroner to utilise that “small” area of discretion that differentiates the Galbraith Plus test from the unadulterated Galbraith test.  In that regard, the Divisional Court in Officer B50 endorsed a passage from R v Inner South London Coroner, ex parte Douglas-Williams (emphasis added):[20]

“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 [conclusion] should be left to the jury, he need not leave that [conclusion]. He, for example, need not leave all possible [conclusions] just because there is technically evidence to support them. It is sufficient if he leaves those [conclusions]  which realistically reflect the thrust of the evidence as a whole. To leave all possible [conclusions] 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 [conclusion].”

In light of this judgment, it seems likely that legal argument on the application of the Galbraith Plus test will become more frequent and more contentious between IPs, in particular concerning the conclusions of ‘unlawful killing’ and ‘suicide’.

Causation

In jury inquests the Galbraith Plus test is intertwined with the issue of causation.  Causation issues, of course, arise in jury and non-jury inquests alike.  In R (Tainton) v HM Senior Coroner for Preston & West Lancashire,[21] the Divisional Court observed as follows about causation (emphasis added):

“… it is common ground that the threshold for causation of death is not the same thing as the standard of proof required to prove causation of death. In cases such as this, the latter is proof on the balance of probabilities. It is agreed that the threshold that must be reached for causation of death to be established, is that the event or conduct said to have caused the death must have 'more than minimally, negligibly or trivially contributed to the death' … Putting these two concepts together, the question is whether, on the balance of probabilities, the conduct in question more than minimally, negligibly or trivially contributed to death.”[22]

Acts or omissions which, on the evidence, were probably causative of the death must be put on the Record of Inquest.  To take an example act or omission, it might be said that a delay in the attendance of an ambulance was causally linked to the death.  In a jury inquest, the question arises whether that issue of causation may be left to the jury.  Applying the Galbraith Plus test, the question of a causal link between that delay and the death should be left to the jury if there is sufficient evidence upon which the jury could safely find that, on the balance of probabilities, such delay had more than minimally, negligibly or trivially contributed to the death.[23]  A coroner also has a discretion, but not a duty, to record causes of death that were merely possible but not probable – and to leave that determination of fact to the jury.[24] 

In complex cases, the Court of Appeal has recommended the following steps at the close of evidence: (1) the coroner puts before the IPs a draft written statement that she intends to give to the jury during her summing up, setting out the matters which the law requires in relation to each possible conclusion, (2) counsel (or other legal representatives present) then make representations on the statement, (3) the coroner rules on the conclusions that are to be left to the jury, and (4) a final written statement (amended in light of above, if necessary) is handed to the jury.[25]

One final submission, if I may, Madam

As can be seen, once the evidence has closed multiple legal issues might arise on which rich legal submissions are delivered by counsel, as they seek to shape the parameters of what may and may not be recorded on the Record of Inquest.  This stage of an inquest provides fertile ground for extreme positions on what the coroner may lawfully do.  Despite the complexity of the legal issues of the force of submissions on them, it is also well worth bearing in mind the recent dicta of the Lord Chief Justice, Lord Burnett in Morahan:[26]

“An inquest remains an inquisitorial and relatively summary process. It is not a surrogate public inquiry. The range of coroners' cases that have come before the High Court and Court of Appeal in recent years indicate that those features are being lost in some instances and that the expectation of the House of Lords in Middleton of short conclusions in article 2 cases is sometimes overlooked. This has led to lengthy delays in the hearing of inquests, a substantial increase in their length with associated escalation in the cost of involvement in coronial proceedings. These features are undesirable unless necessary to comply with the statutory scheme.”

One can expect Lord Burnett’s words to be cited by counsel too.

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Authors

Peter Laverack

Call 2015

Related areas

Inquests

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