B50 v HM Asst Coroner for E Riding of Yorkshire and Kingston Upon Hull
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stuart-Smith |
| Judgment Date | 23 January 2023 |
| Neutral Citation | [2023] EWHC 81 (Admin) |
| Docket Number | Case No: CO/4304/2021 |
| Court | King's Bench Division (Administrative Court) |
and
[2023] EWHC 81 (Admin)
Lord Justice Stuart-Smith
Mr Justice Fordham
Case No: CO/4304/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT
SITTING AT LEEDS COMBINED COURT CENTRE
Sam Green KC and James Lake (instructed by Gorvins Solicitors) for the Claimant
Richard Wright KC and Janine Wolstenholme (instructed by Hull City Council, Legal Services) for the Defendant
Tim Moloney KC and Angela Patrick (instructed by Hudgell Solicitors) for Interested Party (1)
Jason Beer KC and Jonathan Dixey (instructed by Humberside Police, Legal Services) for Interested Party (2)
Hearing dates: 20/21 October 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 23 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This is the judgment of the Court to which we have both contributed.
Introduction
Lewis Skelton died on 29 November 2016 as a result of being shot twice by the Claimant, an Authorised Firearms Officer (“AFO”) serving with Humberside Police. At the inquest into his death conducted by the Defendant with a jury, the Defendant decided that the issue of unlawful killing should be left to the Jury and, on 15 October 2021, the Jury returned a conclusion that Mr Skelton had been unlawfully killed.
By these Judicial Review proceedings, the Claimant challenges the decision to leave the issue of unlawful killing to the Jury and the Jury's conclusion that the Claimant had unlawfully killed Mr Skelton.
Before us the Claimant (to whom we shall refer by his cipher “B50”) is represented by Mr Sam Green KC and Mr James Lake. The Defendant assistant coroner (to whom we shall refer as “the Coroner”) has adopted a neutral stance but he has made submissions addressing general principles. His submissions were provided in writing by Mr Richard Wright KC and Ms Janine Wolstenholme and orally at the hearing by Ms Wolstenholme. The next of kin of Mr Skelton were represented before us as they were before the Coroner by Mr Timothy Moloney KC and Ms Angela Patrick. Without meaning any disrespect, we shall refer to them as “the Family”. Finally, the Chief Constable of Humberside Police was represented before us as he was before the Coroner by Mr Jason Beer KC and Mr Jonathan Dixey. The Chief Constable and B50 made common cause in opposing the Coroner's ruling and the jury's conclusion, dividing their submissions efficiently and effectively. The Family contend that the Coroner's ruling and the jury's conclusion should be upheld.
Before embarking on the substance of our judgment, we wish to acknowledge the dignity and courtesy that has been shown on all sides when addressing the difficult facts and issues that we have to consider and decide. This applies most particularly to the Family who were present during this hearing as they were below. We do not forget for a second the impact that the events of 29 November 2016 have had: first and foremost upon Mr Skelton, who lost his life; second, upon the Family who lost someone they loved; and third, upon B50 who (whatever the rights and wrongs of what happened) has to live with the knowledge that he killed Mr Skelton and, subject to any conclusions we may reach, the stigma of the jury's conclusion. Everyone must wish with every fibre of their being that the clock could be turned back rather than having to go through the processes and procedures, including this hearing, that have arisen from Mr Skelton's death.
The Grounds for Judicial Review
The Claimant advances three grounds, as follows:
i) The Defendant did not apply the “ Galbraith plus” test correctly in his written decision to leave an unlawful killing conclusion to the jury and thereby erred in law (Ground 1);
ii) The Defendant's decision to leave unlawful killing was an error of law even if he had applied the “ Galbraith plus” test correctly because there was insufficient evidence to support it (Ground 2);
iii) The Defendant's summing-up of the case to the jury was deficient and inadequate (Ground 3).
In brief outline:
i) Ground 1 focuses on the submissions that were made to the coroner about what issues and conclusions should and should not be left to the jury and the Coroner's “Ruling on Conclusions” dated 13 October 2021, to which he added by his “Supplemental Ruling on Conclusions” dated 15 October 2021. It is said that the Coroner failed to consider whether there was evidence sufficient to leave the issue of unlawful killing to the jury in accordance with R v Galbraith [1981] 73 Cr App. R. 124 and the supplementary principle, commonly referred to as the “plus” in “ Galbraith plus”, the scope of which we shall consider below. It is said that this failure to address the proper legal test is an error of law that justifies setting aside the Coroner's decision irrespective of our conclusions on Ground 2;
ii) Ground 2 requires us directly to determine whether or not there was sufficient evidence to satisfy both limbs of the “ Galbraith plus” test;
iii) Ground 3 involves a root and branch attack upon the structure and content of the summing up. By the end of the hearing before us it was common ground (and we agree) that the test to be applied is whether the summing up was so deficient as to render unsafe the jury's conclusion on unlawful killing.
The factual and procedural background
Mr Skelton had a long and significant history of mental ill-health, which included recorded periods of psychosis with paranoia and auditory hallucinations. By 2016, he had been taking Olanzapine, an anti-psychotic medication, for over 5 years. At the time of his death there was no Olanzapine in his system. Mr Skelton had also been in drug addiction treatment for almost a decade. There were no illicit substances in his system at the time of his death. On the morning of his death, he had taken methadone at a therapeutic level, as prescribed.
At about 9.15 am on 29 November 2016, Mr Skelton was observed walking from Durham Street, near his home, and along Holderness Road towards Hull City Centre carrying a small axe similar in size to what is sometimes called (and was called by some witnesses) a hatchet. Between about 9.19 am and 9.25am four 999 calls were made to Humberside Police by members of the public. In various different terms he was described as walking along the road “carrying” or “brandishing” the axe (or hatchet) and “waving it about” or “flapping it about”. In the course of these calls and during CCTV observation, Mr Skelton was identified and Humberside Police were made aware that he had at least some history of mental health problems. It was established that he had not threatened anyone. He had walked in close proximity to members of the public, passing one as he crossed the Mount Pleasant junction. He did not interact with anyone and was described as walking “with a purpose”. From the CCTV compilation that we have seen, it is easy to see why this description was used as Mr Skelton was walking briskly (described by one caller as “marching in a way”) and appearing to take little or no notice of those around him even though at times he passed by or close to other members of the public who were either on foot or, in one instance, on a bike following close behind.
Those calls were received by the Humberside Police in the central command or control hub. The Force Incident Manager (“FIM”) was designated Officer Four. Officer Four first authorised the deployment of Armed Response Vehicles (“ARVs”). She was the Strategic Tactical Firearms Command (“STFC”) or Silver Command. There were four ARVs on duty and all were deployed. Three were over 15–20 minutes away from the centre of Hull. A single ARV was available for immediate deployment, designated LZ11. LZ11 was crewed by two AFOs who were known during the inquest and are referred to in these proceedings as “B50” (the Claimant) and “Charlie”. B50 was acting as Bronze Commander or Operational Firearms Command (“OFC”).
B50 had recently completed his training as OFC in November 2016 and was being mentored by Charlie for the purposes of establishing his operational competence and completing his qualification as OFC. This was the first active firearms incident where B50 had acted in that role. From the outset the officers in LZ11 were told that there was a man walking towards the city centre “with some purpose”, that he was carrying an axe which he was “waving around”, that he had not approached or interacted with anybody, and that there were possible EMDI (emotionally and mentally distressed individual) mental health issues and, maybe, learning disability. They were also told that other ARVs were some distance away and that no dog unit was available: so they were on their own for the time being.
At 9.28am, Officer Four authorised the armed deployment. She briefed B50, describing Mr Skelton's appearance and that he was walking “with a bit of a mission” and carrying a small axe about a foot long. She described him as EMDI. In relation to potential threat, the officers were told that Mr Skelton had not actually approached anybody or interacted with anyone and that he was not threatening anybody. He was assessed as a low risk at the moment though he was walking “with a purpose” and his intent was unknown.
Officer Four provided a working strategy which included:
i) minimising risk to unidentified potential victims and members of the public and maximising safety of unarmed officers and armed officers. The strategy also included minimising the risk to Mr Skelton;
ii) conducting a...
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