R (Glaister & Carr) v Assistant Coroner N Wales E&C (Family of Ben Leonard)

Hearing dates: 17–18.12.24

Draft judgment: 20.1.25

Approved Judgment

This judgment was handed down virtually at 10am on 30.1.25 by being circulated to the parties and uploaded to the National Archives.

Introduction

This case is about a coroner's inquest which arrived at conclusions of unlawful killing. Benjamin David Leonard was born on 1 November 2001. Ben died on 26 August 2018 at Great Orme in North Wales. The medical cause of Ben's death was a head injury. All of this was recorded by the jury in Sections 1, 2 and 5 of the Record of Inquest (ROI). The jury's unanimous conclusions of unlawful killing were delivered on 22 February 2024 and contained in Section 4.

The Coroner issued a Prevention of Future Deaths Report, dated 22 February 2024, pursuant to the Coroners and Justice Act 2009 Act Sch 5 §7 and reg.28 of the Coroners (Investigations) Regulations 2013. That Report was published on the Courts and Tribunals Judiciary website (reference 2024-0106). It sets out the contents of Sections 3 and 4 of the ROI. It also explains the passage of time. The inquest investigation had commenced on 26 August 2018. There had been a 5-day hearing from 3 to 7 February 2020, at which it became apparent that the coroner's court had been misled, resulting in the jury being discharged. A second 4-week inquest hearing was due to proceed on 2 November 2022, but it was aborted due to material non-disclosure.

The inquest involved 32 hearing days (starting on 4.1.24). The Coroner gave the jury a list of 15 Topics. There was live evidence from some 20 witnesses, and evidence was read to the jury from another five. At the start of his two-day summing up (Monday 19.2.24), the Coroner provided the jury with written legal directions (WLDs) and a route to conclusion (RTC). He went through these documents orally, before turning to his summing up of the evidence.

After all the evidence had been heard there had been a hearing (Sunday 18.2.24) in the jury's absence, at which the Coroner had given an oral ruling (“the Ruling”) to leave unlawful killing for the jury to consider, in respect of each of the Claimants. Written submissions on that question had been filed by all interested persons. No advocate sought to make oral submissions. In the Ruling, the Coroner identified and applied the Galbraith principle, by which (see R (Officer B50) v HM Assistant Coroner for East Riding of Yorkshire and Kingston Upon Hull [2023] EWHC 81 (Admin) at §54):

if on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the deceased was unlawfully killed, then the coroner should allow that issue to be tried by the jury

The so-called “plus” aspect of Galbraith – which concerns “safety” as opposed to sufficiency of evidence – features in this case only in terms of the warning in R v Inner South London Coroner, ex p Douglas-Williams [1999] 1 All ER 344, 348–349 that “to leave all possible verdicts could in some situations merely confuse and overburden the jury” ( Officer B50 at §41), so that ( Officer B50 at §45):

if the procedure adopted (eg. with regard to a large number of possible verdicts being left) is apt to confuse the jury so that there is a risk of them bringing in a wrong verdict because of confusion or misunderstanding, the wider interests of justice are not being served and steps must be taken to remedy the position .

These judicial review proceedings involve two claims, heard together. The Claimants are the individuals described in the ROI as the “Explorer Scout Leader” (Mr Glaister) and the “Assistant Explorer Scout Leader” (Ms Carr). Ben's family appeared as a participating Interested Party, resisting the claim for judicial review. The Scout Association also appeared, raising points which – expressly and carefully – would arise for consideration only if the claim succeeded and the Court needed to consider the question of the appropriate remedy.

Ben was 16. He was on an explorer scout weekend away. It was the bank holiday weekend: Saturday 25 to Monday 27 August 2018. The explorer scouts were from the 1st/4 ^th Reddish, based at a scout hut in Stockport. They were camping at Swallow Falls at Betws-y-Coed in the Eryri National Park (Snowdonia). As well as Ben, there were three other 16 year olds (Chris Gilbert, Child A and Child B both anonymised at the inquest). There were a 15 year old (Alex Jamieson); two 18 year olds (Mac Goodwin and Jack Glaister); one 19 year old (Aidan Burns); and one 20 year old (Joseph Hilditch). There were three leaders. All three were volunteers. Mr Glaister (the First Claimant) was aged 54 and was the Explorer Scout Leader. He was also Jack's father. He accepted at the inquest that he was leader for the weekend. The jury heard that he had joined scouting in June 2012; had undertaken 17 modules of leadership training between October 2014 and November 2017; and had attended a “hill-walking day” in April 2016. Ms Carr (the Second Claimant) and Gareth Williams, both aged 26, were Assistant Leaders on the weekend. Ms Carr accepted (Day 16) that she was “leading the walk” up the Great Orme. The jury heard that she had joined scouting in April 2016; and had undertaken a first three modules of leadership training in April 2018. Mr Williams was the Assistant Scout Leader, who had joined scouting in February 2014. He told the jury (Day 12) that he was “basically another car to use as transport”. Nobody suggested that unlawful killing could be a proper conclusion in respect of Mr Williams and the Coroner left unlawful killing to the jury only in relation to Mr Glaister and Ms Carr.

Section 4 of the ROI

The jury recorded the following conclusion at Section 4:

4. Conclusion of the jury as to the death. Unlawful killing by the Explorer Scout Leader and Assistant Explorer Scout Leader contributed to by the Neglect of the Scout Association .

Section 3 of the ROI

The jury recorded the following findings in Section 3 (numbering in square brackets in quotations is mine):

3. How, when and where … the deceased came by his death. [1] Ben was on a 3-day Explorer Scout trip in North Wales with 3 leaders and 8 other Explorer Scouts. Prior to the trip, Ben had undergone a circumcision. [2] On the day of arrival, the Assistant Explorer Scout Leader took all the Explorer Scouts on a 3-hour unplanned hike without the other leaders. The next day's plan of going up Snowdon was rearranged due to poor weather conditions. They instead went to Llandudno. [3] After breakfast, the Explorer Scout Leader and his son left to move his car. The two other leaders and remaining Scouts walked through the town towards the Great Orme. There was no brief, instructions or written risk assessment done. [4] The group then proceeded up the Orme led by the Assistant Explorer Scout Leader, with the Assistant Scout Leader at the rear. Ben and two other Explorer Scouts split off from the main group, taking a different path up the Orme. Part way up the Orme, the Assistant Scout Leader paused and broke away from the group. [5] Near the top of the Orme, the Assistant Explorer Scout Leader saw Ben and the two other Scouts on the grassy tops. The Assistant Explorer Scout Leader did not give any instructions to regroup, or to stay on the safe path. Ben and the two other Scouts were left unsupervised and proceeded to walk to the cliff edge. [6] Ben complained of discomfort due to circumcision. [7] Ben thought he could see a quicker way down the Orme and attempted to follow animal tracks down the cliff edge. During his descent, Ben slipped and fell from the cliff. [8] Paramedics attended the scene and performed medical interventions and CPR. Ben was pronounced dead at 14:45 on the 26 ^th August 2018 due to head injury .

An Agreed Factual Foundation

Section 3 of the ROI stands as including the jury's “agreed … factual foundation” for Section 4. The Coroner had directed the jury that they were obliged to follow the WLDs. One of the WLDs, which nobody in this case has criticised, told the jury clearly that (emphasis added):

you are required to record your ultimate conclusion in Section 4. This should not be considered until you have agreed the factual foundation for it in Section 3 .

I add these points, so far as the link between Sections 3 and 4 is concerned. The Chief Coroner's Guidance No.17 says at §18 that, even in a complex case, the “short-form conclusion” in Section 4 “in combination with” the answer to ‘how’ in Section 3 “will often be sufficient to ‘seek out and record as many of the facts concerning the death as the public interest requires’”. Guidance No.17 refers at §19 to “key questions of fact” which the jury may “decide” in Section 3. Jervis on Coroners §13-03 says it is “critical” that the facts found and recorded in Sections 1–3 should disclose a “factual basis” for the conclusion in Section 4. In Officer 1 and Officer 2 v HM Coroner for Gibraltar 2024/GCA/007 at §8 Sir Maurice Kay (as...