Bennett, R (on the application of) v HM Coroner for Inner South London & Ors

A coroner deciding whether to leave an unlawful-killing verdict may assess whether the evidence could safely support that verdict. The coroner must respect the jury’s role as fact-finder, but may withdraw a verdict that would be perverse or unsafe.

The English law test for self-defence, based on the officer’s honest belief and the reasonableness of the response in the circumstances believed to exist, complies with article 2 of the Convention on Human Rights. Article 2 does not require the jury direction to reproduce the expression “absolutely necessary”. Police training remains relevant when assessing belief and reasonableness.

A man was fatally shot by a police firearms officer during a rapidly developing incident. The officer believed that the object carried by the man was a firearm, although it was a cigarette lighter. Because the order of the shots could not be determined, the coroner directed that lawful killing required self-defence to be established for every shot. The jury returned that verdict by a majority.

Collins J dismissed a judicial review challenge to the coroner’s refusal to leave unlawful killing. Permission to appeal was granted on whether the coroner had correctly applied the evidential threshold associated with R v Galbraith. The appeal also raised the compatibility of the self-defence direction with article 2 of the Convention on Human Rights and whether the open verdict was presented as a genuine alternative.

1. Appeal dismissed. Waller LJ, with whom Keene and Dyson LJJ agreed, held that the jury had been given a genuine alternative to lawful killing. It was clearly directed that, if self-defence were established for some shots but not all, an open verdict was required because the fatal shot and the order of the shots were unknown. The jury’s lawful-killing verdict therefore established, on the balance of probabilities, that the officer acted in self-defence throughout the incident.

2. Given that verdict, the jury could not rationally have been satisfied beyond reasonable doubt that, for every shot, the officer lacked an honest belief in the threat or responded unreasonably. Even if unlawful killing ought initially to have been left, quashing the verdict and ordering another inquest would serve no purpose.

3. The ordinary English law direction on self-defence complies with article 2 of the Convention on Human Rights. Article 2 did not require the coroner separately to direct the jury using the expression “absolutely necessary”. The officer’s training and understanding of the relevant firearms manual were nevertheless material to whether his belief was honest and his response reasonable. The evidence and summing-up had addressed both matters extensively, so no further direction was necessary.

4. A coroner deciding which verdicts to leave performs a filtering function distinct from that of a criminal judge considering whether there is a case to answer under R v Galbraith [1981] 2 All ER 1060. Facts remain for the jury, but the coroner may consider whether a proposed verdict could safely be reached on the evidence. A verdict may be withheld where the supporting evidence is so weak, vague or inconsistent that the verdict would be perverse or unsafe.

5. The inquiry is evidential. The suitability of an inquest for identifying criminal conduct, and whether particular evidence would be admissible at a criminal trial, are irrelevant. Here, the incident lasted no more than 30 seconds; expert evidence explained how wounds to the back or side were consistent with a rapidly moving confrontation; and the deceased continued to carry what appeared to be a gun. Evidence contradicting the officer’s account was tenuous. An unlawful-killing verdict could not safely have been left.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2007] EWCA Civ 617. The court upheld the refusal to quash the lawful-killing verdict or order a further inquest.

2. Administrative Court: Collins J dismissed the claim for judicial review. He held that the self-defence direction complied with article 2 and that an unlawful-killing verdict could properly be regarded as unsafe. No citation for this decision is stated in the judgment.

3. Coroner’s inquest: The coroner declined to leave unlawful killing. The jury returned a lawful-killing verdict by a majority of nine to two.