Secretary of State for Justice, R (on the application of) v HM Deputy Coroner for the Eastern District of West Yorkshire & Ors

A coroner deciding which verdicts to leave to a jury must apply a dual safeguard. The coroner must ask both whether evidence exists on which a properly directed jury could properly return the verdict, and whether leaving it would be safe. For gross negligence manslaughter arising from an alleged suicide, the prosecution must establish beyond reasonable doubt, against the same particular defendant, duty, breach, foreseeability, causation and gross negligence. A prison officer’s specific duty to prevent suicide depends on actual or constructive knowledge of that prisoner’s particular suicide risk. Collective or generic knowledge is insufficient. Suicide must also be a reasonably foreseeable response to the alleged conduct. Where these requirements are not met, the verdict should not be left to the jury.

The Secretary of State for Justice sought judicial review of a Deputy Coroner’s ruling during an enhanced inquest into the death of a prisoner who had apparently hanged himself in custody. After hearing evidence over several weeks, the Deputy Coroner decided to leave verdicts of unlawful killing by murder and gross negligence manslaughter to the jury, alongside suicide, accidental death and an open verdict.

The central issues were whether the Deputy Coroner had applied the correct evidential test and whether the evidence was sufficient and safe to support either unlawful killing verdict.

1. Orders. The claim succeeded. The court quashed the Deputy Coroner’s decisions of 28 May 2012 to leave verdicts of unlawful killing by murder and gross negligence manslaughter to the jury.
2. Test for leaving a verdict. A coroner must apply both limbs of the Galbraith approach. The first asks whether there is evidence on which a properly directed jury could properly return the verdict. The second asks whether it would be safe to leave the verdict to the jury. The second limb provides an additional safeguard in the inquisitorial coronial context. The approach was derived from R v Galbraith (1981) 73 Cr. App. R. 124 and applied in the light of R (Bennett) v HM Coroner for Inner South London [2007] EWCA Civ 617. The Deputy Coroner’s direction was deficient because it addressed only the pure Galbraith question.
3. Murder. The evidence did not provide a proper basis for a murder verdict. The neighbouring prisoner’s evidence about a night-time commotion was uncertain. There was no convincing motive, conspiracy, alternative ligature or sign of struggle. The original pathologist had concluded unequivocally that the death was self-suspension hanging using a bed sheet. The reviewing pathologist identified oddities but found no evidence of third-party involvement and could not gainsay the original conclusion. Leaving murder to the jury was therefore unsupported by sufficient evidence and manifestly unsafe, and was, if necessary, Wednesbury unreasonable.
4. Gross negligence manslaughter. Gross negligence causing suicide could in theory amount to unlawful killing. Applying R v Adomako [1995] 1AC 171 and the other authorities, the jury would have to be satisfied beyond reasonable doubt of duty, breach, foreseeability, causation and gross negligence. The relevant risk had to be a risk of death, not merely serious injury. A specific duty on a prison officer to prevent suicide arose only if that particular officer knew or ought to have known of the prisoner’s particular suicide risk. Generic knowledge among prison staff was insufficient. Each element also had to be proved against the same particular officer.
5. Application. The evidence did not establish the necessary duty in relation to any named officer. At most, breach evidence existed against one officer. There was little evidence that spreading a rumour would foreseeably cause suicide, or that such a rumour had in fact caused or contributed to the death. A jury would have been left to speculate among several possible causes. The grossness of conduct was ordinarily a jury question, but the absence of evidence on other essential elements meant that the manslaughter verdict could not safely be left.