Sean Glaister & Anor, R (on the application of) v HM Assistant Coroner for North Wales (East and Central)

Inquest conclusions of unlawful killing may properly be left to a jury where, on a possible and undistorted view of the facts, evidence could satisfy the six elements of gross negligence manslaughter on the civil standard.

The serious and obvious risk of death need not be imminent. A risk assessment may be a relevant breach where it disciplines the use of information already available and does not depend on information that the assessment itself would have revealed. Potential breaches may be listed separately, provided the jury is clearly directed not to aggregate them improperly. An inquest may identify individuals by role in the conclusion, provided it does not name them or determine criminal or civil liability.

Two judicial review claims challenged an inquest into the death of Benjamin Leonard, who died after falling from the Great Orme during an Explorer Scout trip. The claimants, the Explorer Scout Leader and Assistant Explorer Scout Leader, challenged the coroner’s decision to leave unlawful killing to the jury, the written legal directions, the summing-up, and the inclusion in section 4 of the Record of Inquest of the descriptions “Explorer Scout Leader” and “Assistant Explorer Scout Leader”.

The jury concluded that the death resulted from unlawful killing by the two leaders, contributed to by neglect of the Scout Association. The central questions were whether unlawful killing had properly been left to the jury, whether the directions and summing-up were materially flawed, and whether section 4 unlawfully identified the persons concerned by role.

1. The claims were dismissed. The court applied the ordinary constraints of judicial review. On the Galbraith question, the issue was whether, on a possible view of the facts, evidence existed on which a properly directed jury applying the civil standard could properly conclude that unlawful killing had occurred.
2. The six elements of gross negligence manslaughter were correctly identified. In relation to the first claimant, planning, risk assessment and instructions concerning the Great Orme could potentially constitute breaches. In relation to the second claimant, failing to direct the three boys back to the safe path and leaving them unsupervised on the grassy tops could potentially constitute breaches.
3. The Broughton threshold, Kuddus principle and Rose restriction did not prevent those matters being left to the jury. An immediately obvious risk of death does not require imminent death. A failure to conduct a risk assessment is not invariably incapable of causing death or of satisfying the risk elements. The Rose restriction excludes knowledge that would have been obtained only by performing the very duty alleged to have been breached, but did not apply where relevant information was already available.
4. The list of potential breaches was overinclusive, because some matters were factual considerations rather than breaches capable of satisfying all six elements. That did not materially invalidate the ruling. The jury was repeatedly directed to consider alleged breaches separately and individually, and the agreed factual foundation in section 3 made the basis of the conclusions sufficiently clear.
5. The directions on reasonable care, signalling and the summing-up were not materially flawed. The jury was entitled to consider the evidence about the leaders’ roles, training, the children’s ages and the circumstances of the walk.
6. Section 4 was lawful. The jury was not determining criminal or civil liability, despite applying the ingredients of gross negligence manslaughter to identifiable individuals during its reasoning. The statutory scheme did not require ambiguity. A conclusion could identify individuals by role, while withholding their names.
7. The claims were dismissed with no order as to costs.

First-instance judicial review decision. The judgment records no appeal or permission application.