The case of R (Rizvi) v HM Assistant Coroner for South London [2025] EWHC 3014 (Admin) reaffirmed the correct use of the Galbraith test in an Article 2 inquest, when determining whether there has been a substantive breach of Article 2.

It also cautions practitioners about the risks of criticising how a Coroner assesses evidence. Challenges on Wednesbury grounds require taking the whole of the Coroner’s assessment of the evidence into account, and taking evidential points in isolation to support this argument simply won’t do.

Background

On 20 March 2003, Sabina Rizvi was shot and killed as she drove away from Bexleyheath Police Station with her boyfriend Mark Williams. Mr Williams was a violent career criminal who had just been in the police station with Ms Rizvi. The shooting was orchestrated by Paul Asbury, another criminal known to the police. The police knew there was animosity between Mr Williams and Mr Asbury, with a complaint from Mr Asbury being the reason Mr Williams was at the police station in the first place, and the dropping of charges by Mr Asbury being the reason Mr Williams was released.

An inquest was opened at the time of Ms Rizvi’s death, but adjourned pending Mr Asbury’s trial, and after Mr Asbury’s conviction the decision was taken not to resume it. This was until 12 February 2019, when the Senior Coroner for South London, following concerted efforts from Ms Rizvi’s family, decided that Article 2 of the ECHR was arguably engaged and the inquest should be resumed.

The issue which arose under Article 2 was whether the Police appreciated or ought to have appreciated that Mr Asbury posed a real and immediate threat to Ms Rizvi’s life once she left the police station, and whether they should have taken steps to mitigate that risk.

Following over two weeks of evidence, the Coroner gave a ruling that there was sufficient evidence to establish a real and immediate threat to Ms Rizvi’s life, but insufficient evidence to leave to the jury whether such a risk was or ought to have been known to the Police. It was also found that there was insufficient evidence that there were steps which the Police could reasonably have been expected to take to prevent any risk posed to Ms Rizvi from materialising. No issues as to the omissions or acts of the Police were left to the jury as a result of these findings.

Challenge

An application for judicial review was brought by Mrs Bhupinder Iffat Rizvi, Ms Rizvi’s mother. The application contended that the Coroner’s ruling involved two errors of public law:

1. By determining the matters to be left to the jury based upon whether there was sufficient evidence that the substantive Article 2 ECHR duty had been breached rather than whether such breach was arguable, and added an unnecessary and impermissible gloss to the threshold for assessing whether such a breach had occurred (or was arguable);
2. By eliding the question of whether there had been a breach of the substantive Article 2 duty with that of whether there was sufficient evidence that there were any acts or omissions by the police that were potentially causative of Ms Rizvi’s death which could safely be left to the jury.

Legal framework

Before addressing the grounds of the application further and what the Court decided in relation to them, it is important to look at the legal framework the Court identified, namely the application of Article 2 and the role of the jury and the Galbraith Plus test. Regarding Article 2, the Court recognised that it has a number of elements that can be relevant in an inquest setting but distinguished two which were relevant here.

The first is the procedural element. This is the duty to complete an enhanced and effective public investigation. This must be carried out by an independent public body into any death which occurred in circumstances where a substantive obligation may have been violated, and an agent of the state may be implicated in some way.

The second is the substantive element. This is the substantive duty to protect life, which requires the state to implement a framework of procedures, precautions and laws, as well as a means of enforcement. This can also in some specific circumstances create an operational duty to take positive preventative measures to protect life.

Put simply, once it has been identified that there has been an arguable breach of Article 2, there is a duty to initiate an enhanced investigation to look into the circumstances of that potential breach (an Article 2 inquest). That investigation is then charged with considering whether any there are any substantive breaches of Article 2.

How this substantive duty operates in the context of a case such as this was established by the European Court of Human Rights in Osman v United Kingson (1998) 29 EHRR 245, and the Court in Rizvi identified the two elements that this decision formulated:

What all the above requires in an inquest context are factual determinations about what did and did not happen, and how that all correlates with the duties and requirements the state has under Article 2. These factual determinations are matters for the jury, when a jury is present. The Coroner must direct the jury as to the law and provide the jury with a summary of the evidence for them to make factual conclusions. However, the Coroner must decide whether to leave a conclusion to a jury, by ruling on whether there is a sufficiency of evidence to do so.

This is achieved by applying the Galbraith Plus test, as set out by Haddon-Cave J in R (Secretary of State for Justice) v HM Deputy Coroner for the Eastern District of West Yorkshire [2012] EWHC 1634, based on the classic Galbraith test used in criminal courts. This consists of two questions a Coroner should ask themselves before leaving a particular conclusion to a jury, namely:

a) Is there evidence on which a jury properly direction could properly convict; and

b) Would It be safe for the jury to convict on the evidence before it.

What this means in the coronial context is that the coroner will identify possible factual conclusions and, applying the Galbraith test, decide whether or not to leave these conclusions to the jury. The distinction between the Galbraith and Galbraith Plus test is minimal, and indeed in Rizvi the Coroner decided to use the original Galbraith formulation.

Application of the test

 During the inquest, the Coroner identified three key issues to which this applied:

1. Firstly, whether the Metropolitan Police Service deliberately notified Paul Asbuey and/or others of the whereabouts of Mark Williams.
2. Secondly, whether the Metropolitan Police Service inadvertently notified Paul Asbury and/or others of the whereabouts of Mark Williams.
3. Finally, whether the Metropolitan Police Service knew or ought to have known that an attack would or might take place and whether steps could or should have been taken to prevent it.

The Coroner decided that, applying the Galbraith test, the first two issues could not properly be put to the jury on the evidence before it. The final issue was more complex. The Coroner considered a number of factual matters and came to the following conclusions:

1. The evidence was insufficient such that a properly directed jury could find that the police were or ought to have been aware of any immediate risk to Ms Rizvi’s life from Paul Asbury, and there was insufficient evidence to support the suggestion that the police were or ought to have been aware of such risk from any quarter;
2. The evidence was insufficient to conclude that there were steps the police could reasonably have been expected to take to prevent any risk to Ms Rizvi from materialising, and therefore there is no evidence that the police failed to take such steps.

As a result, the three questions posed above were not put to the jury.

Challenge – Ground #1

The first ground as identified earlier was developed to include three complaints.

The first complaint was whether the Coroner asked themselves the right question. The Coroner said:

‘The question is does any issue remain under Article 2 to leave to the jury to consider? All parties agree on the law which I must apply, with a difference of emphasis and at times interpretation. All parties agree on the test in Galbraith’.

It was argued by Counsel for Mrs Rizvi in this challenge that this was not the correct test. They submitted that the question of whether the Article 2 duty is engaged arises separately from whether there are issues that can properly and safely be left to the jury. They sought to distinguish between the legal issues relating to Article 2 and evidential sufficiency, arguing that the latter was a matter for the jury and the former was not. It was suggested that the Coroner had confused they two separate matters and therefore had been led into error.

The Court was not persuaded by this position and even went as far as to say that this ground was not arguable. The Court decided that the relevant issue for the Coroner was whether there was sufficient evidence for certain issues to be left to the jury, namely the factual issues relevant to a substantive Article 2 complaint. The Court was satisfied that the original ruling addressed the various factual matters that was drawn to the Coroner’s attention, for the purposes of determining whether the evidential threshold had been met for leaving the factual basis of Article 2 to the jury. The Court confirmed that this did not involve simply deciding if there was an arguable Article 2 claim, as Counsel for Mrs Rizvi had submitted. That was a relevant question when determining what type of inquest was to be held (Article 2 or not), but once the evidence had been heard it had gone beyond that stage. The issue for the Coroner was not whether it was arguable, but evidential sufficiency.

The second complaint made under the first ground was whether the Coroner had added an inappropriate gloss to the test for an Article 2 operational breach. The Coroner had stated that:

 ‘In matters involving criminal acts of someone who is not a state agent the level of risk to cross the real and immediate threshold is very high’.

It was argued that this was a mischaracterisation of the test, by failing to take the test in Osman at face value and instead adding on to it by including considerations regarding the level of risk, on top of it being simply real and immediate. The Court noted many previous cases that recognised that the threshold was either high or very high. However, the Court ultimately sidestepped determining the issue, because the Coroner had been persuaded that a risk at the requisite level existed anyway. The Court concluded that the point did not go anywhere as a result.

The final complaint under the first ground was a criticism of the Coroner’s findings about different parts of the evidence. It was argued that the Coroner had failed to distinguish the proper provinces of the Coroner and the jury, and Counsel for Ms Rizvi took the Court to a couple pieces of evidence to argue this. The Court was unpersuaded by this argument. The Court determined that the Coroner’s assessment of the effect of evidence was not unreasonable. The Coroner was at all times fully alive to the differing roles of Coroner and jury and did not trespass into the jury’s realm.

Challenge – Ground #2

The second ground alleged that the Coroner erred in law by only asking the question of whether there had been a breach of the substantive Article 2 duty, rather than also considering whether there was sufficient evidence that there were any acts of omissions by the police that were potentially causative of Ms Rizvi’s death and which could be safely left to the jury, and failing to recognise the distinction between the two.

The Court however found that the Coroner had considered exactly the question that the second ground contends she failed to ask. The consideration of whether there had been a breach of the substantive Article 2 duty had required the Coroner to address the alleged acts and omissions of the Police which it was said were open on the evidence. Having concluded that none of these matters passed the Galbraith test, the Coroner had determined that there were no causation issues to leave to the jury. The Court concluded by stating that causation is not an issue in this context which can sensibly or fairly be approached in the abstract, but only with regard to specific acts or omissions which are alleged to be causative.

Comment

This decision reaffirms that the commencement of an Article 2 inquest does not unconditionally require a Coroner to leave all matters relevant to Article 2 to the jury. If those relevant factual matters do not meet the Galbraith test, it is proper for a Coroner to decide to not leave them to the jury. Whilst an arguable case may be what is required to commence an Article 2 inquest, that position changes once the evidence is heard – evidential sufficiency is key.

What this decision also does is send a warning shot to those wishing to challenge a Coroner’s assessment of evidence. The Coroner in this case heard approximately 10 days of evidence and made detailed findings about the sufficiency of evidence. The challenge sought to criticise the Coroner’s treatment of the evidence by reference to specific isolated parts of it. The judge was not impressed, going so far as to call it an ‘island-hopping expedition in a sea of evidence’. The judge makes clear that this approach is highly unlikely to support a challenge of unreasonableness on Wednesbury grounds. This decision highlights how dangerous it can be to raise arguments on discrete evidential points, without putting them in the context of the Coroner’s entire evidential assessment.

The judgment of this case can be found here.

Dillon is a pupil barrister at Parklane Plowden Chambers.