26 October 2023

Judicial Review



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In 2021, the Royal Gibraltar Police (‘RGP') instructed Partner, Neil Costa, to represent its interests in HM Coroner's Inquest touching upon the death of Mustafa Dris Mohammed and Mohammed Abdeslam Ahmed.
Gibraltar Litigation, Mediation & Arbitration
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In 2022, two RGP officers challenged the verdicts of the jury in the Coroner's Inquest by way of judicial review. The RGP was an interested party in the judicial review proceedings and instructed Mr Costa to represent them. Officer 1 and Officer 2 challenged the Inquest jury verdict by advancing three grounds, namely that HM Coroner's directions on: (a) the Officers' duty of care owed to those on the RHIB during the pursuit was materially wrong (the 'First Ground'); (b) whether the Officers had breached the duty of care was materially wrong ('Second Ground'); and (c) the threshold for the foreseeability of death was materially wrong ('Third Ground').

By way of a judgment that was handed down in open court on Wednesday 19 April 2023, the Honourable the Chief Justice (the 'Chief Justice') dismissed all three grounds on which the Officers challenged the Inquest jury verdicts. Please find link to the judgment here.

The body that represents the police officers has appealed the judgment, and the RGP has, once again, instructed Mr Costa to represent its interests; this time, in the appeal.

First Ground

On behalf of the RGP, it was disputed that HM Coroner applied a different duty of care in the Inquest. The RGP's position was that the direction was not deficient and that the Claimants had failed to address the court as to how the direction impacted the Inquest's outcome. The Chief Justice held that although HM Coroner's discretion as to the scope of the duty of care owed by the Officers during the Inquest was somewhat stark, it was nonetheless accurate and sufficient – as argued on behalf of the RGP. The Chief Justice found that in chasing a vessel suspected of criminal activity in Spanish waters, the Officers' care and skill required was neither more nor less than that of ordinary citizens. In dismissing the Claimant's first ground, the Chief Justice upheld the Directions of HM Coroner.

Second Ground

The RGP submitted that there was an overlap between the Claimant's First and Second Grounds and that HM Coroner properly requested the jury to consider the acts of Officer 1 to determine whether his control of the RGP vessel amounted to negligently exposing the occupants of the RHIB to the risk of harm. The Chief Justice dismissed the Claimant's second ground and held that although HM Coroner's direction was not as focused as it could have been, in essence it posed the right question.

Third Ground

In response to the Claimant's third ground, the RGP submitted that even if the words 'obvious' and 'serious' would have been inserted into the language of the directions, and even if the court held that their absence constituted a material misdirection, this misdirection would not have made a difference to the verdict reached by the Inquest's jury.

Additionally, and importantly, it was submitted that the Claimants self-evidently accepted that the evidence before the jury was such that HM Coroner was justified in leaving the verdict of unlawful killing to the jury and that it was perfectly proper for the jury to conclude that the two Spanish nationals had been unlawfully killed. Instead, the Claimants' complaint was that HM Coroner materially misdirected the jury as to the law. As a result, Mr Costa argued that the role of the Court was to consider whether HM Coroner misdirected the jury as to the law and, if so, whether the misdirection constituted a material misdirection which impacted the findings of the jury.

The Chief Justice concluded that in all the circumstances the limited misdirection would not have affected the outcome of the inquest and that there was no real risk that justice had not been done or seen to be done.

Overriding Legal Consideration When Seeking a Quashing Order

Mr Costa's core contention was that when the Supreme Court determines whether to quash an Inquest jury verdict, the principles that apply are, as explained in the Gibraltar Supreme Court and Court of Appeal cases of Celecia, those set out in the UK case of Douglas-Williams, namely that:

(a) 'when reviewing the manner in which the Coroner discharged his functions, the court is not to embark upon an overly detailed consideration of the procedure, evidence, or the summing-up, but rather is to enquire as to whether there is a real risk that justice has not been done or seen to be done;

(b) the Coroner, in determining whether to leave a verdict to the jury, is to adopt the Galbraith approach. But he need not leave all the verdicts but may limit himself to leaving 'those verdicts which realistically reflect the thrust of the evidence as a whole';

(c) if a misdirection would not have affected the outcome, then the inquest should not be set aside'.

Additionally, Mr Costa submitted that whereas it was the RGP's position that the legal directions of which the Claimants complained could have been improved, they were adequate and sufficient because they were consistent with the leading authority on gross negligence manslaughter, namely the UK case of R v Adomako [1995] 1 AC 171.

Costs Awarded

On 17 October 2023, the Supreme Court handed down its judgment in relation to costs, which awarded the RGP 50% of its costs. A note discussing the Chief Justice's judgment on costs will shortly be published.


Partner Neil Costa said: 'It has been a privilege to represent the Royal Gibraltar Police as an interested party in the Inquest and subsequently as an interested party in the judicial review proceedings. Personally, I am proud to have represented an organisation that adopted such a principled approach to this case. I would also like to thank my team for their hard work and determination in ensuring that we achieved the best results possible for our client.'

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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