Civil standard of proof applies to suicide and unlawful killing conclusions in coroners’ inquests (R (on the application of Maughan) (Appellant) v Her Majesty’s Senior Coroner for Oxfordshire (Respondent))

Civil standard of proof applies to suicide and unlawful killing conclusions in coroners’ inquests (R (on the application of Maughan) (Appellant) v Her Majesty’s Senior Coroner for Oxfordshire (Respondent))

In R (on the application of Maughan) (Appellant) v Her Majesty’s Senior Coroner for Oxfordshire (Respondent) [2020] UKSC 46 the Supreme Court held that the standard of proof required in order to reach determinations of suicide and unlawful killing at inquests is the balance of probabilities, and not beyond reasonable doubt. All inquest conclusions are now to be found to the civil standard of proof. Supreme Court inquest authorities, particularly ones that are not dependent on the requirements of Article 2 of the European Convention on Human Rights, are rare. And Maughan is of great importance for all inquest law practitioners. 

Suicide and unlawful killing are ‘short form conclusions’, i.e. single words/phrases that summarise the result of an inquest, as opposed to ‘narrative conclusions’ i.e. a briefs narrative statements setting out how the deceased came about their death. Generally, the standard of proof in English law is either the civil standard, i.e. whether, on the balance of probabilities, something is more likely than not to have taken place, or the criminal standard, i.e. ‘beyond reasonable doubt’.

James Robottom and Rose Harvey-Sullivan, barristers at 7BR, consider the case. 

The facts

Prior to Maughan, the standard of proof for all short form conclusions other than suicide and unlawful killing was the civil standard. It was only for these two conclusions that the higher criminal standard of proof had been applied; this was established through case law, but was also reflected in the Record of Inquest form that a Coroner is required to fill in at the conclusion of an inquest. 

The case concerned the death of the appellant’s brother, James Maughan, at HMP Bullingdon on 11th July 2016. The inquest was first heard by the Senior Coroner for Oxfordshire, who decided that the jury could not safely reach a short form conclusion of suicide; this was because they could not be sure to the criminal standard of proof that James Maughan had intended to kill himself. The Coroner instead asked the jury to reach a narrative conclusion, setting out whether they believed, applying the lower civil standard of proof, James Maughan had intended to kill himself by hanging.

The Jury concluded that, applying the latter test, he had. Furthermore, they stated that increased vigilance would not have prevented his death.

The appellant, James Maughan’s brother, brought judicial review proceedings against the Coroner. He claimed that the conclusion was unlawful because the Coroner was wrong to have directed the jury to apply the civil standard of proof.

The Divisional Court dismissed the judicial review application. In doing so, it made the startling finding that previous case law on the standard of proof had proceeded on a mistaken basis, and that the correct common law standard of proof for short form and narrative suicide conclusions is the balance of probabilities. The Court of Appeal upheld this decision in respect of suicide. At the request of the intervening Chief Coroner, the Court of Appeal went on to also consider the correct standard of proof for unlawful killing. However, it distinguished the conclusion of ‘unlawful killing’ from others, stating that the criminal standard of proof should continue to apply. 

The Supreme Court, therefore, had to consider not only the standard of proof for a conclusion of suicide, but also unlawful killing. 

Both the Chief Coroner and INQUEST were invited to intervene in the Court of Appeal and in the Supreme Court.

The decision

The Supreme Court was divided 3/2. Lady Arden, with whom Lord Wilson agreed, gave the leading judgment. Lord Carnwath gave a short concurring judgment. Lord Kerr gave a dissenting judgment with which Lord Reed agreed.

Much of Lady Arden’s judgment is concerned with the status of Note iii to Form Two in the Schedule to the Coroners (Inquests) Rules 2013. Form Two is better known as the Record of Inquest form. In essence, the majority held that Note iii – which states that the standard of proof for unlawful killing and suicide is the criminal standard – was merely reflecting Parliament’s understanding of a common law rule (which could thus be altered by the Supreme Court). By contrast, the view of the minority was that in note iii Parliament was stating the law itself. In reaching her decision, Lady Arden took into account of the following factors:

  • there is a general assumption that in civil proceedings, such as coronial proceedings, the civil standard of proof should be applied
  • neither the Coroners and Justice Act 2009 nor the European Convention on Human Rights requires the court to apply a particular standard of proof to conclusions at an inquest
  • the Record of Inquest form, in which it is stated that the standard of proof should be to the criminal standard for suicide and unlawful killing, is contained within the Coroners (Inquests) Rules 2013. The direction on the standard of proof is contained within ‘Note (iii)’ to the Form
  • the Rules themselves were capable of prescribing a standard of proof. However the way in which this Note came about was relevant. The Ministry of Justice had consulted on the Rules, and their response document made it plain that since the standard of proof had been established in case law, the Rules could not change that law. Whilst it is possible for a footnote to lay down a new legal rule, that was not the case here: the Note did not take away the power of the courts to develop the common law by setting out the standard to be applied in statute
  • the previous case law which gave rise to the Note is not binding on the Supreme Court and does not set out a good reason against applying the civil standard of proof for all short form conclusions
  • to apply a different standard of proof for short form and narrative conclusion would lead to an internally inconsistent system of fact-finding
  • Suicides would likely be under-recorded if the criminal standard of proof were required
  • An inquest is not concerned with criminal justice but with investigation of a death; societal attitudes to suicide have changed and this must be reflected
  • Other commonwealth jurisdictions apply the civil standard of proof to these conclusions.
  • In order to ensure consistency for all types of conclusion, the same standard should also be applied to determinations of unlawful killing
  • Therefore, all short form conclusions should be determined on the balance of probabilities

By contrast, Lord Kerr held that there would be nothing untoward in applying a higher standard of proof to determinations of suicide and unlawful killing; this would not create inconsistency. Furthermore, in considering the relevance of Note (iii), Lord Kerr determined that it created a statutory rule as to the standard to be applied. It could therefore only cease to have effect if Parliament were to enact a statutory provision to amend or abolish it.

Practical effect

Many have considered it somewhat artificial to hold the short form conclusions of suicide and unlawful killing to a higher standard than narrative conclusions that could effectively say the same thing (as happened in the original inquest in Maughan). Inquest conclusions are complex, and the discrepancy could be difficult to explain to clients. Further, it left the system liable to conflicting approaches being taken by coroners across the country. In that sense, this judgment applies common sense in requiring consistency across the board. It is also a straightforward, practical shift for coroners to implement: the civil standard of proof is already a well-known and well-used legal principle.

However, whilst the shift to applying the civil standard may be simple, it is also likely to have profound effects within the coronial process. Self-evidently, applying a lower standard of proof to both these determinations will result in more suicide and unlawful killing conclusions. Suicide conclusions play a crucial role in establishing suicide statistics. It is important for preventative purposes that national suicide statistics are accurate.

In turn the change of standard of proof for unlawful killing conclusions is likely to have a significant effect on the interplay between inquests and criminal proceedings. Inquests are prohibited from reaching conclusions that impart civil or criminal liability by s.10 of the Coroners’ and Justice Act 2009. An unlawful killing conclusion connotes a finding by a coroner or jury of an unlawful homicide. Such conclusions can lead to criminal investigation and prosecution (as in, e.g., the second Hillsborough inquests).

It is not unusual for unlawful killing conclusions to be particularly closely fought over at inquests where individuals have died as a result of the conduct of state agents (again, such as at the Hillsborough inquests). A rise in unlawful killing conclusions, however, will not necessarily lead to an increase in criminal investigations and prosecutions arising from these cases; as observed by Lady Arden, the civil standard is applied to the question of whether someone has been unlawfully killed in other jurisdictions e.g. in public family law proceedings or civil proceedings.  The police, CPS and criminal courts will of course continue to work to and apply the criminal standard of proof. Practitioners may therefore need to take particular care in advising clients on the difference between the standards of proof applied under the two systems and in managing expectations. 

The purpose of inquest proceedings

One of the benefits of a case reaching the Supreme Court is that judges can take the decision to change the law on the basis of the need to reflect societal developments and to effect particular changes.  The Supreme Court’s judgment in Maughan will have far reaching practical effects, but it also goes to the very purpose of modern inquest proceedings.

As emphasised by both Lady Arden and Lord Kerr, the strong links between inquests and the criminal process are now matters of historical fact only. Lady Arden observed that instead, ‘inquests are concerned today not with criminal justice… They take a new and different purpose in a case such as this,’ [81] i.e. to ‘identify lessons to be learnt for the future’ [8] and prevent future deaths. Key ways in which this was achieved pre Maughan are through the requirements of Article 2 of the European Convention on Human Rights in appropriate cases, and in coroners issuing Reports to Prevent Future Deaths. But Maughan arguably goes further, and reads this purpose into the finding of suicide conclusions generally.

Lady Arden commented on the changing attitudes towards suicide as one reason to justify lowering the standard of proof required, implicitly rejecting the submission that there is a ‘close affinity between suicide and a criminal offence’ [67] and instead noting that there is no longer such a stigma associated with this cause of death. This reflects society’s changing attitudes towards mental health in general, and marks the fact that the balance is now in favour of reporting suicides whenever they occur in order to ensure statistics are as accurate (and therefore as helpful) as possible.

Quite where this leaves inquests in which there is a finding of unlawful killing is difficult to say; whilst a coroner’s focus is no longer necessarily on ‘criminal justice’, it cannot be denied that this is one area in which there remains an inherent overlap between inquests and criminal investigations and proceedings. Lord Kerr emphasised that where a determination is ‘sufficiently grave or carries significant consequences’ the criminal standard could be appropriate, in order to protect individuals facing accusations [134]. He also questioned the categorisation of inquests as ‘civil proceedings’ [142]. However, it appears the majority were willing to overlook these inconsistencies in favour of ensuring a consistent approach to inquest conclusions, which reflects the purpose of the modern system.

The first edition of LexisNexis’  Coroners' Investigations and Inquests, edited by James Robottom, Rose Harvey-Sullivan, James Weston and Richard Baker, will publish in January 2021. Subscribers can also access the 'Inquest' chapter for APIL Personal Injury: Law, Practice and Precedents Service, authored by Adam Weitzman QC, James Robottom, Rose Harvey-Sullivan and James Weston.

 


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