New balance of probabilities test for suicide verdict – Owain Thomas QC

28 July 2018 by Guest Contributor

R (Maughan) v HM Senior Coroner Oxfordshire and others  26 July 2018

The received wisdom, supported by all leading texts on coroner’s law is that in order for a Coroner or jury to return a verdict of suicide in an inquest, the fact that the deceased deliberately took his own life must be established beyond a reasonable doubt, or in other words, to the criminal standard of proof.

Jervis states:

At least since 1984 it has been consistently held in England that the standard of proof in suicide cases should be the same as in criminal prosecutions… although there is no crime involved and an inquest is not a criminal trial. The comparative difficulty in obtaining a conclusion of suicide may well mean that official statistics significantly underestimate the occurrence of suicide.

The Form 2 prescribed by the Rules for the purposes of recording the conclusion of the inquest itself specifies that the criminal standard of proof applies for unlawful killing and suicide conclusions. The Guidance issued by the Chief Coroner (at paragraph 56) says the same thing.

Maughan

In an important judgment of the Divisional Court in R (Maughan) v HM Senior Coroner Oxfordshire and others [2018] EWHC 1955 (Admin) that position has now changed. The Court, Leggatt LJ and Nicol J, has found that the standard of proof is the civil standard of proof, i.e. the balance of probabilities. There case may go as the Court gave permission to appeal.

The facts were that the deceased was detained and appeared to have made a ligature with which he hanged himself. The Coroner appears to have accepted that there was no basis upon which the jury could have been satisfied to the criminal standard that the deceased intended to kill himself but he nonetheless left the jury to consider questions directed at this issue but on the balance of probabilities. They duly returned narrative conclusions to the effect that they were satisfied that he deliberately tied the ligature around his neck and probably intended to kill himself.

Suicide has an unusual legal history, that reference in Jervis to the fact that suicide is not a crime reflects the fact that, until comparatively recently, it was. Indeed it is still described in legal textbooks as “self-murder”. It is that legacy of a criminal act which has continued to influence the way in which this issue was treated in the Coroner’s court. This background no doubt explains the lack of any real challenge in Maughan to the Claimant’s central contention that the law required suicide to be established to the criminal standard.

The first issue

If the jury had rendered a conclusion of suicide on the balance of probabilities then it was common ground that this was unlawful but had they? The Court first rejected the argument that by finding suicide on the balance of probabilities they had not returned a conclusion to that effect precisely because it had not been found to be so to the correct standard. The Court rejected this argument as “sophistry” because the reality was that they had indeed concluded that it was suicide and the only issue was whether they were entitled to do so on the basis of the legal test they had adopted.

The second issue: the standard of proof

The Court then turned, of its own motion, to consider whether the underlying premise of this argument was correct.

The first step was to consider the general law as to the standard of proof. In recent times the law has settled so that there are only two standards, the balance of probabilities (“the civil standard”) and the criminal standard (where the fact finder has to be “sure” in order to find something proved).

The background to this clear statement of principle includes cases in the civil and family context where the issues involved either entail momentous consequences for the individuals concerned or are by their nature quasi criminal i.e. the factual matrix is one which could quite easily lead to criminal charges (e.g. fraud, violent behaviour). Is it fair to find these serious allegations proved against an individual with that might entail for their personal and professional lives on a simple test of probability? Well, the courts have answered a resounding yes to that question, and have rejected in forthright terms any suggestion of a sliding scale depending on the seriousness of the allegation or any test based on the supposed inherent improbability of certain events which serves in some way to alter the legal test to be applied to the analysis of evidence (see generally Re H (Minors) (Sexual Abuse: Standard of Proof)[1996] AC 563 (Lord Nicholls at p.586 for the first proposition) and Re B (Children) (Care Proceedings: Standard of Proof)(CAFCASS intervening) [2008] UKHL 35; [2009] 1 AC 11 per Lord Hoffman at paragraph 15 for the second).

Second, the Court refers to a civil case where it was necessary to decide whether someone had committed suicide and, in line with the general civil standard, the Supreme Court has confirmed that the test is the balance of probabilities:Braganza v BP Shipping Ltd [2015] UKSC 17; [2015] 1 WLR 1661, paras 33-35.

Third, the Court went on to look at whether authority in the Coroner’s jurisdiction altered that conclusion. The Court noted that the historic connection between the Coroner and criminal proceedings whereby the Coroner or the jury effectively acted to indict a person for murder or manslaughter was well in the past and that the fact that the Coronial process has no part to the in criminal proceedings provided no basis for the importation of the criminal standard (paras 34-40).

The Court had clearly in mind the particular sensitivities which arise in families when confronted with the possibility that a loved one has taken their own life. But they noted that for every family for whom such a finding has pejorative connotations or religious stigma there is another for whom it is a preferable verdict to an open verdict (see R (Evandro Lagos) v HM Coroner for the City of London [2013] EWHC 423 (Admin), where the claimant positively wanted a determination that his wife had committed suicide rather than an open conclusion because he saw this as necessary to recognise her autonomy and dignity as a human being.  The Court found that it was “not for the law in this area to adopt one conception of human dignity in preference to another”.

These submissions chime with practical experience. There are many cases where families will either push for a verdict of suicide or push for an open verdict and the current standard of proof is a convenient way of falling back on an open verdict in a difficult case. It is easy to see how this sort of inherently subjective approach can potentially lead to the under recording of suicides. The circumstances of cases are often, as here, such that finding evidence of intent to cause death to the criminal standard is difficult and masks what might otherwise be a clear conclusion to the effect that there was a deliberate suicide.

The Court next turned to the common law noting that there should be no presumption of suicide. The Court was careful to analyse the cases as stating not that the criminal standard applied but that there must be adequate positive evidence so as to prove that suicide had occurred as opposed to other more likely possibilities.

The Court also distinguished and declared mistaken R v West London Coroner, ex parte Gray[1988] QB 467, an earlier ruling by the Divisional Court in a case about unlawful killing that the criminal standard applied and noted that Lagos (which was a suicide case and did involve a holding that the criminal standard applied) had been a judicial review where the single judge had been bound by Gray in a way in which they as the Divisional Court, were not.

The Court concluded that although

we recognise that a finding of suicide is a serious matter which can cause serious consequences, this is not a consideration which can in principle or consistently with the approach of the law in civil proceedings affect the legal standard of proof.  We also recognise that the complexities of human psychology may make the requisite intention difficult to prove, even to the ordinary civil standard.  But the fact that the human mind is often hard to fathom cannot be a reason for imposing a higher than normal standard of proof.

Probably Unlawful killing?

There is little doubt in my mind that this ruling is as applicable to unlawful killing as it is to suicide. That is for two reasons.

First the overall tenor of this judgment is that Coroner’s proceedings are not criminal proceedings although they have some relationship with them in that they can precede or follow from an inquest. That is no different than for a range of civil disputes. There is one rule in civil proceedings and the one rule for all civil proceedings principle carries all before it.

Second, while there is a difference between unlawful killing and suicide in that a finding of unlawful killing presupposes that someone (albeit unnamed) has committed a serious criminal offence, where the issue in civil proceedings is whether someone has committed a serious criminal offence the standard of proof is also the civil standard (see Hornal v Neuberger Products Ltd [1957] 1 QB 247).

It will be interesting indeed to see how this is approached. In suicide cases, in my own experience, there may not be enough evidence on either standard of proof to show what the deceased’s intentions were but there will be a significant number of cases where robust inferences from the surrounding circumstances will allow conclusions of suicide to be rendered now that the criminal standard has been swept away.