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

28 July 2018 by

31d3NghdjxL._SY445_QL70_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.


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.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech game birds Gay marriage gay rights Gaza Gender General Dental Council General Election genetics genetic testing Germany Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection happy new year Hardeep Singh Haringey Council Harkins and Edwards Health healthcare Heathrow heist heightened scrutiny Henry VII Henry VIII hereditary disorder Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust Home Office Home Office v Tariq Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty in vitro fertilisation Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberty library closures Libya licence conditions licence to shoot life sentence limestone pavements lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical negligence medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness merits review MGN v UK michael gove Midwives migrant crisis military Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder music Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience news new Supreme Court President NHS NHS Risk Register Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London Offensive Speech oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution Personal Injury personality rights perversity PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning system plebgate POCA podcast points Poland Police police investigations police liability police powers police state police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings post office power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radicalisation Radmacher Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg sumption super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: