No more reasonable doubt in suicide inquests

20 May 2019 by Dominic Ruck Keene

In R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire v The Chief Coroner for England Wales [2019] EWCA Civ 809, the Court of Appeal conclusively held that the standard for proof for both short form and narrative conclusions concerning suicide was the civil balance of probabilities test, rather than the criminal beyond reasonable doubt.

The decision of the divisional court in R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire v The Chief Coroner for England Wales [2018] EWHC 1955(Admin) to the same effect marked a significant reversal of the commonly understood position that the criminal standard of proof applied – see Owain Thomas QC’s comment here.

Lord Justice Davis gave the only substantive judgment. He began by summarising that in the instant inquest concerning the death of a prisoner who had been found hanging, the Chief Coroner for Oxfordshire had followed the Chief Coroner’s Guidance No 17 and also the guidance contained within the Coroner’s Bench Book. The Coroner had accepted that the evidence on a ‘Galbraith plus’ basis was insufficient to enable a jury, properly instructed, to conclude to the criminal standard that the deceased had intended to take his own life.

However, having so ruled, the Coroner had further decided that it would not be appropriate simply to elicit an open conclusion from the jury and that they should be asked to ask a number of questions in order to elicit a narrative conclusion. In light of the way the questions were framed, the jury had for the purposes of their narrative conclusion, considered whether the deceased had intended fatally to hang himself by reference to the balance of probabilities. Their narrative conclusion included a determination that the deceased had intended to kill himself.

Lord Justice Davis began by emphasising (in a passage that is firmly in the same vein as the recent refusal to grant legal aid to families in inquests involving state bodies) that:

… inquests are not to be regarded as litigation. They are not. They are not criminal proceedings. They are not civil proceedings. There are no “trials” and strictly no “parties” as such at all: rather, there are “interested persons”. The procedural rules and procedural safeguards which may be applicable in criminal or civil proceedings do not apply. As its name connotes, an inquest is essentially, even if not entirely, inquisitorial in nature: the object being to investigate the particular death or deaths (conventionally: “who, when, where, how?”). Thus — whilst the position can perhaps sometimes in practice appear to be less than clear-cut in some particularly highly charged inquests — it is not an adversarial procedure, let alone a criminal procedure, at all.

Lord Justice Davis analysed the relevant authorities concerning the civil and criminal standards of proof and held that the “civil standard of proof, where that applies, is that of the balance of probabilities, without refinement” – there was no scope for a sliding scale or intermediate position or heightened standard of civil proof. However, he observed that this did not mean the criminal standard could never apply in civil proceeding, commenting that “All ultimately will depend on the context and underpinning purpose, statutory or otherwise.”

He then outlined the three possible positions – that the criminal standard of proof should apply for both the short form conclusion of ‘suicide’ and for determinations reached within narrative conclusions; or that the civil standard of proof should apply to both; or that the criminal standard should apply to the short form conclusion but the civil for narrative conclusions.

Lord Justice Davis held that the Divisional Court was right to take the “bold approach in departing from what had been regarded as settled law and practice” and to find that the civil standard of proof applied to both the short form conclusion of suicide and to narrative conclusions This was because there “seems a very real inconsistency in adopting a criminal standard of proof for a short-form conclusion but a civil standard of proof in a narrative conclusion.” There should be one standard applicable at each stage for cases of suicide at an inquest.

He then held the appropriate standard should be the civil one. This was on the basis that:

• “The essence of an inquest is that it is primarily inquisitorial, that it is investigative. It is not concerned to make findings of guilt or liability (even though I accept that not infrequently a narrative conclusion may in practice, to an informed participant, operate to identify individuals as potentially at fault). The underpinning rationale for the need to have a criminal standard of proof in criminal proceedings simply has no obvious grip in inquest proceedings, given their nature.”
• Suicide was no longer a crime.
• Civil courts generally applied the civil standard even where the proposed subject could constitute a crime – “There is no sliding scale or heightened standard. There is no discernible reason why a different approach should apply in coroner’s proceedings, at all events in relation to suicide (which is not even a crime).”
• The importance in Article 2 inquests of answering the question ‘how’ with a proper investigation of the circumstances of the death strongly supported the use of the civil standard.
• Fifth, the application of the civil standard to a conclusion of suicide expressed in the narrative conclusion would “cohere with the standard which is on any view applicable to other potential aspects of the narrative conclusion (for example, whether reasonable preventative measures should or could have been taken and so on).

However, and contrary to many predictions, Lord Justice Davis held that the standard of proof in unlawful killing inquests should continued to be the criminal standard.

He held that firstly this was in accordance with the previous Court of Appeal authority in R v Wolverhampton Coroner, ex parte McCurbin [1990] 1 WLR 719. Moreover, as point of principle there should be a distinction between unlawful killing and all the other conclusions open to an inquest as unlawful killing constituted a crime. In reality, while s.10(2) of the 2009 CJA Act precluded a determination having the appearance of determining any question of criminal liability on the part of a named person, a conclusion of unlawful killing

has a strong “head line” connotation; and quite often — as a number of decisions have pointed out — the identity of the particular alleged perpetrator(s) will in reality have become manifest from the hearing itself. It could be thought fairer to such person(s) that the criminal standard applies.

In addition, the CPS will ordinarily reconsider a decision whether to prosecute or not if a verdict of unlawful killing is reached in an inquest.

Comment

As was noted following the Divisional Court’s judgment, the application of the civil standard to both determinations within narrative conclusions and also to the short form conclusion of suicide will almost inevitably result in more inquests finding that there has been a suicide. The lower standard of proof must lead to a greater potential for arguing from circumstantial evidence that the deceased intended to take their own life.

Dominic Ruck Keene is a barrister at One Crown Office Row.