Maughan: Suicide and Unlawful Killing Conclusions in Inquests

13 November 2020 by Owain Thomas QC

R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [2020] UKSC 46

The Supreme Court has now issued its judgment in this important case for Coroners and inquests dealing with the standard of proof to be applied where the death might have been caused by suicide or unlawful killing.

Everyone who has done an inquest where these conclusions were realistic on the evidence has traditionally gone along with the idea that in order to be satisfied that either conclusion should be returned the criminal standard of proof was required.

This is often seen in practice, particularly where suicide is concerned, as being a way for Coroners to return an open verdict where there is no positive and direct evidence that the deceased intended to take his or her life, even if the surrounding circumstances point clearly in that direction. Such an approach can be welcome to families grieving the loss of a family member.

However, that all changed with the judgment of the Divisional Court and then the Court of Appeal in this case (see my earlier blog post on this judgment here). This long held practice was held to be devoid of a sound legal basis and that given that the inquest was not itself a criminal proceeding then the civil standard ought to be applied. The Supreme Court has now confirmed that that is right, albeit by a majority of 3 to 2.

The result is that all forms of conclusion in the coroner’s court whether narrative or short form are to be rendered on the balance of probabilities. This includes suicide and unlawful killing.

Background

The appeal arises out of the death on 11 July 2016 of James Maughan, at HMP Bullingdon. At the inquest, the Senior Coroner for Oxfordshire decided that the jury could not safely reach a short form conclusion of suicide. This was because the jury could not be sure beyond reasonable doubt that James Maughan had intended to kill himself. The Senior Coroner put questions to the jury and asked them to make a narrative statement of the circumstances of James Maughan’s death on a balance of probabilities. The jury answered the questions put to them by saying that he had a history of mental health issues and that on a balance of probabilities he intended fatally to hang himself and that increased vigilance would not have prevented his death. Thus, the same conclusion was effectively reached by different means.

The Judgment

Did the form issued under the Coroners Rules specify the criminal standard of proof?

There was first a dispute based on whether there was effectively a statutorily prescribed standard of proof for short form verdicts based on the Coroners (Inquests) Rules 2013 which prescribes a form for recording conclusions. Note (iii) states that the standard of proof “required” for short form conclusions of suicide and unlawful killing is the criminal standard and that for other conclusions including narrative conclusions, the civil standard applies.

In many ways the outcome of this issue depended on what the members of the Supreme Court held was meant by the word “required” in Note (iii). The majority held that this formulation was not a distinct endorsement of the criminal standard as a rule independent of the common law position on that question. The dissent, as I note below, takes a more literal approach and holds that the Note is itself a binding statement of the correct standard.

The majority refused to see the note as the specification of a standard of proof but instead a reflection of what was then understood to be the position. They relied on the fact while this is mentioned in the note there is in fact no rule which specifies the standard of proof and (except Lord Carnwath) on the provisions of the public consultation leading to adoption of the Rules.

It is easy to see why this note was not seen as having the decisive impact which was being urged on the Court. While it is possible in some contexts for provisions contained in forms adopted with rules to have this effect and for all elements of statutory instruments including footnotes to change the law and adopt new rules in place of the old, for a provision in the context of a form to change or specify the standard of proof would require clear contextual evidence to signal that this was the case. While the use of mandatory language “required” arguably does to, for this to appear in a Note amongst provisions intended as a reminder of the law for those filling in the form would seem odd.

What is the standard of proof as a matter of legal principle?

On the main question of principle, namely whether the common law recognized a different standard of proof for suicide and unlawful killing, Lady Arden concluded that the civil stand proof applied to short form conclusions of suicide. To apply different standards of proof for short form and narrative conclusions would lead to an internally inconsistent system of fact-finding [71]. While the judgment is mainly concerned with the legal principles underlying the identification of the standard of proof it also refers to the fact that the higher the standard of proof the less likely it is that the prevalence of suicide will be accurately recorded [73-74]. Furthermore, the appeal for special treatment for suicide could not be seen as a compelling one since societal attitudes to suicide have changed and the role of inquests has developed to be concerned with the investigation of deaths, not criminal justice [75-81]. In particular, Lady Arden pointed out that suicide, while originally a crime, is not any longer and has not been since 1961.

Lady Arden held that the civil standard of proof also applied to determinations of unlawful killing [93],[96]. There is then consistency between the determinations made at an inquest [96]. This is something which was raised as a likely outcome in my previous post. The Court of Appeal was bound to find that the criminal standard applied because there was binding authority to that effect. However, Lady Arden took the approach that to allow inconsistent and confusing dual approaches to be applied in the same inquest depending on whether a short form verdict of unlawful killing was being entertained, as opposed to a narrative, was unsatisfactory and that the same principle should apply as to all other civil proceedings. She also rejected the idea that section 10(2) of the Coroner’s Act 2009 which states “may not be framed in such a way as to appear to determine any question of criminal … liability on the part of a named person …” had the effect of specifying the criminal standard.

The judgment on unlawful killing is particularly sensitive because it will lead to determinations that someone  was unlawfully killed being made on the civil standard of proof and in a context where the procedural protections available in a criminal court are not available to someone effectively accused of the killing. The privilege against self-incrimination survives of course but it is questionable at least whether the coroner’s system is effectively equipped to protect the legitimate interests of those accused of being responsible for killing someone else.

The Dissent

The dissent was to the effect that short form verdicts of suicide and unlawful killing should be treated separately and that there was nothing wrong in doing so. They were treated separately because there was case law supporting a different standard of proof and that that case law had been reflected in Note (iii) to the form for recording inquest conclusions. Given that this was introduced as part of the Coroners Rules there was therefore a statutory basis for holding that the standard of proof was the criminal standard and unless and until changed by Parliament that remained the position.

Comment

From a practical perspective inquest practitioners are perhaps unlikely to be persuaded that there is much of a difference between a narrative verdict which says suicide in long form and one which says simply “suicide”. The dissent was, of course, constrained to accept that different standards applied because Note (iii) is clear in stating that the standard is the civil standard for narrative verdicts.

Assigning special significance to short form verdicts as opposed to narratives seems an artificial exercise and one which would have laid special stress on the decision whether to render a short form verdict or a narrative, itself a question of discretion. It was the sophistry of finding that the deceased probably deliberately killed himself but that this was not “suicide” that led the Divisional Court to take the approach that it did and fostering that sort of dual approach does not seem a satisfactory way forward.

The majority judgment does, in my view, reach a result which is more coherent with the considerable body of case law over recent years to hold that, as a matter of common law principle, the criminal standard applies in criminal proceedings but not otherwise. The Supreme Court (and before that the House of Lords) has held in a string of cases that one civil standard applies in all proceedings even where the issues could be cast in terms of the criminal law (see Lord Carnwath’s judgment at [99]). That would be the case for example in professional disciplinary proceedings based on allegations of assault or theft, or in family proceedings where cruelty and neglect are alleged sometimes involving injuries which would easily amount to grievous bodily harm or in plain old civil proceedings which allege fraud. That body of case law would call for the same standard to be applied across the different conclusions to be returned by the Court.

But the narrower point at issue in this case was that it appears that everyone accepts that a narrative verdict touching on the same issues must be reached on the basis of the balance of probabilities. I cannot think of a reason why such a concession should not mean that, for the sake of logic and real world practicality, the same standard should apply regardless of which format of conclusion is under consideration.

It must be better surely to have one consistent standard of proof in a case involving potential unlawful killing regardless of whether the Coroner or jury is being invited to return a short form or narrative verdict. The facts of Maughan itself illustrate the strained position of adopting two different standards of proof for reaching effectively the same conclusion in a different linguistic format. The jury had been directed that they could not consider suicide because the evidence could not at its highest justify such a conclusion bearing in mind the standard of proof. Instead, they were asked to answer a number of questions on the civil standard which resulted in the same overall conclusion. That sort of system would be difficult to explain to lay people and makes little sense. The majority judgment seems to me to provide a logical and consistent approach.

Owain Thomas QC is a barrister at 1 Crown Office Row