Maughan: Supreme Court reduces standard of proof for suicide and unlawful killing inquest conclusions

November 30, 2020

David Sandiford considers the recent Supreme Court judgment in R (on the application of Maughan) v HM Senior Coroner for Oxfordshire [2020) UKSC 46.

On 13 November 2020 the Supreme Court handed down its judgment in the case of R (on the application of Maughan) v HM Senior Coroner for Oxfordshire [2020) UKSC 46.

The SC decided that the civil standard of proof is to apply to both narrative and short form conclusions at inquests where the issue is suicide or unlawful killing.

James Maughan died by hanging in his prison cell. The principal issue at the inquest was whether he intended to kill himself and whether the prison authorities had caused or contributed to his death. The Senior Coroner decided that there was insufficient evidence to enable the jury to safely reach a short form conclusion of suicide on the criminal standard. However, the coroner gave the jury the opportunity to deliver a narrative conclusion on the civil standard. The coroner asked the jury a series of questions and they answered by saying that James had a history of mental health problems, had intended to kill himself and that increased vigilance would not have prevented his death.

There was no short-form conclusion of suicide.

The deceased’s brother applied for judicial review, arguing that the coroner had been wrong to instruct the jury to apply the civil standard. The Divisional Court dismissed the application and concluded that the civil standard applied to both short form and narrative conclusions of suicide. The Court of Appeal upheld that decision.

The issue for the SC was the correct standard of proof and whether that should be the same for both short form and narrative conclusions.

By a majority of 3-2 the SC concluded that the civil standard applied to both. The common-law rule that the civil standard of proof applied to narrative conclusions of suicide while the criminal standard applied to short form conclusions could not be left as it was. It would lead to an internally inconsistent system of fact finding. Coroners’ inquests were not criminal proceedings and save in very rare and particular cases, the civil standard of proof applied in civil proceedings. Retaining the criminal standard for the short form conclusion also made it more likely that suicides would be under recorded and as a consequence important lessons not learned. Times had changed, suicide was no longer a crime and inquests were concerned with the investigation of deaths rather than with criminal justice. Social attitudes and expectations required that the civil standard should apply to both short form and narrative conclusions.

Equally, the SC decided that the criminal standard of proof should not be retained for short form conclusions of unlawful killing. A common standard of proof applicable to both conclusions would be consistent with principle, remove inherent inconsistency and reflect the general rule that the civil standard of proof applies in civil proceedings.

This judgment has brought welcome clarity and consistency. It removes an anomaly that clients often found difficult to understand and made little sense. Juries were probably equally perplexed. This was an unsatisfactory state of affairs in a jurisdiction where the issues are of such importance. The procedure adopted at the original inquest demonstrated the illogicality of the previous position – on the one hand, the jury being directed that they could not consider short form suicide because the evidence at its highest would not justify such a conclusion – but then being asked to answer a series of questions on the civil standard which produced the same overall result.

Another consequence of the judgment will be conclusions of unlawful killing being reached on the civil standard in a jurisdiction lacking the procedural protections available in the criminal courts. There was concern that the name of anyone implicated in a conclusion of unlawful killing be more likely to be identified on the lower standard of proof because that standard may be more easily met. Will the protection that section 10(2) of the 2009 Act is supposed to confer thus be diminished? Although the privilege against self-incrimination remains, this may not be a sufficient safeguard. On the other hand, the judgment will probably come as welcome news to bereaved families. The law has moved forward with this judgment, meaning that the failings of state agents will be more readily recognised and narrative conclusions better hold state agents to account, identifying wrongdoing and systemic failings and with that bringing learning and prevention in both unlawful killing and suicide inquests.