Supreme Court reduces standard of proof for suicide and unlawful killing in inquest conclusions
Kate WilsonR (on the application of Maughan) (Appellant) v Senior Coroner for Oxfordshire [2020] UKSC 46
The Supreme Court has on 13 November 2020 handed down the judgment in this case concerning the appropriate standard of proof for conclusions at inquests.
Facts
The inquest concerned the death of Mr James Maughan (“JM”) who died whilst in custody at HMP Bullingdon. He was found in his prison cell hanging by a ligature from his bedframe. He had a history of mental health issues and was agitated on the previous evening and threatened self-harm. At the inquest, the Senior Coroner for Oxfordshire decided that a jury could not safely reach a short form conclusion of suicide. This was because the jury could not be sure beyond reasonable doubt that JM had intended to kill himself. The Senior Coroner invited the jury to return a narrative statement of the circumstances of JM’s death on the balance of probabilities. The appellant, JM’s brother, began judicial review proceedings to establish that the jury’s conclusion was unlawful. He argued that the Senior Coroner was wrong to instruct the jury to apply the civil standard of proof when considering whether JM had committed suicide (as part of the narrative conclusion). Both the Divisional Court and the Court of Appeal had dismissed the application, concluding that the standard of proof for short form and narrative conclusions of suicide was the civil standard.
The Decision
By a majority, the Supreme Court decided that the appropriate standard of proof for the short form conclusion of suicide is the balance of probabilities – the civil standard. Lord Kerr and Lord Reed dissented.
Importantly, the Supreme Court went further, and determined that the standard of proof for all short form conclusions at inquest is the balance of probabilities. This includes the short form conclusion of unlawful killing.
Conclusions at inquest can be given by way of a short form (often the use of a single word e.g. suicide) or a narrative conclusion (a brief factual statement). The standard of proof is now the same in both.
Reasons for the decision
The Supreme Court noted the “recent transformation” of many inquests from a traditional inquiry into a suspicious death into an investigation which is to elicit the facts about what happened and in appropriate cases identify lessons to be learnt for the future. The changing social attitudes and the changing scope of inquests was a significant factor in the decision of the majority.
The Coroners and Justice Act 2009 does not state the standard of proof for conclusions at the end of an inquest. The Coroners (Inquests) Rules 2013 (produced pursuant to section 45 of the 2009 Act) contains a note within the Record of Inquest (which is a prescribed form referred to in rule 34) that “the standard of proof for the short form conclusions of ‘unlawful killing’ and ‘suicide’ is the criminal standard of proof. For all other short form conclusions and a narrative statement the standard of proof is the civil standard of proof”. The majority considered that this note amounts to a matter of procedure and effectively represented the law as it stood at that time.
Criticism for the standard of proof for suicide (beyond reasonable doubt, at that time) was not new in 2013 however those drafting the 2013 rules did not consider that it was appropriate to evoke a change in the law via that secondary legislation.
However, the majority in this case found that the Note (iii) does not take away the role of the courts in reviewing the common law.
Lady Arden noted, as had the Court of Appeal, that the provision in the 2013 Rules allowed for the possibility of different standards of proof in the same inquest i.e. beyond reasonable doubt in the short form conclusions of either suicide or unlawful killing but the civil standard in any narrative conclusion. Whilst in many inquests a narrative is often used as an alternative to a short form conclusion, it is possible for both to be used.
Lady Arden, providing the leading judgment, considered that the civil standard should apply for the following reasons:
- The common law does not demonstrate any cogent reason for not applying that standard.
- Inconsistent conclusions could be reached in the same inquest if the law remained as it was. A system of fact-finding on that basis is internally inconsistent and unprincipled and does not meet the standards of a modern, principled legal system.
- The civil standard still results in safeguarding the interests of those adversely affected by the conclusion. It still requires a finding that the deceased took his own life and intended to do so, on the balance of probabilities. It is not enough for the coroner or jury to think that because certain possibilities (e.g. unlawful killing by an unknown person) can be discounted, that suicide must have occurred.
- The criminal standard of proof may lead to suicides being under-recorded and to lessons not being learnt. There is a considerable public interest in accurate suicide statistics as they may reveal a need for social and medical care in areas not previously regarded as significant.
- There has been significant changes in societal attitudes and expectations over recent years, in particular to suicide. Suicide used to be a crime, however it is not any more. Now, the bereaved are awarded in cases where proper precautions have not been taken when a person was at risk of suicide.
- Whist the views of some with certain religious beliefs consider that suicide is a moral sin, this could not be described as the generally prevailing attitude of society.
- The purpose of inquests has changed.
- Other leading commonwealth jurisdictions have also taken this course.
The Supreme Court went further, however, and confirmed that the lower civil standard of proof would apply for the short form conclusion of unlawful killing. This view had been rejected by the Court of Appeal for a number of reasons including a concern about the protection for a person implicated in any conclusion of unlawful killing. It was noted that that person might be less able to enjoy the protection conferred by s10(2) of the 2009 Act (the determination at an inquest may not answer any question of criminal liability on the part of a named person) if the standard of proof was lower.
The Chief Coroner provided arguments before the Supreme Court both for and against the lower standard of proof. The Chief Coroner explained that the application of the criminal standard in unlawful killing cases derives from the fact that coronial proceedings used to be a means for finding criminal liability. It used to be the duty of the coroner’s jury to record the name of the person considered to have committed the offence of murder, manslaughter or infanticide. However, section 56(1) of the Criminal Justice Act 1977 removed this duty.
Lady Arden concluded that the civil standard applied for unlawful killing for the following reasons:
- There is no principled basis for distinguishing the standard of proof of unlawful killing and suicide. A different standard of proof for a short form and a narrative is likely to give rise to confusion and inconsistency. Furthermore, The person implicated is equally liable to suffer prejudice from the findings of a narrative statement, which can be found on the balance of probabilities.
- The Court rejected the argument that public confidence would be lost if an inquest concluded a person was unlawfully killed and yet the criminal prosecution failed. The public are likely to understand there is a difference between an inquest and a criminal trial.
- If there appears to be a risk that criminal proceedings will be brought before an inquest has been completed, the inquest can be adjourned and in some circumstances set out in Schedule 1 to the 2009 Act must be adjourned. This affords some protection to a person who is at risk of prosecution.
Dissenting Judgments
Lord Kerr dissented and Lord Reed agreed with his decision.
Lord Kerr concluded that the criminal standard of proof should remain for both suicide and unlawful killing. He rejected arguments as to any inconsistency between short form and narrative conclusions. There is a clear distinction between a narrative and short form conclusion. A narrative statement recounts the salient evidence and circumstances. In the case of unlawful killing and suicide, it should not constitute a final conclusion on that evidence unless the coroner or jury has become convinced beyond reasonable doubt that it is justified.
Lord Kerr considered that the Note (iii) in the 2013 rules confirmed the existing common law (which was unquestionably that the appropriate standard of proof was beyond reasonable doubt) and it became a statutory rule. It can only cease to have effect if Parliament enacts legislation to amend or abolish it.
Conclusion
Whilst the application of the civil standard of proof to the conclusion of suicide is unlikely to be a surprise, the application of the lower standard of proof in relation to the conclusion of unlawful killing represents a seismic shift in coronial law and procedure.
Unlawful killing includes all unlawful homicide such as murder, manslaughter and infanticide. Death by bad driving cases may only be regarded as ‘unlawful killing’ if they satisfy the ingredients of manslaughter (i.e. gross negligence manslaughter). Although the purpose of an inquest is to record in a judgment-neutral factual way how the deceased came by their death, in cases where there is a possibility of an unlawful killing conclusion appropriate facts may have to be explored which have some bearing on civil and criminal liability. Although pursuant to section 10(2) the identity of the perpetrators should not be given in the determination, there will be some cases where it will be obvious that a particular person is responsible for death. Whilst some will welcome the consistency now between short form and narrative conclusion, this decision will be of concern to others, given that the conclusion of unlawful killing will now be far more easily reached. The Chief Coroner may provide further useful guidance when Guidance Note 17 is updated to reflect this judgment.
See the full judgment here.
R (on the application of Maughan) (Appellant) v Senior Coroner for Oxfordshire [2020] UKSC 46
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