The Supreme Court has today handed down judgment in the case of R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [2020] UKSC 46 (13 November 2020). A 5 judge court has concluded on a 3:2 majority that the standard of proof applicable to inquest conclusions of both suicide and unlawful killing should be the civil standard, namely the balance of probabilities, in line with all other conclusions - both short form and narrative – available to coroners and inquest juries.
The appeal to the Supreme Court ends a process which began with the death of Mr James Maughan in a prison cell in 2016. The coroner at the inquest into his death withdrew the short form conclusion of suicide from the jury, on the basis that it could not safely conclude to the criminal standard (beyond reasonable doubt) that the deceased intended to take his own life. The jury was permitted to and did return a narrative conclusion which nonetheless found to the civil standard (on the balance of probabilities) that the deceased intended fatally to hang himself. The subsequent appeals by the family to the Divisional Court, Court of Appeal and now Supreme Court challenged the legality of this approach. Given the importance of the judgment, both the Chief Coroner of England and Wales and INQUEST were made parties to the appeal.
In addition to determining what the standard of proof should be for conclusions of suicide (both short-form and narrative), the Supreme Court was able to go beyond the obiter comments of the Court of Appeal in respect of unlawful killing (namely that the criminal standard should continue to apply) and conclude that unlawful killing should be judged to the same civil standard of proof.
In her leading judgment, Lady Arden explored the absence of any provision within the Coroners and Justice Act 2009 dealing with the standard of proof for inquest conclusions, and the consequent status of the ‘Notes’ to the Form 2 ‘Record of Inquest’ on which a coroner or jury’s conclusion as to the death must be recorded. Note (iii) states –
The standard of proof required 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.”
It was contended on appeal that this note effectively codified the common law position on suicide. Lady Arden’s judgment rejected this position, stating (para 56) that the note reflected the common law as at the date of the 2013 Inquest Rules which gave rise to the form, but did not preclude the development of the underlying common law position itself in the courts after that date.
On the issue of whether the standard of proof for short form and narrative conclusions of suicide should be the same, Lady Arden rejected the appellant’s argument that the lower courts were wrong to diverge from earlier authorities which held the criminal standard of proof to apply to conclusions of suicide. While acknowledging the possible implications of a conclusion of suicide for families, Lady Arden stated (para 68) -
“..the issue of the correct standard of proof for a short form conclusion of suicide has to be decided on the basis of legal principle. The position is that to hold that a criminal standard applies is out of line not only with narrative conclusions but also with the principle applying to civil proceedings generally. I see no reason why the normal legal principles should not apply.”
Rationalising the approach to suicide in this way would have, among other important benefits, the effect of enhancing the recording of suicide statistics which might otherwise be lost in enforced ‘open’ conclusions. Further, reviewing and updating the legal principles applicable to a conclusion of suicide would reflect what Lady Arden terms “an unmistakeable change in society’s understanding and attitude to suicide”. (Para 77)
In extending its consideration to the issue of unlawful killing, Lady Arden’s judgment deals with concerns that applying the civil standard to such conclusions would risk identification, or an increased risk of prosecution, of the person implicated in the killing, or that it would create a risk to public confidence through failed criminal prosecutions following findings of unlawful killing at inquest. The judgment acknowledges that the latter situation can arise even when unlawful killing is found on the criminal standard (Hillsborough being a case in point), and that civil proceedings arising out of unlawful killings risk identification of those responsible for the death in any event.
In conclusion, Lady Arden states -
“..a common standard applying to both unlawful killing and suicide is more consistent with principle and removes an inherent inconsistency in the determinations made at an inquest. It reflects the general rule for the standard of proof in civil proceedings. In short, it seems to me that the arguments in favour of applying the rule that in most civil proceedings the civil standard will apply are stronger than those against, and that this Court should take the opportunity of so deciding. (para 96) I would dismiss this appeal. The standard of proof for all short form conclusions at an inquest is the balance of probabilities.“ (para 97)
The full judgment can be read here https://www.bailii.org/uk/cases/UKSC/2020/46.html