Civil Standard of Proof Applies to Inquest Conclusions of Suicide and Unlawful Killing, Supreme Court Rules.

The Supreme Court last week handed down its much-awaited judgment in R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [2020] UKSC 46. By a 3-2 majority, the Court held that in inquests the civil standard of proof applies to all short-form and narrative conclusions of suicide. The civil standard should also apply to findings of unlawful killing, the Court ruled. Ryan Ross considers the implications of the Supreme Court’s decision.

Facts.

The appeal arises from the death of the Appellant’s brother, James Maughan. On 11 July 2016, he was found hanging in his prison cell. Mr Maughan was pronounced dead shortly thereafter. He had a history of mental ill-health and had been agitated the previous evening; he had also threatened to self-harm.

A jury inquest was held into Mr Maughan’s death. The coroner decided that the jury could not safely reach a short-form conclusion of suicide on the criminal standard of proof (i.e., that the jury were sure). However, the coroner felt that the jury should have the opportunity to make a narrative statement of the circumstances of Mr Maughan’s death on the civil standard (the balance of probabilities). The jury concluded that, given his history of mental ill-health, it was more likely than not that Mr Maughan intended to hang himself. No short-form conclusion of suicide was made.

The High Court and Court of Appeal.

The coroner’s directions to the jury were challenged by way of judicial review to the High Court: [2018] EWHC 1955 (Admin). It was argued that the jury’s conclusion was unlawful, with the Appellant arguing that a conclusion of suicide at an inquest can only be returned if suicide is proved to the criminal standard. The High Court disagreed. Leggatt LJ and Nicol J held that inquests, as opposed to criminal proceedings, were civil in character and that the civil standard of proof was therefore appropriate in both short-form and narrative conclusions. There was no binding authority to the effect that a conclusion of suicide must be reached on the criminal standard, the Court held.

The Appellant appealed to the Court of Appeal: [2019] EWCA Civ 809. Davis LJ (with whom Underhill and Davies LJJ agreed) noted that the High Court had adopted a ‘bold approach’ in departing from settled practice. Nevertheless, the Court of Appeal found that the civil standard was the appropriate standard of proof to be applied in inquest proceedings involving suicide.

However, in obiter remarks, Davis LJ commented on the inappropriateness of the civil standard to findings of unlawful killing. The Court agreed with submissions made by the Chief Coroner of England and Wales, who had intervened in the appeal, that unlawful killing connotes a crime and that case law was clear that the applicable standard of proof was the criminal standard.

The Supreme Court.

Two issues were before the Supreme Court: (i) does the civil or criminal standard of proof apply in inquest proceedings in cases involving suicide; and (ii) does the answer depend on whether the determination is expressed as a short-form or narrative conclusion?

The Appellant submitted that the Court of Appeal and High Court were wrong in not following earlier decisions. A conclusion of suicide should only be reached on the criminal standard, it was argued, given the implications on the deceased’s family (who often have a limited role in inquest proceedings). Furthermore, amongst other reasons, the Appellant submitted that the note to the form by which results of an inquest are recorded states that suicide must be established to the criminal standard.

The Supreme Court disagreed (Lady Arden, Lord Wilson and Lord Carnwath). Giving the leading judgment, Lady Arden (with whom Lord Wilson concurred) held that there was no legal authority for the criminal standard to be applied. It was accepted that the note to the form made explicit reference to the criminal standard. However, Lady Arden stated that the note was merely a reflection of the common law, not a codification of it (a point which Lord Carnwath, in his short judgment, also made). Lady Arden concluded that the civil standard of proof should be applied in conclusions of suicide on the grounds that: (i) inquests were civil proceedings and there was no cogent reason in common law for applying the criminal standard; (ii) the criminal standard may lead to suicides being under-recorded or lessons not being learnt; (iii) following changing societal attitudes, suicide is no longer regarded as a mortal sin (and no longer punished by law); and (iv) leading commonwealth jurisdictions have also adopted the civil standard of proof.

As to conclusions of unlawful killing, Lady Arden held that the civil standard should also be applied: to apply different standards of proof to different conclusions would be confusing. Moreover, Lady Arden dismissed the suggestion that the criminal standard should be maintained in findings of unlawful killing lest the responsible party suffer prejudice: the public could well distinguish between criminal and inquest proceedings, and the situation was no different to civil proceedings where a party was blamed for causing another’s death.

Commentary.

There had been some speculation that the Supreme Court’s judgment in this case would lead to an opening of the floodgates, with coroners (and juries) now able to make a finding of suicide with greater ease. That would certainly appear to be one implication of this case, though it is perhaps unwise to overstate the significance of the Supreme Court’s role – after all, it was first the High Court in 2018, and then the Court of Appeal in 2019, that found for the civil standard. Any increase in the number of inquests returning conclusions of suicide will therefore have been caused by the earlier decisions.

The application of the civil standard to findings of unlawful killing stands as the most surprising – and significant – aspect of the Supreme Court’s decision. Of course, there is a certain predictability to the Court’s finding – developments in case law over the past 30 years have encouraged the use of the civil standard of proof in all sorts of proceedings, including those of a quasi-criminal nature (e.g., family proceedings involving allegations of abuse). In this respect, the Supreme Court is simply continuing an earlier trend.

Nevertheless, the Court’s finding on unlawful killing was somewhat unexpected for it was not the main focus of the appeal. Unlawful killing only became part of the appeal after the Chief Coroner intervened ostensibly to seek clarity on the law (even if he was in favour of retaining the criminal standard). Meanwhile, oral submissions before the Supreme Court were largely focussed on the standard of proof in conclusions of suicide. Indeed, in Lady Arden’s judgment, the application of the civil standard to unlawful killing reads simply as an attempt to tie up a loose end rather than as a substantive appraisal of the merits of changing the law.

In any case, there are some immediate implications of the judgment. Firstly, it will now be easier for a coroner (or jury) to conclude that an individual committed suicide, however unpalatable that may be to the deceased’s family or other interested parties.  Secondly, inquests are likely to feature more centrally in the litigation strategy of those seeking redress for the loss of a loved one, particularly where it is felt that the deceased’s death was the responsibility of the state.

Ryan Ross of Farrar’s Building

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