The Supreme Court handed down its much anticipated judgment in R (on the application of Maughan) (Appellant) v Her Majesty’s Senior Coroner for Oxfordshire (Respondent) on Friday 13 November 2020. It will have significant implications for those involved in both health and safety cases and cases where suicide is suspected.
The question before the Supreme Court in Maughan related to the standard of proof required for determining the outcome of an inquest, where the issue before the Coroner’s Court is whether the deceased committed suicide. An inquest conclusion can be given in either a single short form conclusion, such as “suicide” or “natural causes” or “accident” or “unlawful killing”, or alternatively, a brief narrative conclusion.
The standard of proof to be applied has not, until now, been the same for all conclusions. For most short form conclusions and narratives, the standard of proof is the Civil Standard, i.e. “on the balance of probabilities”. This requires the Coroner or a jury to be more satisfied than not (having a 50%+ certainty) that something happened. However, the short form conclusions of “suicide” or “unlawful killing” have only been available where the Coroner or jury was satisfied to the Criminal Standard of “beyond reasonable doubt”.
Coroners and juries, particularly in Article 2 compliant inquests, have long been able to return findings that are critical and which demonstrate failings by an organisation. They are also able to add a rider of Neglect to any short form or narrative conclusion. However, the implications of a “suicide” or “unlawful killing” conclusion are significant – and for very different reasons.
The appeal in this case was brought by the brother of the late James Maughan, who was tragically found in his prison cell on 11 July 2016 hanging by a ligature and was pronounced dead. Mr Maughan had a history of mental health issues, and had threatened self-harm on the evening prior to his death. At the inquest, the Senior Coroner for Oxfordshire decided the jury could not safely reach a short form conclusion of suicide on the basis of the criminal standard of proof, as there was insufficient certainty to reach this conclusion. However, the Senior Coroner considered the jury could make a narrative statement of the circumstances of Mr Maughan’s death on the balance of probabilities – and the jury accordingly made a narrative statement that on the balance of probabilities, the deceased intended fatally to hang himself and that increased vigilance would not have prevented his death.
The Supreme Court dismissed the appeal, and held the standard of proof for all short form conclusions at an inquest is on the balance of probabilities.
A majority of the Supreme Court Justices, led by Lady Arden (with whom Lord Wilson agreed and Lord Carnwath agreed) gave their reasoning for this judgment as follows:
- On the basis of legal principle, the civil standard “balance of probabilities” test should apply. While common law authority was provided for upholding a criminal standard of proof, these authorities were not binding on the Supreme Court. It would be internally inconsistent for a Coroner’s Court to reach findings on the basis of different standards of proof within the same inquest.
- If the criminal standard “beyond reasonable doubt” were to be applied, it could lead to suicides being under-recorded and lessons not being learnt. This would be particularly concerning in the case of state-related deaths, for which there is a public interest in accurate suicide statistics.
- Societal attitudes towards suicide have changed, and the legislative position since 1961 has moved away from criminalising the act of suicide. The role of inquests has also changed, and inquests are now concerned principally with the investigation of deaths.
- Leading Commonwealth jurisdictions, such as courts in Canada, New Zealand and Australia have also sought to align the evidential standard in inquests to that applying in civil litigation.
In determining the appropriate standard of proof for “unlawful killing” conclusions, Lady Arden found that the standard of proof should be the same for that of “suicide”. She found that applying a common standard of proof to both would promote consistency, and that the standard of proof for all short form conclusions at an inquest should be the “balance of probabilities”.
We see a number of complex inquests where families seek a finding of “unlawful killing” in cases involving deaths in hospital, deaths in prison, deaths in the community (often involving the police), deaths in the workplace, or other situations where there may have been health and safety failings. The prospect of an “unlawful killing” conclusion at inquest raises (quite understandably) the fear for organisations (and individuals) of a fresh police or health and safety investigation, and the possibility of criminal charges being brought for gross manslaughter, corporate manslaughter or serious and costly health and safety offences.
This has always been an uphill struggle for families, not least because of the higher burden of proof. That has now changed. It is significant, however, that the criminal standard of proof will remain for these offences outside of the Coroner’s Court, and the Code for Crown Prosecutors will be unaffected. However, it will strengthen arguments for incidents and charging decisions being reviewed, especially because it will be unclear whether the inquest finding could have been made out on both standards of proof.
The Crown Prosecution Service and/or the Health and Safety Executive may now need to issue fresh guidance.
If you would like to discuss this topic in more detail, please contact Stuart Marchant.
We have vast experience in representing a range of organisations at inquests involving the NHS, local authorities, independent health and social care providers, private companies, fire authorities, housing providers, prisons, regulators, schools and individual professionals. See our flyer for more information.