10/05/2019

Maughan, R (On the Application Of) v Her Majesty's Senior Coroner for Oxfordshire [2019] EWCA Civ 809

In July the High Court handed down a decision which took the coronial world somewhat by surprise. After decades of certainty that suicide could only be found when “beyond all reasonable doubt”, Maughan, R (On the Application Of) v Senior Coroner for Oxfordshire [2018] EWHC 1955 (Admin) announced that the standard of proof for a finding of suicide was the lower, civil standard – the balance of probabilities. The Court of Appeal have now handed down their decision and endorsed the analysis of the case law in Maughan. The long-standing presumption that a finding of suicide could only be returned on the basis of the criminal standard of proof (beyond reasonable doubt) is baseless. Significantly, the Court of Appeal did depart from Maughan to distinguish suicide from unlawful killing in comments which will no doubt be gladly received by coroners. The criminal standard of proof will still apply to unlawful killing – for now.

Standards of Proof

The standard of proof is the test which evidence must meet for a finding to be made. In an inquest, the coroner must issue directions to the jury, telling them the standard of proof they must apply and how to do so. The coroner also considers the standard of proof in considering which matters the jury can lawfully make a finding about. In inquests heard by a coroner without a jury, it is the standard they must apply to their own determinations. The standard of proof in criminal courts of England and Wales is “beyond all reasonable doubt”, also referred to as being “sure”. This is primarily due to the severity of the consequences and to reflect the presumption of innocence until guilt is proven. In civil courts, a lower standard applies: “the balance of probabilities” or more likely than not. This is more useful in determining the correct outcome where two parties are arguing on an equal footing. 

In inquests the civil standard of proof – balance of probabilities – is applied to all findings, except to the conclusions of suicide and unlawful killing which historically have been treated differently. This has most often affected inquests where suicide is at question, as intention is very difficult to establish to a point of certainty. It has also been subject to the different approaches of different Coroners and views of families. From now on, suicide will also be judged on the balance of probabilities, although unlawful killing will remain at the criminal standard until a definitive change in the law.

Suicide has not been a crime since the Suicide Act 1961, and there have been significant changes in the public perception of suicide. That it was treated as legally different to other types of death in the Coroner’s court, and comparable to homicide, has often been thought anachronistic. There had been years of speculation that there would be a change to the standard of proof for suicide one day, it was expected in statute or the Coroners Rules, or perhaps in a lengthy and controversial legal challenge under the Human Rights Act. That has not been necessary. The real surprise in this case is that the courts have not determined that the standard of proof should change, but that it was the civil standard all along. We had all misunderstood it for decades. 

The Facts of Maughan

The inquest at question concerned the death of James Maughan, who had died by hanging in HMP Bullingdon. The coroner applied the Galbraith-plus test to filter the evidence and determine what questions could properly be left to the jury. He determined that there was insufficient evidence to find the death was suicide beyond all reasonable doubt. Therefore he did not leave a short-form conclusion of suicide to be considered by the jury, and opted to give them a questionnaire from which they made several determinations in the form of a narrative conclusion. The jury’s conclusion included findings which amounted to a conclusion of suicide, although they did not use the term as a short-form either standing alone or with the narrative. As the questions put to the jury were for a narrative conclusion, they had been directed to apply the civil standard of proof, the balance of probabilities. 

The coroner’s directions were then subject to a judicial review of  how the jury should have been directed to make findings in a narrative conclusion in which there had been a possibility that suicide would be found, in all but name. This was challenged by the family of the deceased, as it appeared to side-step the purported standard of proof for a short-form conclusion of suicide and caused distress in the context of their Catholic beliefs. 

At Judicial Review in the High Court, Lord Justice Leggatt and Mr Justice Nicol determined that there was no binding case law requiring the application of the criminal standard to a finding of suicide. This was so unexpected that neither party had anticipated arguing the point, as in all case law concerning suicide at inquests, all had presumed that the relevant standard of proof was beyond all reasonable doubt. This decision ran so contrary to established practice that the response from coroners has been highly cautious, with many recording their findings on both standards in suicide cases on the expectation that the Court of Appeal may well reverse the decision in Maughan. The Court of Appeal has in fact affirmed that decision. 

Suicide

The case of Maughan specifically concerned suicide, but the Court of Appeal gave guidance in obiter comments on unlawful killing as well. The decision on suicide is definitively binding.

The Court of Appeal’s lead judgment was given by Lord Justice Davis and supported by Lady Justice Davies and Lord Justice Underhill.  He noted that despite the impression given in “particularly highly charged inquests”, an inquest is inquisitorial not adversarial. They also highlighted that case law is clear that suicide should never be presumed, and must be proven on the evidence as with all other findings. So far, uncontroversial.

On review of the relevant case law, the Court of Appeal found a consistent presumption that the criminal standard of proof applied to findings of suicide, but there was no determination on this point as it was universally accepted. In the case of R v West London Coroner, ex parte Gray [1988] 1QB 466 the court had found incorrectly that various cases recording that presumption amounted to a determination that it was correct. 

In fact, the Court of Appeal found that the belief that a finding of suicide can only be returned if “beyond reasonable doubt”, repeated in endless submissions, decisions, guidance and text books has no basis in statute or case law.

Therefore, there is no reason for suicide to have a different standard of proof than any other inquest finding. It was unhelpful to require coroners or juries to consider two different standards of proof, sometimes within a combined short-form and narrative conclusion. 

The court found that the one standard for all inquest findings should be the civil standard (the balance of probabilities) for five reasons:

  1. The proceedings are inquisitorial, with no findings of blame despite how some findings may be interpreted by those criticised;
  2. Suicide is no longer a crime;
  3. The civil courts have applied the civil standard even where the matter at issue relates to a crime or suicide, for example in disputes as to life insurance;
  4. The civil standard of proof allows for broader enquiry especially as required in inquests where Article 2 is engaged;
  5. The application of the civil standard of proof allows one standard to be applied to a narrative even when suicide is relevant.

The Court of Appeal found it was not bound by R v Wolverhampton Coroner, ex parte McCurbin [1990] 1 WLR 719 despite being found by the Court of Appeal as well, as it was a case about unlawful killing, therefore the comments on suicide are obiter and non-binding. 

Finally in relation to suicide, the court urged Chief Coroner to expedite a review of his guidance.

Unlawful Killing

The High Court decision on Maughan had included obiter comments that unlawful killing should also be found on the basis of balance of probabilities in the absence of binding case law that the criminal standard of proof was required. The Court of Appeal also sought to clarify their view on this matter to assist the Chief Coroner. These comments were therefore obiter and not binding, but carry the authority of the Court of Appeal. 

The Court of Appeal considered that it would be preferable to apply the same standard of proof on all findings in an inquest. This would mean applying the civil standard to unlawful killing. However, the court was bound by clearer case law than on suicide that the present law required the application of the criminal standard.  The lower court erred in overlooking the case of McCurbin. This case related to unlawful killing, so while it was not binding on suicide (and was found to have ben incorrect in obiter comments on suicide) it did bind the court in relation to unlawful killing.  

The standard of proof for unlawful killing must therefore remain as the criminal standard until such time as statute or case law lowers the standard. The court enumerated six reasons that determinations of criminal matters – particularly homicide – should be made to the criminal standard:

  1. Despite the nominal lack of blame in an inquest and required by the Coroners and Justice Act 2009 (CJA), the term “unlawful killing” connotes a crime;
  2. Inquests with a conclusion of unlawful killing are typically homicide cases, those pertaining to murder, manslaughter or infanticide rather than deaths by dangerous driving;
  3. Section 10(2) CJA prohibits determining criminal liability in the Record of Inquest “on the part of a named person” but the identity of the relevant individuals is extremely likely to have been made clear in the inquest, which is of course a public hearing. It may be considerably less fair to the individual concerned to have a finding made to a lower standard than would apply in a criminal court;
  4. While not allowing individuals to be named, s.10(2) appears to allow findings in relation to criminal liability which do not use names;
  5. There had been consideration by the Ministry of Justice as to lowering the standard of proof for suicide, but this appears not to have even been considered;
  6. Finally, they noted the precedents, particularly McCurbin.

Despite these reasons for differentiating unlawful killing as a conclusion at this stage, the Court of Appeal reiterated that there is a “very powerful case” for having a consistent standard of proof throughout inquests. By implication this would be at the lower, civil standard. They encouraged a review of the Coroners Rules to explicitly state the standard to be applied to unlawful killing, or indeed across all inquest findings, rather than leave the confusion as surrounded suicide. 

Impact

This affirmation of the decision in Maughan will hopefully provide clarity to coroners and interested persons dealing with inquests touching questions of suicide. However, it is significant that the Court of Appeal agreed with the High Court that they were not changing the standard of proof, they were simply identifying it accurately after years of misunderstanding. 

Some coroners have been recording suicide findings against both standards of proof, out of concern that applying only the civil standard might leave them vulnerable to subsequent challenge. In fact, this judgment raises a danger of challenge to cases where suicide was not found on the criminal test but may have been on the civil test. This would relate to inquests where there was evidence of suicide but it was insufficient to meet the criminal standard of proof so was either not found by the jury or not left to them at all. Many Records of Inquest will contain sufficient comment to accurately record the state of evidence in a narrative in such a way as to satisfy the procedural requirements of the inquest. For those where this is not the case, hopefully few cases would be challenged, and it may be that the understanding of the standard of proof was so settled and universal that the courts to view this as a change to, rather than description of, the law. In any event, it is unlikely that many families would wish to revisit inquests heard long ago in order to obtain a conclusion of suicide.

This decision should greatly assist juries when trying to weigh evidence of intent to die. Requiring coroners and juries to be sure of this has contributed to an under-reporting of suicide. It is hoped that this change will correspond to greater resource allocation to mental health services. Maughan may also acknowledges the progress that has begun to move away from the taboos around suicide and mental health which maintain barriers to accessing support.

The Court of Appeal’s comments on unlawful killing will also reassure organisations that the potential consequences of increased findings of unlawful killing are not imminent.

 

Click here for our previous article on the Judicial Review decision: High Court Decision Means More Inquests Will Return Suicide Conclusions.