R (on the application of Maughan) (AP) (Appellant) v Her Majesty's Senior Coroner for Oxfordshire (Respondent), [2020] UKSC 46
On the 11th of July 2016 a prisoner Mr James Maughan was found dead in his prison cell having hanged himself. The investigation into the factual circumstances surrounding his death found that he had a history of mental health issues and had previously made threats of self-harm. The evening before his death he had been in an agitated state.
At the inquest, the Senior Coroner for Oxfordshire directed that the jury could not reach a verdict on the short form conclusion that Mr Maughan had committed suicide and therefore ordered that they deliver the narrative form.
In an inquest two types of verdict can be given: a short form conclusion or a narrative form. A short form conclusion is used when a single word is capable of expressing the conclusion of the inquest. A narrative conclusion is used when more explanation is needed to explain the conclusion as to the death.
At the time of this case, in order to reach a short form conclusion on suicide and unlawful killing, the evidence needed to meet the criminal burden of proof. All other verdicts were required to be proved to the civil standard.
The Coroner in this case directed that the jury only had to decide that Mr Maughan had committed suicide on the balance of probabilities.
As a result of this direction Mr Maughan’s brother took the case to the High Court on the basis that the jury in the inquest should have applied the criminal standard of proof when deciding on whether Mr Maughan had committed suicide. They should not have been invited to consider the civil standard of proof. The issue was a matter of judicial review to the Divisional Court which upheld that the civil standard of proof applied to rulings on suicide in a ruling described by the Court of Appeal as “adopt[ing] a bold approach in departing from what had been regarded as settled law and practice”
The case was then appealed to the Supreme Court and Judgment was handed down in the case of R (on the application of Maughan) (Appellant) v Her Majesty’s Senior Coroner for Oxfordshire (Respondent) [2020] UKSC 46 on the 13th of November 2020.
Lady Arden, Lord Wilson and Lord Carnwath all agreed that the standard of proof in inquests should be the civil standard stating: “The principle is clear and it is that in civil proceedings the civil standard of proof should apply.” [69]
As noted above, prior to the landmark judgment, inquests were decided on the civil standard but for two notable exceptions. When a Coroner or Jury was considering a short form conclusion and if they wished to make a finding of suicide or unlawful killing, that had to be on the basis of criminal burden of proof rather than the civil. It seems that this was an historical throwback to the potential criminal ramifications of suicide; suicide was only de-criminalised in the 1960s. Furthermore, at paragraph 88, Lady Arden explains the Chief Coroner’s position for the criminal burden of proof applying to unlawful killing in that “…coronial proceedings used to be a means for finding criminal liability.” Similarly to the law on suicide, this has long since changed when in 1977 the Criminal Justice Act provided “…that a coroners verdict shall not make any finding that any person is guilty of murder, manslaughter or infanticide or charge any person with any of these offences”[89].
Since the introduction Human Rights Act 1997 (which enshrined the European Convention on Human Rights) inquests have become more investigatory. They are a frequent mechanism for discharging a state’s obligations under Article 2 ECHR (Right to Life). Article 2 has two limbs. The first is that the state will not kill civilians and the second is that where the state may be responsible or involved in the death of a citizen, especially of those in custody, there is a procedural obligation to effectively investigate. This allows for wider conclusions to be drawn including conclusions as to the contributory factors towards a person’s death, and which can lead to lessons being learnt on the part of the state and wider society. Where a Coroner considers that lessons can be learnt they can issue a Preventing Future Deaths Report (PFD), recommending changes to procedure or policy.
At the conclusion of an inquest the verdict has to be recorded according to Form 2, provided for by the Coroners (Inquests) Rules 2013 (SI 2013/1616). There are notes which form part of Form 2, and Note(iii) was a particular source of examination and disagreement for the Supreme Court.
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”.
The Supreme Court in coming to their conclusion, disagreed as to the value of Note (iii) in determining the standard of proof for inquests, was it still governed by common law or had Note(iii) codified it?
The Court in its majority verdict considered the legal basis of Note (iii) and found that its effect was not to codify the common law position. It was merely reflecting the position of the common-law at the time of writing the document. [56]
The majority judgement of the Supreme Court concluded that the correct standard should be the civil standard and gave the following points as to why a change was necessary:
1. On legal principle, the civil standard should apply, and the common law does not demonstrate any cogent reason for not applying that principle
2. The criminal standard may lead to suicide being under recorded and to lessons not being learnt
3. The changing role of inquests and changing societal attitudes and expectations confirm the need to review the standard of proof
4. Leading Commonwealth jurisdictions have taken this course.
The Court then considered, somewhat necessarily, that given the conclusions they had made as to suicide, the criminal standard could of course not be retained for unlawful killing.
Lord Carnwath, agreeing with Lady Arden’s judgment highlighted the importance of the inquest as a fact-finding exercise and not a method of apportioning guilt [101].
He further agreed with Lady Arden’s conclusions in respect of Note (iii) writing at [106] that it “…is most naturally read as guidance as to what is understood to be the existing state of law, rather than as a prescribing a particular standard.”
The important emphasis in the majority judgment was an acknowledgement that attitudes towards suicide have long since changed and as a result the law needed to change with them.
Lady Arden stated that “If a criminal burden of proof is required, suicide is likely to be under-recorded. This is especially worrying in the case of state related death...There is a considerable public interest in accurate suicide statistics, and they may reveal a need for social and medical care in other areas not previously regarded as significant…lowering the standard of proof would be a more satisfactory way of getting accurate figures” [74].
Lord Reed in his dissenting judgment disagreed as to the value and legislative position of Note (iii) writing that it constituted “…a direct statutory provision that a short form conclusion as to suicide and unlawful killing may only be made out where there is proof beyond reasonable doubt to sustain it.” Lord Reed further wrote that “…statutory imperative cannot be displaced by judicial pronouncement. It has the full force and effect until amended or abolished by subsequent statutory provision.” [140]
Nonetheless this perspective did not prevail in the majority judgment and as the law now stands all verdicts in inquest proceedings need only be proven to the civil standard of proof.
What is the potential impact of the lowering of the burden of proof? As outlined by Lady Arden above this may have an impact on the amounts of suicide and unlawful killing verdicts that can now be reached as there is a lower burden of proof and this in turn could encourage greater confidence in the inquest system by the public.
For some families this may well bring comfort, knowing that lessons will be learned particularly by the institutions which are named in the inquest as contributory factors. For others this will bring anguish, with suicide being considered a sin in some religions and still having stigma attached to it.
Alecsandra is an experienced advocate in regulatory and professional discipline cases, crime and general litigation. She also has experience of advising in international policy matters. Alecsandra is ranked within the Legal 500 as a rising star in the field of regulatory and professional discipline.
Ben is a leading specialist in Extradition and International Crime, as well as dealing with Immigration, Serious Fraud, and Public law. He has extensive experience of appellate proceedings before the Administrative and Divisional Courts, Criminal and Civil Court of Appeal as well as applications and appeals to the European Court of Human Rights (ECHR) and United Nations. He is top-ranked in Chambers & Partners and The Legal 500 for his Extradition work.
