Supreme Court confirms that inquest conclusion of unlawful killing and suicide can be determined on balance of probabilities16/11/20
In R (Maughan) v HM Senior Coroner for Oxfordshire and others  UKSC Civ 809, the Supreme Court decided that the criminal standard of proof is no longer required for an inquest to determine that a death was as a result of suicide or unlawful killing. Until now, a coroner or a jury had to be satisfied beyond a reasonable doubt that the deceased took his or her own life, and that they intended to do so.
Tragically, Mr Maughan hanged himself in his prison cell. The central issues addressed at his inquest were:
- whether he intended to kill himself; and
- whether his death was caused or contributed to by the prison authorities.
The coroner concluded that there was insufficient evidence to enable a jury to conclude that Mr Maughan intended to take his own life ‘beyond reasonable doubt’. He ruled that a ‘short-form’ conclusion of suicide was not open to the jury. However, applying Schedule 1 of The Coroners’ Inquest Rules 2013 and associated guidance, he invited them to return a narrative conclusion applying the (civil) standard of whether Mr Maughan intended to take his own life ‘on balance of probabilities’.
The jury concluded that, on balance of probabilities, Mr Maughan had intended to fatally hang himself and that increased vigilance by the prison authorities would not have prevented his death.
The Supreme Court decision
Whether the conclusion was short form or narrative, the standard of proof when the issue of suicide and unlawful killing arose at an inquest was ‘on balance of probabilities’. The following factors were central to the decision:
- There is no compelling reason in common law or legal principle for not applying the civil standard of proof, i.e. on balance of probabilities to suicide and unlawful killing, as well as in line with a narrative conclusion. This can include wording akin to that the deceased took his own life and intended to do so, i.e. the test of the short-form suicide but proved to the civil standard.
- Use of the civil standard may lead to suicides being under-recorded and lessons not being learnt.
- The changing role of inquests from criminal justice to the investigation of deaths, as well as learning and changing societal attitudes and expectations, confirm the need to review the standard of proof.
- Canada, New Zealand and Australia have changed the standard of proof for suicide to the civil standard.
Perhaps the more surprising element of the Supreme Court’s judgment is to reduce the standard of proof for unlawful killing to the civil standard too. The main reason given by the Supreme Court for this is that applying the same standard of proof would give a common standard for all inquest conclusions, removing the current ‘inherent inconsistency’ in the determinations at an inquest. It also reflects that the civil standard applies in civil proceedings even if the issue is whether someone committed a criminal offence or not.
What to take away
This decision significantly changes the legal position in respect of unlawful killing and maintains the status quo since this case was heard at first instance in 2018 with regard to suicide (covered in our earlier insight on this case). It is likely that there will be an increase in the number of unlawful killing conclusions, which will be of particular concern to all healthcare organisations, and in particular to the individual clinicians. Whilst the Supreme Court was of the view that this would not put individuals at higher risk of criminal prosecution, which may turn out to be right with a lower standard of proof, it may well have an effect from the professional regulators’ perspective and increase the number of referrals to them arising from inquests. Further, a higher number of unlawful killing conclusions will also likely lead to an increase in the number of clinicians whose reputations are adversely affected by such a conclusion, which will still for some time have the connotations, if not the legal meaning, of a criminal act. We will of course have to see how this develops, but we would expect to see families of the deceased arguing for unlawful killing more readily in forthcoming inquests.
A link to the judgement can be found here.
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