Newsletters Professional Discipline 30th May 2019

R (Maughan) v Senior Coroner for Oxfordshire [2019] EWCA Civ 809:

Suicide, Unlawful Killing and the Standard of Proof

During the inquest into the death of Mr Maughan, an inmate at HMP Bullingdon, the coroner ruled that there was insufficient evidence upon which the jury could reach a short form conclusion of suicide. However, he posed three questions for the jury to answer as part of a narrative conclusion, applying the civil standard of proof, which in essence invited a finding of suicide.

On appeal in July last year the Divisional Court took the opportunity to reformulate the appropriate burden of proof for a finding of suicide. Undaunted by 35 years of apparently settled law, it considered the civil standard, not the criminal, should apply.

The Court of Appeal has now endorsed this view.

In doing so it overturned the decision in R v West London Coroner, ex parte Gray [1988] 1 QB 66, and distinguished the Court of Appeal’s remarks in R v Wolverhampton Coroner, ex parte McCurbin [1990] 1 WLR 719 on the basis it was an unlawful killing case. Looking at the issue as one of principle it noted:

The central point is then, in my view, that there seems a very real inconsistency in adopting a criminal standard of proof for a short-form conclusion but a civil standard of proof in a narrative conclusion. Where is the logic and sense in that hybrid approach? I cannot discern any. Moreover, not only would it create difficulties for juries in having differing standards of proof relating to various findings within its conclusions, depending on their nature, but also it could tend to create difficulties or confusion in terms of public perception of the outcome.

It considered the civil standard should apply to suicides for the following reasons –

  1. The “essence” of an inquest is investigative. It does not make findings of guilty or liability. Consequently, “The underpinning rationale for the need to have a criminal standard of proof in criminal proceedings simply has no obvious grip in inquest proceedings, given their nature.” As it had earlier noted, the basis for a higher standard of proof in criminal proceedings, after all, “ultimately rest(s) on the serious consequences: potential loss of good character and, in particular, of liberty for the defendant, coupled with concern for the risk of condemning the innocent”.
  2. Suicide is no longer a crime.
  3. Civil courts apply the civil standard “even when the proposed subject of proof may constitute a crime or suicide”.
  4. Obligations under Article 2 – the proper investigation of a death – “strongly supports the application of the (lower) civil standard”.
  5. Applying a civil standard to narrative conclusion of suicide “would cohere with the standard which is on any view applicable to other potential aspects of the narrative conclusion (for example, whether reasonable preventative measures should or could have been taken and so on)”.

The Court of Appeal also provided useful obiter regarding the criminal standard for lawful killing. It observed

there is a very powerful case for saying that the civil standard of proof should apply to all inquests in all respects: and in particular, for these purposes, that it should apply to cases of unlawful killing. Such an approach would reflect the essentially inquisitorial nature of an inquest; would reflect the importance of the need to investigate the circumstances of death where s.5(2) applies [i.e. Article 2]; would promote consistency of approach both with regard to the findings reached within each potential conclusion and with regard to all other conclusions available to an inquest; and would accord with the general approach to proof of criminality adopted in civil cases.

Nonetheless, the decision in McCurbin – overlooked by the Divisional Court – remained binding. It is a position which is not “devoid of supporting arguments”. In particular, despite the fact an inquest is not supposed to assign blame, the term “unlawful killing” connotes a crime. The identity of the individuals responsible is likely to have been made clear in the inquest. It may be unfair to the individual concerned to have such a finding made to a lower standard than would apply in a criminal court.

The court ended its judgment by observing how unfortunate it was that the issue of the appropriate standard of proof was not properly articulated in the coroner’s rules itself – surely a strong hint to the Ministry of Justice. Until such a review is undertaken, however, this judgment has at least provided certainty at last.

Christopher Geering for the Professional Discipline Summer Newsletter

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