13 Nov Supreme Court Landmark Decision: Standard of proof in suicide and unlawful killing inquest conclusions to be lowered
In a historic judgement which split the Supreme Court judges, a majority of 3 to 2 found the standard of proof for all conclusions, including suicide and unlawful killing should be on the civil standard of proof. Coroners Courts in England and Wales can now find on the civil ‘more probable than not’ test rather than the criminal ‘so as to be sure’ or ‘beyond reasonable doubt’. This controversial decision will have wide reaching implications for deaths in England and Wales for decades to come.
Mr Thomas Maughan and his family were represented by Ms Najma Rasul of our office.
Case
R (on the application of Maughan) v HM Senior Coroner for Oxfordshire [2020] UKSC 46
The judgement handed down by the Supreme Court can be watched on the following link:
https://www.supremecourt.uk/index.html
A copy of the final judgement can be obtained here:
Maughan – uksc-2019-0137-judgment
Legal Challenge – standard of proof
On 26 and 27 of February 2020, the Supreme Court heard the case of R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire.
The issue was whether the standard of proof for suicide conclusions in inquest proceedings should be on the balance of probabilities (the civil standard) or beyond reasonable doubt (the criminal standard). The court was also asked to rule on whether the standard of proof for unlawful killing conclusion should also be reduced from beyond reasonable doubt to the balance of probabilities.
Previously, both the Divisional Court and the Court of Appeal had found that the civil standard of proof should apply to suicide, but that the criminal standard should continue to apply to unlawful killing, since it implied a crime and there was a risk of possible criminal charges being brought against an individual.
However today, a highly controversial and contentious judgement which split the Supreme Court by a majority of 3 to 2, found that the standard of proof for suicide and unlawful killing should be reduced to the lower civil standard of proof. The standard of proof for all inquest conclusions will now be on the civil standard (on the balance of probabilities).
Comment from the family and his solicitor
Mr Thomas Maughan (the Appellant) and older brother of James said on behalf of the family:
“We are deeply disappointed that the Supreme Court did not find that the standard of proof for suicide should be the higher criminal standard of proof. For decades courts have found that the criminal standard should apply to sucide and unlawful killing, for good reason. It is difficult to accept that previous courts could have got it wrong. However, something so important as the standard of proof should never have been left to the courts to determine, it should have been Parliament.
We fought really hard in bringing James’s case, we did it to get justice for James and get clarity on the law given the gravity and serious implications that suicide and unlawful killing conclusions have for families.
Even though we have lost the case and are obviously disappointed, we recognise that the decision in James’s case has reduced the standard of proof for unlawful killing, which we hope will benefit many bereaved families who have lost loved ones in state custody in helping them to hold the authorities to account. If James’s case has helped to ensure that deaths will now be properly recorded and issues as to how the deceased came by his death and what could have been done to prevent future deaths, then he did not die in vain. James’s death helped to change the law, which we hope for the better.
Finally, the family and I would like to thank our legal team who have supported us in getting justice for James. They worked tirelessly on the case, sometimes on a pro-bono basis and fought hard to get public funding to bring this legal challenge.”
In relation to the Supreme Court decision Ms Najma Rasul of Matthew Gold & Co solicitors, acting for the Maughan family, said,
“This case has finally clarified the law on two of the most contentious conclusions that can be reached at the end of an inquest, suicide and unlawful killing. Today’s ruling is hugely significant for many bereaved families and will have wide reaching implications for deaths in England and Wales for decades to come.”
In relation to lowering the standard of proof for suicide Ms Najma Rasul said,
“I fully appreciate that there will be different views and not everyone will support lowering the standard of proof in cases involving suicide. Its significance for some families at inquest who, for legitimate reasons wish to avoid a conclusion of suicide, is likely to be enormous. Like our client who is of the Catholic faith, today’s ruling will not be a welcome development. Suicide still carries a stigma, especially within some religious communities, and there can also be serious financial consequences as a result of a suicide conclusion. Others may see it differently and will want the death of their loved one recognised as suicide, so that there is an acknowledgment of the despair that their loved ones felt prior to the death, including any failures of the mental health services.
For suicide prevention charities today’s ruling is likely to be significant: a likely increase in the number of suicides recorded may help to persuade the government to dedicate greater funding and resources for research into the risks and prevent future deaths.”
In relation to lowering the standard of proof for Unlawful Killing Ms Najma Rasul said,
“In relation to unlawful killings I very much welcome the verdict. The ruling will make it much easier for coroner and juries to reach unlawful killing conclusions in police shooting and restraint deaths, deaths in immigration detention, prison and hospitals, especially where there are serious concerns about the quality of care, which was causative of the death. Likewise, should the inquests resume into the deaths of those that died in the Grenfell Tower fire, there is now an increased likelihood that a judge or jury may find on the lower standard of proof that they were unlawfully killed. This ruling is therefore an important step for bereaved families in holding public authorities and corporations to account which could result in safer and more proportionate responses to serious incidents.”
In relation to concerns about the lower standard of proof and what this means for future inquests Ms Najma Rasul said,
“Although the ruling may cause shock waves, it is important to remember that a coroner or jury still need to be satisfied there is enough evidence which a jury can on the balance of probabilities reach a conclusion of suicide or unlawful killing.”
In relation to the Coroner issuing revised guidance Ms Najma Rasul said,
“It is important that the Chief Coroner issues amended guidance to reflect the change in the law, so that it is clear how the lower standard of proof should be applied in future inquests, to avoid confusion and any further possible litigation.
Summary of the key legal points
The Coroners and Justice 2009 Act and the Coroners (Inquests) Rules 2013, did not specify what the standard of proof should be for conclusions at an inquest.
The only reference that the criminal standard of proof applied to suicide and unlawful killing conclusions was in Form 2 ‘Record of Inquest’. Rule 34 of the 2013 Rules made it mandatory that at the end of the inquest a coroner or jury must record their determinations and findings on Form 2 ‘Record of Inquest’ (in accordance with Section 10 of the 2009 Act). Form 2 required a Coroner or jury to record the name of the deceased (if known); the medical cause of death; how, when and where the death occurred. Note (i) contained a list of possible ‘short form conclusions’ which may be adopted; Note (ii) allowed as an alternative or in addition a narrative conclusion could be given; and Note (iii) specified that “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.” (Italics added).
The case therefore turned on the construction and interpretation of Note (iii) on Form 2 ‘Record of Inquest’. The issue to be decided by the Supreme Court judges was whether Note (iii) was simply stating what the law was understood to be at the time, rather than legislating what the law shall be, thereby taking away the power of the Courts to change, modify or develop the law.
Lady Arden, Lord Wilson and Lord Carnwath ruled that Form 2 (note (iii) was simply stating what the law was understood to be at the time, based on previous case law.
The Supreme Court was not bound by previous case law from the Divisional and Court of Appeal which had found for decades that the criminal standard of proof applied to suicide and unlawful killing conclusions.
There were other compelling reasons for reducing the standard of proof for both suicide and unlawful killing and the Supreme Court judges considered that they should take this opportunity to do so.
Accordingly, the 3 Supreme Court judges ruled that the standard of proof for suicide and unlawful killing should be reduced to the civil standard of proof. The standard of proof for all conclusions at inquests will be on the balance of probabilities.
In a highly critical and strongly worded dissenting judgement, Lord Kerr (with whom Lord Reed agreed) ruled that Note (iii) was introduced by Rule 34 of the 2013 Rules, to give statutory expression to the law. Once the 2013 Rules were enacted, the common law rule that proof to the criminal standard was required for a verdict of suicide or unlawful killing, was given statutory force. It became a statutory rule. And it could only cease to have force and effect by the enactment of a statutory provision amending or abolishing it. Note (iii) was therefore binding law and the courts did not have the power to change the standard of proof for suicide and unlawful killing.
Lord Kerr went on to rule that the standard of proof for both suicide and unlawful killing should remain on the criminal standard of proof because the implications of these conclusions were so serious that they warranted a higher standard of proof being applied.
Summary of the case
James Maughan was found hanging in his prison cell at HMP Bullingdon at approximately 5.20 am on 11th July 2016. He had a history of mental health problems, substance misuse, suicide and self-harm attempts, and symptoms consistent with a personality disorder.
The Coroner considered the circumstances of this death at an inquest between 9th and 12th October 2018. James’s mother, brothers and sisters were not legally represented, but his wife, Kelly Shakespeare was (as were all the other parties to the inquest) and members of the family were allowed to ask questions. At the inquest, a key issue was whether prison staff had properly followed procedures for preventing suicide and self harm, having regard to the mental health condition of James Maughan.
At the close of the evidence, the Coroner held that there was insufficient evidence to allow the jury to safely return a conclusion of suicide based upon the criminal standard of proof. He felt that it would have been unsafe for the jury to find, beyond reasonable doubt, that the deceased intended to kill himself.
Instead the Coroner invited the jury to consider a narrative verdict, by answering a series of questions. These questions included the two ingredients of a suicide conclusion, namely: “… (3) Did James Maughan deliberately place a ligature around his neck and suspend himself from the bedframe? (4) Are you able to determine if it is more likely than not that he intended the outcome to be fatal, or for example, if it is likely that he intended to be found and rescued? If you are unable to determine his intention, please say so.” The Responded directed the jury that in answering the questions, they should apply the civil standard of proof (on the balance of probabilities).
The jury’s narrative statement, which was written on Form 2 ‘Record of Inquest’, stated that “James deliberately tied a ligature made of sheets around his neck and suspended himself from the bedframe…. on the balance of probabilities, it is more likely than not that James intended to fatally hang himself that night…. neither formally opening an ACCT, nor increased vigilance generally would have likely prevented James’ death, given what we believe was James’ intent to end his life …”
On 11 January 2018, James brother, Thomas Maughan brought a judicial review claim, challenging the jury’s conclusion on the basis of a misdirection of law by the Coroner. It was argued that the Coroner had committed a legal error by directing the jury to apply the civil standard of proof when considering whether James had intended to kill himself. In effect the narrative conclusion amounted to a suicide conclusion.