28 July 2020

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 in inquests is beyond reasonable doubt, as had been thought since at least 1984, or on the balance of probabilities, as held by the High Court and Court of Appeal in this case.

The judgement is still awaited.  Are we in for a surprise though?  Might the Supreme Court rule that not only does the civil standard apply to suicide but also to unlawful killing?

There are a number of arguments in favour of this outcome:

  1. Inquests are civil cases. The civil standard of proof is on the balance of probabilities (more likely than not) rather than the criminal standard (beyond reasonable doubt).
  2. The legislation makes no provision that the criminal standard applies to findings of unlawful killing.
  3. The argument that findings of unlawful killing (on a balance of probabilities) would prejudice criminal trials is not tenable. It is settled law that the findings of one court do not bind another.  Moreover, as Lord Reed pointed out at the hearing, the potential for difference outcomes exists in any event.  Currently, an inquest could reach a conclusion of unlawful killing, but the case could still lead to an acquittal following a criminal trial.
  4. Even if there was such inconsistency, that at best is undesirable. It does not point to what the standard is one way or the other.
  5. There are currently some occasions when a civil court has to apply the civil standard in relation to criminal offences. For example, the Criminal Injuries Compensation scheme (and its associated Tribunal) must apply the civil standard to determine whether a crime has been committed which is a precondition for an award under the scheme.
  6. Incontrovertibly, the standard of proof for narrative conclusions is the civil standard. Such conclusions could in principle include findings on all elements of a criminal offence.   It is accordingly difficult to see why there should be a higher standard for a short form conclusion of unlawful killing.

The consequence of such an outcome would undoubtedly be far-reaching.  Unlawful killing will be the appropriate conclusion in more cases.  Bereaved families will more frequently make submissions in favour of that conclusion.  The risk to those whose actions or omission may have contributed to the death will accordingly increase.  Those risks include risk to reputation, an increased risk of prosecution and of claims.  It is likely that there will be more representatives at hearings, and insurers will routinely take an active role in inquests.   Inquests would be even more stressful for employees than they are now. More staff will wish to be separately represented, especially where they allege that their involvement in the death was affected poor management, training, or lack of resources.

There are also resource implications for the Coronial system, already under strain in many areas due to cuts in local authority areas.

It’s not the outcome anyone is expecting, but watch this space…..

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