jones_j-022_bw_indmemThe Supreme Court has given judgment in R (on the application of Maughan) v HM Senior Coroner for Oxfordshire [2020] UKSC 46, a case dealing with the applicable standard of proof for reaching a narrative verdict of suicide or unlawful killing. A detailed case preview by my colleague Tim James-Matthews is available here, as a useful starting point for the issues arising in the appeal. By a 3-2 majority (with Lady Arden giving the leading judgment), the Supreme Court dismissed the appeal, holding that the applicable standard of proof is the civil standard (i.e. the balance of probabilities). Lord Kerr gave the dissenting judgment, with which Lord Reed agreed: they would both have allowed the appeal.

The key issue

There are two relevant standards of proof (or, as Lady Arden described it, ‘degrees of conclusivity’) for reaching determinations in legal proceedings. The civil standard is satisfied when a matter is proved on the balance of probabilities, i.e. it is more likely than not. The criminal standard is higher: it is only satisfied if the matter is proved beyond reasonable doubt, i.e. the decision maker is sure of it.

Inquests are civil proceedings, and they can reach two forms of conclusion: short-form conclusions (where the cause of death is simply stated, e.g. ‘suicide’) or narrative conclusions, which provide more detail about the circumstances of a death. A discrepancy had arisen in the way in which the standard of proof was applied to these different conclusions in respect of unlawful killing and suicide. Short-form conclusions of those causes of death applied the criminal standard of proof, whereas narrative conclusions applied the lower civil standard.

In this claim, a prisoner (James Maughan) died by hanging in his prison cell. At his inquest, the Coroner directed that the jury could not reach a short-form conclusion of suicide (because the evidence was insufficient to establish suicide to the criminal standard) but invited a narrative conclusion, in which the jury concluded that on the balance of probabilities Mr Maughan had intended fatally to hang himself. His family brought the claim which resulted in this appeal on the basis that that conclusion was not open to the jury because the criminal standard of proof should have been applied to narrative (as well as short-form) conclusions of suicide.

The majority of the Supreme Court disagreed, upholding the Divisional Court and Court of Appeal judgments by finding that the civil standard of proof is the correct standard for both short and long form conclusions of suicide, and extending the same reasoning to the standard of proof that should apply for short-form conclusions of unlawful killing.

The majority reasoning

The Coroners and Justice Act 2009, which is the legislation underpinning the conduct of inquests, does not prescribe a standard of proof for the conclusions to be reached at the end of an inquest. The Coroners (Inquests) Rules 2013, made under s.45 of the 2009 Act “for regulating the practice and procedure at or in connection with inquests”, contain no regulation addressing the standard of proof, but state by way of a provision described as “Note (iii)” that the standard of proof for narrative conclusions (relating to all causes of death) is the civil standard and, for short-form conclusions (but only of unlawful killing and suicide), the criminal standard.

The majority considered that the standard of proof was a matter of “practice or procedure” and so regulations specifying the standard of proof were within the power granted by s.45 of the 2009 Act [23]. But there was no regulation in the body of the 2013 Regulations which set out the standard of proof. It was therefore necessary to consider the status of Note (iii). The majority concluded that Note (iii) was intended to state the pre-existing common law position (which required the criminal standard to be met for a conclusion of suicide to be reached), and was not intended to codify or overtake the common law. A Ministry of Justice consultation response from 2013 evidenced the fact that there had been no intention for the Regulations to “transform a common law rule into a statutory one” [48]. The absence of any Rule in the 2013 Regulations addressing the standard of proof supported this conclusion. Further, the use of the present tense in Note (iii), rather than the future tense, “means that the provision does not have the effect of ruling out any further change in the common law” [51]. The Court was therefore able to consider itself whether the differential standards applied to short-form and narrative conclusions should be maintained – and the majority concluded that they should not:

“The position is that to hold that a criminal standard applies is out of line not only with narrative conclusions but also with the principle applying to civil proceedings generally. I see no reason why the normal legal principles should not apply. … The principle is clear and it is that in civil proceedings the civil standard of proof should apply” [68]-[69].

Lady Arden provided four particular factors which led her to this conclusion:

  1. The common law does not demonstrate any cogent reason for not applying the civil standard.
  2. The criminal standard may lead to suicides being under-recorded and to lessons not being learnt.
  3. The changing role of inquests and changing societal attitudes to suicide tend in favour of reviewing the standard of proof – inquests are now concerned with the investigation of deaths, and not with criminal justice; and suicide is no longer a crime.
  4. Other commonwealth jurisdictions apply the civil standard to suicide verdicts.

Further, she concluded, the civil standard should also apply to verdicts of unlawful killing. “[T]he short form conclusions of unlawful killing and suicide cannot satisfactorily be distinguished with respect to the standard of proof”: [93]. The result is, therefore, that a unified approach must now be taken to all conclusions reached in inquests: whether in short-form or narrative, and whether of suicide, unlawful killing, or any other cause of death, the applicable standard of proof is the balance of probabilities.