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This case concerns the standard of proof applicable in inquest proceedings in cases of alleged suicide. It raises important and fundamental questions concerning the conduct of inquests, and will be of particular significance to bereaved families where the deceased is alleged to have committed suicide while in the care or custody of the state. The Supreme Court may also consider the position in relation to findings of unlawful killing.matthews

In summary, the Supreme Court is asked to consider two questions:

(i) In inquest proceedings where it is alleged that the deceased died by suicide, is the applicable standard of proof the criminal standard (satisfied so as to be sure) or the civil standard (satisfied that it is more probable than not)?

(ii) Does the applicable standard of proof of death by suicide depend upon whether the determination is expressed by way of short-form or narrative conclusion?

Factual background

James Maughan was a prisoner at HMP Bullingdon. On 11 July 2016, James was found hanging in his cell, and was pronounced dead shortly thereafter.

At the subsequent inquest into the death, the Senior Coroner ruled that a short-form conclusion of suicide was not open to the jury. That was because the evidence was insufficient to enable a jury, properly instructed, to be satisfied so that it was sure that the deceased had intended to take his own life. That is, the Senior Coroner applied the criminal standard of proof to a short-form conclusion of suicide.

The Senior Coroner nonetheless sought to elicit a narrative conclusion from the jury on the issue of suicide. The Senior Coroner posed a series of questions for the jury on that issue, by which the jury were directed to apply the civil standard of proof (“more probable than not”) to the question of suicide. This approach was consistent with ‘Guidance No. 17’ issued by the then Chief Coroner, and with the Coroner Bench Book.

The jury returned a narrative conclusion determining that it was more likely than not that James Maughan had intended to commit suicide. This conclusion was very distressing for the deceased’s family, who held strong Catholic beliefs (and believed that suicide was contrary to those beliefs).

The deceased’s brother sought to challenge the determination of the coronial inquest by way of judicial review proceedings. In short, the appellant contended that the Senior Coroner incorrectly instructed the jury as to the applicable standard of proof of suicide: a conclusion of suicide (even a narrative conclusion of suicide) can only be reached by application of the criminal standard of proof.

The decision of the Court of Appeal

The Court of Appeal ([2019] EWCA Civ 809: Underhill, Davis and Davies LLJ) determined that the applicable standard of proof of death by suicide in inquest proceedings is the civil standard of proof (at [74]), and that this standard should be applied to both short-form and narrative conclusions (at §[73]).

This was consistent with the decision reached by the Divisional Court ([2018] EWHC 1955 (Admin): Legatt LJ and Nicol J).

In summary (at [74]), the Court of Appeal concluded that the nature of inquest proceedings is that they are investigative, and not concerned to make findings of guilt (which would necessitate the application of the criminal standard). Moreover, suicide has ceased to be a crime in this jurisdiction, and a finding of death by suicide no longer suggests the commission of a criminal act. The application of the civil standard of proof would best facilitate a proper investigation into the circumstances of the death in cases engaging ECHR, Article 2 (i.e. where the death occurs in the custody or control of the state).

In terms of the distinction between short-form and narrative conclusions, the Court of Appeal could discern no reason in logic to apply different standards of proof to different forms of conclusions (see [71]).

The Court of Appeal (as did the Divisional Court) also considered the standard of proof applicable to cases of unlawful killing. The Divisional Court had determined that the civil standard of proof should also apply to such cases. While acknowledging (at [91]) the “powerful case for saying that the civil standard of proof” should apply to unlawful killing, the Court of Appeal determined that the criminal standard of proof should continue to apply in cases of unlawful killing. In short, a finding of unlawful killing connotes a crime, and has a strong “headline” connotation of guilt on the part of the responsible party. Interestingly, though determining that this was the law as to the standard of proof for unlawful killing (particularly in light of the Court of Appeal decision in R v Wolverhampton Coroner, ex p McCurbin [1990] 1 WLR 719), the Court of Appeal noted that it did not consider that this necessarily ought to be the case.

Commentary

This case raises important questions concerning the conduct of inquests. The standard of proof can affect the conduct of the inquiry, the manner in which conclusions are expressed and, self-evidently, the outcome of the inquest itself.

The decision of the Divisional Court, that the civil standard of proof applied to death by suicide, is significant in that it was contrary to over 35 years of law and practice. Indeed, as recently as R (Lagos) v HM Coroner for the City of London [2013] EWHC 423 (Admin), the Divisional Court (Lang J), after detailed consideration of the authorities, determined that the criminal standard applies in those circumstances.

As the Court of Appeal acknowledged, there are cogent reasons for applying the civil standard of proof to all findings in inquest proceedings. Such proceedings are fundamentally investigatory and, at least in a strict legal sense, apportion no guilt upon those who may be thought to be ‘responsible’ (in a moral sense) for the death. They are, in other words, not criminal in character. After a period of considerable uncertainty, it is now clear that there is one single civil standard of proof (“more probable than not”), and no sliding scale of probability commensurate with the seriousness of the subject matter or consequences of the decision (see: Braganza v BP Shipping Limited [2015] UKSC 17; [2015] 1 WLR 1661).

However, as the position of the family in this case indicates, a finding of suicide can nonetheless be of particular moral significance to a bereaved family.

Interestingly, in Re Steponaviciene’s Application [2018] NIQB 90, the High Court in Northern Ireland was confronted with the same issue as arose before the Divisional Court in Maughan, and was invited to depart from the Divisional Court’s conclusions. After detailed consideration of the caselaw, the Court (McCloskey J, as His Lordship then was) concluded (at [74]) that it was “unable to diagnose any flaw in the reasoning or conclusion of the Divisional Court” in Maughan. Though not bound by the decision, the Court came to the same conclusion. In particular, the Court’s detailed consideration (at [47]-[60]) of what it described as “the DNA of Coroners’ Inquests” led the Court to conclude that “any purported analogy with either civil or criminal proceedings is, depending on the discrete issue under scrutiny, either entirely inapt or at most slender.”

It will be interesting to note whether the Supreme Court, like the Divisional Court and Court of Appeal before it, takes this opportunity to consider the applicable standard in unlawful killing cases. There, perhaps, would be the most significant practical effect of the decision in this case. Particularly in proceedings where state agents are said to be culpable for the deceased’s death (such as the tragic number of cases of suicide by prisoners), any lowering of the standard of proof of unlawful killing could have profound consequences for the nature and consequences of the investigation conducted at an inquest.