‘Probably’ unlawful killing: Maughan and Chief Coroner’s Law Sheet number 6

The Supreme Court’s decision in R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [2020] (Maughan) surprised many of us who practice coronial law. The judgment lowered the standard of proof for a conclusion of unlawful killing from the criminal standard of ‘beyond reasonable doubt’ to the civil standard of the ‘balance of probabilities’.

The new Chief Coroner, HHJ Teague QC, had the unenviable task of producing guidance for coroners as to how they should consider cases coming before them in light of the Supreme Court decision, where there is potential for the conclusion of unlawful killing to be left to a jury.

Despite the new guidance, as set out in Law Sheet number 6, we anticipate that there will be difficult decisions for coroners ahead that will result in a mixed approach across the UK and no doubt an increase in judicial reviews.

Unlawful killing and inquests

Before the decision in Maughan, to reach a conclusion of unlawful killing the coroner, or the jury, had to be satisfied to the criminal standard ‘beyond reasonable doubt’, that a crime had been committed resulting in a death, namely murder or manslaughter.

The Chief Coroner emphasises in the recent guidance that an inquest is a fact finding inquiry and as such is not a criminal trial. Coroners are advised to give a thorough and clear explanation as to the purpose of an inquest at the beginning of proceedings, therefore ensuring that when reaching or leaving unlawful killing as a potential conclusion to a jury, that all persons involved are clear as to the difference in proceedings. We are in agreement that a clear explanation is now, more than ever, extremely important.

To be able to determine a conclusion of unlawful killing, the guidance states that the elements of each of the aforementioned criminal offences must be met. For example, in the case of gross negligence manslaughter, the guidance states that the six elements set out in R v Adomako [1995] now only need to be met on the ‘balance of probabilities’ rather than the requirement to be ‘sure’. This would appear on the face of it to be problematic for coroners as the criminal burden of proof no longer sits with the burden of proof in coroner’s courts.

For instance, considering the elements of corporate manslaughter, in terms of a work place death due to a fall from height, on the civil standard of the ‘balance of probabilities’:

  1. It is likely on the balance of probabilities that a company owes a duty of care to the deceased, whether an employee or a member of the public who fell from height.
  2. Consideration must be given as to whether the company probably breached that duty of care i.e. they probably did not have sufficient procedures in place for working from height.
  3. Following the above, did the breach probably cause or significantly contribute to the death of the deceased.
  4. The way in which the organisation’s activities are organised by its senior management is probably a substantial element of the breach.
  5. Having regard to the risk of death involved, was this misconduct probably grossly negligent so as to probably be condemned as the serious crime of manslaughter.

Corporate manslaughter is one of the most serious offences which is why there is a high burden for a prosecutor to establish on the facts, and why it carries with it substantial fines on conviction (and for individuals convicted of manslaughter, long prison sentences).

By removing the requirement that a jury must be sure as to each of the above-mentioned individual elements, especially the final element of the recognised test that a breach was not just serious but exceptionally bad, to a lower assessment of whether it was ‘probably really bad’ and ‘probably a serious crime’, this could lead to companies and individuals being associated with a serious offence in a coroner’s court that would not pass the relevant criminal test in the criminal court. It will likely cause not only problematic outcomes, but general confusion and concern for those individuals and businesses involved.

The Chief Coroner’s guidance anticipates that it will still remain the case that we will see relatively few conclusions of unlawful killing. Reference is made in the guidance that in 2019, on consideration of 31,284 conclusions, approximately 0.5% were unlawful killing. By lowering the standard, it seems extremely likely to us that this figure will increase.

Indeed it would appear that the ramifications of the Supreme Court decision are already being seen.

On 18 January 2021, it was reported that HM Coroner in Sheffield reached a conclusion of unlawful killing following the death of two individuals, whose broken down vehicles were struck by an HGV on a smart motorway (i.e. a motorway without a hard shoulder). It is unclear to what extent the careless driving of a third party (which was identified as the primary cause of the incident), or the coroner’s concerns in relation to the safety of smart roadways generally, impacted the conclusion reached. It is apparent however that the conclusion appears to be contrary to the recent guidance that a conclusion of unlawful killing should be restricted to the criminal offences of murder, manslaughter and infanticide.

Looking forward, it is anticipated that the conclusion of unlawful killing may be one which is more readily considered by coroners and suggested as an appropriate conclusion by interested persons. A conclusion of unlawful killing could influence the approach a regulatory authority may take in relation to any ongoing investigation, and will, at the very least, cause regulatory authorities to revisit matters where a decision for no further action was previously reached. We anticipate an increase in legal submissions as to whether such a conclusion should rightly be reached and indeed left to a jury, given the potential ramifications for a company or individual (including reputational damage).


Given that inquests are public hearings, a conclusion of unlawful killing based on the civil standard of proof could lead to adverse publicity and loss of business for companies as well as loss of reputation for individuals. One cannot name a company or individual in a conclusion. However, inferences can usually be made from the evidence heard during the course of the inquest, or the coroner’s closing remarks which tend to be largely reported.

Such a conclusion will likely influence a regulatory authority’s decision in any ongoing investigation, and will lead to matters being re-visited where a decision of no further action had previously been taken.

We will likely see a mixed approach by coroners, resulting in an increase in unlawful killing conclusions which, in turn, will lead to an increase in judicial review. Or maybe we should say ‘probably’.

Read other items in Health, Safety and Environment Brief - March 2021

Related item: Supreme Court ruling on standard of proof in inquests: implications for work-related accidents

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