Coroner’s inquest – civil standard of proof for suicide conclusion
R (Maughan) v Senior Coroner for Oxfordshire – Court of Appeal [10.05.19]
Last year the High Court boldly concluded that the standard of proof required for a conclusion of suicide (whether recorded in short-form or as a narrative statement) at an inquest is the civil standard of “on the balance of probabilities” and not the criminal standard of “beyond reasonable doubt”. The family appealed and in May 2019, the Court of Appeal agreed on the civil standard of proof for suicide, and usefully also discussed the standard of proof for unlawful killing, stating that the criminal standard should still be applied by the Coroner’s Court.
Given the importance of clarity to the law and practices of coroners’ inquests in these sensitive scenarios, both the Chief Coroner and the charity, INQUEST, were permitted to make submissions to the Court of Appeal.
The ultimate outcome recognises the role of modern inquests. The Chief Coroner’s Guidance, the notes to Form 2 and the Coroner Bench Book are now likely to be updated.
The purpose of a coroner’s investigation is to establish the ‘who, how, when and where’ the deceased came by his or her death, so that the Record of Inquest (Form 2) can be completed for registration of death purposes. Form 2 contains a short-form conclusion (taken from a list of nine options, including suicide and unlawful killing) and/or a brief narrative conclusion.
As stated in R v South London Coroner, ex parte Thompson :
An inquest is a fact-finding exercise and not a method of apportioning guilt…In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation….
Rather than there being parties to an inquest there are “interested persons”, who could include, for example, family members, a life insurer and persons who were caring for the individual at the time of their death whether in a state prison or otherwise.
The coroner also considers “in what circumstances” the deceased came by his or her death in order to comply with the state’s obligations under the European Convention on Human Rights (Article 2 which concerns protection of the right to life), for example, when a person dies while in state custody.
Coroners refer to the Chief Coroner’s Guidance and the Coroner Bench Book for guidance on their use of words in court. The notes to Guidance No.17 had stated that:
- The criminal standard of proof applied for short-form conclusions of unlawful killing and suicide
- The civil standard of “on the balance of probabilities” applied for all other short-form conclusions and, significantly, a narrative conclusion.
Despite the Guidance indicating that the Ministry of Justice were in discussion about whether suicide should be proved to the criminal or civil standard, there was no active review as at 2019, so this Court case was a timely opportunity to consider the applicable standard of proof.
The inquest concerned the death of a prisoner who was found hanged in his cell in 2016. When the inquest took place in 2017, the coroner accepted that there was insufficient evidence to enable a jury to be sure, beyond reasonable doubt, that he had intended to take his own life.
The coroner directed, in writing, the jury to address five questions and to respond in a narrative conclusion, applying the civil “on the balance of probabilities” standard of proof.
The five questions, closely modelled on the approach in the Guidance and the Coroner Bench Book, included:
- Whether it is more likely than not that he intended the outcome to be fatal, or, for example, if it was likely that he intended to be found and rescued? And whether the deceased was unable to form a specific intent to take his own life through mental illness.
- Whether there were any errors or omissions on the 10-11 July 2016 in the provision of care on the part of prison staff which caused or contributed to his death? If so, what those errors/omissions were and how they contributed to his death.
Due to the death occurring in a state prison, the circumstances of his death needed to be considered.
By responding that it was more likely than not that he intended the fatal outcome, the deceased’s family regarded the inquest conclusion as unlawful and applied for judicial review of the coroner’s directions to the jury to apply the civil “on the balance of probabilities” standard.
Having reviewed the past case law, including those relating to unlawful killing, the court’s view was that on analysis they did not correctly state the law and that the balance of probabilities should be the applicable standard for a suicide conclusion in an inquest (whether short-form or narrative statement).
The deceased’s family appealed. The Court of Appeal recognised that the High Court had “adopted a bold approach in departing from what had been regarded as settled law and practice”.
The Court of Appeal did not regard it as appropriate for different standards of proof to apply to short-form and narrative statements as this would cause confusion and was satisfied that it was correct to apply “on the balance of probabilities” to both.
The key reasons were:
- As the nature of an inquest is investigative, there is no clear case for a criminal standard of proof to apply.
- While a suicide conclusion can be upsetting for the family, since 1961 it ceased to be treated as a crime.
- Civil courts apply the civil standard of proof even where the proposed subject of proof may constitute a crime or suicide. There is no reason why an inquest should adopt a different approach, in relation to suicide, which is not even a crime.
- A proper investigation into the circumstances of death strongly supports the application of the civil standard to enhance the prospects of lessons being learned to prevent future deaths, which is one of the functions of inquests.
- Use of the civil standard aligns with the standard that is applicable to any other potential aspects of a narrative conclusion.
The Court of Appeal appeared to urge a review of the current Guidance and Coroner Bench Book, as well as the notes to Form 2.
The Court of Appeal usefully commented on unlawful killing, although this being a suicide case, these are side comments. This clarification was to be welcomed by the Chief Coroner as the July 2018 judgment had appeared to indicate that the civil standard should apply to unlawful killing issues in inquests.
The Court of Appeal also considered the McCurbin case, involving an unlawful killing inquest conclusion following death in the course of police arrest, which had not been discussed in the July 2018 judgment.
The charity, INQUEST, had submitted views to the Court of Appeal that the standard of proof at an inquest should be the same for unlawful killing and suicide, and that a higher criminal standard of proof for issues of unlawful killing raised at inquests was not justified.
The Court of Appeal distinguished unlawful killing from suicide, stating six reasons for unlawful killing to remain on the criminal standard as follows:
- Inquests are not criminal proceedings, and unlawful killing implies a crime. Unlawful killing can therefore be considered to have its own special status as a conclusion at an inquest.
- Conclusions of unlawful killing in an inquest appear restricted to a class of homicide cases (murder, manslaughter and infanticide).
- While an inquest cannot determine any question of criminal liability on the part of a named person, the identity of the person alleged will, in reality, have become knowledge from the hearing and it is fairer to that person that the higher criminal standard applies, because a conclusion of unlawful killing will ordinarily cause the Crown Prosecution Service to reconsider whether to bring criminal charges.
- The wording of Section 10(2) Coroners and Justice Act 2009 indicates that questions of criminal liability may be determined (even if persons are not to be named), which is consistent with the criminal standard of proof being used.
- The Guidance footnotes suggested that the Ministry of Justice were having ongoing discussions about suicide. As unlawful killing was not mentioned this indicated that unlawful killing stood apart.
- The courts have consistently taken the view in unlawful killing cases, including McCurbin, that the applicable standard of proof is the criminal standard.
The Court of Appeal did not necessarily agree that this ought to be the outcome, as it could see a very powerful case for the civil standard also applying to unlawful killing conclusions in inquests as a matter of principle and practicality.
A statutory review of the coroner’s rules was regarded as preferable to avoid future debate on unlawful killing inquest cases.
The Court of Appeal’s decision provides welcome clarification to coroners and interested persons, when inquests involving issues of suicide arise. It is correct for a coroner to instruct a jury not to conclude suicide unless satisfied that it was more likely than not, on the balance of probabilities, that the deceased deliberately killed himself intending to take his own life.
Historically, coroners may have been less inclined to conclude suicide, perhaps due to wishing to avoid further distress for the family, preferring open or narrative conclusions. However, with clarification on the standard of proof the Office of National Statistics may start to see more reliable statistics of suicide, and in turn this could assist with measures and resources to help reduce suicide risks.
From a life policy claim perspective, the Court of Appeal’s decision has aligned the standard of proof with the requirements for an insurance policy claim, which as a contractual claim, also requires the civil standard of proof.
A life insurer can attend and arrange legal representation at an inquest and raise questions as an “interested person”. The coroner’s remit is potentially more limited than the contractual claim, and the coroner could have access to less information than could be relevant to the insurance claims assessor, so there may now be a greater case to proactively attend the inquest as part of the initial information gathering stage.
Where the death has occurred while the person is in the care of the state, such as in prison or a state hospital, this case highlights that the Coroner’s Guidance is seeking to ensure consistency in the wording used by coroners.
Following this judgment, it is anticipated that the coroners’ rules and related guidance and notes to Form 2 shall be reconsidered and updated.