Saturday, 14 November 2020

Suicide and Unlawful Killing ~ Standard of Proof

Judgment has been handed down by the Supreme Court of the UK in R (Maughan) v Her Majesty's Senior Coroner for Oxfordshire [2020] UKSC 46 - Lords Reed, Kerr, Wilson, Carnwath and Lady Arden.

The court, by a majority of 3 to 2, held that the CIVIL standard of proof applies for an inquest to return a short form conclusion of suicide. Lady Arden gave the first judgment, with which Lord Wilson agreed. Lord Carnwath agreed with Lady Arden and gave a concurring judgment. Lord Kerr gave a dissenting judgment, with which Lord Reed agreed.

The legal effect of the court's decision

is that for all conclusions at an inquest, the standard is the same. The coroner or jury may record a conclusion (whether short form or narrative: whether suicide or unlawful killing) if they are satisfied that it is more likely than not that it occurred.

INQUEST was granted permission to intervene  in the case and argued that the civil standard should also apply to an unlawful killing conclusion. The court accepted this submission with the result that there is now consistency between the approach to be taken to suicide and to unlawful killing - see INQUEST 13 November 2020

Previous post about the case 11 May 2019 - Coroners - Suicide - Standard of Proof  

The court's decision gets the law to a position of logical consistency with the civil (balance of probabilities) standard applying. 

In a post on the UK Human Rights blog, Owain Thomas QC points out that everyone who has done an inquest where a conclusion of suicide or unlawful killing was realistic on the evidence has - 

"traditionally gone along with the idea that in order to be satisfied that either conclusion should be returned the criminal standard of proof was required.

This is often seen in practice, particularly where suicide is concerned, as being a way for Coroners to return an open verdict where there is no positive and direct evidence that the deceased intended to take his or her life, even if the surrounding circumstances point clearly in that direction. Such an approach can be welcome to families grieving the loss of a family member." 

Nonetheless, Owain Thomas goes on to argue that -

" .... It was the sophistry of finding that the deceased probably deliberately killed himself  but that this was not “suicide” that led the Divisional Court to take the approach that it did and fostering that sort of dual approach does not seem a satisfactory way forward."

and later 

"It must be better surely to have one consistent standard of proof in a case involving potential unlawful killing regardless of whether the Coroner or jury is being invited to return a short form or narrative verdict. The facts of Maughan itself illustrate the strained position of adopting two different standards of proof for reaching effectively the same conclusion in a different linguistic format. The jury had been directed that they could not consider suicide because the evidence could not at its highest justify such a conclusion bearing in mind the standard of proof. Instead, they were asked to answer a number of questions on the civil standard which resulted in the same overall conclusion. That sort of system would be difficult to explain to lay people and makes little sense. The majority judgment seems to me to provide a logical and consistent approach."

Also see Matrix Chambers 13 November 2020 where Karon Monaghan QC comments - "A majority of the Supreme Court held that the civil balance of probabilities is the correct standard of proof, or degree of conclusivity, required for the determination of the result of an inquest into a death where the question is whether the deceased committed suicide. Neither the Coroners and Justice Act 2009 nor the European Convention on Human Rights requires any particular standard of proof for conclusions at an inquest. However, the common law provides that the civil standard of proof applies to short form conclusions of suicide. To apply different standards of proof for short form and narrative conclusions leads to an internally inconsistent system of fact-finding. If a criminal standard of proof is required, suicide is likely to be under-recorded. Societal attitudes to suicide have changed and the role of inquests has developed to be concerned with the investigation of deaths, not criminal justice."  

UK Inquest Law Blog - Probably unlawful killing: a new inquest conclusion

Coroners and other concerns:

Concerns continue regarding Coroners and their courts. A major issue relates to legal aid not being generally available so that families of the deceased can be represented at an inquest. A further issue is the absence of appeals from inquest. 

In September 2020, INQUEST gave evidence to the Justice Committee and highlighted the need for several reforms. At the time of writing, the Justice Committee Inquiry is on-going.

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