Unlawful killing — the civil standard of proof

The Maughan case

On 13 November 2020, the Supreme Court changed the standard of proof required in inquests to return the short-form conclusions of ‘unlawful killing’ and ‘suicide’ from the criminal standard to the lower civil standard (R (on the Application of Maughan) v HM Senior Coroner for Oxfordshire [2020] UKSC 46).

The Maughan case related to the death of James Maughan who was found hanging from his bedframe by a ligature. The coroner decided that it was not safe for the jury to reach a short form conclusion of suicide on the criminal standard of proof (beyond reasonable doubt) but the jury could make a narrative statement about his death on a balance of probabilities. The jury went on to answer the questions put to them by saying that, on the balance of probabilities, the deceased intended to fatally hang himself.

In giving the leading judgment of the Supreme Court, Lady Ardent considered Note (iii) of the Coroners (Inquests) Rules 2013 which states that “the standard of proof required for the short form conclusions of ‘unlawful killing’ and ‘suicide’ is the criminal standard of proof. For all other short form conclusions and a narrative statement the standard of proof is the civil standard of proof”.

It was held that Note (iii) was a statement of the common law position which did not have the status of a statute and therefore could be changed by the Supreme Court. Concern was also expressed by Lady Ardent about the risk of inconsistent fact-finding between the short form conclusion of suicide and the narrative conclusion which could include elements of suicide (as was the case in Maughan).

The minority decision was that Note (iii) was a statutory rule which the Supreme Court did not have the power to alter and therefore unlawful killing and suicide should continue to be decided on the higher criminal standard of proof in inquests.

Key changes

The outcome of the Maughan case is that the civil standard of proof now applies to all inquest conclusions including unlawful killing.

This presents issues for a number of reasons including the fact that unlawful killing involves an assessment by the jury (or the coroner if sitting alone) as to whether the crimes of murder, manslaughter or infanticide have been committed.

A conclusion of unlawful killing in an inquest is of course different to a criminal conviction, but for those who may be implicated by an unlawful killing conclusion, it is a very serious matter. Members of the public, who may not be familiar with inquests, may not appreciate the difference between a finding of unlawful killing on the balance of probabilities and a finding that someone is guilty of, for example, gross negligence manslaughter beyond reasonable doubt.

Concerns have also been raised about the difference between an inquest and a criminal trial and the rules of evidence which exist in relation to criminal proceedings to seek to ensure that defendants have access to a fair trial. There are also no rights within the inquest proceedings to address the jury or the coroner on the facts. This is in fact expressly prohibited.

Application of Maughan

The application of the civil standard of proof in relation to unlawful killing was recently considered in a tragic case involving the death of a child who died whilst playing with friends.

In this case, Weightmans represented one of the Interested Persons. It was asserted by the family that their child had been unlawfully killed through gross negligence manslaughter or possibly murder. The detailed submissions provided on behalf of all of the other Interested Persons disagreed that this was the case.

The crime of gross negligence manslaughter is committed if:

1. The individual owes a duty of care to the deceased;
2. The individual negligently breaches that duty of care;
3. At the time of the breach, there was a serious and obvious risk of death and this was a reasonably foreseeable consequence of the breach;
4. The breach caused the death;
5. The misconduct was so truly exceptionally bad so as to justify the conclusion of gross negligence manslaughter which deserves to be condemned as a serious crime.

In the criminal context, a jury will only convict an individual of this offence if they are sure that each element is satisfied beyond reasonable doubt. However, following the Maughan judgment, the coroner needed to assess whether it was ‘more likely than not’ that each of these limbs of the test had been satisfied.

In a case which had been widely reported on in the press, it was necessary for all the speculation and rumour to be placed on one side and the facts, in so far as they had been established at the inquest, to be the sole matters considered by the coroner in reaching her conclusion.

The coroner arrived at the conclusion that the deceased died as a result of an accident. The contention that the deceased may have been murdered was dismissed by the coroner as there was no evidence before the court that anyone intended to kill the child.

In considering and dismissing unlawful killing, the coroner went through each of the components set out above. Whilst the coroner decided that the first four limbs of the tests were satisfied on the balance of probabilities, she did not find that the conduct of the individual in question was so truly exceptionally bad as to justify the conclusion of gross negligence manslaughter. The coroner said it was far from being so, even applying the balance of probabilities.

The future

We anticipate that there will be a change in the approach to inquests in future where there is a possibility that unlawful killing may be an outcome. This will lead to an increased focus on the preparation for inquests and consideration of key matters such as the ‘scope’ of the inquest and those witnesses who should be called to give their evidence in person. It will also necessitate careful advice in relation to the rights of witnesses to refuse to answer questions which may lead to self-incrimination. Legal submissions on the possible conclusion of unlawful killing are also expected to be more detailed with an in-depth analysis of each limb of the test and references to judicial decisions spanning both criminal and civil law.