R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [2019] EWCA Civ 809
This article originally appeared in Issue 1 (May 2019).
In this judgment, handed down on 10 May 2019, the Court of Appeal considered the standard of proof to be applied by a coroner in deciding whether the Deceased intended to kill himself. The court also considered whether the answer depended on whether the conclusion was delivered in short-form or narrative form.
The court affirmed the decision of the Divisional Court and concluded that the appropriate standard of proof, for both short-form conclusions and narrative conclusions of suicide, was the civil standard of proof. In obiter remarks the Court recommended that the juries should continue to be directed by reference to the criminal standard of proof for a conclusion of unlawful killing.
Davis LJ’s reasoning, set out at [74], was as follows:
“In the absence of authority, I would be of the clear view, in agreement with the Divisional Court, that the appropriate standard of proof to be applied throughout in cases of suicide should be the civil standard. I say that for a number of reasons:
(1) First, the essence of an inquest is that it is primarily inquisitorial, that it is investigative. It is not concerned to make findings of guilt or liability (even though I accept that not infrequently a narrative conclusion may in practice, to an informed participant, operate to identify individuals as potentially at fault). The underpinning rationale for the need to have a criminal standard of proof in criminal proceedings simply has no obvious grip in inquest proceedings, given their nature.
(2) Second, since 1961 suicide has ceased to be a crime. Suicide will of course be dreadfully upsetting to the family of the deceased; it may perhaps in some quarters also carry a stigma (although one would like to think that the predominant feeling of most observers in modern times would be acute sympathy); it may have other adverse social or financial consequences. But it is not a crime.
(3) Third, whatever the prevarications in the past, the civil courts nowadays generally apply in civil proceedings the ordinary civil standard – that is, more probable than not – even where the proposed subject of proof may constitute a crime or suicide (see re B; Braganza). There is no sliding scale or heightened standard. There is no discernible reason why a different approach should apply in coroner’s proceedings, at all events in relation to suicide (which is not even a crime).
(4) Fourth, the importance in Article 2 cases – although in my view there actually is no reason in principle to distinguish between standards of proof in suicide cases depending on whether or not Article 2 considerations arise – of a proper investigation into the circumstances of death under s.5(2) of the 2009 Act strongly supports the application of the (lower) civil standard. The approach intended to be applicable, viewed objectively, surely would be expected to be inclined towards an expansive, rather than restrictive, approach. That also would enhance the prospects of lessons being learned for the future: one of the functions of such an inquest. I accept Ms Monaghan’s point that Article 2 procedural requirements are not incapable of being met by the application of a criminal standard of proof. But context is all: and the present context of an inquest relating to suicide, and the answer to the question “how?”, strongly favours the imposition of a lower standard of proof than the criminal standard.
(5) Fifth, the application of the civil standard to a conclusion of suicide expressed in the narrative conclusion would cohere with the standard which is on any view applicable to other potential aspects of the narrative conclusion (for example, whether reasonable preventative measures should or could have been taken and so on).”
Davis LJ went on to say that previous authorities provided no real rationale for the application of the criminal standard.
He further distinguished the case of unlawful killing, primarily on the basis that, unlike suicide, a conclusion of unlawful killing connotes a crime. He also noted that previous authorities were clear on the question of the applicable standard of proof in unlawful killing cases. In his obiter remarks he acknowledged, however, that there were powerful arguments in favour of adopting the civil standard.
This important judgment raises a wide range of interesting issues, to be analysed further in future issues, no doubt.
