Schrödinger’s Defendants: Inquests, Unlawful Killing and Criminal Acquittals
R (Leeson) v HM Area Coroner for Manchester South [2023] EWHC 62 (Admin)
R (Makki) v HMSC for S. Manchester [2023] EWHC 80 (Admin)
The Inquests into the Shoreham air crash
The coronial and criminal jurisdictions have a long and tangled relationship. The word “murder” derives from “murdrum”, the Medieval tax levied on a community after a coronial finding that an unidentified body was that of a Norman. In later centuries, juries at inquests could find people guilty of murder, empowering the coroner to issue an arrest warrant and commit them for trial. Yet from common soil and entwined roots, inquests and trials grew into increasingly distinct plants and during the twentieth century the primacy of criminal investigations and prosecutions became enshrined in legislation. Coroners were required to suspend inquests during criminal proceedings. If resumed, those inquests were prohibited from coming to conclusions that were “inconsistent” with the verdict of the criminal court: see what is now para.8(5) of Schedule 1 of the Coroners and Justice Act 2009 (‘CJA 2009’). After 1977, inquests were prohibited from appearing to determine criminal liability on the part of a named person: see what is now s.10(2)(a) CJA 2009. The conclusion of “unlawful killing” remained, but inquests could no longer formally identify who was responsible; that was a matter solely for the criminal courts.
Now, it seems, the smothering canopy of the criminal jurisdiction has lifted a little. Three recent cases have confirmed (subject to any challenges) that coroners resuming inquests after a defendant has been acquitted in a criminal trial can come to a conclusion of unlawful killing based on the same facts. This is a consequence of the decision of the Supreme Court in R (Maughan) v Oxfordshire Senior Coroner and ors [2021] AC 454 that the standard of proof for all conclusions at an inquest is the civil standard (balance of probability). Previously, suicide and unlawful killing had to be established to the criminal standard (beyond reasonable doubt).
First, the inquests into the Shoreham air crash found that those who died had been unlawfully killed. The coroner reached the conclusion having applied the test for gross negligence manslaughter in respect of the actions of the pilot. The pilot had previously been acquitted of gross negligence manslaughter at trial.
Second, in R (Leeson) v HM Area Coroner for Manchester South [2023] EWHC 62 (Admin) the Administrative Court held that the coroner should have admitted evidence about £3.5m in life insurance policies taken out by a husband on his wife’s life. She was later found drowned in a swimming pool with signs of injury. The husband was acquitted in criminal proceedings and the inquest was resumed. The Administrative Court held that the evidence of the policies went to the husband’s motives, which would inform the question of whether the deceased died as the result of an accident or was unlawfully killed. It proceeded on the basis that an unlawful killing conclusion posed no legal difficulties, although it doesn’t appear that this issue was raised in argument.
Third, and most directly on point, is the case of R (Makki) v HMSC for S. Manchester [2023] EWHC 80 (Admin). This concerns the inquest into the death of Yousef Makki, a school boy stabbed to death following an altercation with D. D was acquitted of murder having claimed he was acting in self-defence. The Administrative Court held that an inquest conclusion of unlawful killing on the civil standard of proof is not inconsistent with that acquittal on the criminal standard. As a result, para. 8(5) of Schedule 1 of the 2009 Act does not prohibit a finding of unlawful killing, even where the defendant in the criminal trial is the only person who could have done the act that led to the death. The Court went on to quash the inquest, which had concluded with a narrative conclusion in which the coroner said she could not decide whether or not Yousef had been unlawfully killed.
Analysis
These cases are a by-product of the decision in Maughan. By lowering the standard of proof for unlawful killing at inquests to the balance of probability that which was previously prohibited by para. 8(5) of Schedule 1 is now allowed. This consequence was not addressed in the judgments of the Supreme Court or the Court of Appeal in Maughan.
There will be mixed views about this development. Some will welcome the opportunity for facts to be explored in public and for bereaved families to be given answers beyond the two words of an acquittal. They will point to civil or disciplinary proceedings that may also follow criminal proceedings. These, too, operate to the civil standard of proof and unlike inquests they have powers to award compensation or end employment. Others will be concerned that inquests will become ersatz criminal trials with the scales tipped against the proxy defendant: the standard of proof is lower, the evidential and procedural rules are looser and, most importantly, there is little or no prospect of public funding for legal representation for the accused. A small and niche group of enthusiasts may see this as a further reason to end the perceived historical anomaly of the unlawful killing determination.
Leaving aside that debate, here are five further observations. First, it will only be in cases where a defendant is acquitted that this issue arises. Where someone is convicted of a homicide offence it is not open to them to try to re-open that conviction at an inquest. That conviction was made on the criminal standard and it would be inconsistent with that verdict, and therefore unlawful, for an inquest to find to a lower standard that the person did not in fact commit the acts that led to the crime. See: R (Peter Skelton and anr) v Senior Coroner for West Sussex [2020] EWHC 2813 (Admin).
Second, inquests will still be prohibited from identifying by name any individual thought to be liable for the unlawful killing: see s.10(2)(a) CJA 2009. There will be no return to jury inquests declaring individuals guilty of murder. Lord Lucan will remain one of the last to be so named.
Third, there will be instances in which a resumed inquest goes beyond the issues raised in a criminal trial. This will be particularly so where there are suggestions of failures by state institutions and others to prevent the death – for example, where questions arise over the provision of mental health provision or probation services, or multi-agency co-operation in providing public protection.
Fourth, coroners will have to decide whether or not to resume such inquests. The test is whether the coroner thinks that there is “sufficient reason” for resumption: para. 8(1), Schedule 1, CJA 2009; see also the Chief Coroner’s Guidance no. 33 (§32-38). Cases in which there is a wider question of public protection (such as Shoreham) will be more likely to meet this test. There may also be a tendency to resume inquests where the criminal proceedings did not result in a completed trial: see Re Downes’ Application [1998] 4 NIJB 91, cited at [§33] of the Chief Coroner’s Guidance. There is a clear logic to this as the death will not have been fully and publicly investigated and it may not be clear how the person came by their death – the very question the coroner is charged with answering. These cases are likely to be ones in which the Crown Prosecution Service have decided that there is no realistic prospect of a conviction, or (as in Leeson) where the trial judge has concluded before the end of the trial that the prosecution case, taken at its highest, would not properly allow for a conviction. This raises the prospect of a peculiar inverse correlation between the frequency with which inquests are resumed following an acquittal, and the strength of the evidence of an unlawful killing.
Fifth, the situation is not entirely unprecedented. Before Maughan, there were instances in which an inquest returned a conclusion of unlawful killing only for a criminal jury to acquit. Both would have considered the same offence and applied the same criminal standard of proof. A notable example is that is the match commander from the Hillsborough disaster. The jury in the renewed inquests in 2016 found that the (then) 96 people who had died were all unlawfully killed. They did so having considered the elements of the offence of gross negligence manslaughter on behalf of the match commander and found, beyond reasonable doubt, that they were made out. Two years later, the match commander was acquitted of gross negligence manslaughter at a criminal trial. Unsurprisingly, this was a situation that caused disquiet.
Following Maughan, it is inevitable that there will be more requests to resume inquests following criminal trials, and stronger arguments put forward in support. It is likely that this will result in more such Schrödinger’s defendants – those whom the courts have found to be not guilty of the homicide of the person they unlawfully killed.
