Standard of Proof for Suicide in Inquests

Leila Benyounes examines R (On the application of Thomas Maughan) v. Her Majesty’s Senior Coroner for Oxfordshire & Others [2018] EWHC 1955 (Admin).

A judgment from Leggatt LJ sitting with Nicol J has held that the correct standard of proof to be applied in a suicide conclusion in an inquest is the civil standard “on the balance of probabilities” contradicting the long-held approach that the standard to be applied is the criminal standard “beyond reasonable doubt”.

Background

On 11/07/16 the Claimant’s brother, James Maughan, was found hanging in his prison cell at HMP Bullingdon.

An inquest into the death was heard by HM Senior Coroner for Oxfordshire over four days in October 2017 in front of a jury.

At the inquest the Coroner accepted that there was insufficient evidence upon which the jury could be sure that the deceased intended to kill himself. The Coroner determined that the jury could therefore not be permitted to consider a short form conclusion of suicide but he invited the jury to record a narrative conclusion which answered five questions.

The questions included asking if the deceased deliberately placed a ligature around his neck and suspended himself from the bed frame, and if the jury was able to determine if it was more likely than not that the deceased intended the outcome to be fatal, or for example, if it was likely that he intended to be found and rescued. The Coroner also directed the jury to consider whether the deceased was unable to form a specific intent to take his own life through mental illness and to apply the balance of probabilities as the standard of proof when answering the questions.

The jury’s narrative statement included the following findings: “we find on the balance of probabilities, it is more likely than not, that James intended to fatally hang himself that night”.

The Claim

In a claim for judicial review, the Claimant contended that the jury’s conclusion was unlawful as it amounted to a conclusion of suicide reached on the balance of probabilities. It was said that the Coroner erred in law in instructing the jury to apply the civil standard of proof when considering whether the deceased intended to kill himself. It was argued that the law was clear that a conclusion of suicide, whether recorded in short form or as part of a narrative statement, may only be returned on the criminal standard of proof.

Consideration of Standards of Proof

Leggatt LJ considered the reasoning behind the applicable standards of proof in civil and criminal proceedings noting that the established standard of proof in civil proceedings “on the balance of probabilities” was not flexible or variable (para 33).

Leggatt LJ also considered the nature and function of a modern inquest and concluded that today there is no relationship or analogy between coroner’s proceedings and criminal proceedings which can justify applying in coroner’s proceedings the criminal standard of proof (para 38).

Leggatt LJ noted significant differences between coroner’s proceedings and civil proceedings which make it, if anything, less rather than more appropriate to apply in coroner’s proceedings a standard of proof higher than the civil standard. Given that in civil proceedings the standard of proof of criminal conduct remains the ordinary civil standard, the Court could see no principled reason for adopting a difference approach in coroner’s proceedings (paras 39-40).

Note (iii) Form 2

The Claimant submitted that note (iii) in Form 2 contained in the Schedule to the Coroners (Inquests) Rules 2013 expressly states that the standard of proof required for the short form conclusions of “unlawful killing” and “suicide” is the criminal standard of proof. It was averred that this illustrated that the application of the criminal standard of proof had been given statutory force. Leggatt LJ rejected this argument noting that, if correct, it would defeat the Claimant’s case as it also states that for a narrative statement, the standard of proof is the civil standard of proof. Leggatt LJ found that if the intention had been to make a rule, this would have been done in the body of the rules and not in a prescribed form.

Common Law

It was held by Leggatt LJ that the various authorities that were cited to support the contention that the criminal standard of proof should apply did not establish such a rule.

R v. West London Coroner, ex parte Gray [1988] QB 467

However, in ex parte Gray a Divisional Court held that the implication was that the criminal standard should apply in cases of suicide, based on preceding authorities, in particular R v. City of London Coroner, ex parte Barber 1[1975] 1 WLR 1310.

The Court rejected the previous approach adopted in ex parte Gray and held (paras 59-65):

The remarks made about the standard of proof in suicide were only dicta as ex parte Gray was concerned with unlawful killing, so the question of suicide did not arise;

Even if the remarks were part of the ratio in ex parte Gray, they were wrong and based on a misreading of the judgment in ex parte Barber, which dealt with a different point that suicide cannot be presumed;

No reference was made in the judgments in ex parte Gray to the rule of law that, where a question is raised in civil proceedings as to whether a criminal offence has been committed, the applicable of standard of proof is the civil not the criminal standard;

The view expressed in ex parte Gray about the standard of proof in suicide was disapproved by the Court of Appeal in Braganza v. BP Shipping Limited [2013] EWCA Civ 230. The Supreme Court agreed with the Court of Appeal in Braganza v. BP Shipping Limited [2015] UKSC 17.

Decision

The Court dismissed the claim for judicial review with a clear decision that a conclusion of suicide, whether expressed as a narrative statement or in short form, is required to be proved to the civil, not the criminal, standard of proof (para 75). And it follows that arguably the standard of proof may have been applied incorrectly since ex parte Gray.

Impact

There are significant ramifications from this decision:

The guidance in Form 2 now erroneously states the standard of proof in respect of a suicide conclusion as the criminal standard “beyond reasonable doubt”;

There may be a challenge to the other long held view that a conclusion of “unlawful killing” must be proved to the same criminal standard “beyond reasonable doubt” as it could be contended that the same standard should apply to all inquest conclusions based on Leggatt LJ’s reasoning;