Suicide Verdicts to be Decided on a Balance of Probabilities

By a 3-2 majority the Supreme Court today dismissed an appeal by the deceased’s brother holding that the standard of proof for all short form conclusions at inquests was the balance of probabilities: R (on the application of Maughan) (Appellant) v Her Majesty’s Senior Coroner for Oxfordshire (Respondent) [2020] UKSC 46

At an inquest into the death of the appellant’s brother (JM), the Senior Coroner for Oxfordshire decided that the jury could not safely reach a short form conclusion of suicide because it could not be sure beyond reasonable doubt that JM had intended to kill  himself.

The Senior Coroner therefore put questions to the jury and asked them to make a narrative statement of the circumstances of JM’s death on a balance of probabilities.

The jury’s conclusion was that JM had a history of mental health issues and that on a balance of probabilities he intended fatally to hang himself and that increased vigilance would not have prevented his death.

The appellant argued that the Senior Coroner was wrong to instruct the jury to apply the civil standard.  The Divisional Court dismissed the appeal, holding that the standard of proof for short form and narrative conclusions of suicide was the civil standard.

The Court of Appeal upheld the Divisional Court and added that the criminal standard applied to unlawful killing.

The two most senior members of the Court (Lord Reed, President, and Lord Kerr) would have allowed the appeal.

Lord Kerr, in a dissenting judgment, held that the criminal standard of proof applied to short form conclusions of suicide and unlawful killing.  In his view, there was no inconsistency caused by a short form and narrative conclusion having different standards of proof.

There was nothing untoward in putting suicide and unlawful killing in a special category of verdicts that required proof to the criminal standard.  Note (iii) to the form did not attempt to change the law but confirmed what the existing law was.

The result was that the common law rule became a statutory rule and could only cease to have effect if Parliament enacted a statutory provision to amend or abolish it.

The Rules unquestionably established a statutory basis for the application of the criminal standard of proof for short form conclusions of suicide and unlawful killing.  The President agreed with Lord Kerr’s judgment.

For the majority, Lady  Arden held that neither the Coroners and Justice Act 2009 nor the European Convention on Human Rights required any particular standard of proof for conclusions at an inquest.

There was case law to the effect that conclusions of suicide and unlawful killing should be reached to the criminal standard, but a coroner’s inquest was not a criminal proceeding.

The Coroner’s (Inquests) Rules 2013 contained a form which must be used to record the result of an inquest.  Note (iii) explained that the standard of proof for short form conclusions of suicide and unlawful killing was the criminal standard and that for other conclusions the civil standard applied.

The Ministry of Justice consulted on the rules and its response document explained that case law established the standard of proof and the Rules could not change the law.  Lady Arden held that response was relevant to interpreting Note (iii) and indicated that Parliament did not intend to change or codify the law as it understood it to be.

On its true interpretation, Note (iii) did not take away the power of the courts to develop the common law.

Consistent with legal principle, the civil standard of proof applied to short form conclusions of suicide.  The previous case law was not binding on the Supreme Court and did not identify good reasons against applying the civil standard.

To apply different standards of proof for short form and narrative conclusions led to an internally inconsistent system of fact-finding.

If a criminal standard of proof was required, suicide was likely to be under-recorded. Societal attitudes to suicide had changed and the role of inquests had developed to be concerned with the investigation of deaths, not criminal justice.

It was to be noted that certain Commonwealth jurisdictions had aligned the standard of proof applicable in inquests with the standard applicable in civil proceedings.

Lady Arden also held that the civil standard of proof applied to determinations of unlawful killing.  There was then consistency between the determinations made at an inquest.

The upshot seems to be that for suicide the law requires a proof on the balance of probabilities.  For unlawful killing the law has been widely understood to be proof beyond reasonable doubt.

Lord Kerr affirmed that in his judgment.  Lady Arden has cast doubt on that by holding that the civil standard should apply.

In the circumstances, both opinions may be considered obiter, so that will be another argument for another day.