Authored by Richard Reichman, Partner at BCL Solicitors LLP
Overview
In the case of R (on the application of Maughan) (Appellant) v Her Majesty’s Senior Coroner for Oxfordshire (Respondent) [2020] UKSC 46, the Supreme Court found, by a majority of three to two, that all conclusions in coronial inquests, including unlawful killing and suicide, whether short form or narrative, are to be determined on the civil standard of proof i.e. ‘on the balance of probabilities’.
A striking effect of the judgment is that for an inquest conclusion of unlawful killing a lower burden of proof is now sufficient (previously the burden of proof applied was the criminal burden of proof i.e. ‘beyond reasonable doubt’). This is a departure from the applicable burden of proof in any related criminal proceedings. The Supreme Court placed an emphasis on consistency between inquest conclusions, arguably giving insufficient consideration and weight to significant issues relating to unlawful killing.
Following the judicial dust settling, the Chief Coroner recently issued ‘Law Sheet Number 6’. The Chief Coroner anticipates that unlawful killing is likely to be relevant in “relatively few” inquests. However, the relatively low number of historic unlawful killing conclusions cited were constrained by the previous higher burden of proof and this opinion may be optimistic. In addition, inquests which do involve consideration of unlawful killing, for example arising from workplace fatalities, medical negligence cases and deaths in custody, will be substantially affected by the Maughan judgment.
Lowering the Burden of Proof
In a criminal prosecution, for example regarding corporate or gross negligence manslaughter, a jury needs to be sure (i.e. beyond reasonable doubt) that each of the ingredients of the offence is proved by the prosecution to convict the defendant. The high burden of proof is justified by the gravity of the proceedings and the repercussions for a guilty defendant.
It can be argued, using the terminology of Lord Kerr (who provided the dissenting judgment), that an inquest conclusion of unlawful killing (which would be appropriate if the crime of corporate or gross negligence manslaughter had been committed) is a “solemn pronouncement” which is “sufficiently grave or carries significant consequences for those whom it will affect” such that the higher criminal burden of proof should not have been lowered to the civil burden of proof.
An inquest can be distinguished from civil proceedings where, as noted by the Supreme Court, the lower burden of proof would apply to a related fatal accident claim. A civil claim in such circumstances is focussed on financial compensation and an agreement may be reached, without acceptance of liability, for damages to be paid. A civil claim is also less likely to lead to adverse publicity.
Overlap with Criminal Proceedings
Where there is a death and an allegation of a related homicide offence, the starting point is that a coroner will suspend their investigation pending the completion of the police investigation into criminal liability surrounding the death. The coroner will only resume their investigation following notification that no further action will be taken or, if necessary, after the completion of any criminal proceedings.
Alternatively, if during the course of the inquest, it appears to the coroner that the death of the deceased is likely to have been due to a homicide offence and that a person may be charged in relation to the offence, a coroner must adjourn an inquest and notify the Director of Public Prosecutions.
Assuming that there is a criminal prosecution, there is an important protection in place prohibiting an inconsistency between any resumed inquest conclusion and the outcome of the criminal proceedings (i.e. a guilty or not guilty verdict).
Law Sheet Number 6
In ‘Law Sheet Number 6’, issued on 13 January 2021, the Chief Coroner considers the likely impact of Maughan on unlawful killing inquest conclusions. He states by way of context:
“In 2019 there were fewer than 166 conclusions of unlawful killing made by coroners or juries in inquests out of a total number of 31,284 inquest conclusions, or approximately 0.5%. Although the decision in Maughan will probably have some continuing impact on the figures, the issue of unlawful killing is likely to feature in relatively few cases” (emphasis added).
Conclusions of unlawful killing in inquests from 2019 were based on the higher pre-Maughan burden of proof and the figure above does not demonstrate how many inquests considered unlawful killing. The historic volume of conclusions is, therefore, unlikely to be particularly instructive when predicting the future. Following Maughan, it is reasonable to assume that there will be an unlawful killing conclusion in a greater percentage of inquest conclusions than previously, and unlawful killing will be considered in a much larger number of inquests.
The Chief Coroner provides guidance regarding when an inquest may be resumed following a criminal trial and how to deal with potential unlawful killing conclusions. He states that the necessity of the inquest should be “scrutinised with care” and, where unlawful killing is considered, he would expect a “well-reasoned and fact-specific approach”. The tenor of these suggestions is sensible, but the concepts are nebulous and the practical application and effect on inquests remains to be seen.
Most significantly, the Chief Coroner explains the implications of the Maughan judgment in terms of consistency between criminal proceedings and inquests (paragraph 21):
“If in such an inquest the coroner or inquest jury find that the requisite elements of murder, manslaughter or infanticide are established on the balance of probabilities then a conclusion of unlawful killing will be permissible even though there has already been an acquittal of the offence following a homicide trial. Such an inquest conclusion would not be inconsistent with a criminal jury having already found that they were not satisfied of the very same matters beyond reasonable doubt. However, if there has been a criminal trial at which a person has been convicted of a homicide offence, then the coroner or jury at a subsequent inquest could not reach a conclusion to the effect that the offence had not been committed” (emphasis added).
Assuming that a corporation is prosecuted for corporate manslaughter and acquitted at trial (i.e. a jury was not sure of its guilt), an inquest can be resumed. Pre-Maughan, a conclusion of unlawful killing would have been prohibited at the resumed inquest as inconsistent with the criminal outcome. Post-Maughan, a coroner or jury only needs to be satisfied of unlawful killing on the balance of probabilities (i.e. more likely than not) and such a conclusion will not be inconsistent with the criminal outcome.
The Effect of Maughan
There are likely to be more inquests considering unlawful killing and more unlawful killing conclusions in the future. There are questions regarding how well-equipped and suitable the coronial jurisdiction is to investigate an increased number of instances where unlawful killing may now be an issue on the lower burden of proof, including in terms of resources and procedure (for example, Coroners’ statutory powers and duties, their wide discretion, the disclosure regime and available protections).
The notion that an inquest conclusion has no bearing on criminal proceedings, i.e. it is not a determination of criminal liability, appears insufficient protection for affected individuals and companies. The Supreme Court stated (per Lady Arden) that “the public are likely to understand that there is a difference between a finding at an inquest and one at a criminal trial where the accused has well-established rights to participate actively in the process”. The concepts of inquisitorial and adversarial proceeding and requisite burdens of proof are not established in the court of public opinion (arguably, the different nature of civil proceedings is more widely understood).
It is likely that a large proportion of the public will consider that an employer named in reports of an inquest verdict of unlawful killing following a fatal accident at work is criminally responsible, with an associated serious detrimental impact. The Chief Coroner’s suggestion that “at any inquest where unlawful killing may be in issue, it will now be particularly important for the coroner to explain the distinction between criminal proceedings and inquests” is helpful, but unlikely to be repeated, or repeated prominently, in reporting and online commentary.
As a result of the lower burden of proof for unlawful killing inquest conclusions, we are also likely to see more reviews of decisions to take no further action regarding related criminal offences.
With the scarcity of legal aid for bereaved families in inquests, a chapter of The Ministry of Justice’s ‘Review of legal aid for inquests’ report published in February 2019 was dedicated to “making sure that inquests remain inquisitorial”.
The Maughan verdict will almost certainly cause relevant inquests to become more adversarial, with interested persons responding to the increased risk. The need for additional court time (for example, longer Pre-Inquest Review Hearings dealing with issues such as scope, witnesses and disclosure), greater challenges to Coroners’ decisions and powers and an increased use of protections such as the privilege against self-incrimination are likely to become more common in future inquests.
Authored by Richard Reichman, Partner at BCL Solicitors LLP