Change in the standard of proof for suicide verdicts at inquests (R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire (Chief Coroner of England and Wales intervening))

Corporate Crime analysis: Najma Rasul, consultant senior solicitor at Mathew Gold & Co, considers Maughan v HM’s Senior Coroner for Oxfordshire. Rasul, who represented Mr Thomas Maughan and his family, examines the landmark decision to lower the standard of proof required for recording a suicide verdict at an inquest.


Wales intervening) [2019] EWCA Civ 809, [2019] All ER (D) 46 (May)

What are the practical implications of this case?

The judgment in the Court of Appeal in Maughan means a significant change in the approach for coroners, practitioners, interested parties and campaigners dealing with issues surrounding suicide and unlawful killing conclusions. It will require new guidance from the Chief Coroner reflecting the change in the law. However, careful consideration will need to be given in relation to a number of complex and difficult issues which arise in these types of cases in order to avoid further challenges to inquest conclusions. For example, in the absence of positive evidence of intention, such as a suicide note, how will coroners and juries decide what inferences from surrounding circumstances prove that the deceased intended to take his or her own life? How will coroners deal with sensitive and complex matters of human psychology and mental illness and differentiate those cases which were a ‘cry for help’? Often people may put themselves in very dangerous situations without having a settled intention to kill themselves.

The judgment on this appeal will have a huge impact upon tens of thousands of inquests each year. The lower standard of proof will make it easier for coroners and juries to find a suicide conclusion, even where there is no positive evidence that the deceased intended to take his own life. As such, it will impact upon the government statistics relating to the number of deaths which are recorded as suicides. Campaigners have long argued that the criminal standard of proof for suicide conclusions risks under recording of suicide, including in the custodial setting, which means that the true extent of suicides are not known. The stigma surrounding suicides has created unnecessary barriers for many in accessing support and mental health services. The change in law should help reduce the stigma surrounding suicides, improve access and funding for vital mental health services, and as such save more lives.

For some families this may be good news, as it will allow the desperate mental state of their loved one being recognised by the inquest conclusion. However, for other bereaved families, the change in law may not be a welcome development. Bereaved families from certain faiths or cultural backgrounds will have to deal with the stigma attached to suicides. Bereaved families may also suffer from adverse financial consequences of a suicide conclusion, such as a life insurance contract or a death in service benefit from a company not being paid out. This situation is all the more unsatisfactory given the limited rights bereaved families have at an inquest in terms of calling witnesses and directing the coroner. The lack of public funding for legal representation may also mean that bereaved families do not have access to legal representation at the inquest.

The judgment of this appeal will also impact other common law jurisdictions. It is understood that the Divisional Court judgment has already been applied in Northern Ireland, leading to a judicial review challenge (In the Matter of an Application by Jura Steponaviciene, listed on 19 October 2018).

Finally, although suicide is no longer a crime, encouraging or assisting the suicide or attempted suicide of another person remains a criminal offence (section 2 of the Suicide Act 1961). It is not clear from the judgment, what impact the change in law will have upon inquests which raise these issues and how the coroner or juries should deal with these types of cases. It will be interesting to see how the Supreme Court addresses this and the other important complex legal and practical issues that the Maughan case raises.

What was the background?

The appellant’s brother, James Maughan was found hanging in his prison cell at HMP Bullingdon at approximately 5.20 am on 11th July 2016. He had a history of mental health problems, substance misuse, suicide and self-harm attempts, and symptoms consistent with a personality disorder.

The respondent considered the circumstances of this death at an inquest between 9–12 October 2018. The appellant was not legally represented, but the deceased’s wife, Kelly Shakespeare was (as were all the other parties to the inquest) and members of the family were allowed to ask questions. At the inquest, a key issue was whether prison staff had properly followed procedures for preventing suicide and self-harm, having regard to the mental health condition of James Maughan.

At the close of the evidence, the respondent held that there was insufficient evidence to enable the jury to safely return a conclusion of suicide based upon the criminal standard of proof. He felt that it would have been unsafe for the jury to find, beyond reasonable doubt, that the deceased intended to kill himself.

Instead the respondent invited the jury to consider a narrative verdict, by answering a series of questions. These questions included the two ingredients of a suicide conclusion, namely:

‘Did James Maughan deliberately place a ligature around his neck and suspend himself from the bedframe? Are you able to determine if it is more likely than not that he intended the outcome to be fatal, or for example, if it is likely that he intended to be found and rescued? If you are unable to determine his intention, please say so.’

The respondent directed the jury that in answering the questions, they should apply the civil standard of proof (on the balance of probabilities).

The jury’s narrative statement, which was written onto the record of inquest, stated that:

‘James deliberately tied a ligature made of sheets around his neck and suspended himself from the bedframe….on the balance of probabilities, it is more likely than not that James intended to fatally hang himself that night….neither formally opening an Assessment, Care in Custody and Teamwork, nor increased vigilance generally would have likely prevented James’ death, given what we believe was James’ intent to end his life.’

On 11 January 2018, the appellant brought a judicial review claim, challenging the jury’s conclusion on the basis of a misdirection of law by the coroner. The appellant argued that the respondent had committed a legal error by directing the jury to apply the civil standard of proof when considering whether James Maughan had intended to kill himself. In effect the narrative conclusion amounted to a suicide conclusion.

Both the appellant and respondent agreed that the criminal standard of proof applied to a short form conclusion of suicide. The respondent however sought to rely upon the Chief Coroner’s guidance No 17 (Conclusions: Short—Form and Narrative) and the Coroners Bench Book in asserting that the civil standard of proof applied to the narrative conclusion. The issue before the court was whether the respondent had erred in failing to apply the criminal standard to the narrative conclusion. At the hearing before Leggatt LJ and Nicols J on 10 July 2018, they challenged the parties’ assumption that the criminal standard of proof applied to suicide conclusions.

On 26 July 2018, the Divisional Court handed down their judgment. The court found that the civil standard of proof should apply to all suicide conclusions (whether short form or narrative) and on that basis the respondent’s jury direction was lawful. The claim for judicial review was dismissed and permission to appeal was granted. The court also suggested in their reasoning that the civil standard of proof should apply to unlawful killing conclusions.

What did the Court of Appeal decide?

The Court of Appeal’s lead judgment was given by Davis LJ and supported by Underhill LJ and Davies LJ. The Chief

Coroner and inquest had been given permission to intervene in the proceedings.

The two issues before the court were:

  • is the standard of proof to be applied in deciding whether the deceased deliberately took his own life intending to kill himself the criminal standard or the civil standard?
  • does the answer depend on whether the determination is expressed by way of short-form conclusion or by way of narrative conclusion?

Davis LJ, although he described the approach by the Divisional Court as ‘bold’ given that it had departed from what had been regarded as settled law and practice for over 35 years, considered that the decision reached by the Divisional Court was right and dismissed the appeal. However, the appellant was granted permission to appeal to the Supreme Court, given the important issues at stake in the case and the wider public importance of the case.

The court held that the same standard of proof should apply to both short form and narrative conclusions. It was unhelpful for coroners and juris to consider two different standards of proof, sometimes within a combined short form and narrative conclusion.

The court held that the civil standard of proof should apply to all suicide conclusions for five reasons:

  • an inquest is primarily inquisitorial, that it is investigative. It is not concerned to make findings of guilt or liability. The underpinning rationale for the need to have a criminal standard of proof in criminal proceedings simply has no basis in inquest proceedings
  • suicide is no longer a crime since 1961
  • the civil courts have applied the civil standard of proof even where allegations are made that a person may have committed criminal acts or where a finding of liability may bring financial ruin to a defendant. The fact that a finding of suicide may carry a stigma or result in adverse economic consequences should not prevent the civil standard from being used. There is no sliding scale or heightened standard applicable
  • the civil standard of proof will allow a much broader inquiry in inquests where Article 2 of the European

Convention on Human Rights is engaged and ensure that lessons can be learnt to prevent future deaths

  • the application of the civil standard to a conclusion of suicide expressed in a narrative conclusion would cohere with the standard which is applicable to other potential aspects of the narrative conclusion

On review of the relevant statute and case law, the court found that the Coroners and Justice Act 2009 and the Coroners (Inquests) Rules 2013 were silent on what the standard of proof should be for inquest conclusions. While there was a consistent presumption that the criminal standard of proof applied to suicide conclusions, In cases such as R v West London Coroner, ex Parte Gray [1988] 1 QB 467, [1987] 2 All ER 129 and R v HM Coroner for Dyfed, ex parte Evans [1984] Lexis Citation 259, there had been no actual determination on this point as it had been universally accepted. This was reflected in the Chief Coroner’s guidance and in the leading textbooks on inquests.

The court found that the decisions in the Divisional Court were not binding on the Court of Appeal. They failed to provide any real rationale why a criminal standard should be applied to suicides when inquests were not criminal proceedings and suicide was no longer a crime. The court confirmed that the decision in ex parte Evans is to be over- ruled. The decision in ex Parte Gray in so far as it relates to suicide, is not to be followed. In relation to the Court of Appeal case of R v Wolverhampton Coroner, ex parte McCurbin [1990] 2 All ER 759, the court found that it was a case about unlawful killing, any references to a suicide conclusion were obiter and not binding.

Unlawful killing

In response to the Divisional Courts, indication that the civil standard of proof may apply to unlawful killing conclusions, the court considered that it was important that they clarified the position.

While they considered that there was a very powerful case for the civil standard of proof to apply to unlawful killing conclusions both as a matter of principle and practicality, the court was bound by the decision in ex parte McCurbin. As such coroners should continue to instruct juries by reference to the criminal standard of proof in the way that they currently do.

The court noted that it was unfortunate that a matter so important as the standard of proof applicable in inquests had been left to develop in a ‘piece-meal decision making process by the courts and by practice direction’. They held that it would be preferable, and would put matters beyond all debate, if the position was now explicitly articulated within the Coroners Rules. It is highly unlikely that this will occur, prior to the matter being considered by the Supreme Court.

Interviewed by Max Aitchison.
