Important Court of Appeal decision on standards of proof in inquests: Maughan [2019] EWCA Civ 809

In the recent decision of Maughan [2019] EWCA Civ 809, the Court of Appeal explored the standard of care applied in inquests where the issue is whether the deceased died by suicide. In addition, the Court gave some consideration to the position with regard to unlawful killing.

In giving the lead judgment, Lord Justice Davis agreed with the Divisional Court’s ‘bold approach’ that the standard of proof to be applied in cases of suicide was the civil standard, namely the balance of probabilities.

His reasons were as follows:

1. First, the essence of an inquest is that it is primarily inquisitorial, that it is investigative. It is not concerned with making findings of guilt or liability (even though he accepted that not infrequently a narrative conclusion may in practice, to an informed participant, operate to identify individuals as potentially at fault). The underpinning rationale for the need to have a criminal standard of proof in criminal proceedings simply has no obvious grip in inquest proceedings, given their nature.
2. Second, since 1961 suicide has ceased to be a crime. Suicide will of course be dreadfully upsetting to the family of the deceased; it may perhaps in some quarters also carry a stigma (although one would like to think that the predominant feeling of most observers in modern times would be acute sympathy); it may have other adverse social or financial consequences. But it is not a crime.
3. Third, whatever the prevarications in the past, the civil courts nowadays generally apply the ordinary civil standard in civil proceedings  – i.e. more probable than not – even where the proposed subject of proof may constitute a crime or suicide. There is no sliding scale or heightened standard. There is no discernible reason why a different approach should apply in coroners’ proceedings, at all events in relation to suicide (which is not even a crime)
4. Fourth, the importance in Article 2 cases – although in his view there was no reason in principle to distinguish between standards of proof in suicide cases, depending on whether or not Article 2 considerations arise – of a proper investigation into the circumstances of death which strongly supports the application of the (lower) civil standard. The approach intended to be applicable, viewed objectively, surely would be expected to be inclined towards an expansive, rather than restrictive, one. That would also enhance the prospects of lessons being learned for the future – one of the functions of such an inquest. He accepted the point that Article 2 procedural requirements are not incapable of being met by the application of a criminal standard of proof. But context is all: and the present context of an inquest relating to suicide, and the answer to the question “how?”, strongly favours the imposition of a lower standard of proof than the criminal standard.
5. Fifth, the application of the civil standard to a conclusion of suicide expressed in the narrative would cohere with the standard which is on any view applicable to other potential aspects of the narrative conclusion (for example, whether reasonable preventative measures should or could have been taken and so on).

The Court held that the civil standard ought to apply to both short-form and narrative conclusions. In his view, it would be inconsistent, illogical, and would make no sense to adopt a criminal standard of proof for a short-form conclusion but a civil standard of proof in a narrative conclusion.

Further, the Court commented on the standard of proof applicable to cases of unlawful killing. Lord Justice Davis stated that there is a very powerful case for saying that the civil standard of proof should apply to all inquests in all respects (including cases of unlawful killing). Such an approach would (a) reflect the essentially inquisitorial nature of an inquest; (b) reflect the importance of the need to investigate the circumstances of death where section 5(2) of the 2009 Act applies; (c) promote consistency of approach both with regard to the findings reached within each potential conclusion and with regard to all other conclusions available to an inquest; and (d) accord with the general approach to proof of criminality adopted in civil cases. However, the Court considered that it was bound by the current state of the law in light of the decision in McCurbin [1990] 1 WLR 719 which, it was noted, cannot be said to be altogether devoid of supporting arguments. Therefore, it made clear that in cases where unlawful killing arises as an issue, Coroners should continue to instruct juries by reference to the criminal standard of proof.

It is worth noting that the Court of Appeal has already granted permission to appeal to the Supreme Court. Therefore, we are likely to see further clarification on the issue of the appropriate standard of care in cases of suicide and unlawful killing in the near future.

Marcus Coates Walker

Barrister and Mediator

June 2019