An early alert in light of Supreme Court decision in Maughan - impact on deaths in the secure estate

This content was written by BLM prior to its merger with Clyde & Co.

As we start this New Year, I wanted to take the opportunity of reminding you of an important decision which was handed down by the Supreme Court in November. I have been reflecting with Alison Hewitt who was counsel for the Respondent, HM Senior Coroner for Oxfordshire, upon what guidance can be given to clients in the secure estate at this early stage whilst the effect of the judgment is being fully digested and as we move ahead into 2021. This is our take, by way of an early alert following the recent Supreme Court judgment in R (Maughan) v HM Senior Coroner for Oxfordshire [2020] UKSC 46. 

The appeal was primarily concerned with the standard of proof to be applied at an inquest when considering the short-form conclusion of suicide and whether that standard differs if the relevant facts are recorded in a “narrative conclusion." Until this case, it had been settled law that the short-form conclusions of suicide and unlawful killing could be recorded at an inquest only if they were established to the criminal standard of proof, namely “beyond reasonable doubt”, whereas all other conclusions (including Narrative Conclusions) could be established to the lower, civil standard of proof, that is “on the balance of probabilities."

Following a hearing in February 2020, at which the Supreme Court heard from not only the parties but also the Chief Coroner of England and Wales and the charity, INQUEST, as interveners, it was decided by a majority of 3-2 (Lady Arden - who gave the leading judgment - and Lords Wilson and Carnwath) that the standard of proof for all conclusions at an inquest is the civil standard; the short-form conclusions of suicide and unlawful killing can, therefore, now be established more easily as the evidence need prove only that the necessary elements probably occurred, and the coroner or jury no longer need to be sure.

In practice, the impact of the ruling so far as suicide is concerned is not expected to be very dramatic. Coroners have been applying the civil standard in relation to this conclusion for some time now, since the same decision was made in this case by the High Court (and was upheld in the Court of Appeal); this aspect of the judgment will not come as a shock, therefore. Clients may find that there is a rise in the number of short-form suicide conclusions in relation to deaths resulting from acts of self-harm, but this should not, in itself, have any very significant ramifications.

But the Supreme Court’s decision that the unlawful killing conclusion is also subject to the lower standard of proof represents a change in the law, and one which is very likely to have extensive and wide-ranging ramifications for coroners and legal practitioners, and for the individuals and organisations affected.

An unlawful killing conclusion can be recorded at an inquest if the elements of one of the homicide offences of murder, manslaughter or infanticide have been established by the evidence; there are three manslaughter offences which may be considered, namely Unlawful Act Manslaughter, Gross Negligence Manslaughter, and Corporate Manslaughter. As it is now necessary for relevant elements of one of these offences to be proved only on the balance of probabilities, it is inevitable that there will be an increase in the number of inquests in which unlawful killing will be considered and returned.

From now on, all three forms of manslaughter are likely to be considered more frequently as a potential basis for an unlawful killing conclusion in some inquests concerning deaths in custody:

• The elements of Unlawful Act Manslaughter may be established if the death has resulted from an unreasonable (and therefore excessive) use of force, for example in the course of restraint by a prison officer,
• The elements of Gross Negligence Manslaughter may be established if the death has resulted from a gross breach of a duty of care (if there was an obvious and serious risk of death which was foreseeable), for example in relation to clinical care given to a prisoner; we can anticipate the reduced standard will capture a greater number of experts linking gross failures to “probably” causing death (rather than the previous test of being “sure” they caused or contributed to death); it brings this very serious classification more in line with the level of failure required for a finding of neglect, and
• The elements of Corporate Act Manslaughter may be established if the death was caused by a gross failure by senior management within the organisation in question to have in place adequate systems. This offence has only very rarely been considered at inquests in the past, but is likely to be investigated more from now on.

What will the ramifications be?

It is anticipated that the lower threshold for consideration of an unlawful killing conclusion will result in many inquests becoming more adversarial (as families of the deceased may well push for this finding), involving more interested persons and lasting longer. The disclosure exercise could expand if coroners seek evidence about senior management risk avoidance. It is likely that individual employees affected (prison offices or staff and/or clinical staff) may require separate legal representation. There will be a greater burden on those affected to ensure that every piece of evidence to help mitigate against an unlawful killing finding is put forward, including the obtaining of expert evidence. The charity, INQUEST, participated as an intervener in the Maughan case and this may signal a greater involvement by the charity to scrutinise cases which are now potentially caught by the lower standard of proof. The best response will be early and careful preparation for the inquest, together with the identification of all necessary evidence and presentation of robust legal submissions at each stage. As for the risks to organisations operating within the secure estate and its employees, overall, there are likely to be more unlawful killing conclusions, with their potential for causing reputational and commercial damage for the company, and personal exposure to individuals involved; as far as individuals are concerned, it is important to remember that, currently, the Crown Prosecution Service is obliged to review any case in which an unlawful killing conclusion has been recorded. Another impact on businesses will be the costs of the process overall which are very likely to increase.

The former Chief Coroner (HHJ Mark Lucraft QC) wrote to coroners, shortly after the judgment was issued, with some brief guidance and it seems likely that a comprehensive review will have to follow once the new Chief Coroner, HHJ Teague QC, has had chance to consider the issues arising.

The judgment can be found here. There is also a shorter press summary which was released by the Supreme Court which can be found here.