Blog: What has changed following the Supreme Court’s decision on the standard of proof for unlawful killing conclusions?

18 Jan 2021

By Helen Stone

On the 13th November 2020 in the matter of R (on the application of Thomas Maughan) v HM Senior Coroner for Oxfordshire [2020] UKSC 46, the Supreme Court determined that the standard of proof for all conclusions at an inquest, including unlawful killing and suicide, is the civil standard of proof, that is, the balance of probabilities. Prior to this ruling the standard of proof needed for an inquest to reach an unlawful killing conclusion was understood to be the criminal standard of ‘beyond reasonable doubt’. The Court’s decision (which was a three to two majority) will clearly result in some significant changes for anyone facing the prospect of an inquest, but it is equally important to be aware of matters which remain unaltered by the decision.

Changes and potential changes

The Supreme Court’s decision brings inquests in line with the general principle that in non-criminal proceedings the standard of proof for fact finding and reaching conclusions is the civil standard. It also removes the confusion which could be created by applying different standards of proof to the short form and narrative conclusions, since the latter requires the civil standard and it is quite usual for juries and coroners to provide both sets of conclusions in the same case.

Organisations and individuals will need to be aware that, should a coroner or jury find all elements of an offence have been met to the civil standard, a finding of unlawful killing can now be reached. Therefore, it appears likely that there will now be more unlawful killing conclusions than there were before the Court’s decision. How many more, only time will tell, but it will hopefully mark a step forward for state and corporate accountability.

One result of the past application of the criminal standard was that it undermined the inquest’s ability to achieve its purposes and functions, primarily to set out as accurately and completely as possible ‘by what means and in what circumstances’ the deceased died. This problem has been overcome, at least in part, by the Court’s decision, with the coroner or jury being in a position to make clear if they consider that the elements of a homicide offence have been found to the civil standard; which should assist with learning lessons for the future because ‘unlawful killing’ will be the conclusion, pushing this up the agenda for the organisations and individuals implicated by the failings leading to the death.

What has not changed

It should, however, be highlighted that the Maughan decision has not changed any of the other requirements in relation to an unlawful killing conclusion. The coroner, or jury, still need to find all of the ingredients of the relevant homicide offence in relation to a particular individual’s actions, or, in the case of corporate manslaughter, the relevant organisation, albeit to the civil, rather the criminal standard of proof.

Additionally, in relation to criminal proceedings, it needs to be borne in mind that the CPS remains a separate organisation with its own duties. Therefore, when notified of an unlawful killing conclusion it will be required, as was previously the case, to consider “if there is any new evidence or information within the coroner’s proceedings which has the capability to change any previous CPS decision not to bring charges against an individual(s) or organisation”. The CPS also has its own test for whether to bring criminal charges. As a result, it may reach a decision not to bring a prosecution, even if an unlawful killing conclusion has been reached at the inquest. That was the case even when the standard of proof at inquests for an unlawful killing conclusion was the criminal standard. However, in such cases in the future, it will hopefully be more understandable to families and the public if a prosecution is not brought where the standards of proof are different, than for the situations, as have occurred in the past, where an unlawful killing conclusion has been reached on the criminal standard, and the CPS have subsequently declined to bring a prosecution.

The Coroner’s duties relating to potential criminal offences also remain the same, having a duty to adjourn an inquest and notify the Director of Public Prosecutions 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.

The Court’s decision will clearly have implications for inquests up and down the country. However, it may take years, especially in relation to deaths in state custody, which all too often take years to reach court, to see the extent to which the Maughan case has affected accountability and learning lessons for the future.

Helen Stone’s specialisms include inquest and public inquiry law. She represented the charity INQUEST as an intervener before the Supreme Court in this case.



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