Before July 2018, it had been settled law going back decades that coroners/juries had to be ‘sure’ that the deceased intended their actions to result in death before they could reach a conclusion of suicide (i.e. the criminal standard of proof).
All that was turned on its head by last year’s case of Maughan when the High Court decided that, in fact, the bar should be set lower and that coroners/juries only have to be satisfied that it is ‘more probable than not’ that the person intended to die (i.e. the civil standard of proof).
The Court of Appeal has now upheld the High Court’s decision, confirming that - for both ‘short form’ and narrative conclusions - it is the lower, civil standard of proof which applies for suicides.
With the recently published annual coroners statistics showing a rise in suicide conclusions in 2018, is this upwards trend now set to continue?
We look at the Court of Appeal’s decision in Maughan and its likely impact.
Recap on Maughan case
James Maughan died by hanging in his prison cell after making a ligature from bed sheets tied to the bed frame. At the inquest into his death, the coroner found that there was insufficient evidence for a jury to be ‘sure’ to the criminal standard that he intended to take his own life, so the option of a short form conclusion of ‘suicide’ was not left to the jury. The jury was however directed that they could find as part of a narrative conclusion that, on the balance of probabilities, he had intended his actions to result in death. The jury went on to record a narrative conclusion that it was more likely than not that James Maughan had intended his actions to be fatal.
Mr Maughan's family found this conclusion particularly distressing in light of their strong Catholic beliefs about suicide being a sin, and his brother brought a legal challenge on the basis that it was unlawful for a jury to return a conclusion that the deceased intended his actions to result in his death without being sure that this was the case as per the criminal standard of proof, whether this was recorded in short form (as 'suicide') or as part of a narrative.
After the High Court ruling that the lower, civil standard applies to all suicide conclusions, Mr Maughan’s brother challenged the correctness of that decision by appealing to the Court of Appeal. Given the general importance of the issue, the Chief Coroner was an ‘Intervener’ in the appeal, but adopted a neutral position, setting out for the court the pros and cons of the respective positions.
What did the Court of Appeal decide?
Whilst acknowledging that the High Court had taken a ‘bold approach’ in departing from what had been settled law and practice for over 35 years, the Court of Appeal agreed with its conclusion that the test for suicide (whether as part of a short form ‘suicide’ conclusion or as part of a narrative) is the civil standard - i.e. is it more likely than not that the deceased intended their actions to result in their death?
The reasons behind the Court of Appeal’s decision included:
- Inquests are inquisitorial/investigative and not about findings of guilt or liability - plus suicide has not been a crime for almost 50 years in any event - so there is no need for a criminal standard of proof.
- In Article 2 cases, which require a proper investigation of the circumstances of the death, the civil standard allows for an ‘expansive, rather than restrictive, approach’ and increases the prospect of learning lessons for the future.
- For narrative conclusions, it is more consistent to apply the same standard of proof to findings about the deceased’s intentions as to other aspects of the narrative (e.g. whether reasonable preventative measures should/could have been taken).
Insofar as previous cases had upheld the criminal standard of proof for suicide, the Court of Appeal has now overruled those cases and they are not to be followed.
Where does all this leave ‘unlawful killing’, which is now the only inquest conclusion where the criminal standard of proof still applies? Whilst the Court of Appeal could see ‘a very powerful case’ for saying that the civil standard should apply to all inquests across the board, it decided (albeit a non-binding decision because the Maughan case was about suicide, not unlawful killing) that unlawful killing has ‘special status’ because - unlike any of the other conclusions - it connotes a crime, plus it would ordinarily lead the CPS to reconsider whether criminal charges should be brought if they have not already been. Coroners should therefore continue to instruct juries by reference to the criminal standard for unlawful killing conclusions as they do currently.
The bottom line is that it is now much easier for coroners/juries to conclude that someone has committed suicide than it was before the Maughan case because they no longer have to be ‘sure’ about the deceased’s intentions.
This is likely to mean more suicide conclusions and - based on the most recent set of annual coroners statistics - this is already starting to happen. Whilst the proportion of conclusions recorded as ‘suicide’ had remained broadly constant over the last 10 years (at around 11 - 12% of cases), that figure went up in 2018 to 14%, which was an increase of 3% on the previous year. Even more strikingly, the ‘drill down’ figures show a total of 4,166 ‘suicide’ conclusions in 2018, which is the highest number recorded in the statistics (which go back to 1995).
Even though the Maughan decision did not come out until the second half of 2018, it seems likely that this increase can be put down to the lower threshold for suicide conclusions established in that case and now confirmed by the Court of Appeal. This is despite coroners having been cautious about applying the civil standard post-Maughan pending the outcome of this appeal - e.g. often stating as part of their conclusions that they would also have been satisfied to the criminal standard that the deceased intended their actions to result in death. We could therefore see the number of suicide conclusions rising still further.
This latest decision will also continue to make it harder for families who may be keen to avoid a 'suicide' conclusion (e.g. because of the stigma that can be attached to this in certain communities) to argue against this being the appropriate finding.
The Chief Coroner’s guidance note on inquest conclusions and the notes to the official ‘Record of Inquest’ form still refer to the criminal standard of proof applying to suicide conclusions, presumably because the outcome of this appeal was being awaited before any changes were made. The Court of Appeal has suggested that steps to amend these to specify the civil standard should be taken asap.
The Court of Appeal has also described it as ‘unfortunate’ that something this important has been left to develop piece-meal via case law and guidance, saying ‘it surely would be greatly preferable’ for the position to be explicitly set out in the coroners rules themselves. We may therefore see all this enshrined in legislative changes too. If so, query whether the position on ‘unlawful killing’ might perhaps be reviewed at that point to bring all potential inquest conclusions into line.
Finally, it is possible that this may not be the end of the story because permission has been given to appeal to the Supreme Court. We will have to wait and see whether anything comes of that. In the meantime however, the test for suicide remains the ‘balance of probabilities’.