Law Sheet No.6: Maughan, 13 January 2021
The Chief Coroner from time to time provides guidance to coroners on various matters and also occasionally on the law, following an important case. These are written to assist coroners with the law and their legal duties, and to provide commentary and advice on policy and practice.
Law Sheet No 6 was published on 13 January 2021 by the new Chief Coroner of England and Wales, His Honour Judge Thomas Teague QC on the Supreme Court’s ruling in the case of Maughan.
On 13 November 2020 by a majority of three to two the Supreme Court ruled that all conclusions in coronial inquests, whether short form or narrative, are to be determined on what is known as the civil standard of proof: the balance of probabilities, including unlawful killing. You can read our earlier blog here and article here.
The legal rule had previously been that a conclusion of unlawful killing could only be returned if the coroner or jury were satisfied to the criminal standard (beyond reasonable doubt) that a crime of murder, manslaughter or infanticide had been committed, resulting in the death. Now following the decision in Maughan, the civil standard applies.
Maughan: the wider context
The Chief Coroner explains that this change must be viewed in its wider context – with fewer than 166 conclusions of unlawful killing made by coroners or juries in inquests out of a total number of 31,284 inquests conclusions (or approximately 0.5%) in 2019.
While the decision in Maughan will probably have “some continuing impact on the figures, the issue of unlawful killing is likely to feature in relatively few cases.” And in those cases where it does arise, the Chief Coroner would expect coroners to take “a well-reasoned and fact-specific approach when faced with submissions and/or decisions as to the conclusions that are open to consideration.”
However, where a conclusion of unlawful killing is one that on the facts is open to the coroner or the jury, then the coroner will need to direct himself (or the jury) as to what elements need to be established for the offence(s) that may be in play and then to apply the civil standard to the facts as they relate to each element of the offence.
The Chief Coroner makes plain in his Law Sheet that the case of Maughan serves to “emphasise” that an inquest is a fact-finding exercise and not a method of “apportioning guilt”. He makes the point that where unlawful killing may be an issue, it will important for the coroner to explain the distinction between criminal proceedings and inquests. Further that at any inquest where a coroner or coroner’s jury comes to a conclusion of unlawful killing, that finding has no bearing on criminal proceedings, which are subject to a “materially higher” standard of proof – as well as entirely different procedural rules.
Finding a conclusion of unlawful killing
The Law Sheet emphasises that the decision in Maughan has not altered the relevant case law, including the status in Law Sheet No. 1 on ‘unlawful killing’ which identifies the elements of murder, manslaughter (both as to unlawful act and gross negligence forms), corporate manslaughter and infanticide. But for a conclusion of unlawful killing to be returned by a coroner or jury, each element of the relevant offence must be established to the civil standard.
But what of gross negligence manslaughter?
The elements of the offence of gross negligence manslaughter are summarised in Law Sheet No. 1. Each of the six elements of the offence must be established on the balance of probabilities before a coroner or jury may return a conclusion of unlawful killing based upon the offence of gross negligence manslaughter.
No requirement for ‘unlawful killing’ wording when recording a conclusion
There is no requirement in law for a coroner or inquest jury to use any particular form of words when recording a conclusion on the Record of Inquest. The notes on the current prescribed form of the Record of Inquest (Form 2), which set out suggested short form conclusions that may be adopted, do not ‘codify the law’ as to standards of proof (see Maughan at paras. 15 to 57). A short form conclusion (of which unlawful killing is one) is not required to be returned as a matter of law, whether as part of a longer narrative or standing alone. Rather it is for the coroner (or for the coroner’s jury subject to the coroner’s directions) to choose the appropriate form of words to reflect the findings of fact on the important issues relating to the death in the case in question.
So as long as the Record of Inquest fully describes what happened, that should be sufficient.
It will be interesting to see coroners rethink their task of delivering their conclusions in light of Maughan. Do get in touch if you would like to discuss any of the issues raised here or if you would like support with an inquest.