The inquest landscape post the Supreme Court’s decision in Maughan

Published on
7 min read

The Supreme Court have handed down a decision of some magnitude for inquest practitioners and those they represent.

R (on the application of Maughan) (Appellant) v Her Majesty’s Senior Coroner for Oxfordshire (Respondent) [2020] UKSC 46.

The decision

In short, Lady Arden, in the lead judgment, concluded at paragraph 69 that “… in civil proceedings the civil standard of proof should apply”. The main reasons for this conclusion appears to be concern at an “internally inconsistent and unprincipled” system (operated without apparent difficulty for many years) and that “… some conclusions will be reached on one basis and some on another within a single inquest”. That was considered to fall short of the standards required by a modern, principled legal system.

However, that analysis does not grapple at all with the question of whether inquest proceedings are properly categorised as civil proceedings. 'Coroners’ Courts: A guide to law and practice (3rd edition)' by Christoper Dorries opens chapter seven on inquests with an introduction that includes the following paragraph:

“7.03      Inquest proceedings are virtually unique within the English legal system being inquisitorial rather than adversarial; i.e. an inquiry led by the coroner to ascertain the true facts, rather than a trial between two parties each trying to make their own case.  There are no parties to an inquest and no formal allegations or pleadings.  The purpose of the hearing is simply to ascertain the truth about a death, not establish whether a particular claim is proved.  Even experienced lawyers may be unaccustomed to such proceedings.  For members of the public, the inquest will be wholly outside the limited experience of courts that they may have gained from television and other media.”

It would appear from the Supreme Court’s decision that even the highest court in the land are unaccustomed to the unique reality of an inquest in the 21st century. Their search for logic and order in what is the current manifestation of a tax enforcement regime from the Middle Ages, has truly consigned to the history books the statement of Lord Cane CJ in R v South London Coroner, Ex p Thompson (1982) 126 SJ 635; The Times, 9 July 29182:

“… it should not be forgotten than an inquest is a fact-finding exercise and not a method of apportioning guilt.”

Now that it is open to a Coroner’s court to publicly conclude that the deceased was ‘probably’ unlawfully killed is stretching credulity for a legal practitioner to tell a client that an inquest is a purely fact-finding inquiry. 

Lady Arden’s conclusion at paragraph 93 of the judgment “… the public are likely to understand that there is a difference between a finding at an inquest and one at a criminal trial …” seems to me highly controversial.  Was the conduct criminal or not?  If it has not been proven to the criminal burden of proof how can it be labelled as unlawful killing?  Far from adding consistent principles, the decision has simply created more confusion.

Where does this leave the Crown Prosecution Service

We cannot continue with the current system where the CPS are required (following R v DPP ex parte Manning [2001] QB 330) to prosecute after an unlawful killing conclusion at an inquest unless there are 'solid grounds’ not to. Certainly the family of the deceased would expect them to take some action.

Public service

The value of an inquest in the 21st century is that it shines an unfiltered light on the events surrounding unnatural deaths and it does so in full public view.  Parliament and the High Court have together set a very high hurdle for excluding the public from any element of that process.  In my view, that means not only access to the inquest hearing itself but also access, in a clear and meaningful way, to the conclusions of the coroner or jury. In the same way that we would not stand for a coroner recording his conclusion in Portuguese, why should conclusions include legal shorthand such as neglect and unlawful killing that have technical meanings derived from a precise set of facts?

Surely, the answer is to remove short form verdicts entirely from the process and proceed with a single conclusion, rather than try to neatly resolve the differences between different sections on the form of inquisition that so exercised the Supreme Court.    

Taxonomy

Of course, such an approach would then run counter to the second ‘public policy’ limb of Lady Arden’s judgment – statistics.  There is no quibble with the statement that there is considerable public interest in accurate suicide statistics.  However, that rather assumes that the records of an inquest are the only means by which suicide rates are measured, and that researchers and practitioners have not already found ways in which they can adjust for the fact that suicide verdicts are reached only when the evidence means that the inquest is ‘sure’.  The statistics provided are also devoid of much clinical value because they do not record any formal detail of any underlying medical or social condition that may have led the deceased to take their own life.  2020 will also need to be recognised as the first year of counting pears against previous centuries of counting apples.

Lowering the standard of proof as a “… satisfactory way of getting accurate figures” regarding suicide verdicts was not weighed against some of the knock on consequences that will likely follow.  Nor was there any exploration of any alternative or coherent system of taxonomy that could be operated by a coronial system that could provide real insight across many aspects of life in the 21st century, and enable policy makers to analyse unnatural deaths. 

It also ignored the fact that the use of short form conclusions are not compulsory. Short form conclusions have evolved over many years of practice and have no proven evidential value as a ‘system’.  Indeed, what was once a way of recording succinctly that an individual had died from ‘self-neglect’ has been manipulated by one legal challenge after another into a rider to attach to certain conclusions in a limited (and equally incoherent) selection of cases. 

It would be a far more coherent and principled approach to leave box three on the form of inquisition as the place for the conclusion of the inquest to be recorded (as it requires an answer to the four statutory questions) in a narrative form, whilst replacing box four entirely with a coroner determined system of statistical returns (sitting outside of the inquest itself) that would provide far greater public value.

Modern society

The third limb of the decision recognised that societal attitudes to suicide have changed significantly, as has the role of inquests (no longer having a role to play in the criminal justice system).  Whilst true, that does not seem to me to be a reason to effectively promote short form conclusions of suicide as a force for public good.

Unlawful killing

In a brief analysis, Lady Arden concludes that it would be unsatisfactory for the sole remaining criminal law conclusion of ‘unlawful killing’ (suicide no longer being a crime) to be treated differently to all the non-criminal short form conclusions.  That would somehow lead the public to lose confidence in the legal system.  As set out above, the solution was to let the public be the ones to understand that different types of proceedings have different evidential burdens in order to keep it simple and coherent for the lawyers. The public are said to be well versed in the differences between criminal proceedings and inquests – and aware of the absence of an ability for an individual to ‘participate actively’ in inquests in the same way they do in criminal trials.  

Conclusion

As an inquest practitioner for an uncomfortable number of years you will see that I am not a fan of the conclusion.  If we truly want an inquest system for the 21st century rather than one from the middle ages kept alive by repeated small-scale surgical interventions, we need to start again from scratch.  An inquest in 2020 is already a mini trial that unfairly exposes individuals (particularly healthcare professionals) to public condemnation behind a façade of a fact finding enquiry.

The new standard of proof for unlawful killing will simply add days onto inquests, increase the number of legal representatives in play, massively increase the costs involved, all in the name of consistency in civil proceedings. Families will fight for a ‘just’ finding of unlawful killing, categorising every judgment or error as gross. Systemic issues will be aggregated against the test for corporate manslaughter, and more and more expert evidence will be required for coroner’s and juries to be able to ‘grade’ a failure.

Inquests were not and never have been like other proceedings. They are (or were unique) as a fact finding forum that was not concerned with determining liability.  There is no way that a headline reporting an ‘unlawful killing’ conclusion at an inquest will be followed by a detailed explanation of the fact that a finding has passed only the civil evidential threshold.

What we have certainly lost though is the fact that the errors identified did not pass the criminal standard of proof (as an unlawful killing verdict was not passed), and leave prosecuting authorities with a different set of facts to consider when deciding whether to investigate further the merits of criminal proceedings.

Just as an inquest in the second decade of the 21st century feels very different to one in final throws of the 20th century, the inquests of the next decade will be much longer, more acrimonious, more costly and ultimately provide less consensus over the ‘facts’, than those that went before.

The judgment can be found here.

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