Legal spotlight - February 2021

THE UK Supreme Court has decided that findings of suicide and unlawful killing in inquests should be upheld to the civil law standard of proof, rather than the criminal law standard of proof “beyond all reasonable doubt”. The decision will undoubtedly lead to more such verdicts. 

A Coroner's Court inquest may be convened where there has been an unexpected, unnatural or unusual death of a person. Its aim is to investigate the death to establish who the deceased was and where, when, and how they died. 'How' includes by what means (i.e. the medical cause of death), and in what circumstances. The inquest does not seek to apportion blame for the death.

Where the death is work related, the Coroner generally sits with a jury. Findings and conclusions surrounding the death are either short form (for example, using simply the word 'suicide') or a longer written expression, known as a 'narrative' conclusion. Prior to the Supreme Court's ruling, the only conclusions to be determined to a criminal standard of proof were short form suicide and unlawful killing conclusions, the remainder were all judged to the civil standard of proof - on the balance of probabilities – meaning 'more likely than not.' An unlawful killing conclusion can be found where there has been an act resulting in death akin to a criminal offence, for example, murder, manslaughter (corporate or gross negligence) or infanticide. 

The case of Maughan came to the Supreme Court after the death of a prison inmate, James Maughan, in 2016. At the original inquest, the Coroner decided the jury could not safely reach a short form conclusion of suicide, because they could not be sure beyond reasonable doubt that Maughan had intended to kill himself. The Coroner instead asked the jury to make a narrative statement of the circumstances of Maughan’s death on the balance of probabilities – applying a civil standard to the verdict. The jury answered the questions put to them by saying that the deceased had a history of mental health issues and that on a balance of probabilities he intended fatally to hang himself and that increased vigilance would not have prevented his death. However, despite these findings, there was no short form conclusion of suicide. This resulted in legal challenges being brought by the family.

Both the Divisional Court and the Court of Appeal decided that the standard of proof to be applied throughout in cases of suicide, both for short-form and narrative form conclusions, is the civil standard. However, the Court of Appeal took the view that for unlawful killing, the criminal standard of proof should continue to apply. The matter was further appealed to the Supreme Court. 

By a majority, the Supreme Court ruled that the standard of proof for all short-form conclusions at an inquest, including suicide and unlawful killing, should be the balance of probabilities. 

In making its ruling the Supreme Court was mindful of the under reporting of suicide related deaths if a criminal standard of proof continued to be applied. With increasing mental health awareness, and a drive to reduce the stigma surrounding it, more such verdicts may lead to better recognition of mental health concerns. 

Including unlawful killing in the lower threshold is also likely to have a number of practical implications for inquests that involve work-related deaths. While historically the authorities may wait to make any charging decision until after any inquest had taken place, the disparity between the standards of proof now applying could in fact mean that some criminal or Health and Safety Executive prosecutions take place quicker than they would have done ordinarily. In some cases the need for an inquest may be dispensed with altogether if there has been a proper examination and investigation of the evidence already. 

On the other hand, where an inquest has commenced, there may be an increasing number of applications for its adjournment pending any prosecution decisions, to ensure that more frequent unlawful killing conclusions – albeit now to a lesser standard of proof – do not adversely affect or prejudice any defence being advanced at future criminal proceedings.

Although an inquest verdict of 'unlawful killing' will not necessarily lead to criminal proceedings, the reality is that individuals and corporates whose acts or omissions may have caused or contributed to a death will undoubtedly be at greater reputational risk as a result of the Supreme Court's decision, which in turn will inevitably lead to longer and more complex hearings. It may also result in greater use of the protection against self-incrimination by those called to answer questions where their own conduct may be relevant to establishing the cause of death. 

The full impact of the Supreme Court's decision will become apparent in due course but in the meantime it is likely that an increasing number of health and safety related inquests will broaden in scope and include evidence relating to manslaughter offences. Unlawful killing as a finding may therefore be explored in more detail and may become more common in work-related death inquests in the future. As a result, duty holders will have to engage even more closely with the proceedings.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com