Chief Coroner’s Law Sheet #6, 13.1.2021
The new Chief Coroner, HHJ Teague QC, has just published his first legal guidance in the form of “Law Sheet 6” addressing the impact of the case of R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [2020] UKSC 46 on coronial practice. These Law Sheets are written to assist coroners with the law and their legal duties, and to provide commentary and advice on policy and practice.
On 13 November 2020 the Supreme Court determined in Maughan that the civil standard of proof is to be applied in coronial inquests for all conclusions that a coroner or a coroner’s jury might return, including unlawful killing (see our earlier blogs (here and here)). Previously it had been accepted that the ‘short form’ conclusions of unlawful killing and suicide could only be returned if found proven to the criminal standard of ‘beyond reasonable doubt’. However, the Supreme Court brought coronial law into line with a number of other areas of civil law when it held that, as a matter of common law principle, the criminal standard should not apply to any conclusion in coronial proceedings.
Setting that change in its wider context, in 2019 there were fewer than 166 conclusions of unlawful killing made by coroners or juries in inquests, this was half a percent of the 31,284 inquests concluded. The issue of unlawful killing is likely to feature in relatively few inquest cases. However, when it does arise it will of course be of substantial importance to all involved.
Law Sheet 6 stresses how a coroner’s inquest is not criminal proceedings: an inquest is a fact-finding exercise and not a method of apportioning guilt. The Chief Coroner emphasises that, where a coroner or coroner’s jury comes to a conclusion of unlawful killing, it will now be particularly important for the coroner to explain the distinction between criminal proceedings and inquests. He urges that the explanation should set out the nature of the inquest process as a fact-finding inquiry and notes that an inquest conclusion of unlawful killing will have no bearing on criminal proceedings which are subject to a materially higher standard of proof (as well as entirely different procedural rules).[1]
Probably gross enough to be condemned?
The judgment in Maughan has not altered the relevant case law as to the elements of homicide. As the Chief Coroner makes clear, the conclusion should be returned if (and only if) each of the elements of the relevant offence (ie murder, manslaughter or infanticide) has been established to the civil standard.
When applied to questions of fact that must now be uncontroversial the light of the Supreme Court decision. However, the Law Sheet does not grapple with the more taxing question of how, in respect of the fifth and final element of gross negligence manslaughter[2] one can apply a “civil standard” to the question whether “having regard to the risk of death involved, was this misconduct grossly negligent so as to be condemned as the serious crime of manslaughter.”
Is this not a question of judgment? And if so, how can it have a standard of proof attached to it? Or is this a question of fact? And if so, where does the balance of probabilities come in? Is the necessary finding “this misconduct was probably grossly negligent enough to be condemned as a serious crime” or “this conduct should probably be condemned as surely criminally negligent” or “this conduct should probably be condemned as probably criminally negligent”? Perhaps the preferred view is the fact of the misconduct must be established on the balance of probabilities, but the issue of the grossness of that conduct is purely a matter of judgement.
In the case of Sellu [2016] EWCA Crim 1716 at [152] the CoA position was that a criminal jury need to be sure that the breach is sufficiently grave to be one deserving to be criminal and to constitute manslaughter. The jury need to understand that they must be sure of a failure that was not just serious or very serious but truly exceptionally bad. It seems therefore that in the coronial setting although the same degree of certainty may no longer be required, a very clear warning as to the high threshold will still be essential.
Consistency with criminal findings
The rule that the findings at an inquest may not conflict with any earlier criminal finding [3] is unchanged by Maughan. A final decision by a competent court in which the identical question sought to be raised has been already decided must be respected unless and until successfully appealed.
But of course, a criminal acquittal of homicide is not inconsistent with an inquest decision that someone was unlawfully killed by the same accused on the balance of probabilities (albeit the perpetrator cannot be named). As the Divisional Court recently stated in Skelton an acquittal by a jury in a criminal trial does not depend on the proof of an affirmative proposition to any standard. Conversely, if there has been a criminal trial at which a person has been convicted of a homicide offence, then the coroner or jury at a subsequent inquest could not reach a conclusion to the effect that the offence had not been committed.
Need the term ‘unlawful killing’ be used at all?
Even if the facts found could amount to unlawful killing the Law Sheet leaves open whether those two words must be use at all.
It is made clear that 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. Whilst some short form conclusions are suggested in the current Record of Inquest form (Form 2), the Supreme Court specifically held that these do not ‘codify the law’. 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 critical issues relating to the death.
“There is no requirement in law to use any particular form of words when recording a conclusion on the Record of Inquest”
It seems, just as in the actual Maughan inquest where the jury did not use the word ‘suicide’ but were still considered to have effectively found that the death was by suicide, even if it is found as a fact that someone’s death was probably a result of being unlawfully killed the Record of Inquest does not need to actually contain those two words, so long as it does fully and adequately describe what happened.
Footnotes
[1] Although it is perhaps still to be expected that a coronial finding of ‘unlawful killing’ even on BoP may well make prosecuting authorities look again at any earlier (non)charging decision.
[2] The five necessary elements are set out in the case of R v Adomako [1995] 1 AC 171
[3] see Schedule 1, para 8 CJA 2009