The Supreme Court has just handed down on 13 November 2020, a majority judgment (3:2) in Maughan v HM Senior Coroner for Oxfordshire regarding the standard of proof required in Inquests for verdicts of unlawful killing and suicide. By majority, the Supreme Court decided that the standard of proof required for such short form Inquest verdicts is the civil standard of “balance of probabilities” as opposed to the criminal standard of “beyond reasonable doubt” so such verdict findings will in future be much easier to establish than before.
The lower Courts in Maughan previously concluded that unlawful killing was a different category of verdict to suicide (as suicide was no longer a criminal offence) and found numerous reasons for unlawful killing to remain on the criminal standard of proof including:
- Inquests are not criminal proceedings and unlawful killing implies a crime. Unlawful killing can therefore be considered to have its own special status as an Inquest verdict.
- While an Inquest cannot determine any question of criminal liability on the part of a named person, the identity of the person will become knowledge as part of the Inquest process and therefore the higher criminal standard should apply.
- A conclusion of unlawful killing could cause the CPS to reconsider bringing criminal charges and therefore again the criminal standard is appropriate.
Although we are not surprised that the civil burden of proof has been found to be applicable in respect of suicide verdicts (as held by the lower courts in the Maughan case), the civil burden for “unlawful killing” has come as a significant change in the law which has potentially wide-ranging impacts.
Some of the potentially negative implications for corporate clients and insurers are set out below.
Unlawful killing/suicide verdicts
In respect of a verdict of suicide then there are two elements which a Coroner or Jury must establish that:
- The deceased took their own life and;
- They intended to kill themselves.
In respect of a verdict of unlawful killing then the elements that must be established are that:
- Someone has been killed by one or more persons (known or unknown) and;
- The killing was done without lawful excuse and;
- The killing was in breach of criminal law.
Following the Supreme Court case of Maughan the Coroner or Jury can reach verdicts of unlawful killing or suicide when the evidence establishes, on the balance of probabilities, that this was the cause of death.
A verdict of unlawful killing is extremely serious indeed and could potentially lead to more individuals or organisations being charged with Gross Negligence Manslaughter or Corporate Manslaughter (under the Corporate Manslaughter and Corporate Homicide Act 2007) or alternatively serious health and safety breaches under the Health and Safety at Work Act 1974. Given that the criminal burden is no longer required for unlawful killing (as has always previously been the case), then this could lead to individuals and organisations not being prepared to properly engage with the Inquest process as there will be concerns that they could potentially incriminate themselves if unlawful killing is a potential Inquest verdict.
The other areas that could lead to difficulties arising from this Supreme Court decision in Maughan include:
- The expectations of bereaved families who could be pushing for such verdicts.
- More adversarial and/or defensive strategies pursued by Interested Parties despite an Inquest not strictly speaking being a forum to apportion blame or fault.
- More detailed legal arguments at the Pre-Inquest Review hearing stage regarding disclosure, witnesses, the scope of the Inquest including the applicability or otherwise of Article 2 (“Right to Life”) and the need for a jury.
- Concerns regarding individuals and corporations not engaging evidentially with the Inquest process due to concerns about criminal charges.
- Any potential increase in challenges to such verdicts via Judicial Reviews.
- There are already significant delays in the coronial system due to Covid-19 issues and this judgment could lead to greater delays in getting Inquests dealt with to the detriment of bereaved families.
- Insurers will also have concerns about any potential findings of unlawful killing given that costs (both Claimants and Defendants) could significantly increase and any such verdict would significantly negatively impact civil claims.
- The label of unlawful killing is also an extremely negative and emotive issue and should not be taken lightly given the adverse implications that it could have on both individuals and organisations personally and professionally and it could impact business generally and future tender opportunities.
- This decision could in future lead to inflationary pressures on commercial and D&O policies if costs relating to Inquest increase significantly.
The national Plexus Regulatory Team is here to advise our corporate and insurance clients in respect of this judgment both in terms of current cases and future potential Inquests. The threat of an “unlawful killing” verdict however, needs to be taken very seriously indeed and detailed advice provided in respect of the evidence, strategies and potential outcomes and ramifications of such verdicts.
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If you would like to know more about this matter, please speak to your contacts at Plexus Law:
Anthony Baker, Partner
T: 0113 4681 702 | M: 07811 545 321 | E: firstname.lastname@example.org
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