Innocent until probably guilty
Simon Antrobus KC and Katie Sage consider the decision in R (on the Application of Maughan) (Appellant) v Her Majesty’s Senior Coroner for Oxfordshire (Respondent) [2020] UKSC 46 and its impact on health and safety related inquests.
On 13 November 2020, the UK Supreme Court handed down judgment in R (on the Application of Maughan) (Appellant) v Her Majesty’s Senior Coroner for Oxfordshire (Respondent) [2020] UKSC 46. By a majority of 3-2, the Court changed the standard of proof required to return a short form conclusion of “unlawful killing” from the criminal standard – beyond reasonable doubt – to the civil standard – on the balance of probabilities. It is our view that the reasoning of the majority in this respect was flawed and this change in the law will have an enormous impact upon inquests relating to fatal incidents that are reportable to the Health and Safety Executive.
The decision
The appeal in Maughan concerned the standard of proof for the short form conclusions of “suicide” and “unlawful killing”. The underlying facts were not relevant to the outcome of the case as regards unlawful killing.
The starting point for the Supreme Court was that neither the European Convention on Human Rights nor the Coroners and Justice Act 2009 require any particular standard of proof to be applied to any conclusion of a Coroner’s inquest. Considering the statutory landscape as regards suicide and unlawful killing, Note (iii) of Form 2 (which is the form that must be used to record the result of an inquest further to the Coroners (Inquest) Rules 2013 (“Note (iii)”)) states that:
“the standard of proof required for the short form conclusions of ‘unlawful killing’ and ‘suicide’ is the criminal standard of proof. For all other short form conclusions and a narrative statement the standard of proof is the civil standard of proof”
The majority of the Supreme Court (Lady Arden giving the leading judgment, with which Lord Wilson agreed and Lord Carnwarth giving a concurring judgment) determined that contrary to Note (iii) both the short form conclusions of suicide and unlawful killing should be based on the civil standard of proof – the balance of probabilities. Crucially, the majority held that Note (iii) was a statement of the common law position; did not have the status of a statute; and did not take away the power of the courts to develop the common law (para 56). As regards suicide, the majority considered that previous case law was not binding on the Supreme Court and that it would be more consistent with legal principle if the conclusion could be reached on the civil standard of proof (para 68). Insofar as unlawful killing was concerned, following a somewhat cursory consideration of the issue, the majority determined that for reasons of consistency with all other conclusions available to the inquest (short form and narrative), the standard of proof for unlawful killing should also be reduced to the civil standard (para 96).
In coming to her judgment, Lady Arden leant on the apparent risk of inconsistent fact-finding between a short form conclusion of suicide only being available on the criminal standard of proof but a narrative conclusion, which could include the elements of suicide, being available on the civil standard of proof (para 71). She also relied heavily on the presumption that in civil proceedings, matters of fact are usually established on the civil standard of proof. Insofar as suicide was concerned, Lady Arden considered that the legal and social implications of such a conclusion were very much changed from when it was considered necessary for the conclusion to be on a criminal standard (paras 75 – 81), in particular, suicide was no longer a crime. She also had concerns about the under-recording of suicide if the criminal standard was retained (paras 73 – 74). Finally, she was not convinced that allowing a conclusion of unlawful killing to be reached on the civil standard would materially affect persons who may face criminal proceedings as a result of such an outcome (paras 93 – 94).
The minority decision (Lord Kerr giving the dissenting judgment, with which Lord Reed agreed) held that Note (iii) confirmed what the law was and as a result, the common law rule had become a statutory rule that the Supreme Court was not at liberty to alter (para 125). Therefore, both the short form conclusions of suicide and unlawful killing must be proven to the criminal standard (para 143). Commenting, obiter, on some of the other issues raised in the appeal, Lord Kerr disagreed that there was anything inconsistent between the short form conclusions being on a criminal standard and a narrative conclusion being on a civil standard (para 116). Further, that there was nothing untoward in putting those two conclusions in a special category of verdicts that require proof to the criminal standard (para 139). He also noted that inquests were sui generis, in that they were neither civil, nor criminal, proceedings and so followed their own procedural rules (para 141).
Discussion of the decision in respect of unlawful killing
In our view, the majority decision, in so far as it relates to unlawful killing at least is flawed. That is because it does not pay due regard to:
- the difference between suicide and unlawful killing in terms of what must be proven and the criminality of the conclusion;
- the history of treatment of “quasi-criminal” conclusions in civil cases;
- the severe effect a conclusion of unlawful killing may have on those who are likely to be implicated as being responsible for manslaughter, particularly by a public that are unlikely to appreciate its limitations; and
- the sui generis nature of an inquest in which those potentially implicated are denied the normal means by which to defend themselves that would be available to them in criminal or even civil proceedings.
The starting point is that there is plainly a fundamental difference between the conclusion of suicide (which is no longer a crime) and the conclusion of unlawful killing which requires proof of one of the criminal offences of murder, manslaughter or infanticide. These are the gravest criminal offences known in domestic law and a conclusion by a jury that such an offence has been committed self-evidently has enormous repercussions for those involved who may be implicated by that finding. This is particularly so for fatal health and safety incidents. Such inquests are routinely required to be determined by juries on the basis that any inquest into a death caused by a “notifiable accident, poisoning or disease” must be held with a jury pursuant to section 7(2)(c) of the Coroners and Justice Act 2009. Until now many Coroners have been able to avoid detailed examination of the issues pertaining to the crimes of gross negligence manslaughter or corporate manslaughter if, on their analysis, no reasonable jury, properly directed as to the law for such offences, could reach such a conclusion on the evidence. That decision is, however, one which is often based on the fact that to do so would require the jury to be “satisfied so they are sure” as to each and every one of the complicated ingredients that make up those offences. If that test changes merely to whether such matter have “probably” been established Coroners are likely to be less confident in taking away that decision from the jury and deciding it for themselves in such a case. Where that happens, the inquest begins to resemble a mini trial of a criminal offence. In our view, this fundamental difference between suicide and unlawful killing was wrongly overlooked by the Supreme Court in favour of a consistent approach to the standard of proof required for all conclusions of an inquest.
Further, the failure to give due weight to the fact that unlawful killing is a conclusion that a crime has been committed meant that the majority did not consider the quasi-criminal nature of an inquest involving such an allegation. Lord Kerr, in paragraphs 128 to 134 of his dissenting judgment, surveyed a number of examples where the criminal standard of proof is used in civil proceedings which are deemed “quasi-criminal” because of the severe impact that judgments resulting in, for example, anti-social behavioural orders, sex offended orders and football banning orders will have. Indeed, Lady Arden in her judgment at paragraph 69 states:
“The principle is clear and it is that in civil proceedings the civil standard of proof should apply. There may be cases where it does not so apply, for example, contempt and forfeiture, but they are rare. These particular situations involve risk to liberty and loss of property, both keenly protected by the common law.”
An inquest cannot determine matters of criminal liability on the part of a named person or civil liability[1]. We make no quarrel with the conclusion that a short form conclusion of unlawful killing is not the same as a criminal conviction. However, in an inquest relating to a safety-related accident, a conclusion of unlawful killing is necessarily either a conclusion of gross negligent or corporate manslaughter. Further, that the jury do not name the culprit does not mean that their identity remains anonymous. In most cases it is obvious by the way the case is reported as to who is implicated by that conclusion, whether it be the company, its directors or a particular individual most closely associated with the events of the accident. Arguably, the lack of identification broadens the scope of those potentially implicated in the eyes of the public learning of the decision. In our view, such a conclusion is plainly quasi-criminal and is one of the “rare” circumstances in which allowing such a finding to be made on the civil standard of proof will result in so severe an impact on those most likely to be implicated by such a conclusion that the criminal standard of proof should be required. In our view, loss of liberty or property are not the only good reasons to require the standard of proof to be higher, particularly where a conclusion is intrinsically linked to the most serious of criminal offences – offences of homicide.
In terms of the potential for severe effects as a result of a conclusion of unlawful killing, taking companies first, there is no doubt that a conclusion of unlawful killing will have a very negative effect on reputation and potentially on the profitability of that company or even its economic survival and the fate of its employees. Individuals, even if not named, may well be so strongly implicated by the jury’s decision that it will be taken, without more, by the public as a finding that the individual in question has committed a homicide offence with the obviously adverse effect that will have on their life.
Furthermore, in our view, the practical matters that arise from proceedings being an inquest, rather that civil or criminal proceedings, were not given proper consideration by the majority. The usual rules of evidence in civil and criminal proceedings do not apply in an inquest. Those who face potential implication by an unlawful killing verdict have no control on the evidence that is put before the jury. That evidence can include matters that would not be admissible in criminal law, such as hearsay. Most importantly, there is no ability for those who may be potentially implicated even to address the jury, to be able to highlight evidence that points away from liability on their part. The lack of ability to address or make submissions to the tribunal that will determine liability denies those involved the basic rights that any participant in civil, let alone criminal, proceedings would be afforded.
Both the majority and minority in the Supreme Court quoted from the judgment in R v South London Coroner, Ex p Thompson (1982) 126 SJ 635; The Times, 9 July 29182 where Lord Cane CJ said:
“… it should not be forgotten than an inquest is a fact-finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a criminal trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.” (our emphasis added)
This quotation could not have been more important to the matter of whether it should be open for a Coroner or jury to find that a criminal offence has been committed that caused the death of the deceased, on a standard of proof lower than the high criminal standard. Indeed, the majority decision appeared to be premised on the basis that an inquest is akin to civil proceedings, underestimating the considerable evidential and procedural differences between an inquest and a civil trial, let alone the differences between an inquest and a criminal trial.
Further, in many cases involving health and safety offences inquests are often adjourned pending the criminal proceedings, so as not to risk the inquest becoming a dry run of the criminal trial. To date, following a decision not to proceed to a criminal trial which has the effect of re-starting an inquest, the protection offered by requiring unlawful killing to be proven on the criminal standard goes some way to prevent the inquest that follows a decision not to charge from becoming a mini trial in itself. We are in no doubt that this fundamental change to the law will have the result that inquests, whether they happen before or after a decision to prosecute, will start to look more and more like trials. Furthermore, the chasm between family and other interested persons and what they are trying to achieve in an inquest will no doubt widen with the effect that more issues are contested.
In that regard, we note Lady Arden’s questionable conclusion in paragraph 93 that: “It seems to me that the public are likely to understand that there is a difference between a finding at an inquest and one at a criminal trial where the accused has well-established rights to participate actively in the process.” It seems to us that there are already many examples of the public failing to realise the difference between an inquest and criminal proceedings. We need look no further than the multiple prosecutions of David Duckenfield for gross negligent manslaughter in respect of the Hillsborough Stadium Disaster and the public outcry that the inquests could reach a conclusion of unlawful killing but that the jury in the third of his trials acquitted him, to see that confusion writ large. We have both been involved in inquests where the family, who likely have no or very limited experience of any form of legal proceeding and are often unrepresented, do not understand that an inquest is not akin to a trial and is not able to make conclusions in relation to matters of civil or criminal liability. In light of this change in the law on conclusions, we anticipate these lines will become even further blurred for the public.
Whilst we recognise that there is some weight in the argument that narrative and short form conclusions that are the same, should not be founded on different standards of proof, we agree with Lord Kerr that a narrative conclusion that sets out “the salient evidence and circumstances” is not the same as a short form conclusion of unlawful killing or suicide and that: “in the case of unlawful killing and suicide it [a narrative conclusion] should not purport to constitute a final conclusion on the evidence unless the coroner or the jury has become convinced beyond reasonable doubt that it is justified” (para 116).
Moreover, whilst the necessary factual elements of the conclusion of suicide are likely to be incorporated in a narrative conclusion, this does not follow for unlawful killing, particularly where in safety-related cases it would need to deal with the complex ingredients necessary to establish gross negligence or corporate manslaughter. In either instance, the jury must find the following to be established:
- The existence of a duty of care (based on ordinary principles of negligence) owed to the deceased;
- a breach of that duty of care (i.e. negligence);
- the risk of death (not just serious injury) was a reasonably foreseeable consequence of the misconduct;
- the breach caused the death; and
- having regard to the risk of death involved, the misconduct was grossly negligent so as to be condemned as the serious crime of manslaughter[2].
The matter of the “grossness” of the conduct of the individual or senior management of the organisation is unlikely to fall routinely within the scope of a narrative conclusion. As things stood, for the short form conclusion to be made out, the jury or Coroner would need to be satisfied to the criminal standard that each of those elements was proven. Including being “sure” that the act was so grossly negligent so as to amount to a crime. This is an important safeguard in terms of justice. Under the revised standard of proof, the jury or Coroner would only need to consider it more likely than not that the act was so grossly negligent so as to amount to a crime. One can consider a case in which the jury is not sure that an act is so grossly negligent so as to amount to a crime, but considers it is more likely that not that it does. In a criminal trial, a not guilty verdict would be returned. In the Coroner’s court, a conclusion of unlawful killing will be returned. Not only because the standard of proof overall has been lowered but, in this example, because now the goalposts on one of the elements have moved such that the element of the offence itself starts to change.
The practical impact on health and safety inquests
We cannot understate the impact that we consider this wholesale change to the law in inquests will have, particularly in the health and safety field.
The primary effect of this change in the law is going to be, as indicated above, that many more inquests, particularly those involving health and safety incidents at the workplace, will have to consider evidence relating to the elements of gross negligence or corporate manslaughter. Coroners will be less confident in removing such matters from either the scope of the evidence of the inquest or from the conclusions that the jury will be invited to reach at its end. For those inquests that are affected, there will be an inevitable expansion in both the scope and the length of the inquest. Juries will have to be directed as to all of the necessary elements of both forms of offence, and will have to consider, wherever corporate manslaughter may be relevant, the factors set out at section 8 of the Corporate Manslaughter and Corporate Homicide Act 2007 which include issues concerning the seriousness and extent of the failure and resultant safety risk, and whether attitudes, policies, or systems or practices within the organisation were likely to have encouraged such failure.
The inevitable consequence is that findings of unlawful killing in relation to workplace health and safety incidents are likely to become far more common. This raises enormously what is at stake in such inquests for those involved. It is right to acknowledge that most organisations have always (rightly) treated inquests seriously and have chosen to be legally represented at them, as the law previously stood and even without the realistic prospect in most cases of an unlawful killing conclusion. However, it would be naïve to believe that the reaction to this increase in the stakes would be met by anything other than a commensurate increase in legal representation and involvement on the part of interested persons. It may serve yet further to demonstrate the funding disparity that exists between the families of the deceased (that are unlikely to receive legal aid) and individuals and organisations that are now ‘lawyering up’.
We consider it is likely that interested persons, faced with the potential conclusion of unlawful killing, will double down on arguments over disclosure, witnesses, scope, the application of Article 2 and whether a jury is required at Pre-Inquest Review Hearings with a view to preventing, from the outset, a conclusion of unlawful killing being left to a jury or Coroner. At the inquest itself, legal submissions in respect of which conclusions can safely be left to a jury, or to the Coroner, are also likely to intensify. These changes will inevitably lengthen and complicate inquest proceedings, cutting into the already sparse resources of the Coroner’s courts.
Moreover, the position in regard to adjournments for referrals between the Coroner’s court and prosecuting authorities will be muddied. Rule 25(4) of the Coroners (Inquests) Rules 2013 states that the:
“coroner must adjourn an inquest and notify the Director of Public Prosecutions, if during the course of the inquest, it appears to the coroner that the death of the deceased is likely to have been due to a homicide offence and that a person may be charged in relation to that offence” (our emphasis added).
The test has always been based on the balance of probabilities, but it seems to us that Coroners are now more likely to choose to adjourn if they anticipate a greater likelihood of the jury reaching an unlawful killing verdict themselves, based on the same standard of proof. Many Coroners are likely to feel uneasy at the prospect of a detailed inquest taking place in circumstances where there is now a far greater likelihood of a jury recording a conclusion of unlawful killing and will prefer for prosecuting authorities to review or reconsider decisions not to prosecute before such an outcome arises. We note that the Coroner must be satisfied both that (a) it is likely the death of the deceased was due to a homicide offence and (b) that a person may be charged in relation to that offence but an earlier decision by the prosecuting authority not to charge will not necessarily dispose of the second issue in all cases. We certainly foresee additional adjournments in cases involving allegations of unlawful killing.
Conclusion
Our concern is that the majority of the Supreme Court, in striving to achieve consistency between conclusions in the inquest process, failed to take proper account of the particular issues that arise in relation unlawful killing. The focus in the case was necessarily upon the issue of suicide and there was insufficient examination of the way in which the inquest process addresses not just a crime, but the gravest of all crimes, those of homicide. It seems to us to be quite unreal to expect the public to appreciate the limitations that arise within the inquest process, particularly when they are unlikely to be explained by those reporting unlawful killing findings in mainstream or social media.
It also appears to be manifestly unjust to lower a standard of proof for what is a finding of such a serious offence of homicide in circumstances in which those who are likely to be ostensibly implicated by it have had no opportunity even to address the jury on the evidence they have heard and the facts.
Going forward, we anticipate a step change in the approach of interest persons to inquests, both at the preparation stages and during the inquests themselves as unlawful killing comes very much more to the forefront of the Coroner’s and jury’s options for a short form conclusion. The impact on the resources of Coroner’s courts will no doubt be felt by court users across the country as Coroners learn to navigate a new normal in health and safety related inquests.
Simon Antrobus KC and Katie Sage are barristers practicing in the field of criminal regulatory law within the Crown Office Chambers’ Regulatory Team. The team has considerable experience of inquests arising from health and safety related cases. Please contact Toby Sparrow, the Senior Team Clerk on sparrow@crownofficechambers.com if you require any assistance in this regard.
[1] Section 10(2) of the Coroners and Justice Act 2009.
[2] R v Adomako [1995[ 1 AC 171 (HL), Chief Coroner’s Law Sheet No. 1
