R (on the application of Thomas Maughan) v HM Senior Coroner for Oxfordshire
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leggatt |
| Judgment Date | 26 July 2018 |
| Neutral Citation | [2018] EWHC 1955 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/367/2018 |
| Date | 26 July 2018 |
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[2018] EWHC 1955 (Admin)
Lord Justice Leggatt
and
Mr Justice Nicol
Case No: CO/367/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jude Bunting (instructed by Matthew Gold & Co Ltd) for the Claimant
Alison Hewitt (instructed by Oxfordshire County Council Legal Department) for the Defendant
Hearing date: 10 July 2018
Judgment Approved
Lord Justice Leggatt (giving the judgment of the court):
Introduction
The question raised by this claim is whether a coroner or a coroner's jury, after hearing the evidence at an inquest into a death, may lawfully record a conclusion to the effect that the deceased committed suicide reached on the balance of probabilities; or whether such a conclusion is only permissible if it has been proved to the criminal standard of proof (i.e. so that the coroner or jury is sure that the deceased did an act which was intended to and did cause his or her own death).
The facts
At approximately 5.20am on 11 July 2016 the claimant's brother, James Maughan, who was in custody at HMP Bullingdon, was found hanging in his prison cell. Ambulance staff confirmed his death around an hour later.
An inquest into James Maughan's death was held by the defendant, HM Senior Coroner for Oxfordshire, with a jury. The inquest was heard over four days in October 2017. After the close of the evidence, the coroner accepted that there was insufficient evidence upon which the jury could be sure that the deceased intended to kill himself. He took the view that in these circumstances the jury could not be permitted to consider a ‘short-form’ conclusion of suicide. However, he invited the jury to record a narrative conclusion which answered five questions (provided to the jury in writing). Questions 3 to 5 were:
“3. Did James Maughan deliberately place a ligature around his neck and suspend himself from the bedframe?
4. Are you able to determine if it is more likely than not that he intended the outcome to be fatal, or for example, if it is likely that he intended to be found and rescued? If you are unable to determine his intention, please say so.
5. Were there any errors or omissions on the 10–11 July in the provision of care on the part of HMP Bullingdon/prison staff which caused or contributed to James Maughan's death?”
The coroner also directed the jury to add to question 4 and to consider whether the deceased was unable to form a specific intent to take his own life through mental illness.
The questions for the jury were accompanied by written instructions, one of which was:
“The standard of proof you should apply when considering these questions is the balance of probabilities. In reaching your conclusions, you therefore have to be satisfied it is probable (more likely than not) that something did or did not happen.”
The jury's narrative statement, written on the record of inquest, included the following findings:
“We believe James deliberately tied a ligature made of sheets around his neck and suspended himself from the bedframe.
James Maughan had a history of mental health challenges and on the night of 10 July 2016, James was visibly agitated. We find that on the balance of probabilities, it is more likely than not that James intended to fatally hang himself that night.
… neither formally opening an ACCT, nor increased vigilance generally would have likely prevented James' death, given what we believe was James' intent to end his life. …”
The claim
In this claim for judicial review, the claimant contends that the jury's conclusion was unlawful, as it amounted to a verdict (or, as it is now called, a “conclusion”) of suicide reached on the balance of probabilities. It is said that the coroner erred in law in instructing the jury to apply the civil standard of proof when considering whether James Maughan intended to kill himself and that the law is clear that a conclusion of suicide, whether recorded in short form or as part of a narrative statement, may only be returned on the criminal standard of proof.
Ms Hewitt, who represents the defendant coroner, points out that his directions to the jury were in accordance with express guidance given in The Coroner Bench Book (June 2015) and, arguably, in the Chief Coroner's Guidance No. 17: “Conclusions: Short-Form and Narrative”. While suggesting reasons why this guidance is arguably correct, Ms Hewitt made it clear that the coroner takes a neutral stance on whether his directions and the jury's conclusion were lawful.
None of the interested parties has taken any active part in the proceedings.
Before considering the claimant's case in more detail, we will describe the purpose of a coroner's investigation and refer to the guidance which the coroner was following.
The purpose of a coroner's investigation
As set out in section 5(1) of the Coroners and Justice Act 2009, the purpose of a coroner's investigation into a person's death is to ascertain: (a) who the deceased was; (b) how, when and where the deceased came by his or her death; and (c) certain formal particulars required by the Births and Deaths Registration Act 1953 to be registered concerning the death. Historically, the task of ascertaining “how” the deceased came by his or her death has been understood narrowly as meaning “by what means”. However, in R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182, the House of Lords held that, where necessary to comply with the state's obligations under the European Convention on Human Rights, the purpose of the investigation extends to ascertaining “in what circumstances” the deceased came by his or her death. This is now expressly provided for by section 5(2) of the 2009 Act.
The specific obligation with which the House of Lords was concerned in the Middleton case arises under article 2 of the Convention, which protects the right to life. The European Court of Human Rights has interpreted article 2 as imposing on contracting states not only substantive obligations to protect life, but also a procedural obligation to hold an effective investigation into any death where it appears that one or other of the state's substantive obligations has been, or may have been, violated and that agents of the state are, or may be, in some way implicated (see para 3 of the Middleton case and the cases there cited). One context in which such a procedural obligation arises is where a person dies while in state custody – as happened in the Middleton case itself. Such cases, where the death was a violent or unnatural one or the cause of death is unknown, are also one of the categories of case in which an inquest must be held with a jury: see section 7(2)(a) of the 2009 Act.
Short-form and narrative conclusions
Section 10 of the 2009 Act requires the coroner (if there is no jury) or the jury (if there is one), after hearing the evidence at an inquest into a death, to make a determination as to the questions mentioned in section 5. Pursuant to rule 34 of the Coroners (Inquests) Rules 2013, such a determination is to be made using Form 2 in the Schedule to those Rules. As prescribed by Form 2, the record of the inquest must contain the statutory determination as to how, when and where (and, if applicable, in what circumstances) the deceased came by his or her death and also the conclusion of the coroner or jury as to the death. The notes to the form state that one of nine listed “short-form” conclusions may be adopted but also that, as an alternative or in addition to one of the listed short-form conclusions, the coroner or jury may make a brief “narrative” conclusion. One of the listed short-form conclusions is “suicide”.
Note (iii) to Form 2 states:
“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 Chief Coroner's Guidance
The first Chief Coroner, Sir Peter Thornton QC, issued detailed guidance to coroners on various matters. This guidance has no legal force but is intended to assist coroners with the law and their legal duties.
Guidance No. 17, which was issued on 30 January 2015 and revised on 14 January 2016, deals with the use of short-form and narrative conclusions. The Guidance suggests (para 26) that:
“Wherever possible coroners should conclude with a short-form conclusion. This has the advantage of being simple, accessible for bereaved families and public alike, and also clear for statistical purposes.”
The Guidance notes (at para 47), however, referring to the Middleton case, that where article 2 of the Convention is engaged:
“Frequently a narrative conclusion will be required in order to satisfy the procedural obligation under article 2, including, for example, a conclusion on the events leading up to the death or on relevant procedures connected with the death.”
In cases where a narrative conclusion is used, the Guidance emphasises the need for brevity and that narrative conclusions are not to be confused with findings of fact (paras 35–36).
The Guidance states (at para 56), citing note (iii) of Form 2, that the standard of proof required for the short-form conclusions of “unlawful killing” and “suicide” is the criminal standard of proof and that, for all other short-form conclusions and a narrative conclusion, the standard of proof is the civil standard of proof. According to a footnote:
“There is an ongoing discussion as to...
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