The Queen (on the application of Maughan) v HM Senior Coroner for Oxfordshire
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Lady Justice Nicola Davies,Lord Justice Underhill |
| Judgment Date | 10 May 2019 |
| Neutral Citation | [2019] EWCA Civ 809 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2018/1962,C1/2018/1962 |
| Date | 10 May 2019 |
and
[2019] EWCA Civ 809
Lord Justice Underhill, VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
Lord Justice Davis
and
Lady Justice Nicola Davies
Case No: C1/2018/1962
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
LORD JUSTICE LEGGATT AND MR JUSTICE NICOL
CO/367/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Karon Monaghan QC and Jude Bunting (instructed by Matthew Gold and Co. Ltd) for the Appellant
Alison Hewitt (instructed by Oxfordshire County Council Legal Services) for the Respondent
Jonathan Hough QC (instructed by the Chief Coroner) for the Chief Coroner (as Intervener)
Adam Straw (instructed by Hickman & Rose) submitted written submissions on behalf of INQUEST (as Intervener)
Hearing date: 9th April 2019
Approved Judgment
Introduction
This appeal involves questions of importance concerning the law and practice of coroners' inquests where an issue is raised as to whether the deceased died by suicide. The questions can be formulated as follows:
(1) Is the standard of proof to be applied the criminal standard (satisfied so as to be sure) or the civil standard (satisfied that it is more probable than not) in deciding whether the deceased deliberately took his own life intending to kill himself?
(2) Does the answer depend on whether the determination is expressed by way of short-form conclusion or by way of narrative conclusion?
Those are the questions falling for decision in this case; but to an extent they have also required some consideration of the position with regard to unlawful killing.
By its judgment handed down on 26 July 2018 the Divisional Court (Leggatt LJ and Nicol J) 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. In so deciding, at least with regard to short-form conclusions, it departed from a long line of Divisional Court and High Court authority, from practice guidance issued by the Chief Coroner and from statements made in the leading textbooks on the law relating to coroners. The Divisional Court itself granted leave to appeal to this court.
The appellant, who is the brother of the deceased in this case, challenges the correctness of that decision. His case is that the criminal standard should have been and should be applied throughout, both for the purposes of a short-form conclusion and for the purposes of a narrative conclusion, in deciding whether the deceased deliberately killed himself intending to take his own life.
The respondent Senior Coroner for Oxfordshire, whilst maintaining a neutral position, has suggested arguments in favour of the civil standard applying throughout in cases of suicide (following the view of the Divisional Court) or alternatively (and as reflected in a Respondent's Notice) in favour of the civil standard applying with regard to a narrative conclusion.
With leave previously granted by this court, the Chief Coroner of England and Wales has intervened. His position too has been neutral; but he has very helpfully through counsel advanced detailed arguments representing the pros and cons of the respective positions. In addition, he has helpfully advanced arguments addressing the position of unlawful killing. The charity INQUEST has also previously been given leave to intervene on this appeal: in its case, by written submissions only. It has advanced arguments strongly advocating a position (if otherwise unconstrained by authority) that in principle the standard of proof at an inquest should be the same for unlawful killing and suicide: and that there is no proper justification for a higher standard of proof for issues of unlawful killing raised at inquests.
Before us, the appellant was represented by Ms Karon Monaghan QC leading Mr Jude Bunting. The Senior Coroner for Oxfordshire was represented by Ms Alison Hewitt. The Chief Coroner of England and Wales was represented by Mr Jonathan Hough QC (whose arguments Ms Hewitt adopted, with some supplementation). The case was very well argued.
Background
At around 5.20 in the morning of 11 July 2016 James Maughan was found hanging in his prison cell at HMP Bullingdon. A ligature had been tied to the bedframe and attached to his neck. He was pronounced dead shortly thereafter. There was evidence that in the past he had had mental health and other problems and that there had been previous attempts at suicide and self-harm.
In such circumstances, an inquest was required to be held and was held. The inquest took place between 9 and 12 October 2017 before the Senior Coroner for Oxfordshire and a jury. The appellant was not legally represented: but the deceased's wife, Kelly Shakespeare, was (as were various other persons) and members of the family were permitted to participate and to ask questions.
The principal issues raised at the inquest were whether the hanging was self-inflicted and deliberate; whether, if it was, the deceased intended to kill himself; and whether his death was caused or contributed to by failure to protect his life on the part of the prison authorities.
At the conclusion of the evidence the Coroner received submissions from the various interested persons. Having done so, he accepted that the evidence was insufficient to enable a jury, properly instructed, to conclude to the criminal standard that the deceased had intended to take his own life. He applied a modified version (“Galbraith plus”) of the principles of R v Galbraith (1981) 73 Cr. App. R 124 in this regard. He ruled that a short-form conclusion of “suicide” should not be left to the jury. But, having so ruled, he further decided that it would not be appropriate simply to elicit an open conclusion from the jury. He considered that it was requisite that, so far as possible, the jury's conclusion on the circumstances in which the deceased had died should be elicited by way of narrative conclusion from them. In so deciding, he followed the guidance contained in Guidance No. 17 issued (in 2016) by the then Chief Coroner and in the Coroner Bench Book (2015 version). I will come on to those in due course.
After discussion with the legal representatives, the Coroner posed the following questions for the jury:
“1. When, where and how was James Maughan found on 11 July 2016 and at what time and where was his death formally pronounced? (Approximate times will suffice if this is all that can be determined on the evidence).
2. What is the medical cause of death?
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.
[Additionally, the Coroner 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.]
5. Were there any errors or omissions on the 10–11 July 2016 in the provision of care on the part of HMP Bullingdon/prison staff which caused or contributed to James Maughan's death? If so, please state what they are and how they contributed to his death.”
In accompanying written instructions, the Coroner again made clear that, in reaching their conclusions on the questions posed, the jury were to apply a standard of proof by reference to the balance of probabilities.
It will thus be seen that for the purposes of the narrative conclusion those questions and those instructions throughout were framed by reference to the civil standard of proof.
The jury's eventual answers to those questions were set out in the Record of Inquest.
Typed item 3 on the standard form of Record of Inquest stated:
“How, when and where and, for investigations where section 5(2) of the Coroners and Justice Act 2009 applies, in what circumstances the deceased came by his or her death”.
The answer (completed in manuscript) of the jury among other things stated:
“We believe that James deliberately tied a ligature made of sheets around his neck and suspended himself from the bedframe”.
Typed item 4 on the form stated “Conclusion of the jury as to death”. In answer to that the jury among other things recorded in manuscript their conclusion, expressed to be a narrative conclusion, that the deceased had a “history of mental health challenges” and had been “visibly agitated” on the night of 10 July 2016. They went on to say this:
“We find that on the balance of probabilities it is more likely than not that James intended to fatally hang himself that night”.
The jury further went on in their narrative conclusion to consider the conduct of the prison staff. The jury concluded that prison officers had, given what they knew and witnessed, acted reasonably in not opening certain suicide and self-harm prevention measures (known as ACCT) and had generally carried out their duties in an adequate manner with regard to the deceased's well being that night. The jury nevertheless indicated that they accepted that perhaps more might have been done but went on:
“…however, 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 jury further concluded that any lack of training or experience on the part of particular staff on the relevant wing at HMP Bullingdon was not a significant factor in causing or contributing to the death.
It thus is clear that, faithful to the questions asked of them and instructions...
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