As the consequences of the Supreme Court’s decision in Maughan v HM Senior Coroner Oxfordshire  were contemplated in the coronial world, the Chief Coroner promulgated specific legal guidance on how to tackle the new civil standard of proof for unlawful killing (see Law Sheet 6). However that January 2021 guidance has now been formally withdrawn and replaced with revised versions of the pre-existing guidance on narrative and short-form conclusions and an updated law sheet specific to the unlawful killing conclusion.
Amendments were needed as before Maughan was determined it was generally understood that the criminal standard of proof applied to conclusions of suicide and unlawful killing. As the Supreme Court in Maughan has made clear, there is now only one standard of proof in inquests – the balance of probabilities.
Amendments to Guidance 17 on Conclusions
The revised Guidance 17 on Conclusions, clarifies the position as to that single standard of proof (see §37 see also new §43 with respect to suicide). That single standard means that where previously the jury should have been directed to consider conclusions where the criminal standard applied before those where the balance of probabilities applied (old paragraph 24), the order of precedence is no longer as important. Note, however, paragraph 7 of the new Law Sheet 1 which recommends, because of their “intrinsic gravity”, considering unlawful killing before suicide and either or both before any other potential short form conclusions.
The Chief Coroner has taken the opportunity to reframe Guidance 17 on Conclusions more generally. Gone is the ‘Historical perspective’ section (old paras 13 to 17).
The section explaining the difference between narrative conclusions in Article 2 and non-Article 2 has been re-worded (§21 to §31). New paragraphs 26 and 27 repeat the call for short-form conclusions to be given in most inquests:
- If the three-stage process is properly followed, there will often be no need for a narrative conclusion.
- In general, a narrative conclusion should be used only where the three-stage process [….] is insufficient.
We are reminded also that words denoting causation such as “because” and “contributed to” are permissible (§ 36).
Law Sheet No. 1: Unlawful Killing
This blog has previously identified problematic implications for Coroners applying the balance of probabilities to the elements of relevant offences (see here). The revised Law Sheet now provides the Chief Coroner’s views as to how to resolve these issues.
First, he considers that a finding of unlawful killing which is based on gross negligence manslaughter or corporate homicide is not a conclusion with appears “to determine any question of criminal liability on the part of a named person or civil liability”. Section 10(2) is he says consistent with an unlawful killing conclusion provided the person who is considered to have caused the death is not named. Likewise, it is the Chief Coroner’s view that an unlawful killing conclusion based on gross negligence manslaughter or corporate homicide is consistent with s.10(2) because there will be no express determination that a civil wrong has been committed (see §11).
Second, the Chief Coroner engaged with the point raised in this blog, that there is a conceptual difficulty in applying the concept of a balance of probabilities to the sixth element of the offence of gross negligence manslaughter. That element is whether the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.
We had previously queried whether this is a question of judgment or a question of fact and if of fact how the balance of probabilities is applied. The Chief Coroner’s view is that it is a question of fact, as the question for the jury is not whether the negligence was gross and whether, additionally, it was a crime, but whether the behaviour was grossly negligent and consequently criminal.
The jury or coroner will have to consider “the misconduct was probably grossly negligent enough to be condemned as criminal” as a question of fact, and not one of opinion.
Of course as coroners are independent, they must each make their own mind up about how to apply the case law and this guidance. What does seem likely is that the interpretation of whether actions were probably unlawful will soon be one for consideration by the higher courts.
  UKSC 46