Probably unlawful killing: a new inquest conclusion

Written by: Frances McClenaghan
Published: 13 November 2020

R (Maughan) v Senior Coroner for Oxfordshire [2020] UKSC 46

There is perhaps no better example of the judicial development of our common law than Maughan. A case which began with a family member appealing against what they believed was the incorrect application of the civil standard of proof to a suicide conclusion has ended with the Supreme Court determining that not only was the standard of proof correctly applied in circumstances where suicide is a civil finding, but that the same logic also applies to an inquest conclusion of unlawful killing.

There is to be only one standard of proof in inquests and that is proof that the fact in issue more probably occurred than not.

This will no doubt surprise many readers, and perhaps rightly so, as the decision in Maughan is from a divided court: a 3:2 majority concluded that the standard of proof for all conclusions at an inquest – including ‘suicide’ and ‘unlawful killing’ – should be the civil standard.

Although as one of the dissenting voices, Lord Kerr, has quite rightly emphasised in another setting:[1] the importance of dissent, even when in the final court of appeal, is that it contributes to the transparency of the debate, and far from detracting from the authority of the majority opinion, that opinion, in confronting and disposing of an opposite view, if it has been done convincingly, will be all the more commanding of acceptance as a result.

Open justice in Coroners Courts: Why Black Lives (and deaths) should Matter

Written by: Bridget Dolan KC
Published: 3 November 2020

Chief Constable West Yorks Police v Dyer & Assistant Coroner for West Yorkshire & others [2020] EWCA Civ 1375, 27.10.2020

Judicial endorsement that Black Lives Matter sends an important message to all. Whilst our British judges might never be expected to deliver as hard hitting and politicised a judgment as that handed down by the wonderful US District Judge, Carlton W. Reeves, this August in Jamison v McClendon – which for this blogger comes top of the list of the most powerful first 20 lines of any court’s judgment this millennium – the recent decision from the Court of Appeal in Dyer nevertheless sends a clear signal that the racial background of a person who dies after contact with the police can matter when open justice is in issue.

Specifically, the appellate court has determined that when the Coroners Rules require a coroner to consider the test of ‘expediently’ this is to equated with ‘appropriately’ and should include considerations of the wider interests of justice. For one of the three Lord Justices of Appeal a relevant factor in considering those wider interests can be that the person whose death is being inquired into was a black man who died in the custody of the police.

The perils of fast-tracked documentary inquests

Written by: Rachael Gourley
Published: 23 October 2020

Rushbrooke v HM Coroner for West London [2020] EWHC 1612 (Admin) 23.6.20.

With such a huge backlog of inquest cases waiting to be heard and the difficulties of convening inside a courtroom during the current pandemic, the appeal of holding a swifter, documentary only inquest is plain to see. However, the recent case of Rushbrooke is a timely reminder to coroners that they will run the risk of their findings being quashed if the haste to hold a paper-based inquest results in an insufficient investigation.

Art 2 inquest required where a ‘credible suggestion’ of a breach of substantive rights

Written by: Andrew Perfect
Published: 23 October 2020

R (Skelton) v Senior Coroner for West Sussex and the Chief Constable of Sussex Police & Robert Trigg (interested parties) [2020] EWHC 2813 (Admin), 23.10.20

Determining whether Art 2 procedural obligations are engaged at an inquest can be one of the most challenging legal questions in the coronial jurisdiction. The issue for a coroner is not whether breaches of a substantive Art 2 duty have been made out, but whether such breaches are “arguable”.

The Divisional Court have made it clear that, when considering arguability, coroners should apply the test in Maguire[1], asking themselves whether there is a ‘credible suggestion’ that a breach of substantive Art 2 rights may be established after the further and fuller investigation of all the evidence which will be available at a Middleton inquest.

Further, should a coroner’s decision be challenged with unqualified human rights in play, the Divisional Court’s role is not to assess the quality of the decision on pure public law grounds but to apply heightened scrutiny, effectively asking itself the same question that the coroner has considered. Hence in practical terms there can only be one right answer and a rationality challenge collapses into a merits review.

Impermissible to challenge a criminal conviction at a fresh inquest

Written by: Andrew Perfect
Published: 23 October 2020

R (Skelton) v Senior Coroner for West Sussex and the Chief Constable of Sussex Police & Robert Trigg (interested parties) [2020] EWHC 2813 (Admin), 23.10.20

Whilst many will be unsurprised to be told that a fresh inquest cannot reach a verdict inconsistent with an earlier homicide conviction, it is nevertheless reassuring to learn that a statutory lacuna on this issue has now been firmly filled by the Divisional Court in this recent case.

The relevant part of the CJA 2009 clearly states that if an inquest is suspended and later resumed after a homicide conviction the conclusion of the inquest may not be inconsistent with the criminal jury’s determination. This recent challenge arose in the context of a situation not addressed in the statute: where a wholly fresh inquest was to be held.