“Probably suicide, but we aren’t sure” – an unsatisfactory conclusion which inquest juries no longer need reach

Coroners’ inquests are frequently called on to consider deaths which look like suicides. In such cases, they have to determine whether to tick a box which says “suicide”. This is the “short-form” conclusion, also commonly called a verdict. These inquests frequently arise in the context of psychiatric units or prisons, which have specific duties under Article 2 ECHR to prevent their vulnerable inmates or patients from taking their own lives. In Article 2 cases, inquests are often also asked to give a narrative conclusion which addresses how, by what means and in what circumstances the deceased came by their death.

Until now, in order to reach a short-form conclusion of suicide, inquests have had to be sure (to a criminal standard) that the deceased intended to take their own life, and not, for instance, to be found and rescued. If the criminal standard is not met but it is found to be more likely than not that the deceased intended to die (the civil standard), the Chief Coroner’s Guidance says that this can be stated in the narrative, but the short-form conclusion cannot be reached. In practice, this has often meant that Coroners would refuse to leave a potential suicide verdict to a jury at an inquest unless there was supporting evidence of intention, often in the form of a note. However, if there was no suicide verdict that meant the death would not count as suicide for statistical purposes. In the case of deaths in custody, this had the potential to underrepresent the number of people (frequently male) who took their own lives in prison or detention.

Following the Court of Appeal’s decision in R (Maughan) v HM Senior Coroner for Oxfordshire [2019] EWCA Civ 809, this rather unsatisfactory position no longer applies. From now on (at least until Maughan gets to the Supreme Court – having handed down judgment on 10 May the Court of Appeal has already granted permission), inquests will be allowed to reach a verdict of suicide if they determine it is more likely than not that the deceased intended to take his or her own life.

In Maughan, the deceased was a prison inmate who died by hanging in his cell. There was no suicide note. The Coroner did not leave a suicide verdict to the jury, as he accepted that there was insufficient evidence for the jury to be sure that the deceased had intended to take his life. The jury selected the box for an ‘open’ verdict, but was also asked to give a narrative conclusion. In answer to the Coroner’s question “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”, the jury said that the deceased had a “history of mental health challenges” and had been “visibly agitated” on the night of his death, and found that “on the balance of probabilities it is more likely than not that James intended to fatally hang himself that night”.

The deceased’s brother, a practising Catholic, challenged this conclusion by way of judicial review. He adduced evidence that suicide is considered a grave sin by the Catholic Church, and argued that such a conclusion was only allowable on the criminal standard of proof. The Divisional Court, now upheld by the Court of Appeal, reviewed the authorities and concluded that the previous assumption that a suicide conclusion requires proof to the criminal standard is wrong.

This change in the law has implications in cases of death in Article 2 cases, including in psychiatric units, where the state has a duty to protect people’s lives. The new standard of proof makes it more likely that inquests will reach verdicts of suicide. This is likely to change public perceptions about the actual rate of self-inflicted deaths in these situations. It will also affect the families of inquest subjects, for whom a conclusion of suicide will have substantial significance. Representatives will therefore need to take care to advise on the changed standard.

The Court of Appeal was also invited to consider the comparable situation of unlawful killing, where a Coroner’s inquest is only allowed to tick the relevant box if the jury are sure to the criminal standard. Although it considered itself bound by the previous decision in R (McCurbin) v Wolverhampton Coroner [1990] 1 WLR 719, which says in terms that unlawful killing conclusions require proof to the criminal standard, the Court expressed some doubts as to whether this position is really satisfactory, and commented that there were good arguments either way. This issue is surely now likely to be argued in the Supreme Court.

The decision in Maughan will have an immediate impact on inquests considering potential suicides across England and Wales. In questioning the standard of proof for unlawful killing conclusions – the subject of much controversy in high profile police inquests such as those involving the deaths of Mark Duggan and Jean Charles de Menezes – its ultimate impact may be even further reaching.

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