Landmark Judgment on Inquests – Unlawful Killing verdict now on ‘balance of probabilities’

Landmark Judgment on Inquests: unlawful killing verdict now on ‘balance of probabilities’: Supreme Court fans the flames.

The Supreme Court has downgraded the evidential standard of proof necessary for findings of ‘unlawful killing’ and ‘suicide’ at Coroner’s Inquests. In a 3:2 majority judgment, the Supreme Court has concluded that there is no legal basis for different standards or proof to apply across different short-form verdicts. Lady Arden, on behalf of the majority, concluded that Inquests were civil proceedings; that the ‘balance of probabilities’ is the standard of proof in civil proceedings and that the Coroners’ Rules did not have the power to overturn this established common-law principle. Further, she cited shifting attitudes towards suicide and the inherent incongruity and inconsistency of applying two different standards or proof in relation to the same facts.

In doing so, the Supreme Court has up-ended evidential rules around inquest procedure in a way that is likely to have immediate ramifications. The downgrading of the standard of proof for unlawful killing is likely to cause an escalation in confrontations in many health and safety cases. Families of the deceased, and their lawyers, will undoubtedly perceive that the inference of blame is now much easier to achieve. Potential defendants will feel they have much more to do to avoid the damaging impact of such a verdict.

The possibility of dramatic verdicts like unlawful killing creates an impetus which can be hard to resist for families looking for answers. A finding of unlawful killing can put pressure on the Police and HSE to review their decision on prosecution. Very occasionally this can lead to a reversal in the decision (not) to prosecute.

However, because of the lower level of evidential rigour in Inquests, such verdicts can be castles built on sand. The higher standard of proof has historically acted as a counterbalance to the reduced and limited scope of Coronial investigations as compared to criminal trials.

Leaving aside the correctness of the Supreme Court’s decision (hotly disputed even among themselves), the credibility of unlawful killing verdicts is now doubly reduced – being based on reduced evidential procedure and lower burden of proof. This will simultaneously increase confrontation and controversy at Inquests and undermine the persuasiveness of any unlawful killing verdicts that are recorded: arguably the worst of all worlds.

There is a huge gulf between securing an unlawful killing verdict at Inquest and the bringing of a successful prosecution against a potential defendant. In this gulf, much false hope or unnecessary controversy may reside (depending on your point of view) and the gulf has just grown considerably now that unlawful killing verdicts will be easier to achieve but further removed evidentially from what will be required for a successful criminal prosecution.

It will be extremely interesting to see how the Coroner’s Society and Chief Coroner will respond. It may be something of a shock to all concerned given the Court of Appeal’s six reasons for maintaining ‘beyond reasonable doubt’ in a previous judgment on the issue:

• Inquests are not criminal proceedings, and unlawful killing implies a crime. Unlawful killing can therefore be considered to have its own special status as a conclusion at an inquest.
• Conclusions of unlawful killing in an inquest appear restricted to a class of homicide cases (murder, manslaughter and infanticide).
• While an inquest cannot determine any question of criminal liability on the part of a named person, the identity of the person alleged will, in reality, have become knowledge from the hearing and it is fairer to that person that the higher criminal standard applies, because a conclusion of unlawful killing will ordinarily cause the Crown Prosecution Service to reconsider whether to bring criminal charges.
• The wording of Section 10(2) Coroners and Justice Act 2009 indicates that questions of criminal liability may be determined (even if persons are not to be named), which is consistent with the criminal standard of proof being used.
• The Guidance footnotes suggested that the Ministry of Justice were having ongoing discussions about suicide. As unlawful killing was not mentioned this indicated that unlawful killing stood apart.
• The courts have consistently taken the view in unlawful killing cases, including McCurbin, that the applicable standard of proof is the criminal standard.

The Supreme Court’s judgement appears to conclude that it is precisely because the legal consequences of Inquests are so limited, that the lower burden of proof is permissible.  However, the practical and reputational consequences of an unlawful killing verdict stand in stark contrast to this – something which the majority do not seem to have considered. The judgment has devalued the unlawful killing verdict in the hands of Coroners, and perhaps it may not be long before questions will be asked about whether it is appropriate for Inquests to consider unlawful killing at all, or whether this is a matter that should reside solely with the criminal courts. 

It is essential that bereaved families have recourse to challenge the effectiveness of investigations into those who may be responsible for a loved one’s death. The Police have a statutory framework (Victim’s Right to Review) which allows families to scrutinise and challenge prosecution decisions and, as a last resort, they may judicially review a decision which is manifestly unreasonable. These are effective arrangements, subject to comprehensive legal procedure but they can be hard families to navigate. In practice, inquests can be used as an alternative to these procedures and arguably provide a more accessible and transparent review of events.

While inquests should be adjourned where there is a suspicion of unlawful killing (murder/manslaughter) and only resume once the Police/CPS/HSE have concluded that they will not pursue a prosecution, in practice many inquests do go ahead with such a suspicion hanging over proceedings. The Police/HSE often benefit from seeing the Inquest and making/revising their decision subsequently. Understandably, potential defendants are reticent to point out when this situation is occurring, for fear or articulating to Coroners why they might be suspected of a relevant offence.

It seems inevitable that there will be an increase in bereaved families pushing for unlawful killing verdicts as a result of the Supreme Court’s judgement and it will be interesting to see whether, as a result, Coroner’s will be more keen and assertive in adjourning inquests in favour of further Police/HSE investigations.

Defendants who might previously have pushed for one of the short-form verdicts on the basis that unlawful killing attracted a higher burden of proof (and was therefore less likely) may now feel it is in their interests to influence Coroners to give ‘narrative verdicts’ (a description of events leading to a death, without blame or label). Indeed, Coroners themselves, if they are more aligned to the Court of Appeal’s view on the matter, may be inclined to give narrative verdicts. However, Coroners are bound by the Supreme Court’s judgment and their discretion in such matters will be under heavy pressure.

What is clear is that organisations that are routinely or foreseeably the subject of blame at inquests should be revisiting their crisis management, internal investigations and Inquests procedures to make sure they and their employees are represented effectively at Inquests: legal input into these procedures and legal support in preparation for inquests can be crucial in ensuring a fair and representative outcome.

To view the judgment, please see here.

For more information on the above please contact the Risk & Regulation team.