Jonathan Landau examines the implications for local authorities of the Supreme Court's ruling in the Maughan case.
On 13 November, the Supreme Court handed down its judgment in the case of Maughan, R (on the application of) v Her Majesty's Senior Coroner for Oxfordshire  UKSC 46. The Court decided, by a 3:2 majority, that the standard of proof for all conclusions in inquests – including unlawful killing – is the civil standard: on a balance of probabilities. The civil standard of proof has been applied to conclusions of suicide since the High Court judgment in this case in July 2018 with little controversy. However, extending the judgment to conclusions of unlawful killing is likely to have far-reaching consequences, including in respect of inquests in which local authorities are involved.
Given the lower civil standard, it is highly likely that there will be an increase in the number of unlawful killing conclusions. Indeed, in many cases where previously bereaved families would have advocated for conclusions of neglect, they may now press for unlawful killing conclusions.
If such a conclusion is returned, there is currently an agreement  that the police force involved will assess whether a criminal investigation should be instigated and contact the relevant CPS office as appropriate. If there has already been an investigation, the CPS will consider whether there is any new evidence or information within the coroner’s proceedings which has the capability to change any previous CPS decision not to bring criminal charges against an individual(s) or organisation.
The offences that can form the basis of an unlawful killing conclusion are:
- Manslaughter (including corporate manslaughter); and
Local authorities could be the basis of a conclusion of corporate manslaughter subject to certain exemptions set out in the legislation. Individual employees could also be the basis of such a conclusion, most obviously in the context of gross negligence manslaughter.
There are a range of other consequences to the judgment including:
- Interested persons will more frequently adopt a cut-throat approach (where each interested person seeks to avoid blame by criticising others).
- Given the risks, more interested persons and witnesses are likely to be represented.
- More employees will be represented separately from their employers.
- Witnesses are much more likely to be guarded in their evidence, potentially to the detriment of effective investigations.
Solicitors advising on inquests will no doubt wish to ensure that they receive early notification of possible inquests so that they can assess any risks and mitigate them accordingly. Not all inquests will require a different strategy, but great care will be needed in cases where there is a possibility of an unlawful killing conclusion. That may include, among other things, considering any need for separate representation, advising on the right against self-incrimination, and being cautious about how evidence relating to remedial action is presented. The elements of each offence need to be borne in mind, and to inform strategy, from the outset through to advocacy at the final hearing.
Alison Hewitt of 5 Essex Court represented the Coroner in R (on the application of Maughan) v Her Majesty's Senior Coroner for Oxfordshire County Council Legal Services.