Unlawful Killing Following Maughan – Increased Risk For Carers

Authored by Richard Reichman, Partner at BCL Solicitors LLP (www.bcl.com)

Following the case of R (on the application of Maughan) (Appellant) v Her Majesty’s Senior Coroner for Oxfordshire (Respondent) [2020] UKSC 46, there is now a greater risk of an unlawful killing conclusion at an inquest, for example following a care home fatality.

In Maughan, the Supreme Court found, by a majority of three to two, that all conclusions in inquests, including unlawful killing and suicide, whether short form or narrative, are to be deter- mined on the civil standard of proof i.e. ‘on the balance of probabilities’.

A striking effect of the judgment is that a lower burden of proof is now sufficient for an inquest conclusion of unlawful killing. Previously, the burden of proof applied was the higher criminal burden of proof i.e. ‘beyond reasonable doubt’. This is the applicable burden of proof in any related corporate or gross negligence manslaughter prosecution, whereby a jury needs to

be sure that each of the ingredients of the offence is proved by the prosecution to convict the defendant. Inquests which involve consideration of unlawful killing will be substantially affected by the Maughan judgment. Following Maughan, there are likely to be a much larger number of inquests considering unlawful killing and more unlawful killing conclusions in the future. In relation to the provision of care, such inquests may previously have considered a finding of neglect only (the lower burden of proof already applying pre- Maughan).

In ‘Law Sheet Number 6’, issued in January 2021, the Chief Coroner considered the likely impact of Maughan on unlawful killing inquest conclusions. Most significantly, the Chief Coroner explained the implications in terms of consistency between criminal proceedings and inquests. If, for example, a nursing or residential care home provider is prosecuted for corporate manslaughter and acquitted at trial (i.e. a jury is not sure of its guilt), an inquest can be resumed. Pre-Maughan, a conclusion of unlawful killing would have been prohibited at the resumed inquest as inconsistent with the criminal outcome. Post-Maughan, a coroner or jury only needs to be satisfied of unlawful killing on the balance of probabilities (i.e. more likely than not) and such a conclusion will not be inconsistent with the criminal outcome.

The Chief Coroner provided guidance regarding when an inquest may be resumed following a criminal trial and how to deal with potential unlawful killing conclusions. He stated that the necessity of the inquest should be “scrutinised with care” and, where unlawful killing is considered, he would expect a “well-reasoned and fact-specific approach”. The tenor of these suggestions is sensible, but the concepts are nebulous and the practical application and effect on inquests remains to be seen.

Where there is an unlawful killing inquest conclusion, it is likely that a large proportion of the public will consider that a care provider named in press reports is criminally responsible, even if they have been acquit- ted of any criminal offences, causing substantial reputational damage.

We are also likely to see more reviews of decisions not to bring criminal prosecutions against organisations and individuals, with the associated risks of conviction, lengthy custodial sentences, fines without upper limit, and director disqualification.

Relevant inquests are, therefore, likely to become more adversarial, with interested persons responding to the increased risk. The need for additional court time (for example, longer Pre-Inquest Review Hearings deal- ing with issues such as scope, witnesses and disclosure), greater challenges to Coroners’ decisions and powers and an increased use of protections such as the privilege against self-incrimination are likely to become more common in future inquests.

The care sector has seen an increased risk of regulatory investigations and prosecutions over recent years, with the first corporate manslaughter conviction against a care home in 2016 and the introduction of the offences of ill treatment and wilful neglect. There has been particular recent scrutiny due to the challenges posed by the COVID pandemic and the high numbers of care home deaths. Maughan adds to the risks facing care providers and the significant repercussions for non-compliance.

Sign up for all the latest news from The Carer!

Sign up to receive the latest issues, along with highlights of the latest sector news and more from The Carer, delivered directly to your inbox twice a week!