Independent Report recommends reversal of the Supreme Court decision in Maughan

04/11/2025

Independent Report recommends reversal of the Supreme Court decision in Maughan as it relates to unlawful killing conclusions in inquests

On 23 October 2025, the Home Office and Ministry of Justice published the recommendations arising from the ‘Rapid Review’ of the different legal thresholds for reaching decisions concerning police officers in criminal, misconduct and inquest proceedings. In November 2024, Sir Adrian Fulford and Tim Godwin were appointed to lead the Review of the decisions in R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [2020] UKSC 46 (“Maughan”) and R (on the application of Officer W80) v Director General of the Independent Office for Police Conduct and others [2023] UKSC 24 (“W80”).

The Review was necessitated by the apparent complexity, confusion and delay in the accountability systems when police officers use force. The authors were specifically asked to assess whether there is a case for change in relation to two matters:

1. The threshold for determining a short-form conclusion of unlawful killing in coronial inquests; and
2. The legal test for use of force in misconduct cases, and whether it should be raised to the criminal test.

This article focuses on the former.

The Review considers the Supreme Court decision in Maughan, in which the court determined, by a majority, that the civil standard of proof should be applied in inquests to the question of whether the deceased had been unlawfully killed, regardless of whether the finding was expressed by way of a short-form or narrative conclusion. The decision in Maughan was surprising and marked a significant change to the long-established position that the criminal standard applied to short-form conclusions of suicide and unlawful killing.

The majority (Lady Arden, Lord Wilson and Lord Carnwath JJSC) held that “a common standard applying to both unlawful killing and suicide is more consistent with principle and removes an inherent inconsistency in the determinations made at an inquest. It reflects the general rule for the standard of proof in civil proceedings”. Notably, Lord Reed (President) and Lord Kerr dissented.

For a commentary on the decision in Maughan, see Andrew Prynne KC’s article published in TGC’s Inquest Newsletter. In critiquing the decision, he considered that “there was good reason for the previously well understood requirement that to reach the short form conclusion of unlawful killing, a headline finding, the Coroner or Jury should be sure about it. A well-established long-standing rule of law often has its bedrock in common sense and years of practical experience and application.”

The authors of the Review have reached a similar conclusion. They recommend a reversal of Maughan and a return to the application of the higher criminal standard of proof to conclusions of unlawful killing. Bearing in mind the broad legal and policy implications, and whilst recognising the importance of the submissions made by various legal groups and charities advocating on behalf of bereaved families, the authors conclude that there is a “compelling case for immediate action” and consider that a return to the criminal standard “need not (and should not) reduce the scrutiny of police action” at inquests.

In reaching that conclusion, the authors of the Review place particular emphasis upon the following considerations:

• The prospect of multiple and protracted proceedings in respect of the same case, including a criminal trial, misconduct proceedings and an inquest, in which different legal tests and standards of proof are applied, thereby the potential for seemingly inconsistent results. The authors describe this as an “invidious position” for an individual suspected of responsibility for a death and cite the serious adverse effect on the moral of a significant number of serving officers.
• The views of the current Chief Coroner that a return to the criminal standard is unlikely to be controversial with coroners and that, previously, applying different burdens had not been problematic for coroners or juries. The authors make reference to reverse burdens in criminal trials, there being no substantiated suggestion that juries are liable to be confused by a route to verdict which applies both standards of proof. We would add that experience of health and safety trials demonstrates juries have no difficulty with the concept of reverse burdens of proof and applying different standards of proof.
• Although noting that the yearly statistics on the number of unlawful killing conclusions are of “little assistance for present purposes”, the authors observe that there has been no noticeable effect on the overall number of such conclusions and that “at this point in time, there is no evidence that the changes implemented by Maughan have helped families or the public”.
• The authors characterise the argument that a return to the previous position would mean an inquest would have notably less opportunity to scrutinise the appropriateness of the use of force as “erroneous”. They cite that the resumption of inquest post-criminal proceedings is not dependent on the standard of proof applicable, but whether there is ‘sufficient reason’ to resume the inquest, that there would remain the opportunity for critical findings to be made in narrative conclusions, and that the making of a PFD Report by the coroner is not dependent on the conclusion reached. The authors further conclude that the argument that a return to the criminal standard would inhibit the opportunity for lessons to be learnt is based on a “fundamental misapprehension”.

Whilst the Review states that it would be “inappropriate for the authors … to engage in a general critique of the conclusions of the majority in Maughan”, they nevertheless express agreement with the minority. The authors refer to the following considerations which in their view are “vital distinguishing factors” as regards the particular conclusion of unlawful killing:

• Coronial proceedings are not civil proceedings but are sui generis, particularly bearing in mind their inquisitorial nature.
• A finding of unlawful killing is of sufficient gravity to justify distinguishing it from other causes of death in terms of the level of proof that is required.
• A decision of this importance, with all the adverse attendant consequences, should not be made simply on the basis of what is more probable.
• Identities of those to whom conclusions of unlawful killing relate are likely to be widely known and the reputational and other effects for the person thereby identified can be profound.
• The authors observe that “the individual will be viewed as a killer following a process which does not offer them the protections of a criminal trial”. As such, there will be a chilling effect on members of the police force generally.

The authors of the Review are firm in their conclusions, having evaluated the competing contentions on questions of policy. However, they recognise that there remains a “strong argument” for wider consultation, given the wide range of cases which a reversal of the decision in Maughan would impact. We add that the prospect of an unlawful killing conclusion is not limited to police cases or even to Article 2 cases, but can arise in any case. Ultimately, the authors conclude that it will most probably be necessary for there to be primary legislation in order to adequately clarify the position.

This may well prove to be a difficult and contentious legislative exercise given the strength of feeling and the underlying facts of cases that give rise to the potential for a coronial conclusion of unlawful killing. It will be interesting to see whether the government shares the views of the authors and has the appetite to find parliamentary time to address them, especially given the recent historic introduction of the Public Office (Accountability) Bill (known as the ‘Hillsborough Law’) which aims to enhance accountability and candour in inquests.

KEITH MORTON KC

NANCY KELEHAR

3 November 2025