Litvinenko, R (On the Application Of) v Secretary of State for the Home Department [2014] EWHC 194 (Admin)

“45. Option (iii), in relation to both Preventability and Russian State Responsibility, would be to remove the issues from scope. To do so would be to leave uninvestigated two issues that are of central importance. There is relevant material bearing on those issues that, as a consequence of my decision to uphold the relevant parts of the certificate, cannot be considered at the inquest. To attempt to address such issues without being able to take such material into account has the inevitable consequence that the inquiry would be incomplete, and a verdict potentially misleading and/or unfair to IPs [interested persons] or to others who might be implicated, in particular the Russian State. 46. My provisional view is that to entertain these issues on the basis of the available open evidence, but to disregard the evidence in respect of which I have upheld (or would uphold) the PII claim, would be to fail to discharge my duty to undertake a full, fair and fearless inquiry into the circumstances of Mr Litvinenko’s death. The same could be said of a decision to remove the issues from scope. But the better course is arguably not to address the issues at all rather than to do so on an incomplete, inadequate and potentially misleading basis.”

“As to the content of the material, [counsel to the inquiry] indicated at the open hearing held on 13/4 December 2012 that ‘Our assessment is that HMG material does establish a prima facie case as to the culpability of the Russian State in the death of Alexander Litvinenko.’ That conclusion has been borne out by my scrutiny of the documents the subject of the certificate.” “It is to be noted that there is no material within the relevant documents to suggest that, at any material time, AL was, or ought to have been, assessed as being at ‘real and immediate’ threat to his life. Accordingly, disclosure of the relevant material would not appear to provide an evidential basis for a breach by HMG of its ‘Osman’ duty to AL, but importantly may serve to dispel suspicion that HMG was in breach of its ‘Osman’ duty.” “The argument specific to the ‘Osman’ material is of course that it relates to the issues of the responsibility of the British State for his death. But the material that I have considered does not suggest that AL was or should have been assessed as being at a real and immediate risk to his life at any material time, and therefore that HMG was not in breach of its ‘Osman’ duty. I recognise that to uphold the certificate in relation to such material will not have the effect of shielding from public scrutiny evidence suggesting a breach of the ‘Osman’ duty to AL. That serves to some extent to reduce the weight of the argument for disclosure; and does not in my judgment provide a compelling reason for arriving at a different conclusion in relation to such material as to that at which I have arrived in relation to the material relevant to Russian State Responsibility.”

“15. Having given further careful consideration to the issues raised by my PII ruling and taking into account all the further representations I have received, I have formed the firm view that such an inquiry is necessary if Mr Litvinenko’s death is to be properly investigated. Notwithstanding the submissions made to me to the effect that the inquest could still undertake some investigation of the ‘Russian State responsibility’ and ‘preventability’ issues on the basis of other evidence, for the reasons I have given in the PII ruling I do not believe that a proper investigation could be conducted without consideration of the HMG material which I have been shown. The provisions of sections 19 and 20 of the Inquiries Act 2005 would allow some evidence to be heard in closed session, from which not only the public but also core participants may be excluded. While that is obviously undesirable in some respects, in my view it now provides the only method by which matters of central importance can be properly investigated. I should also record my firm view that any such inquiry should investigate all relevant issues, including the questions which an inquest must address. Any inquiry which takes place after the conclusion of an inquest and which considers the HMG material in those circumstances runs the risk of focusing unduly on the HMG material without the context provided by the evidence heard by the inquest. There is also a substantial risk that such an inquiry would therefore take place almost entirely in closed session. I would regard this as a most undesirable procedure for investigating issues of such importance. In addition, piecemeal consideration of different parts of the evidence in two separate sets of proceedings exacerbates the risk of incomplete investigation and of misleading or unfair outcomes. 16. For the avoidance of doubt, I should say that I regard investigation of the ‘preventability’ and ‘Russian State responsibility’ issues as being of central importance to this case. It is a highly exceptional situation when the victim of what appears to have been a murder is interviewed by police before he dies, and makes a public statement in which he names those whom he suspects of being responsible for his death, and an independent analysis by counsel of relevant material suggests that it establishes a prima facie case to the same effect, but where the operation of PII serves to exclude that material from evidence in the resulting inquest. In my view, any investigation of this death which excludes a proper analysis of the HMG material will be inadequate and accordingly I request that the only statutory mechanism by which they may be examined should now be deployed. … 20. I should also say that I consider that it is undesirable for me to make any further decisions regarding the scope of my investigation before making this request because, for the reasons set out in my PII ruling, if I were to remove certain issues from scope, that would be likely to lead to the inquest failing to discharge its duty to undertake a full, fair and fearless investigation into the circumstances of Mr Litvinenko’s death.”

“I hold the view expressed at paragraph 15 of that letter that such an inquiry is necessary if the death is to be properly investigated.”

“First, it is the view of the Government that, despite the serious concerns you express, an inquest will go a substantial way to addressing or allaying public concern about this incident. It will be able to use open material, for example, to explore the circumstances in which the polonium was brought into this country; to ascertain the likely movement of the polonium and those who were apparently carrying it around the country; to expose the evidence about the events leading up to the murder; to ascertain who the deceased was and when, where and by what means he met his death; to reach a view as to the appropriate verdict and to make recommendations under rule 43 if thought appropriate. All these issues can be explored on the basis of evidence that will be available to the properly interested persons, including the detailed police report. The question whether or not public concern remains at the end of that process is a matter primarily for Ministers and one best judged at the conclusion of the inquest. In the meantime the normal legal process following a suspicious death should be permitted to run its course. Second, there is at present no basis to conclude that Article 2 of the ECHR is engaged in this case. The Government notes that you do not suggest the contrary. In your ruling of 17 February 2013, you robustly rejected the suggestion that the alleged involvement of the Russian authorities in Mr Litvinenko’s death led to an Article 2 obligation on the British authorities to investigate the circumstances of the death. There has been no challenge to that ruling. As you point out in your letter, in their undated Note concerning ‘HMG material’, counsel to the inquest indicated that there was no prima facie case of culpability of the British state either in the death itself of in failing to take reasonable steps to protect Mr Litvinenko from a real and immediate risk to his life. Although you have made clear that you will keep the position under review, at no point have you indicated that you take a different view on these issues from that expressed by your counsel. That being so, Article 2 is not engaged and the question now arising falls to be considered in a domestic, rather than an ECHR, context. Third, whilst the Government notes and respects your view that in the context of this case you would choose to exercise your discretion as to the scope of the inquest broadly, so as to encompass the issues of Russian state responsibility and preventability, that involves a wider investigation than you are necessarily obliged to conduct as a coroner. As you will be aware, your obligation in circumstances where the ECHR is not engaged is to ascertain who the deceased was, and how, when and where he came by his death. The Court of Appeal held in Jamieson v HM Coroner for North Humberside and Scunthorpe that ‘how’ in this context means ‘by what means’ and not ‘in what broad circumstances’. In addition, an inquest (just like an inquiry) cannot determine civil or criminal liability (see rule 42 of the Coroners Rules 1984). In those circumstances, the Government believes, with respect, that it would be perfectly possible to conduct an inquest aimed at answering the statutory questions without considering the sensitive material at all. That being so the need for an inquiry to be established to consider that material in order to fulfil the obligations on you as coroner does not arise. Fourth, the material which cannot be considered in the inquest because of the operation of PII could only be considered by an inquiry if it were to sit in closed session. The reasons which led to the making of the PII certificate would apply with equal force to the decision whether to make a restriction notice or a restriction order under s.19 of the Inquiries Act. Neither the material itself, nor the questions based upon it, could be made public or revealed to those who are currently designated properly interested persons. The report which followed an inquiry would have to be drafted, or alternatively published, in such a way as to exclude all reference to the sensitive material. The result would be that an inquiry would reveal publicly only that which the inquest would reveal publicly. The persons perhaps most closely concerned with the investigation, namely Marina and Anatoly Litvinenko, would learn no more from an inquiry than they would from the inquest. The Government is, of course, already aware of the content of the closed material. An inquiry (just like an inquest) cannot rule on or determine any person’s civil or criminal liability …. Accordingly, one benefit to be gained from an inquiry in this regard would be that the closed material would be considered by an independent judicial figure That might well be a significant benefit but it does need to occur within the same process as the open consideration of the evidence. The Government could consider the possibility of commissioning an independent review at the conclusion of the inquest, depending on what emerges from the open evidence at the inquest. It is not obvious to the Government why such an arrangement would create, as you suggest it might, a risk of incomplete investigation, or of misleading or unfair outcomes. On the contrary, in the Government’s view it would enable any such closed investigation to be clearly focused on any concerns that remain after the inquest. Certainly, in the Government’s view it is not at all obvious that the need to adduce closed evidence necessitates or justifies the establishment of a statutory inquiry at present. Fifth, an inquiry is almost certain to be more costly of time, money and resources than an inquest. Since the whole point of an inquiry would be to enable the chairman to consider material additional to that which the inquest would consider, the inquiry would be very likely to take considerably longer to complete, in circumstances where there is justifiable public concern to see this matter brought to a proper conclusion. The effect of acceding to your request would be that the consideration of closed material, which can never be revealed publicly, would delay the publication of conclusions that can be drawn from the open material. Furthermore, even allowing for your helpful offer to act as Chairman and to adapt the existing administrative arrangements to fit an inquiry, it is the Government’s assessment that the exercise would be substantially more expensive than an inquest. In times when the public pursue is under real strain and the whole of Government is required to exercise restraint in incurring additional expenditure, this is a factor of real substance which must be taken into account. Finally, it is true that international relations have been a factor in the Government’s decision-making. An inquest managed and run by an independent coroner is more readily explainable to some of our foreign partners, and the integrity of the process more readily grasped, than an inquiry, established by the Government, under a Chairman appointed by the Government which has the power to see Government material, potentially relevant to their interests, in secret. However, this has not been a decisive factor and had it stood alone would not have led the Government to refuse an inquiry. It remains, however, a factor that the Government takes into account.”

“However, the absence of any direct State responsibility for the death of Michael Menson does not exclude the applicability of Art.2. It recalls that by requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction …, Art.2(1) imposes a duty on that State to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions …. With reference to the facts of the instant case, the Court considers that this obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances. The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment. Where death results, as in Michael Menson’s case, the investigation assumes even greater importance, having regard to the fact that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life …. The Court recalls that in its judgments in cases involving allegations that State agents were responsible for the death of an individual, it has qualified the scope of the above-mentioned obligation as one of means, not of result …. Thus, the authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death, or the person or persons responsible will risk falling foul of this standard. What form of investigation will achieve those purposes may vary in different circumstances …. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts …. Although there was no State involvement in the death of Michael Menson, the Court considers that the above-mentioned procedural requirements apply with equal force to the conduct of an investigation into a life-threatening attack on an individual regardless of whether or not death results. The Court would add that where that attack is racially motivated, it is particularly important that the investigation is pursued with vigour and impartiality, having regard to the need to reassert continuously society’s condemnation of racism and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence. Against this background, the Court must have regard at the outset to the fact that the police investigation into the death of Michael Menson ultimately led to the identification and arrest of the culprits between March 1999 and May 1999. They were all convicted and received heavy prison sentences later that same year. It is also be observed that a public inquest into the cause of Michael Menson’s death was held shortly after he died and a Coroner’s jury returned a verdict of unlawful killing September 1998.”

“In the first place, the legal system of the respondent State ably demonstrated, in the final analysis and with reasonable expedition, its capacity to enforce the criminal law against those who unlawfully took the life of another, irrespective of the victim’s racial origin. For the Court, this must be considered decisive when deciding whether the authorities complied with their positive and procedural obligations under Art.2.”

“Everyone agrees that coroners have a considerable degree of discretion as to the scope of their inquiry, although the verdict that they may deliver differs according to the type of inquest being held”

“It is the duty of the coroner as the public official responsible for the conduct of inquests … to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. He must rule on the procedure to be followed. His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled.”

“The inquiry is almost bound to stretch wider than strictly required for the purposes of a verdict. How much wider is pre-eminently a matter for the coroner whose rulings upon the question will only exceptionally be susceptible to judicial review.”

“That would appear to indicate I have a broad discretion. Given the breadth of my discretion and the obvious legitimate public interest in investigating broader issues, I have no doubt some sort of independent inquiry conducted in public and involving the families is required on issues which go beyond the immediate aftermath.”