R (on application of Litvinenko) v Secretary of State for the Home Department (DC)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Goldring,Lord Justice Treacy,Mr Justice Mitting |
| Judgment Date | 04 October 2013 |
| Neutral Citation | [2013] EWHC 3135 (Admin) |
| Docket Number | CO/12683/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 October 2013 |
[2013] EWHC 3135 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Goldring
Lord Justice Treacy
Mr Justice Mitting
CO/12683/2013
Mr Ben Emmerson QC and Ms Henrietta Hill (instructed by Blokh Solicitors) appeared on behalf of the Claimant
Mr Neil Sheldon and Ms Melanie Cumberland (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Mr Andrew O'Connor appeared on behalf of the First Interested Party
Ms Clair Dobbin appeared on behalf of the Third Interested Party
Introduction
Mrs Litvinenko seeks to challenge the Defendant's decision to reject the Coroner's request that a public inquiry is ordered into the alleged murder of her late husband. She has applied for a Protected Costs Order ("PCO") in respect of those proceedings. Yesterday afternoon we dismissed her application. These are the reasons.
Before turning to the application for a PCO, I should make clear what the current position is. I have ordered on paper that the hearing for permission to apply for judicial review and the judicial review itself be heard at a rolled-up hearing. I have made no ruling on the papers in respect of the application for a PCO. Given the urgency and the inevitability of an application by the unsuccessful party for an oral hearing, it seemed to be sensible to move immediately to such a hearing.
The judicial review
The background
The alleged murder occurred on 23 November 2006. Warrants for the arrest of Andrey Lugovey and Dimtry Kovtun, both Russian nationals, were issued on 22 May 2007 and 4 November 2011 respectively. The Russian authorities have refused their extradition. An inquest was opened and adjourned on 30 November 2006. It was resumed on 13 October 2011. Sir Robert Owen was appointed as an Assistant Deputy Coroner on 7 August 2012. A request for disclosure from all Government departments and agencies had previously been sought by the then Coroner. On 7 February 2013 the Secretary of State for Foreign and Commonwealth Affairs claimed Public Interest Immunity ("PII") in respect of a number of documents selected by agreement between counsel to the inquest and counsel acting on behalf of the Secretary of State as a representative sample in the possession and control of Her Majesty's Government of relevance to the issues identified in the provisional list of issues which the Coroner had set out on 17 January 2013. There was a PII hearing. The Coroner upheld part of the Certificate. He rejected part. That part which he rejected is the subject of an application for judicial review by the Secretary of State: see Secretary of State for Foreign & Commonwealth Affairs v Assistant Deputy Coroner for Inner North London [2013] EWHC 1786 (Admin).
On 17 May 2013, in the context of his PII ruling, the Coroner said:
"The issues to which the death of Alexander Litvinenko gives rise are of the utmost gravity, and have attracted worldwide interest and concern. In his written submissions, Mr Emmerson QC invited my attention to the reference by the Foreign Affairs select committee FASC to the murder of Alexander Litvinenko as 'a miniature nuclear attack on the streets of London;' to the fact that the Foreign Secretary and others have noted 'the manner of Litvinenko's death put many hundreds of other people at risk;' and to the motion of the US House of Representatives dated 1 April 2008 in which it was noted that Polonium 210 'could be used to kill large numbers of people, or spread panic and hysteria among the public.' As was submitted on behalf of media organisations, the issues to which the inquest gives rise include '… "allegations of state sponsored assassination by radioactive poisoning…" of a British citizen in London, issues of the gravest possible public concern. I also recognise the force in the further submissions made both on behalf of Marina and Anatoly Litvinenko and of the media organisations, that non-disclosure of material relevant to the issues that I have identified gives rise to a risk that public confidence in the administration of justice will be undermined…"
On 4 June 2013 Sir Robert Owen wrote to the Lord Chancellor and Secretary of State for Justice. He set out the history in some detail. At paragraphs 15 and 16 of that letter he said:
"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 be undertaken some investigation of the 'Russian State responsibility' and 'preventability' issues on the basis of other evidence [sic], 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 provision 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 the core participants may be excluded. Whilst that is obviously undesirable in some respects, in my view it now provides the only method by which matters of central importance can be investigated…Any inquiry which takes place after the conclusion of an inquest and which considers the HMG material in those circumstances runs the risk of focussing 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.
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 in this case…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."
Sir Robert asked the Lord Chancellor to "undertake … consideration of the question of whether to exercise the power contained in section 1(1) of the Inquiries Act 2005 as a matter of urgency". He further stated that in his view "the task of investigating Mr Litvinenko's death can now only be performed adequately under the statutory mechanisms available to a 2005 Act inquiry, chaired by a senior judge, and the necessary decision should be made as a matter of urgency to avoid any further delay."
The decision letter
On 17 July 2013 the Home Secretary, to whom Sir Robert's letter had been copied, responded. The letter sets out a number of reasons why, as it was said, a public inquiry should not at present be established. It is unnecessary to set out the detail of this letter; suffice to say at its heart was the suggestion that if it were needed any inquiry could take place after the inquest; that the inquest should, in the meantime, proceed.
The grounds
Mrs Litvinenko alleges that the Secretary of State's decision was unlawful for two reasons. First, given that the procedural duty under Article 2 of ECHR was triggered, a public inquiry was necessary to satisfy the requirements of that duty. An inquest would not. Second, the decision was unlawful in public law terms.
Article 2
The procedural duty under Article 2 is said to have arisen for three reasons. First, because there is in the exclusive control of the authorities (protected by the PII certificate) evidence which potentially shows that the authorities failed to protect Mr Litvinenko from a real and immediate threat to his life from a third party (the "preventability issue"); second, the fact that the death occurred in suspicious circumstances was itself sufficient to trigger the procedural duty; and third, prima facie evidence of the Russian State's responsibility was sufficient to give rise to an Article 2 procedural duty by the United Kingdom to investigate whether that allegation is true. The wait-and-see approach of the Home Secretary was insufficient.
Public law
It is suggested that the Home Secretary's decision was flawed. The coronial legistlation required a public inquiry. The Coroner said an inquiry was necessary. Only an inquiry could establish the facts. Profound public concern would result from an inquest taking place without consideration of the PII material. It is also said that in the absence of further explanation:
"…the Defendant has not put forward a genuine sufficient, good faith reason for the decision. The Claimant invites the court to infer that the true reason for the decision is that the Government wishes to avoid an adverse finding of Russian State responsibility for diplomatic and political reasons".
The application for a PCO
Mrs Litvinenko seeks an order that the Defendant, if successful, may not recover her costs. Mr Emmerson QC, who...
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