The Queen (on the application of Marina Litvinenko) v Secretary of State for the Home Department Assistant Coroner for Inner North London and Others (Interested Parties)

JurisdictionEngland & Wales
JudgeLord Justice Richards,Lord Justice Treacy,Mr Justice Mitting
Judgment Date11 February 2014
Neutral Citation[2014] EWHC 194 (Admin)
Docket NumberCase No: CO/12683/2013,CO6635/2013
CourtQueen's Bench Division (Administrative Court)
Date11 February 2014

[2014] EWHC 194 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Richards

Lord Justice Treacy

Mr Justice Mitting

Case No: CO/12683/2013

Between:
The Queen (on the application of Marina Litvinenko)
Claimant
and
Secretary of State for the Home Department
Defendant

and

(1) Assistant Coroner for Inner North London
(2) Commissioner of Police of the Metropolis
(3) Investigative Committee of the Russian Federation
Interested Parties

Ben Emmerson QC, Henrietta Hill and Adam Straw (instructed by Blokh Solicitors) for the Claimant

Neil Garnham QC, Neil Sheldon and Melanie Cumberland (instructed by The Treasury Solicitor) for the Defendant

Robin Tam QC and Andrew O'Connor (instructed by Field Fisher Waterhouse LLP) for the First Interested Party

Richard Horwell QC and Saba Naqshbandi (instructed by Metropolitan Police Service) for the Second Interested Party

Clair Dobbin (instructed by Harbottle & Lewis LLP) for the Third Interested Party

Hearing dates: 21–22 January 2014

Approved Judgment

Lord Justice Richards
1

The claimant is the widow of Alexander Litvinenko who died in London in November 2006. By this claim she seeks judicial review of the refusal by the Secretary of State for the Home Department to order the setting up of a statutory inquiry under section 1(1) of the Inquiries Act 2005 ("the 2005 Act") into the circumstances of the death. Section 1(1) provides:

"A Minister may cause an inquiry to be held under this Act in relation to a case where it appears to him that —

(a) particular events have caused, or are capable of causing, public concern, or

(b) there is public concern that particular events may have occurred."

The Secretary of State had been asked to set up such an inquiry by Sir Robert Owen, the judge appointed to conduct the inquest into Mr Litvinenko's death as Assistant Coroner ("the Coroner").

2

The matter was listed before us as a "rolled-up" hearing of the application for permission to apply for judicial review and, if permission was granted, of the substantive claim for judicial review. At the outset of the hearing we granted permission. We then heard submissions on the substantive claim from Mr Ben Emmerson QC on behalf of the claimant and from Mr Neil Garnham QC on behalf of the Secretary of State. Counsel for the Coroner (Mr Robin Tam QC and, in reply, his junior Mr Andrew O'Connor) made brief submissions for the assistance of the court. Counsel for the Metropolitan Police Commissioner and for the Investigative Committee of the Russian Federation attended the hearing but played no active part save that Mr Richard Horwell QC read out a short formal statement of fact on behalf of the Commissioner.

Factual background

3

Mr Litvinenko was taken ill on 1 November 2006 and died in University College Hospital on 23 November. There appears to be no doubt that the cause of death was radiation poisoning as a result of the ingestion of a radioactive substance, polonium 210

4

An investigation into the death was carried out by the Metropolitan Police Service ("the MPS") with the assistance of the Atomic Weapons Establishment, Public Health England, the Health and Safety Executive, the Forensic Science Service and other external experts. The nature of the investigation is summarised in a witness statement of Mr Robert Hunt, a Home Office official who is head of the National Security Unit within the Office for Security and Counter-Terrorism. The court has also read a redacted version of a report prepared for the Coroner by the MPS Counter-Terrorism Command: the Coroner had previously disclosed that version of the report on a confidential basis to properly interested persons for the purposes of the inquest and it was provided to the court on a basis directed towards securing the maintenance of its confidentiality. The material we have seen shows the investigation to have been extremely thorough. It involved detailed collaboration with other agencies and independent experts, exhaustive and protracted examination of over 60 sites, visits by police officers to Russia to conduct interviews, requests for mutual legal assistance to 17 countries, and consideration of various other sources of evidence. Whilst remaining technically open, the investigation is in practice at an end: the formal statement of fact read out by Mr Horwell on behalf of the Metropolitan Police Commissioner was that there are no further material or significant inquiries to be conducted by the police.

5

The police investigation led to the conclusion that the fatal dose of polonium 210 was probably consumed by Mr Litvinenko on 1 November 2006 when he was in the company of Mr Andrey Lugovoy and Mr Dmitry Kovtun at a hotel in London. Following a review of the evidence by the Crown Prosecution Service, it was announced on 22 May 2007 that a decision had been taken to prosecute Mr Lugovoy for the murder of Mr Litvinenko and a warrant was issued for his arrest. A formal request for his extradition was made to the authorities of the Russian Federation but was refused on the ground that the Russian constitution prohibits the extradition of its own nationals. Sustained diplomatic efforts by the British Government to secure the extradition have proved unsuccessful.

6

In the light of further evidence, a decision was taken by the Crown Prosecution Service in November 2011 that Mr Kovtun should also be prosecuted for the murder of Mr Litvinenko and a warrant was issued for his arrest. We do not know whether a formal extradition request was made in his case but the stance adopted by the Russian authorities in relation to Mr Lugovoy shows that there is in any event no realistic prospect of securing Mr Kovtun's extradition.

7

An inquest into Mr Litvinenko's death was opened on 30 November 2006 but was adjourned pending the police investigation and any criminal proceedings. On 13 October 2011 the inquest was resumed, it having become clear that there was no realistic prospect of the suspects facing a criminal trial. On 7 August 2012 Sir Robert Owen was appointed to conduct the inquest.

8

A very large quantity of documentation has been disclosed to the Coroner from a variety of sources. This includes material from numerous British Government departments and agencies ("the HMG material"), access to which was provided to the Coroner and his counsel subject to such claims for public interest immunity ("PII") as might be made in due course.

9

In a Note prepared for a pre-inquest review on 13 December 2012, counsel to the inquest set out the results of their analysis of the HMG material in so far as it related to and informed the issues concerning the scope of the inquest. Their assessment as to the effect of the HMG material taken alone was, so far as relevant, that it established a prima facie case as to the culpability of the Russian State in the death of Mr Litvinenko but it did not establish a prima facie case as to the culpability of the British State in failing to take reasonable steps to protect Mr Litvinenko from a real and immediate risk to his life (described as the " Osman" issue, in reference to the principles laid down in Osman v United Kingdom (2000) 29 EHRR 245).

10

By a ruling dated 17 January 2013 the Coroner determined on a provisional basis, and subject to continuing review, that he would include within the scope of the inquest (a) the possible culpability of the Russian State and (b) the possible culpability of the British State either by itself carrying out the poisoning by its servants and/or agents (an issue which has since dropped out of the picture) or in failing to take reasonable steps to protect Mr Litvinenko from a real and immediate risk to his life. Following his ruling the Coroner issued a provisional list of issues for examination in the inquest. They included (a) the possible involvement of Russian state agencies in Mr Litvinenko's death, which has become referred to as "the Russian state responsibility issue"; and (b) two linked issues under the heading "preventability", namely UK state agencies' knowledge/assessment of risks/threats to Mr Litvinenko's life, and decisions/actions taken to manage any identified risk/threat, which together have become referred to as "the preventability issue".

11

In January 2013 counsel to the inquest identified the documents within the HMG material that they considered to be relevant to the Coroner's investigation and of which it was expected he would seek disclosure. The Foreign Secretary claimed PII in respect of that documentation. By a ruling dated 17 May 2013 the Coroner upheld most of the PII claim. To the extent that the Coroner dismissed the claim, the Foreign Secretary challenged the decision by way of judicial review and, as explained below, in due course succeeded in that challenge.

12

Since there is no mechanism for any kind of closed hearings in an inquest, the effect of upholding the claim for PII was that the material in question fell to be excluded from further consideration during the inquest process. At paragraphs 43–46 of his open ruling of 17 May the Coroner expressed his provisional view on the implications of his decision to uphold the PII claim on the retention of the Russian state responsibility issue and the preventability issue within the scope of the inquest. As to the preventability issue, it appeared to him, subject to further submissions, that the inevitable consequence of the decision to uphold the PII claim was that the issue would have to be withdrawn from scope, and in consequence his duty to carry out a full, fair and...

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