The Secretary of State for Foreign and Commonwealth Affairs v Assistant Deputy Coroner for Inner North London

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Goldring,Lord Justice Treacy,Mr. Justice Mitting
Judgment Date27 November 2013
Neutral Citation[2013] EWHC 3724 (Admin)
Docket NumberCase No: CO/6635/2013,CO/6635/2013
Date27 November 2013

[2013] EWHC 3724 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Goldring

Lord Justice Treacy

Mr Justice Mitting

Case No: CO/6635/2013

Between:
The Secretary of State for Foreign and Commonwealth Affairs
Claimant
and
Assistant Deputy Coroner for Inner North London
Defendant

Mr Neil Garnham QC AND Mr Neil Sheldon (instructed by THE TREASURY SOLICITOR) for the Claimant

Mr Robin Tam QC AND Mr Andrew O'Connor (instructed by FIELD FISHER WATERHOUSE LLP) for the Defendant

Mr Alex Bailin QC AND Miss Lorna Skinner (instructed by GUARDIAN NEWS AND MEDIA) for The Media Parties

Mr Ben Emmerson QC AND Mr Adam Shaw (instructed by BLOKH SOLICITORS) for Marina and Anatoly Litvinenko

Miss Clair Dobbin (instructed by HARBOTTLE & LEWIS) for The Investigative Committee of the Russian Federation

Lord Justice Goldring

Introduction

The judicial review

1

By a Certificate dated 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 (HMG) of relevance to the issues identified in the Provisional List of Issues to which the inquest of Alexander Litvinenko gives rise. As he set out in an open ruling of 17 May 2013, the Assistant Deputy Coroner (the Coroner) in part upheld the Secretary of State's PII claim, in part rejected it. The Secretary of State challenges that part of the Coroner's decision which rejected his claim for PII and his subsequent ruling regarding disclosure of the subject matter of the documents which are the subject of the Certificate.

The procedure we have followed

2

We have followed the same procedure as did the Coroner and as was envisaged by our judgment of 27 June 2013 in which we considered how the matter should proceed: see The Secretary of State for Foreign and Commonwealth Affairs and Assistant Deputy Coroner for Inner North London [2013] EWHC 1786. First, we heard open submissions on PII. Each of the Properly Interested Persons ("PIPs") to the Inquest made such open submissions as they wished. So too did the media. There then followed a hearing under CPR 39.2(3). Sub-paragraphs (a), (b) and (c) applied. Counsel for the Secretary of State made submissions on PII as did Counsel to the Inquest who played a very full part in seeking to uphold the Coroner's decisions. In doing so he had the advantage both of detailed knowledge of the case and the interests of the PIPs.

3

Having heard submissions we indicated that we would quash the Coroner's decision to provide gists of certain documents. We indicated too that we would not remit the matter to him for re-consideration. We indicated that our decision should not be communicated to others until the hand-down of the judgment. In the light of our decision we quashed the Coroner's proposed gists and considered what he anticipated saying publicly about the 'lines of inquiry' dealt with in the PII hearing. We made no decision regarding that. Our closed judgment sets out at some length the reasons for the decisions we announced and deals with the topic of lines of inquiry. In this open judgment we seek to set out as much of what happened and our reasoning as we properly can.

The witness summons

4

There was also before the court an application by the Coroner under CPR 34.4(1) by which the Coroner required the Secretary of State to produce to him those documents that he had decided should be disclosed by means of a gist. Given our decision we did not have to consider that application.

The background

5

Although we set out much of the detail in our previous judgment, it may be helpful to repeat some of it here.

The death of Mr. Litvinenko

6

Alexander Litvinenko died on 23 November 2006. He had ingested a radioactive isotope called Polonium-210. Arrest warrants were subsequently issued in this country in respect of two Russian nationals, Andrey Lugovoy and Dmitri Kovtun. They are in Russia. It has been made clear that they will not come to this country. Any criminal trial is therefore most unlikely.

The PIPs

7

Marina and Anatoly Litvinenko (the widow and son respectively of Mr. Litvinenko), Mr. Litvinenko's children by a previous marriage, the Secretary of State for the Home Department, the Metropolitan Police Commissioner, the Investigative Committee of the Russian Federation, Andrey Lugovoy, Dmitri Kovtun and Boris Berezovsky (until he died) were accorded the status of PIPs. Andrey Lugovoy and Dmitri Kovtun are currently playing no part in the Inquest.

Disclosure

8

On 11 January 2012, at the request of the Coroner for Inner North London, the solicitor to the Inquest, in a detailed letter, requested disclosure from all Government departments and agencies of documents held by them relating to the circumstances of Mr. Litvinenko's death. Following the appointment of the present Coroner an arrangement was reached by which HMG collated documents and made them available for inspection at their premises by counsel and solicitors to the Inquest and, subsequently, the Coroner. As Mr. Smith, solicitor to the Inquest put it:

"It is to be emphasised that…HMG has allowed inspection of material falling under the search terms…by making the documentation available for inspection at its premises, rather than passing custody or possession of the documents to the Coroner or myself. HMG also made it clear at the outset…that it reserved its position both (a) as to the question of whether documentation was relevant to the inquest; and (b) as to whether disclosure of the documentation to [P]IPs would be objected to on grounds of public interest immunity."

Scope of the Inquest

9

Prior to the Coroner's consideration of the scope of the Inquest, counsel to the Inquest prepared an open note. It set out their provisional analysis of the HMG material insofar as it related to and informed scope. It stated that in their view the material established a prima facie case as to the culpability of the Russian State in the death. It did not establish a prima facie case with respect to culpability of the British State in failing to take reasonable steps to protect Mr. Litvinenko from a real and immediate risk to his life (the Osman/Article 2/Preventability issue).

10

On 17 January 2013 the Coroner ruled on scope. He said (paragraph 10 of his ruling):

"At this stage of the investigative process any decision as to whether a line of inquiry falls within or without the scope of the inquest is necessarily provisional, and will be subject to continuing review in the light of the evidence as it emerges. But a provisional identification of the lines of inquiry that currently appear to be within the scope of the inquest is necessary for the effective management of the investigation.

11. The test that I propose to apply to the inclusion of a line of inquiry is whether:

(1) the line of inquiry is at least potentially of causative relevance to the death of Mr. Litvinenko and/or

(2) it is in the public interest to pursue a line of inquiry so as to allay suspicion of deliberate wrongdoing."

The Secretary of State's open Certificate

11

The Secretary of State made it clear, firstly, that he considered relevance, secondly that:

"[If relevant] the test is whether there is a real risk that disclosure of the information would cause serious harm to the public interest — in this case, to the national security and/or international relations interests of the United Kingdom. Further, I have considered whether a real risk of serious harm could be prevented by other means (see R v Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274…"

12

Thirdly he said that:

"If, applying the "real risk of serious harm" test, the material attracts PII, the…question is whether the public interest in non-disclosure is outweighed by the public interest in disclosure of material for the purpose of doing justice in the proceedings. I must consider and balance the relevant competing public interests and agree to the disclosure of material if I am satisfied that the overall public interest favours disclosure. However, if I am not satisfied that the overall public interest favours disclosure, the proper course is to make a certificate for the assistance of the Judge, who is the ultimate decision-maker, as to whether the material should be disclosed in the public interest (see Wiley…)"

13

He said that the approach adopted was "to focus specifically on the damage that would be done by disclosure;" that, as he was advised, the balance was between the interests of national security and of having an open inquest. In that context he referred to the comments of Lord Bingham of Cornhill in R (Amin) v SSHD [2004] 1 AC 653. In reaching his views he personally examined the material in question and had been advised by officials and counsel acting for the Crown in the inquest. He said that the view he expressed was his own:

"In carrying out the balancing exercise, I have considered that Counsel for the Crown has advised that the information is relevant to the issues in the inquest. Nevertheless, due to the particularly weighty interest in non-disclosure of the information in question, I have reached the considered view that the public interest in non-disclosure outweighs the public interest in disclosure of the information. I have reached the same view in relation to the [undisclosed] schedule...

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