The widow of Alexander Litvinenko sought judicial review of the refusal by the secretary of state Theresa May to order an inquiry into the circumstances of the Russian’s death by poisoning in 2006.
R (on the application of Litvinenko) v Secretary of State for the Home Department: Queen’s Bench Division, Divisional Court: 11 February 2014
AL dying in London from radiation poisoning – Inquest into death being opened – Counsel to the inquest concluding on the basis of government material (the HMG material) there being a prima facie case as to the culpability of the Russian state in the death of AL (Russian state responsibility issue) – Coroner ruling Russian state responsibility issue of central importance and should be included within the scope of the inquest
AL died in London. The cause of his death was radiation poisoning as a result of the ingestion of a radioactive substance (P). An inquest into AL’s death (the inquest) was opened, but was adjourned pending police investigation. The Metropolitan Police Service carried out a thorough investigation. That investigation led to the conclusion that the fatal dose of P was probably consumed by AL when he was in the company of XY and DK at a hotel in London. Subsequently, the Crown Prosecution Service decided to prosecute XY, and later DK, for the murder of AL and issues warrants for their arrest.
However, sustained diplomatic efforts by the British government to secure the suspects’ arrest were unsuccessful. Consequently, the inquest was resumed. The first interested party Assistant Coroner (the coroner) was appointed to conduct the inquest into AL’s death. A large quantity of documentation was disclosed to the coroner, including material from British government departments and agencies (the HMG material). In a note prepared for a pre-inquest review, counsel to the inquest concluded, inter alia, that the HMG material taken alone established a prima facie case as to the culpability of the Russian state in the death of AL (the Russian sate responsibility issue).
The coroner ruled on a provisional basis that, inter alia, the Russian state responsibility issue was of central importance and would be included within the scope of the inquest. However, the foreign secretary claimed public interest immunity (PII) in respect of the HMG material (the PII claim) and that claim was upheld. Since there was no mechanism for any kind of closed hearings in an inquest, the effect of upholding the PII claim was that the HMG material was excluded from further consideration during the inquest process.
Consequently, the coroner provisionally decided to remove the Russian state responsibility issue from the scope of the inquest. However, he asked the defendant secretary of state to set up a statutory inquiry under section 1(1) of the Inquiries Act 2005 (the 2005 act) into the circumstances of AL’s death as a statutory inquiry would enable him to take the HMG material into account in a closed session. Subsequently, the secretary of state decided not to set up such an inquiry (the decision).
The reasons given in the secretary of state’s decision letter for refusing the coroner’s request were, inter alia, that: (i) an inquest would go a substantial way to addressing or allaying public concern about the incident, and the question whether public concern remained was best judged at the conclusion of the inquest (reason (i)); (ii) the inclusion of the Russian state responsibility issue within the scope of the inquest involved a wider investigation than the coroner was obliged to conduct and therefore the need for an inquiry to be established in order to fulfil the obligations on him as a coroner did not arise (reason (ii)); and (iii) a statutory inquiry would reveal publicly only that which the inquest would reveal publicly, since it would have to consider the HMG material in closed session and its report would have to be drafted or published in such a way as to exclude all reference to the material (reason iii).
The secretary of state stated that she would keep the coroner’s request for a statutory inquiry under review (the wait and see approach). Subsequently, the coroner issued a ruling in which he confirmed his provisional view that the Russian state responsibility issue should be withdrawn from the scope of the inquest. At the time of the instant proceedings, the secretary of state had been informed of that decision but had not set up an inquiry. The claimant was the widow of AL. She sought judicial review of the decision.
The principal issue that fell to be determined was whether the reasons given by the secretary of state in the decision letter had been inadequate or incorrect. The claim would be allowed.
(1) In relation to reason (i), there had been two possible interpretations of what the letter had meant. If the secretary of state had meant that the inquest would go a substantial way towards investigating matters other than the Russian state responsibility issue, then she had simply failed to engage with the coroner’s concern that the inquest could not undertake a proper investigation of a central issue. On that interpretation, reason (i) could not provide a rational basis for a ‘wait and see’ approach in relation to the setting up of a statutory inquiry or other form of independent review to investigate those issues: the problem identified by the coroner had been an immediate problem which the inquest could not solve.
If, alternatively, the secretary of state had meant that an inquest would go a substantial way towards investigating the Russian sate responsibility issue, then that did not improve her position. In the instant case, for the secretary of state to reason on the basis that the Russian state responsibility issue would remain in scope had been unrealistic. Any suggestion that the inquest would go a substantial way to addressing or allaying public concern in relation to that issue had been plainly unsustainable and again could not provide a rational basis for a ‘wait and see’ approach in relation to the setting up of a statutory inquiry or other form of independent review (see , , ,  of the judgment).
(2) In relation to reason (ii), it was settled law that a coroner had to form a judgment on how wide an inquiry should go. In that sense he had a ‘discretion’ as to the scope of the inquest. But his duty was to investigate fully, fairly and fearlessly the matters falling within the scope of the inquest as he had judged it should be (see , ,  of the judgment).
In the instant case, the secretary of state’s reasoning had involved a misunderstanding of the legal position and had failed to address the thrust of the coroner’s concerns. The secretary of state had been wrong to draw the distinction she had done between matters that the coroner had a discretion to investigate and matters that he had been obliged to investigate. Once the coroner had formed the judgment that the Russian state responsibility issue should be investigated, he had been obliged to investigate it.
Moreover, his decision on that had to be respected unless and until it was varied or overruled. It had not been open to the secretary of state to treat the Russian state responsibility issue as something that the coroner had not been obliged to investigate. The coroner had been placed in a situation where he had been unable properly to fulfil the legislative purpose of the inquest. The coroner had been prevented from considering an issue that in his judgment had required investigation and had been of central importance to the case. He had requested the setting up of a statutory inquiry as a means of overcoming that problem.
By treating the coroner’s approach to the Russian state responsibility issue as merely one of discretion rather than duty, reason (ii) had been legally erroneous and had failed to address the real point behind the coroner’s request (see , , , ,  of the judgment).
R v HM Coroner for North Humberside and Scunthorpe, ex p Jamieson  3 All ER 972 applied; R v Inner West London Coroner, ex p Dallaglio  4 All ER 139 considered.
(3) In relation to reason (iii), the secretary of state’s assertion that an inquiry could reveal publicly only that which the inquest would reveal publicly had, at best, been implausible. A statutory inquiry would have to consider the HMG material in closed session and would be precluded from disclosing it; but the chairman of the inquiry would almost certainly be able to state publicly some useful conclusion based on the material without disclosing the material itself. It had been extremely difficult to envisage a situation in which no conclusion could be stated publicly without infringing the restriction notice.
That had applied even more forcefully in relation to an inquiry of the kind sought by the coroner, which would look at all the open evidence as well as the closed material, not only increasing the chances that some useful finding could be made but also making it that much easier to express conclusions without revealing the closed material. The proposition that a statutory inquiry would be incapable of achieving any useful purpose had therefore been a bad one. It had also been a profoundly unsatisfactory one to rely on in the context of a letter that had adopted a ‘wait and see’ approach, since if the proposition had been valid it would have told against the setting up of a statutory inquiry at all rather than against setting one up ‘at this time’ (see , , ,  of the judgment).
The claim would be allowed and the decision would be quashed. It would be necessary for the secretary of state to give fresh consideration to the exercise of her discretion under section 1(1) of the 2005 act and in so doing to take into account the points made by the court. However, the court would not mandate any particular outcome (see , ,  of the judgment).
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 secretary of state; Robin Tam QC and Andrew O’Connor (instructed by Field Fisher Waterhouse LLP) for the coroner; 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.