The Salisbury Poisonings – Scope in the Spotlight

The dark narrative of what took place vs the ridiculousness of the ‘spires of the cathedral’ defence put forward by the alleged perpetrators, captured the nation’s and media’s attention in the months that followed March to July 2018. The horrific effect of the poison itself and the espionage subtext which sat alongside it, filled many hundreds of front page stories. But, as is often the case, once the initial coverage had died down, in the background the process of exploring what really happened, in the less salacious forum of the Coroner’s Court, had begun.

Readers will recall that although the focus was on the Skripal family, particularly Sergei Skripal, the alleged former Russian Intelligence Officer who also worked for MI6, there was also a tragic death of Dawn Sturgess, who had absolutely nothing to do with the Skripal family or indeed Russia.

The Coroner’s Court in Wiltshire is now exploring the circumstances of her death.

Scope – The Start and End Point

As all inquest lawyers know, an inquest such as this starts by the Coroner deciding on ‘scope’, how wide should the investigation venture? Scope is a flexible concept and can change depending on how an inquest develops, but more often than not, the scope as determined at the start of the inquest will ordinarily be very similar to the scope at the end of an inquest, so it is important to get it right from the start.

As reported by the BBC here, the Senior Coroner for Wiltshire, David Ridley, determined that scope would not include the influence of the Russian state nor the origins of the poison.

At first blush this causes at least one eyebrow to be raised, how could an inquest not include the Russian state? In fairness to the Coroner there are strict rules about not attributing criminal (or indeed civil) responsibility in an inquest, so how could an inquest examine the influence of the Russian state and not attribute or explore criminal (or civil) responsibility, and this was certainly part of his rationale, relying on 10(2)(b) Coroners and Justice Act 2009.

In fact, the ruling was more nuanced than that. The Coroner included within scope the exploration of the acts or omissions of the two Russian nationals who visited Salisbury that day and also how the poison arrived in Salisbury, but distinguished between their role as being in scope, and the influence or involvement of the Russian state and the origins of the poison, as being out of scope.

To complete the picture, the Coroner also ruled that art. 2 was not engaged because there was no way that the British state could have been aware of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of third parties. Further, he also decided that although there was evidence of the involvement of a foreign state, this did not impose an obligation to investigate the death under art. 2.

The family of Ms Sturgess challenged the decision in relation to scope by way of JR. No challenge was raised in relation to the Coroner’s art. 2 decision re. knowledge by the British state regarding the risk, but his art. 2 decision in relation to the death being caused by the actions of a foreign state was also challenged.

Grounds of Appeal and Competing Arguments in the High Court

The grounds of appeal as set out on behalf of the family were as follows:

  • Coroner’s reasoning was inconsistent and irrational. The primary reason for not investigating other Russian officials (including others involved in the United Kingdom or those in command) was that there was a prohibition on determining civil or criminal liability. That prohibition applied equally to Mr Petrov and Mr Boshirov but did not prevent the investigation of the responsibility of those two men.
  • Coroner erred in failing to take into account material considerations relating to what informative inquest conclusions could in fact be reached. The Defendant failed to recognise that the prohibition on the determination of civil or criminal liability would not prevent informative conclusions as to the responsibility of Russian officials or agents, nor that the investigation of these issues would, in any event, serve important functions.
  • He failed to take into account relevant considerations, namely the grave public interest at stake and the coronial function of exposing wrongdoing and allaying suspicion.
  • Coroner misdirected himself in holding that a determination of state wrongdoing would contravene the prohibition on a determination of civil liability.
  • Also erred in concluding that Article 2 of the Convention did not require him to investigate the issue of Russian state responsibility and the source of the Novichok.

 

Conversely, the Senior Coroner’s Judgment and Reasons in relation to the above are helpfully set out at para 21 of the High Court Judgment.

The Coroner himself took a neutral stance in relation to the JR, whilst lawyers for the Secretary of State for the Home Department supported the Coroner’s initial reasoning and adopted submissions in accordance with it.

The Article 2 Argument

The parties set out their positions (only briefly summarised here) as follows:

In favour of art. 2 being engaged: the UK was under an obligation to investigate arguable breaches of art. 2 by the agents of a foreign state which resulted in a death in the UK. It was submitted that the obligation would not arise simply because the other foreign state failed to investigate. Rather, the obligation only arose where an effective investigation could not take place in the foreign state.

In response, it was submitted that the obligation was to ensure that the state was held to account for breaches by it or its agents of the state's own obligation under art. 2. It did not impose obligations on one state to investigate allegations of breach by another state of that other state's obligations. There was no authority supporting the existence of such a duty and it was inconsistent with the decision of the Divisional Court in R (Litvinenko) v Secretary of State for the Home Department [2014] H.R.L.R. 6.

On the art. 2 point, at para 32 of the judgment, the High Court ruled as follows:

In our judgment, the procedural obligation imposed on a state by Article 2 of the Convention is intended to ensure that a state is held accountable for breaches for which it is or its own agents are responsible. It is not intended to impose an obligation on a state to investigate the actions of a foreign state which may have caused or contributed to a death. Article 2 of the Convention does not, therefore, impose an obligation on the United Kingdom to carry out an investigation of the actions of agents of a foreign state, Russia, in the present circumstances. We reach that conclusion for the following reasons...

The rationale behind this conclusion is set out at paras 33 to 49. This decision and the reasons for it will not have come as any surprise to those who practise regularly in the Coroner’s Court.

The Scope Issue

On behalf of the family, four points were advanced:

  • That it was inconsistent and irrational of the Coroner to decide that he could not investigate the responsibility of other Russian state agents on the basis that it could involve civil/criminal liability ref s.10(2), whilst deciding he could investigate the responsibility of the two Russian visitors.
  • In deciding not to investigate wider Russian responsibility on the s. 10(2) basis, the Coroner failed to take into account two material considerations: (i) that s.10(2) is a narrow prohibition; it should not prevent the inquest from making factual findings about who was responsible or a conclusion of unlawful killing, and (ii) that an equivalent prohibition to that in s.10(2) did not prevent the Litvinenko Inquiry making full findings as to Russian state responsibility.
  • In considering that a determination of state wrongdoing would contravene the prohibition in s.10(2)(b) against determining civil liability, the Coroner misdirected himself in law. Wrongdoing is a broader concept than civil liability.
  • The Senior Coroner failed to give sufficient weight to other relevant considerations in deciding not to investigate wider Russian responsibility. The first was the significant public interest generated by the killing of an innocent British citizen by foreign state agents using Novichok. The second was the role of an inquest in allaying public suspicion and exposing wrongdoing.

 

In response, on behalf of the Home Secretary, the first submission advanced was as follows:

Sir James Eadie QC, on behalf of the Home Secretary, submitted that the Senior Coroner did not misdirect himself in law or fail to take into account a relevant consideration in deciding not to investigate wider Russian responsibility. Sir James first emphasised the wide discretion enjoyed by coroners in determining the scope of an inquest. He relied on paragraphs 47 and 48 of Hambleton for the proposition that there is a high threshold for interfering with the exercise of this discretion; the High Court can only intervene if the Coroner's decision is Wednesbury unreasonable or based on a material error of law

I don’t know about others, but when the first argument is “it’s got to be really bad to overturn this”, it always gives some indication to me as to the strength of the technical arguments that are to follow in support of the “not that bad” decision.

But, whatever I may think of those technical arguments, the High Court wasn’t impressed either. Adopting the same sequence of argument (but combining the first two) as set out immediately above, the High Court ruled as follows:

  • As there will be no criminal trial of the alleged perpetrators, investigating the source of the Novichok, and whether Messrs Petrov and Boshirov were acting under the direction of others either in London or in Russia, would not be a process designed to lead to a determination of a question which s 10(2)(a) prohibits the inquest from determining.
  • Although it is a possibility that a civil action could be brought against the men themselves, or indeed the Russian Federation, none of these possibilities means that if the inquest were to investigate who was responsible for the death of Ms Sturgess that the Senior Coroner would be infringing the prohibition in s 10(2)(b). The Court went on to say that “No doubt in his determination he would be careful, as Sir John Goldring advised the Hillsborough jury to be, to avoid using inappropriate legal terminology. But s 10(2)(b) is not a valid reason for limiting the scope of the investigation in the manner suggested”.
  • Finally, there is acute and obvious public concern not merely at the prima facie evidence that an attempt was made on British soil by Russian agents to assassinate Mr Skripal and that it led to the death of Ms Sturgess, but also at the fact that it involved the use of a prohibited nerve agent exposing the population of Salisbury and Amesbury to lethal risk. There has been, and (to be realistic) there will be, no criminal trial in which the details of how this appalling event came to occur can be publicly examined and therefore such matter should be investigated.

 

Therefore the Coroner’s decision on scope has been overturned, and the case has been remitted to the Senior Coroner for further consideration.

Conclusions

This is one of those cases that needs to go straight into the toolbox.

It is such a comprehensive review of the relevant case law in the area that it will act as the go to guide when considering scope, particularly in relation to the limitations on an inquest in determining civil and criminal liability.

The inquest continues…

Richard Shepherd

 

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