Litvinenko, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

The Plaintiff is the widow of the deceased, who died in London in November 2006 due to radiation poisoning from polonium 210. The Plaintiff sought judicial review of the Secretary of State for the Home Department's refusal to establish a statutory inquiry under section 1(1) of the Inquiries Act 2005 into the circumstances of the death. The Secretary of State had been requested to set up such an inquiry by the Coroner appointed to conduct the inquest into the death.

The death was investigated thoroughly by the Metropolitan Police Service with assistance from several expert agencies. The investigation concluded that the fatal dose was likely ingested in the company of two named individuals, who were subject to prosecution attempts and extradition requests, both of which were unsuccessful due to the Russian constitution prohibiting extradition of nationals.

An inquest was opened and adjourned pending investigations and criminal proceedings, later resumed with the Coroner appointed to lead it. Extensive documentation, including sensitive government material subject to public interest immunity (PII) claims, was disclosed to the Coroner. The Coroner provisionally included two central issues within the scope of the inquest: the possible culpability of the Russian State and the preventability of the death by British State agencies.

Due to PII claims upheld by the Coroner and subsequently by judicial review, significant material was excluded from the inquest, leading the Coroner to conclude that the inquest could not properly investigate the two central issues. The Coroner requested the Secretary of State to establish a statutory inquiry, which would allow consideration of sensitive material in closed sessions. The Secretary of State refused to establish the inquiry, prompting the current judicial review.

The matter was heard as a rolled-up hearing for permission and substantive claim, with counsel representing the Plaintiff, the Secretary of State, and the Coroner. The Metropolitan Police Commissioner and the Investigative Committee of the Russian Federation attended but did not actively participate beyond formal statements.

Legal Issues Presented

1. Whether the Secretary of State's refusal to establish a statutory inquiry under section 1(1) of the Inquiries Act 2005 was lawful and rational.
2. Whether Article 2 of the European Convention on Human Rights (ECHR) was engaged, specifically the procedural obligation to conduct an effective investigation into the death.
3. The scope of the Coroner's duties and discretion in the inquest, particularly regarding the investigation of the Russian state responsibility and preventability issues.
4. The adequacy of the reasons given by the Secretary of State for refusing the Coroner's request for a statutory inquiry.

Arguments of the Parties

Appellant's Arguments

• There is an overwhelming public interest in determining whether the death was an ordinary crime or a state-sponsored assassination involving the Russian State.
• The British Government possesses evidence establishing a prima facie case implicating the Russian State.
• A statutory inquiry under the 2005 Act is the only means to investigate the central issues while balancing public interest in truth and protecting sensitive material.
• The Coroner was compelled to exclude the Russian state responsibility issue from the inquest due to PII, thus necessitating a statutory inquiry.
• The Secretary of State's six reasons for refusal are flawed individually and collectively, rendering the decision irrational.
• The procedural obligation under Article 2 (Menson duty) to investigate suspicious deaths remains engaged and has not been fully discharged.

Respondent's Arguments

• Article 2 was not engaged at the time of the decision; subsequently, the procedural duty was accepted but contended to have been fulfilled.
• There is no clear public interest requiring immediate establishment of a statutory inquiry into the Russian state responsibility issue.
• The Secretary of State's decision was rational and within her broad discretion, appropriately balancing competing considerations including cost, international relations, and adequacy of the inquest.
• The inquest could address many public concerns and the Secretary of State was entitled to adopt a "wait and see" approach.
• The Coroner’s discretion regarding the scope of the inquest was recognized, and the Secretary of State was entitled to distinguish between matters the Coroner was obliged to investigate and those he chose to investigate.
• Cost, international relations, and the limitations on disclosure of sensitive material justify the refusal to establish a statutory inquiry at present.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Osman v United Kingdom (2000) 29 EHRR 245	Principles relating to the duty to protect life against real and immediate risk (Osman duty).	Used to assess whether there was a prima facie case that the British State breached its duty to protect the deceased.
R v HM Coroner for North Humberside and Scunthorpe, ex parte Jamieson [1995] QB 1	Scope and limits of a coroner’s duty in inquests, including the meaning of "how" the deceased came by death.	Applied to assess the Coroner’s discretion and duty in determining the scope of the inquest.
Menson v United Kingdom (2003) 37 EHRR CD220	Procedural obligation under Article 2 ECHR to conduct an effective investigation into suspicious deaths.	Considered to determine whether the procedural duty had been engaged and fulfilled by the police investigation and inquest.
R (E) v Chairman of the Inquiry into the death of Azelle Rodney [2012] EWHC 563 (Admin)	Discretion of public authorities in decisions regarding the establishment of inquiries.	Referenced to support the argument that the Secretary of State’s discretion was broad and judicial review limited.
R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, [2011] 1 AC 1	Coroner’s discretion and duty in determining the scope of an inquest.	Applied to clarify that a coroner’s discretion must be respected unless overruled and that the duty to investigate fully is paramount.
R v Inner West London Coroner, ex parte Dallaglio [1994] 4 All ER 139	Coroner’s broad discretion in the scope of inquests.	Used to support the Coroner’s approach to scope and the need for independent inquiry on broader issues.
R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440, [2006] 1 WLR 461	Confirmation of principles regarding coroner’s discretion and scope of inquests post-Jamieson.	Confirmed that legislative changes did not materially alter principles regarding scope and discretion.
Angelova and Iliev v Bulgaria (2008) 47 EHRR 7	Restatement of procedural obligations under Article 2.	Referenced to support interpretation of procedural requirements for investigations.

Court's Reasoning and Analysis

The court focused primarily on the central issue of the Russian state responsibility. It acknowledged the Coroner’s findings that the inquest could not properly investigate this issue due to the PII claim excluding critical material. The court analyzed the Secretary of State’s six reasons for refusing the inquiry:

• First Reason: The Secretary of State’s view that the inquest would substantially address public concern was either mistaken or failed to engage with the Coroner’s conclusion that the two central issues could not be investigated in the inquest. The reasoning was found unrealistic and unsatisfactory.
• Second Reason: The Secretary of State erred in concluding Article 2 was not engaged. However, the court found that the procedural duty under Article 2 (Menson duty) had been fulfilled by the thorough police investigation and inquest preparations, so the error was immaterial.
• Third Reason: The Secretary of State misunderstood the Coroner’s discretion versus duty. Once the Coroner decided to investigate the Russian state responsibility issue, he was obliged to do so. The Secretary of State wrongly treated this as discretionary, failing to address the Coroner’s concerns properly.
• Fourth Reason: The assertion that a statutory inquiry would reveal no more publicly than the inquest was implausible. The court found that a statutory inquiry could reach and publish useful conclusions based on closed material without disclosing sensitive content, thus serving an important public interest function.
• Fifth Reason: The cost and resource considerations, while relevant, were subsidiary and not determinative, especially given the inability of the inquest to investigate the central issues adequately.
• Sixth Reason: The international relations factor was not decisive and lacked evidential support. The court found the reasoning difficult to accept but not determinative.

Overall, the court found the Secretary of State’s reasons for refusal inadequate and not providing a rational basis for the decision to refuse the statutory inquiry at that time. The court emphasized that the Secretary of State’s discretion under the 2005 Act is broad and the court does not mandate any particular outcome but requires a rational reconsideration taking into account the court’s analysis.

Holding and Implications

The court issued a quashing order to set aside the Secretary of State’s decision not to establish a statutory inquiry at that time.

The direct effect is that the Secretary of State must reconsider the request for a statutory inquiry, taking into account the court’s findings on the inadequacy of the previous reasons and the importance of the issues raised by the Coroner. No new precedent was established; the judgment clarifies the application of existing principles and the scope of discretion under the Inquiries Act 2005 in this context.