GS, R (On the Application Of) v HM Senior Coroner for Wiltshire and Swindon

Factual and Procedural Background

This claim challenges the ruling of the Senior Coroner for Wiltshire and Swindon dated 20 December 2019 concerning the scope of the inquest into the death of the deceased female individual. The Claimant is the daughter of the deceased. The death arose following exposure to a military-grade nerve agent, Novichok, which was first used in an attempted assassination of a former intelligence officer and his daughter in Salisbury in March 2018 by two individuals identified as Russian nationals. The deceased collapsed in June 2018 after unknowingly spraying herself with Novichok contained in a bottle believed to be perfume, and died in July 2018 without regaining consciousness.

The Senior Coroner opened an inquest and provisionally ruled that the inquest would investigate the acts and omissions of the two Russian nationals in relation to the deceased's death, including how the nerve agent came to be in Salisbury. However, the Coroner excluded investigation into whether other members of the foreign state were responsible or the source of the nerve agent. The Claimant challenges these exclusions.

The Claimant subsequently sought judicial review of the Senior Coroner’s decision, with permission granted. The proceedings included written and oral submissions from the Claimant, the Senior Coroner, and the Secretary of State for the Home Department. The two Russian nationals did not participate in the proceedings.

Legal Issues Presented

1. Whether the Senior Coroner’s exclusion of investigation into the responsibility of Russian officials other than the two named individuals and the source of the nerve agent was lawful.
2. Whether Article 2 of the European Convention on Human Rights imposes an obligation on the United Kingdom to investigate the actions of agents of a foreign state responsible for the death.
3. The proper scope of the inquest under the Coroners and Justice Act 2009, including the interpretation of the statutory questions, particularly "how" the deceased came by her death.
4. Whether the prohibitions on determining criminal or civil liability at inquests prevent investigation into wider state responsibility.

Arguments of the Parties

Claimant's Arguments

• The Senior Coroner’s reasoning was inconsistent and irrational, as the prohibitions on determining liability apply equally to the two named individuals and others, yet only the former were subject to investigation.
• The Coroner erred in failing to consider that informative conclusions about responsibility could be reached without infringing prohibitions on determining liability.
• The Coroner failed to consider the grave public interest in investigating wider responsibility and the role of inquests in exposing wrongdoing and allaying suspicion.
• The Coroner misapplied the law by equating state wrongdoing with civil liability, thereby wrongly limiting the scope of investigation.
• Article 2 of the Convention requires the United Kingdom to investigate the responsibility of foreign agents where an effective investigation cannot be conducted in the foreign state.

Defendant's Arguments (Senior Coroner and Secretary of State)

• Article 2 of the Convention does not impose an obligation on the United Kingdom to investigate actions of a foreign state’s agents.
• The procedural obligations under Article 2 are intended to ensure accountability for breaches by the state’s own agents, not those of another state.
• The prohibitions in section 10(2) of the Coroners and Justice Act 2009 apply only to determinations at the conclusion of the inquest, not to investigations.
• The Coroner has broad discretion in determining the scope of the inquest, including excluding issues that are too remote or likely to involve prohibited determinations of liability.
• The death of the deceased was collateral damage, occurring months after the initial attack, and thus wider state responsibility was too remote to be investigated.
• Differences between an inquest and an inquiry justify narrower scope in this case compared to other investigations such as the Litvinenko Inquiry.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework governing inquests under the Coroners and Justice Act 2009, focusing on the statutory questions coroners must answer, particularly the interpretation of "how" the deceased came by death as "by what means" rather than "why". It emphasised the prohibition in section 10(2) against determining criminal or civil liability at the conclusion of an inquest but acknowledged that investigation of relevant facts is permissible.

The court examined the Senior Coroner’s three cumulative reasons for limiting the scope of the inquest: the prohibition on determining criminal liability of named persons, the prohibition on determining civil liability, and remoteness of wider state responsibility. It found material errors of law in the first two reasons, noting that investigation is distinct from determination and that the prohibitions do not prevent informative factual findings about responsibility or unlawful killing conclusions.

Regarding remoteness, the court expressed doubt that the passage of time or the fact that the deceased was not the intended target justified excluding investigation into wider state involvement. The court noted the acute public interest in the case and the role of inquests in exposing wrongdoing.

On Article 2 of the Convention, the court concluded that the procedural obligation to investigate deaths applies to the state responsible for the substantive breach—i.e., the state whose agents caused the death. It does not impose an obligation on the United Kingdom to investigate the actions of agents of a foreign state. The court distinguished the present case from cases where states have extraterritorial jurisdiction or concurrent procedural obligations.

The court also reviewed relevant case law, including the Litvinenko case, and confirmed that the procedural obligations under Article 2 are linked to state responsibility for the death and do not extend to holding foreign states accountable through inquests.

Finally, the court acknowledged the broad discretion coroners have in determining the scope of inquests but emphasised that such discretion must be exercised lawfully and consistently with statutory provisions and human rights obligations.

Holding and Implications

The court granted the claim on Ground 1 and dismissed it on Ground 2. Specifically, the court QUASHED the Senior Coroner’s ruling limiting the scope of the inquest concerning the investigation into the responsibility of Russian officials beyond the two named individuals and the source of the nerve agent. The case was remitted to the Senior Coroner for reconsideration consistent with the court’s guidance.

The court’s decision corrects errors of law in the coroner’s reasoning regarding the scope of investigation permissible under the Coroners and Justice Act 2009 and clarifies that the prohibitions on determining liability do not preclude investigation into wider responsibility. However, the court confirmed that Article 2 of the Convention does not impose a duty on the United Kingdom to investigate actions of foreign state agents.

No new precedent was set regarding the application of Article 2 to obligations to investigate foreign state agents. The decision primarily affects the procedural conduct of the inquest and the scope of investigation permitted.