National Security trumps disclosure of Litvinenko secret documents, rules High Court
5 December 2013
Secretary of State for Foreign and Commonwealth Affairs v Assistant Deputy Coroner for Inner North London  EWHC 3724 (Admin) – read judgment
1 Crown Office Row’s Neil Garnham QC and Neil Sheldon acted for the claimant in this case (the Secretary of State for the FCO). They had no involvement in the writing of this post.
The Foreign Secretary successfully appealed against an order for disclosure of secret documents to the Inquest for the death of former KGB spy Alexander Litvinenko.
The Foreign Secretary in February 2013 issued a certificate of Public Interest Immunity (PII), on the grounds of national security and/or international relations, to prevent the disclosure of a representative sample of Government documents relating to the 2006 poisoning. In May 2013 the Coroner for the Litvinenko Inquest (Sir Robert Owen) partially rejected that certificate and ordered the disclosure of gists of material relating to some of the key issues surrounding the death(read ruling). In this judgement, a panel of three judges of the High Court unanimously quashed that ruling.
Alexander Litivenko died in November 2006 having ingested Polonium-210, seemingly while drinking tea with former Russian security colleagues. Arrest warrants were subsequently issued in the United Kingdom for the arrest of two Russian nationals. However, Russia has refused their extradition, and as the High Court itself acknowledged in its decision “any criminal trial is therefore most unlikely.”
The disclosure issue
Disclosure was sought on behalf of the Coroner from all Government departments and agencies of documents held by them relating to the circumstances of Mr Litivenko’s death. Counsel to the Inquest subsequently released a provisional analysis of that material, which was stated to establish a prima facie case of Russian State involvement. Following the issue of the Foreign Secretary’s certificate (and an preliminary hearing as to the appropriate scope of the Inquest), the Coroner held both open and closed hearings to consider the question of disclosure of the PII certified material. Representations were made by Mr Litivenko’s relations, as well as by the media, as to the importance of disclosure to establishing the truth behind the poisoning.
The Coroner’s open ruling
Sir Robert Owen emphasised the importance of open justice to the rule of law, and the wider public interest in inquest proceedings. He also highlighted the importance of the media’s role in communicating court proceedings to the proper functioning of democracy. The Coroner acknowledged that the issues to which Mr Litivenko’s death gave rise were of the “utmost gravity, including allegations of state sponsored assassination by radioactive poisoning of a British citizen in London,” and that the Inquest was likely to be the only occasion when a British Court would examine its circumstances. Accordingly, he concluded that the claim to PII must be subject to the most careful, rigorous and critical examination.
The certificates in relation to certain undisclosed issues were rejected, and disclosure of gists of relevant material was therefore ordered.
However, the Coroner upheld the PII certificates covering material related the issues of the possible involvement of Russian State agencies in Mr Litivenko’s death, and whether the British authorities could have prevented it. He stated that the “inevitable consequence” of that decision was that the Inquest would not be able to address the issues of ‘Preventability’ and of ‘Russian State Responsibility.’ The Coroner acknowledged that his duty to carry out a “full, fair and fearless investigation“ would therefore be compromised.
The Request for an Inquiry
Following his ruling on disclosure, the Coroner wrote to the Foreign Secretary in June 2013 (read letter). The Coroner emphasised that he regarded investigation of the Preventability and Russian State Responsability as being of “central importance to this case,” and that accordingly a public inquiry, with some evidence held in closed session, was necessary if Mr Litivenko’s death was to be properly investigated. He concluded that:
“It is a highly exceptional situation when the victim of what appears to have been a murder is interviewed by police before he dies, and makes a public statement in which he names those whom he suspects of being responsible for his death, and an independent analysis by counsel of relevant material suggests that it establishes a prima facie case to the same effect, but where the operation of Pll serves to exclude that material from evidence in the resulting inquest. In my view, any investigation of this death which excludes a proper analysis of the HMG material will be inadequate and accordingly I request that the only statutory mechanism by which they may be examined should now be deployed.”
That request for an inquiry was refused and is itself the subject of separate judicial review.
The High Court’s decision
Lord Justice Goldring gave the only judgment. He summarised the grounds of the Foreign Secretary’s appeal as being:
(1) That the Coroner had failed to accord adequate respect to the Foreign Secretary’s assessment of the balance of the competing public interests for and against disclosure;
(2) That the Coroner had failed properly to undertake the balancing exercise by treating his desire to conduct a full and proper inquest as a trump card which overrode all other considerations; and
(3) That the Coroner had reached a decision that no reasonable coroner applying the correct legal principles could have done.
Having considered the relevant case-law, in particular R(Binyam Mohammed) v Secretary of State for Foreign and Commonwealth Affairs  QB 218, Lord Justice Goldring gave his conclusions as to how the courts should approach the balancing exercise:
“53. First, it is axiomatic… that public justice is of fundamental importance. Even in cases in which national security is said to be at stake, it is for courts, not the Government, to decide whether or not PII should prevent disclosure of a document or part of a document.
54. Second, as I have said, the issues which we have had to resolve only concerned national security. The context of the balancing exercise was that of national security as against the proper administration of justice. Had the issues been such as have been touched upon by the PIPs in their submissions, different considerations might well have applied.
55. Third, when the Secretary of State claims that disclosure would have the real risk of damaging national security, the authorities make it clear that there must be evidence to support his assertion. If there is not, the claim fails at the first hurdle. In this case there was unarguably such evidence. The Coroner did not suggest otherwise.
56. Fourth, if there is such evidence and its disclosure would have a sufficiently grave effect on national security, that would normally be an end to the matter. There could be no disclosure. If the claimed damage to national security is not “plain and substantial enough to render it inappropriate to carry out the balancing exercise,” then it must be carried out. That was the case here.
57. Fifth, when carrying out the balancing exercise, the Secretary of State’s view regarding the nature and extent of damage to national security which will flow from disclosure should be accepted unless there are cogent or solid reasons to reject it. If there are, those reasons must be set out. There were no such reasons, let alone cogent or solid ones, here. The Coroner did not seek to advance any. The balancing exercise had therefore to be carried out on the basis that the Secretary of State’s view of the nature and extent of damage to national security was correct.
58. Sixth, the Secretary of State knew more about national security than the Coroner. The Coroner knew more about the proper administration of justice than the Secretary of State.
59. Seventh, a real and significant risk of damage to national security will generally, but not invariably, preclude disclosure. As I have emphasised, the decision was for the Coroner, not the Secretary of State.
60. Eighth, in rejecting the Certificate the Coroner must be taken to have concluded that the damage to national security as assessed by the Secretary of State was outweighed by the damage to the administration of justice by upholding the Certificate.
61. Ninth, it was incumbent on the Coroner to explain how he arrived at his decision, particularly given that he ordered disclosure in the knowledge that by doing so there was a real and significant risk to national security.” [Emphasis added]
Lord Justice Goldring accepted that there was a real and significant risk to national security from disclosure of the gists. He held that the weight given to the views of the Foreign Secretary was insufficient and amounted to an error of law. He stressed that the Coroner was never asked to re-consider the balancing exercise in light of his subsequent PII rulings and the consequences as to the possible scope of the Inquest.
Lord Justice Goldring accordingly held that once the Coroner had decided that a full and proper investigation could not in any event take place, it “became corresponding more difficult to justify a real risk to national security on the grounds of such an investigation.” Lord Justice Goldring held that the “the essential issue is not whether or not the process of the inquest would be prejudiced by nondisclosure [but] whether that prejudice outweighs the real risk of significant damage to national security.”
Lord Justice Goldring concluded that no coroner could reasonably have found that that balance was in favour of disclosure, and accordingly, the ruling should be quashed and the matter should not be remitted to the Coroner.
The purpose of Inquest proceedings was described by Lord Bingham in R(Amin) v Home Secretary  UKHL 51 as “to ensure so far as possible that the full facts are brought to life [and] that culpable and discreditable conduct is exposed and brought to public notice.” Any restriction on PII grounds of what evidence a Inquest can examine should in principle therefore be as limited as possible. A Coroner (and the High Court on appeal) should permit only the minimum derogation to the principle of full disclosure of relevant material that is necessary to protect the public interest at stake.
However, as the Divisional Court made it clear in R(SSHD) v Inner West London Coroner  1 WLR 2564 (the 7/7 Inquest) a Coroner cannot rely on any document subject to a PII certificate when reaching his verdict. Further, there is no scope for a closed procedure wherein a Coroner can consider closed material subject to a PII national security certificate. Under Part 11 of the Coroners (Inquests) Rules 2013, there is the potential for proceedings in Inquests to exclude the public on the grounds of national security, but not interested parties.
There is therefore a potential danger that a Coroner will be adversely restricted by the operation of PII certification in his statutory duty to ascertain how, and in what circumstances the deceased came by his death. In effect, a Coroner has no means to take closed material relating to national security into account. If significant portions of unknown evidence are excluded from consideration at an Inquest there is a risk to both the public confidence in open justice, and for the reliability of the Inquest’s findings. As Lord Kerr observed in Al Rawi and Others v The Security Service and Others [2011 1 AC 531], “Evidence which has been insulated from challenge may positively mislead.“
The Divisional Court rightly identified in SSHD v Inner West London Coroner that a public inquiry may be a means to consider closed material as part of an official investigation into a death. However, the decision to hold an inquiry is part of a distinct and separate process from the Coroner’s statutory duty to investigate a fatality. Only if an inquiry is ordered will the Inquest be suspended under Para 3, Schedule 1 of the Coroners and Justice Act 2009. If, as has happened with regards to Mr Litvinenko, an inquiry is refused, the family has no alternative but to challenge that decision by means of separate judicial review proceedings, with all its associated costs and litigation risk.
In the case of Mr Litivenko, the Foreign Affairs Select Committee referred to his death as a miniature nuclear attack on the streets of London. However, the Coroner had already concluded that as a consequence of the operation of the PII rules he will be unable to investigate fully and fairly whether the Russian State was involved in Mr Litvinenko’s death, despite the prima facie evidence of their responsibility and the significance of the Inquest. To that extent, the High Court’s judgement will have only a limited impact on the overall likely ability of the Inquest to establish conclusively how Mr Litivenko died. However, although the issues on which gists were to be made available are not in the public domain, the High Court’s ruling can only further restrict the scope and efficacy of the Inquest.
The combined effect of the Coroner’s ruling, the Government’s refusal of an inquiry, and the High Court’s judgement, serves therefore as a demonstration of the potential for an investigation under the Coroner’s Act, in which closed material is relevant, to fall between two stools. The Coroner is not able to examine such material in a manner acceptable to the Government, but the Government has blocked the only other route by which it could be taken into consideration.
In respect of the PII balancing exercise more generally, the High Court’s decision does not in itself break any new ground. However, it represents a useful indication and summary of the relevant principles as to how the Courts are likely to approach such questions. The judgement shows that despite the occasional political and media hysteria surrounding seeming judicial liberality and bias in favour of disclosure of secret documents despite legitimate security concerns, in reality, courts remain deeply reluctant to overrule PII certification on the grounds of national security.
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