Neil Garnham QC (now Mr Justice Garnham) and Robert Wastell of 1COR acted for the Secretary of State for the Home Department at the Litvinenko Inquiry. David Evans QC and Alasdair Henderson acted for AWE Plc. None was involved in preparing this post.
The publication on Thursday of the long awaited report by Sir Robert Owen into the circumstances of the death of Alexander Litivenko from polonium poisoning on 23 November 2006 has (unsurprisingly) resulted in bitter criticism by the Russian Government of the Inquiry’s conclusions that the poisoning was probably directed by the Russian Federal Security Service, and probably approved by President Putin. The report is long (246 pages not including Appendices), but in page after page of readable and measured prose Sir Robert Owen tells the extraordinary story of Alexander Litvinenko’s death and the subsequent 9 year investigation into it.
The origin of the Inquiry
The Inquiry was established on 31 July 2014 following a torturous procedural history (including two Divisional Court hearings and the successful judicial review of the Home Secretary’s refusal to hold a statutory inquiry) and considerable argument as to the nature, scope and conduct of the official investigation into Alexander Litvinenko’s death. In particular, this was due to Sir Robert Owen’s insistence that a public inquiry (rather than an inquest) was required in order to be able to consider sensitive government material, especially material relating to the potential involvement of the Russian State.
The Inquiry’s conclusions
Sir Robert Owen heard both ‘open’ and ‘closed’ evidence, and stated that his open conclusions were based on both sources of evidence. Those conclusions were summarised at Page 246. It should be noted that Sir Robert Owen used ‘I am sure’ as shorthand for a fact found to the criminal standard of proof.
10.1 Alexander Litvinenko was born in Voronezh, Russia on 4 December 1962. He was an officer in the Committee for State Security (KGB) and latterly the Federal Security Service (FSB). He was dismissed in 1998 after he made public allegations of illegal activity within the FSB.
10.2 Mr Litvinenko left Russia in 2000. He arrived in the UK with his wife and son on 1 November 2000. Mr Litvinenko was granted asylum in 2001 and became a British citizen in October 2006.
… 10.4 On the evening of 1 November 2006, the sixth anniversary of his arrival in the UK, Mr Litvinenko fell ill… His condition declined…Mr Litvinenko was pronounced dead at 9.21pm on 23 November 2006.
10.5 Throughout the time that Mr Litvinenko was in hospital, the doctors had been unable successfully to diagnose his condition. In fact, the cause of his illness only became clear several hours before his death when tests on samples of his blood and urine sent to the Atomic Weapons Establishment at Aldermaston confirmed the presence in his body of extremely high levels of the radioactive isotope polonium 210. Subsequent examination of Mr Litvinenko’s body and detailed testing of samples taken from it confirmed that he had died as a result of being poisoned with polonium 210.
10.6 As to the medical cause of Mr Litvinenko’s death, I am sure of the following matters: a. Mr Litvinenko died at 9.21pm on 23 November 2006 in University College Hospital, having suffered a cardiac arrest from which medical professionals were unable to resuscitate him
b. The cardiac arrest was the result of an acute radiation syndrome from which Mr Litvinenko was suffering
c. The acute radiation syndrome was caused by Mr Litvinenko ingesting approximately 4.4Gbq of polonium 210 on 1 November 2006
10.7 There is abundant evidence that Mr Litvinenko met Andrey Lugovoy and his associate Dmitri Kovtun for tea at the Pine Bar of the Millennium Hotel in Mayfair during the afternoon of 1 November 2006…
10.8 I am sure that Mr Litvinenko ingested the fatal dose of polonium 210 whilst drinking tea in the Pine Bar of the Millennium Hotel during the afternoon of 1 November 2006…
10.10 I am sure that Mr Litvinenko did not ingest the polonium 210 either by accident or to commit suicide. I am sure, rather, that he was deliberately poisoned by others.
10.11 I am sure that Mr Lugovoy and Mr Kovtun placed the polonium 210 in the teapot at the Pine Bar on 1 November 2006. I am also sure that they did this with the intention of poisoning Mr Litvinenko.
10.12 I am sure that the two men had made an earlier attempt to poison Mr Litvinenko, also using polonium 210, at the Erinys meeting on 16 October 2006.
10.13 I am sure that Mr Lugovoy and Mr Kovtun knew that they were using a deadly poison (as opposed, for example, to a truth drug or a sleeping draught), and that they intended to kill Mr Litvinenko. I do not believe, however, that they knew precisely what the chemical that they were handling was, or the nature of all its properties.
10.14 I am sure that Mr Lugovoy and Mr Kovtun were acting on behalf of others when they poisoned Mr Litvinenko.
10.15 When Mr Lugovoy poisoned Mr Litvinenko, it is probable that he did so under the direction of the FSB. I would add that I regard that as a strong probability. I have found that Mr Kovtun also took part in the poisoning. I conclude therefore that he was also acting under FSB direction, possibly indirectly through Mr Lugovoy but probably to his knowledge.
10.16 The FSB operation to kill Mr Litvinenko was probably approved by Mr Patrushev and also by President Putin.”
What the report does say:
The report sets out in extensive detail Alexander Litvinenko’s career inside outside Russia: including his relationship with Boris Berezovsky and the history of his pilgrimage from loyal KGB officer to vocal critic of Putin’s regime. Sir Robert Owen sets out at length in a section entitled “Why would anyone wish to kill Alexander Litvinenko” his conclusions as why the Russian State, in particular, the Federal Security Service (or FSB) and President Putin himself, would have reason to regard Alexander Litvinenko as a traitor and an ongoing thorn in its side through his investigative work and publications. For example, he sets out Alexander Litvinenko’s controversial allegations that President Putin had been involved in instigating the September 1999 apartment bombings in Russia that had killed nearly 300, and that he has a history as a pedophile.
The report similarly exhaustively sets out the literal trail of forensic evidence in the form of radioactive contamination whose discovery that enabled the tracking both of the polonium that eventually poisoned Alexander Litivinenko and of the two men (Mr Lugovoy and Mr Kovtun) who were stated to have used the polonium to poison his tea. The report recreates a near complete picture of Mr Lugovoy and Mr Kovtun’s movements during their visits to London in the autumn of 2006 and of their various meetings with Alexander Litivienko.
What the report does not say
An important part of the Russian Government’s angry response to the report has been based on the alleged involvement of the British intelligence agencies, both with Alexander Litvinenko before his death and in its investigation. Sir Robert Owen set out the witness evidence to the effect that Alexander Litvinenko had been paid by the agencies, and noted that
none of the witnesses from whom I heard…expressed the firm view that he did not have a relationship with UK intelligence agencies.
He also stated his conclusion that there was no evidence whatsover of Mr Lugovoy and Mr Kovtun being ‘set up’ by any UK intelligence agency, or of any agency having played a part in Alexander Litvinenko’s death.
However, in light of the Neither Confirm Nor Deny approach taken by the Home Secretary he was unable to reach any conclusions upon this issue, albeit he noted that there was some evidence that the FSB believed Alexander Litvinenko had worked with those agencies.
Neither Mr Lugovoy and Mr Kovtun appeared before the Inquiry and therefore did not have an opportunity to rebut the allegations made that they used polonium to poison Alexander Litivenko on two separate occasions. However, Sir Robert Owen makes an extremely convincing case against them based on the forensic and other objective evidence, as well as on the inconsistencies and misleading statements made by the two men since 2006 (Mr Kovtum was described at one point as having told a “tissue of lies”).
The more significant conclusion, and the bigger evidential jump, is that Mr Lugovoy and Mr Kovtun killed Alexander Litivenko at the behest and with the support of the FSB and even President Putin. The “strong circumstantial evidence” for that link was said to be:
(1) The use of polonium 210 as the poison was “at the very least a strong indicator of state involvement, and Russian state controlled reactors could have been the source of the polonium.
(2) Other deaths of other dissidents or opponents of Putin’s regime (both inside and outside of Russia) “suggest that in the years prior to Mr Litivenko’s death, the Russian State may have been involved in the assassinations of Mr Putin’s critics… the Russian State may have sponsored attacks against its opponents using poisons, including radioactive poisons.”
(3) Mr Lugovoy and Mr Kovtun had no personal animus against Alexander Litivenko “I am sure that they killed him on behalf of others.” One was a former member of the KGB and the other a former army officer.
(4) There were “powerful motives for organisations and individuals within the Russian State to take action against Mr Litvinenko, including killing him.”
(5) The treatment by the Russian State (in particular, by President Putin himself) of Mr Lugovoy and Mr Kovtun since 2006 suggested a level of approval for the killing.
(6) With regards to the involvement of President Putin, if the killing was a FSB operation, then given the nature of the Russian State and the FSB’s place within it, it was likely that President Putin would have been aware and even approved the operation.
It remains to be seen whether the court of popular opinion (both around the world and in Russia itself) will accept this circumstantial evidence as sufficiently strong to ground a conclusion that President Putin personally approved a FSB operation to use two somewhat unlikely agents to kill a dissident in a convoluted manner that almost guaranteed an investigation into Russian involvement. Perhaps it will not matter – the very fact that the allegation is believable due to the nature of Putin’s Russia is a damning indictment of President Putin.