The ‘reasonable citizen’ — Sergei Skripal

26 March 2018 by Dominic Ruck Keene

In Secretary of State for the Home Department v Sergei Skripal [2018] EWCOP 6, Mr Justice Williams made a best interests decision that blood samples could be taken by the Organisation for the Prohibition of Chemical Weapons from Sergei and Yulia Skirpal in order that the Organisation for the Prohibition of Chemical Weapons (OCPW) could undertake their own analysis to find evidence of possible nerve agents. Both Sergei and Yulia were and remain unconscious and in a critical condition, and were unable to consent to such blood samples being taken.

The Secretary of State for the Home Department made a number of submissions as to why taking the samples was in the best interests of the Skripals, including a number that potentially presupposed a relatively active citizenship on their part, including:

• Best interests was not to be determined by reference to purely medical factors but the OPCW evaluation may be of direct medical relevance in that it might add to the knowledge base against which they are being treated and even if it only confirms the current evaluation, this is of direct medical relevance to them.
• The main consideration ought to be the beliefs and values that would have been likely to influence the decision if Mr Skripal or Ms Skripal had capacity to make it. An individual subjected to such an attack with personally catastrophic consequences would want to see it fully and properly investigated and that all appropriate steps to identify the perpetrators (individual and state) have been taken.
• In addition the other factors that Mr Skripal or Ms Skripal would have been likely to consider if he or she were able to would include the effects of their decision on others and their duties as responsible citizens. In particular they would have been likely to want to support the work of the international body set up by international law knowing that its processes were unimpeachable, it was entirely independent, that the results of its enquiry would potentially be beneficial to the criminal investigation, confirming the nature of the attack and the substance used; and giving assistance in bringing to justice those responsible; identifying those who carried out the attack. They would have wanted to support the UK Government in taking steps on the international plane to hold those responsible to account.

The Official Solicitor was in general supportive of the SSHD’s arguments, and  focussed on the ‘substituted judgment’ of what the patient would consider if he were able to and in particular the interest any individual victim would have in seeking to further the inquiry into what had happened to them. He submitted that although there was little evidence before the court about Mr Skripal or Ms Skripal as individual persons there was nothing that should cause the court to consider either hold views which would suggest they would not want to get to the bottom of what had happened.

In particular the Official Solicitor emphasised that the detriment to either Mr Skripal or Ms Skripal was negligible; in particular in relation to the physical aspects of the taking of the samples but also the disclosure of medical records and the subsequent consequences of the investigation.

Mr Justice Williams emphasised that ‘best interests’ had been held by the courts potentially to be a very broad concept. He noted that the Lord Chancellor’s Code of Practice issued in accordance with ss. 42-43 of the Mental Capacity Act also identified the possibility that other factors that the person lacking capacity might consider if they were able to could ‘include the effect of the decision on other people….. the duties of a responsible citizen’.

Accordingly, he held that:

“So the evaluation of what order is in the best interests of Mr Skripal and Ms Skripal involves a far broader survey of whether the taking of blood samples will have any medical benefit to them and whether the disclosure of their medical records will bring any medical advantage to them. It includes every consideration that might bear on what is in their best interests.”

However, Mr Justice Williams held that he was unable to ascertain on the evidence before him either of the Skirpals’ past or present wishes or feelings.

Nevertheless, he held that:

“The case is put both by the Secretary of State and the Official Solicitor on the basis of how the beliefs and values of the reasonable adult subjected to an attack of any sort, but particularly of this sort, might influence their decision. Although it would be impossible for me to be unaware of what is in the public domain about Mr Skripal and Ms Skripal that is not evidenced before me and so I am constrained to approach this decision at this moment in time on the basis of assumptions as to how a reasonable citizen would approach matters. In the absence of any evidence to show that either Mr Skripal or Ms Skripal was not a reasonable citizen that is how I will approach it. The evidence establishes that the OPCW is an independent organisation with the support of 192 nation States and one of whose primary tasks is providing technical assistance in relation to chemical weapons issues. Their procedures appear to be rigorous and robust – as would be expected given the subject matter of their work. Their enquiry can be expected to be entirely objective and independent. The results of their enquiry will likely hold very considerable weight in any forum. Their enquiry is therefore likely to produce the most robust, objective, independent and reliable material which will inform any determination of what happened to Mr Skripal and Ms Skripal.”

He went on to state that:

“Most reasonable citizens in my experience have a quite acute sense of justice and injustice. Most want to secure the best information about what has happened when a serious crime is alleged to have been committed. I accept that such a person would believe in the rule of law; that justice requires that crime or serious allegations of crime are thoroughly investigated; that where possible answers are found as to who, how and why a crime was perpetrated, that where possible truth is spoken to power; that no-one whether an individual or a State is above or beyond the reach of the law and that in these turbulent times what can be done to support the effective operation of international conventions is done. Whilst I don’t assume that the reasonable citizen would necessarily have asked himself or herself those sorts of questions in quite such detail I do believe that if those issues were put to them they would adopt them and they would influence their decision. In any event all go to the general point that the reasonable citizen, including Mr Skripal and Ms Skripal believe that justice should be done.”

Accordingly, he accepted that the Skripals’ decision would be influenced by these values and beliefs and that the influence would be in favour of consenting to the taking and testing of samples and disclosure of notes. Mr Justice Williams went to state that:

“Even if I am wrong on these assumptions as to their beliefs or views I am satisfied it is in the broad parameters of their best interests for it to be known as far as may be possible what occurred to them and the OPCW enquiry will promote that aspect of their best interests.”

Comment

The judgment is an interesting example of how wide the consideration of what is deemed to be in someone in best interests can go, and the degree to which the behaviour of a reasonable citizen can be presupposed.

Dominic Ruck Keene is a barrister at One Crown Office Row.

Owain Thomas QC and Matthew Hill from One Crown Office Row represented the Secretary of State in this matter, led by James Eadie QC. They were not involved in writing this post.