Novichok inquest quashed

24 July 2020 by Matthew Hill

The High Court has today handed down a judgment quashing a coroner’s decision on the scope of the inquest into the death of Dawn Sturgess: R (GS) v HM Senior Coroner for Wiltshire and Swindon [2020] EWHC 2007 (Admin)

Ms Sturgess tragically died of Novichok poisoning, having inadvertently opened a discarded perfume bottle containing the nerve agent. Her death came some four months after the highly publicised poisoning of Sergei and Yulia Skripal in Salisbury.

The Senior Coroner for Wiltshire and Swindon opened an inquest into Ms Sturgess’ death, and subsequently gave a ruling on its scope. He held that the inquest would consider how the Novichok came to Salisbury, and the acts and omissions of two Russian men alleged to have brought it there. However, he would not investigate whether other members of the Russian state were responsible for Ms Sturgess’ death, and would not investigate the source of the Novichok that killed her.

In effect, the inquest would look at the involvement of two individual Russians, but not the Russian state.

Ms Sturgess’ family challenged the ruling on scope on two grounds, one in domestic law, and one relying on article 2 ECHR. They were successful on the first, but not the second.

The Divisional Court (Bean LJ and Lewis J) held that the Coroner had erred in his reasons for limiting the scope of his inquest. In particular, he had misapplied the statutory prohibitions that prevent a coroner from returning a determination that appears to determine civil liability, or criminal liability on the part of a named person. While these would limit what the Coroner could say at the conclusion of his inquest, they did not mean that it could not lawfully examine the wider involvement of the Russian state. The Court also doubted (obiter) that such an investigation would be too remote to Ms Sturgess’ death, notwithstanding the fact that she appears to have been the unintended victim of actions taken against an unrelated target months earlier.

The Court was not persuaded, however, by the article 2 arguments made by the family. The obligations on the UK government were to have in place an effective criminal justice system that allowed for criminal investigation and prosecution of offences. There was no additional, enhanced duty to investigate the actions of the agents of a different state where those led to a death within UK jurisdiction. The Court found there was no authority in support of such a proposition, and that it was contrary to the underlying principles of article 2, which concerned state accountability for the actions of its own agents within its jurisdiction.

The Coroner’s determination on scope was quashed, and the matter remitted to him. The Court stressed that the Coroner retained a broad discretion on the matters that the inquest should explore, and that it would not necessarily follow that an inquest or inquiry as broad and lengthy as the Litvinenko case would be required. However, Bean LJ and Lewis J also noted the following:

There is acute and obvious public concern not merely at the prima facie evidence that an attempt was made on British soil by Russian agents to assassinate Mr Skripal and that it led to the death of Ms Sturgess, but also at the fact that it involved the use of a prohibited nerve agent exposing the population of Salisbury and Amesbury to lethal risk. There has been, and (to be realistic) there will be, no criminal trial in which the details of how this appalling event came to occur can be publicly examined.

For now, it is for the Coroner to reconsider the decision on scope and assess where to mark out the boundaries of his investigation.

But if those boundaries extend to include highly sensitive evidence, particularly intelligence on the Russian state’s involvement in the events, then the Coroner will find himself up against another prohibition, that preventing “closed” hearings in inquests in which such evidence can be adduced.

In those circumstances, as in the Litvinenko case, the Coroner may find himself seeking to convert the inquest into a public inquiry, where such evidence can be heard. That is a decision for a minister, most likely the Home Secretary, at a time when Anglo-Russian relations are an extremely sensitive political topic. It may be some time yet before Ms Sturgess’ family, and the public, learn more of how she died.

Matthew Hill is a barrister at 1 Crown Office Row