Litvinenko, R (On the Application Of) v Secretary of State for the Home Department

A Minister’s discretion under section 1(1) of the Inquiries Act 2005 is very broad, but a refusal to establish an inquiry must be supported by rational reasons that engage with the central issues identified by an investigating coroner. Once a coroner has judged that an issue falls within the proper scope of an inquest, the coroner is obliged to investigate it fully, fairly and fearlessly.

The Article 2 procedural duty to investigate a suspicious death is a duty of means, not result. It is discharged where the authorities have taken reasonable steps to secure evidence, identify suspects and pursue prosecution, even if extradition or trial proves impossible. A decision may nevertheless be quashed where material reasons misunderstand the coroner’s duty or fail to address the practical consequences of excluded evidence.

The claimant, the widow of Alexander Litvinenko, sought judicial review of the Home Secretary’s refusal to establish a statutory inquiry under section 1(1) of the Inquiries Act 2005. The Assistant Coroner had requested an inquiry after public interest immunity prevented the inquest from considering material relevant to Russian state responsibility and the preventability of the death.

The Home Secretary accepted that she had power to establish an inquiry but decided that the factors against doing so, including the scope of the inquest, confidentiality, cost and international relations, outweighed the factors in favour. The central issues were whether the reasons were rational and whether Article 2 required any further investigation.

1. Article 2 investigation. The procedural obligation under Article 2, as explained in Menson v United Kingdom (2003) 37 EHRR CD220, is an obligation of means, not result. The exceptionally detailed police investigation, the identification of two suspects, the prosecution decisions and the efforts to secure extradition were sufficient to discharge that duty. No further investigation was required for Article 2 purposes.
2. Scope of an inquest. The authorities, including Jamieson v HM Coroner for North Humberside and Scunthorpe [1995] QB 1 and R v Inner West London Coroner, ex parte Dallaglio [1994] 4 All ER 139, establish that a coroner has discretion to determine the scope of an inquest but must fully, fairly and fearlessly investigate matters falling within the scope chosen. Once the Coroner had judged that Russian state responsibility required investigation, it was not open to the Secretary of State to treat that issue as merely discretionary or unnecessary.
3. The Coroner’s withdrawal of the issue resulted from the dilemma created by public interest immunity. Investigation on open evidence alone risked being incomplete and misleading, while removing the issue also prevented a full investigation. The Secretary of State’s reasons failed to engage with that problem.
4. The proposition that a statutory inquiry could reveal publicly no more than the inquest was unsustainable. An inquiry could consider closed material with the open evidence and might state useful public conclusions without disclosing the material itself. Cost and international relations were relevant considerations, but subsidiary ones.
5. The first, third and fourth reasons were inadequate or legally erroneous. The second reason contained an immaterial error because Article 2 was engaged by the Menson duty, but that duty had already been fulfilled. The refusal was therefore irrational and was quashed. The Secretary of State was required to reconsider the exercise of her section 1(1) discretion, but the judgment did not mandate the establishment of an inquiry.