Sunday, 7 July 2013

Inquest or Inquiry? Litvinenko

Update 3rd October - Litvinenko's widow to seek judicial review of decision not to hold an inquiry - RTE Ireland 

Update 12th July - an Inquiry has been ruled out even though the Coroner (Owen J) requested it - BBC News UK 12th July

Update 9th July:  Judicial Review concerning public interest immunity in Litvinenko proceedings - Temple Garden Chambers
The judgment of the Administrative Court is HERE

Article 2 of the European Convention on Human Rights imposes an obligation on States to carry out an effective investigation into certain deaths.  As an example, the duty normally arises where a person is killed by Police Officers - e.g. the Azelle Rodney Inquiry or where there is the death of a person in custody - e.g. Nicholas Wheller Inquest.  In England and Wales, inquests are held by the Coroners Courts.  Those courts and their procedure are undergoing a programme of changes based on the Coroners and Justice Act 2009 and further changes were implemented with effect from 2nd July 2013.

A number of recent cases have demonstrated that a Coroner's inquest may not always be practicable and, if that proves to be so, the alternative becomes an inquiry held under the Inquiries Act 2005.  Such inquiries are particularly costly and lengthy.  For example, the Azelle Rodney Inquiry has just reached its conclusion after some 3 years and a cost exceeding £2m.

As the law stands, one reason why
an inquest may not be practicable is where evidence obtained by interception of communications ('intercept evidence') has to be adduced.  The Regulation of Investigatory Powers Act 2000 section 17 renders such evidence inadmissible in legal proceedings but there are exceptions - section 18  - including an Inquiry held under the Inquiries Act 2005 - see 18(7)(c).

The Litvinenko Inquiry - (death in 2006) - is a further example.  High Court Judge, Sir Robert Owen, has been appointed as Assistant Deputy Coroner for Inner North London to lead this Inquest.  (Note: The title was later changed to HM Assistant Coroner for Inner London North).  The Inquest was adjourned for nearly 5 years while there was thought to be a prospect of criminal proceedings being brought. By the time of the pre-inquest review held by the Coroner for Inner North London, Dr Andrew Reid, in October 2011, it was clear that no criminal prosecutions would be brought because the two men suspected by police of murdering Mr Litvinenko are outside the UK.  Owen J has written to the Lord Chancellor to request that, in place of the inquest, an Inquiry be held.  This is because issues of Public Interest Immunity (PII) have arisen.  A successful PII claim excludes the material entirely since, at an inquest, there is no closed material procedure.

On 12th July, the Litvinenko Inquest will convene  in order to update interested parties of developments since the request for an inquiry was sent to the Lord Chancellor - see Operational Note.

If an inquest is unable or inappropriate to deal with a case then an inquiry appears to be the only alternative.   One way of avoiding the expense and timescale of an inquiry would be to permit inquests with closed sessions where necessary.   However, such a system would almost certainly be considered to prevent the involvement of a jury.

On a number of occasions, the Labour government wished to legislate for closed inquests but these proposals met with considerable criticism: for example Liberty-Human Rights.   Ultimately, when the Coroners and Justice Act 2009 received Royal Assent the proposals for secret inquests had been dropped and replaced by section 11 and Schedule 1.  Paragraph 3 of Schedule 1 is a power for the Lord Chancellor to suspend an inquest and replace it with an inquiry on the ground that the cause of death is likely to be adequately investigated by an inquiry under the chairmanship of a 'senior judge'.  This power came into force on 25th July 2013.

Legal aid is not usually available for inquests or inquiries but the possibility of exceptional funding should be considered in appropriate cases - see Lord Chancellor's guidance for inquests.

Those wishing to delve into this further may find the following links useful:

The Right to Life - Article 2

Human Rights Review 2012 - Article 2

Interception evidence

Backbench Debate - Intercept evidence in courts and inquests - 18th October 2012

Parliament - Briefing Paper - The use of Intercept Evidence in Terrorism cases - 24th November 2011

Privy Council Review of Intercept as Evidence - 30th January 2008

Justice Student Human Rights Network - Intercept Evidence

Oxford University - Legal Opinion on Intercept Communication - January 2006

Conor Gearty - Short Cuts

UK Human Rights blog - Kennedy v UK  [2010] ECHR 682

Crown Prosecution Service - Disclosure Manual - Dealing with Intercept Product

Liberty - Right to Life Inquests


Birkett Report ..... Malone v UK ..... Interception of Communications Act 1985 (as enacted) ..... Regulation of Investigatory Powers Act 2000

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