Tuesday, 11 February 2014

Litvinenko's widow wins Judicial Review but decision whether to hold an inquiry remains with Mrs May

Alexander Litvinenko died in London in November 2006.  The cause of death was almost certainly Polonium 210 poisoning.  It may surprise some readers to learn that an inquest into his death has still not been completed - for the detail see Alexander Litvinenko Inquest

Faced with the possibility that various documentation supplied to the inquest might become subject to a claim for public interest immunity, Mr Justice Owen - (the High Court Judge conducting the inquest) - requested the government to substitute an inquiry in place of the inquest see - Inquest or Inquiry: Litvinenko.  The government refused and that refusal has been to judicial review at the behest of Mr Litvinenko's widow.  The High Court's judgment in the judicial review is at R (Litvinenko) v Home Secretary and others [2014] EWHC 194 (Admin). 

The factual background is at paragraphs 3 to 20.  The Home Secretary advanced six reasons for refusing to establish an inquiry - see paragraph 23 of the judgment.  The High Court concluded (para 73):

"I have upheld the claimant's challenge to the adequacy or correctness of the first, third and fourth of the reasons given by the Secretary of State for refusing the Coroner's request to set up a statutory inquiry. I have also indicated my concerns about the fifth and sixth reasons though they are of subsidiary importance for the claim. As to the second reason, the Secretary of State was wrong to proceed on the basis that Article 2 was not engaged but I have found that the procedural obligation under Article 2 does not require any investigation beyond that already carried out and that the error was therefore immaterial."

Taking all matters together, the court was satisfied that the reasons given by the Home Secretary did not provide a rational basis for the decision not to set up a statutory inquiry at this time but to adopt a wait and see approach.  The deficiencies in the reasons were so substantial that the decision could not stand and the court granted a quashing order.

However, the sting in the tail for Mrs Litivinenko appears to have come at the end of the judgment (paras 75 and 76) where Richards LJ stated: 

  1. The case for setting up an immediate statutory inquiry as requested by the Coroner is plainly a strong one. The existence of important factors in its favour is acknowledged, as I have said, in the Secretary of State's own decision letter. I would not go so far, however, as to accept Mr Emmerson's submission that the Secretary of State's refusal to set up an inquiry is so obviously contrary to the public interest as to be irrational, that is to say that the only course reasonably open to her is to accede to the Coroner's request. If she is to maintain her refusal she will need better reasons than those given in the decision letter, so as to provide a rational basis for her decision. But her discretion under section 1(1) of the 2005 Act is a very broad one and the question of an inquiry is, as Mr Garnham submitted, difficult and nuanced. I do not think that this court is in a position to say that the Secretary of State has no rational option but to set up a statutory inquiry now.

  2. Accordingly, whilst it will be necessary for the Secretary of State to give fresh consideration to the exercise of her discretion under section 1(1) of the 2005 Act and in so doing to take into account the points made in this judgment, I would stress that the judgment does not of itself mandate any particular outcome. 
Thus, quite simply, if the Home Secretary wishes to maintain her refusal she will be able to do provided that she can advance better reasons and show that she has taken into account the court's judgment.

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