“This inquiry,” said her counsel Ben Emmerson QC at a preliminary hearing in September, “should be capable of investigating and determining whether her husband’s killing was a targeted assassination of a British citizen, carried out by agents of a foreign state, on the sovereign territory of the United Kingdom”. Whether the inquest succeeds in that challenge will depend on decisions Owen will take at a further preliminary hearing this week. His main task will be to decide on the scope of the inquest. He will also decide whether to sit with a jury.
The decision to hand the inquest over to a high court judge, sitting as assistant deputy coroner, was taken last year by the coroner for Inner London North, Dr Andrew Reid. It is perhaps fortunate that he did so. On Wednesday, the Office for Judicial Complaints announced that Reid had resigned. That followed a disciplinary investigation into the coroner’s decision to appoint his wife, Suzanne Greenaway, as an assistant deputy “without thoroughly checking whether she had the requisite qualifications for that specific role”.
A review body had recommended that Reid should be sacked but he resigned before the disciplinary process had been formally concluded. Greenaway had conducted 10 inquests — one of them into the death of Amy Winehouse — before it emerged that she had not been qualified to practise as a lawyer in England and Wales for the five years required under the Coroners Act 1988. She had previously worked as a qualified lawyer in Australia.
Litvinenko died in London on 23 November 2006. A police investigation concluded that he had been poisoned by Polonium 210, a rare radioactive isotope. The poison is thought to have been slipped into something he drank three weeks earlier. Prosecutors decided that there was sufficient evidence to charge Andrei Lugovoy and Dmitri Kovtun with his murder.
The two former KGB officers strongly deny involvement, contending that they were victims of contamination rather than the causes of it. In any event, they are not willing to face trial in London and Russia does not extradite its own citizens. Reid concluded last year that there was no realistic prospect of the two men returning to Britain voluntarily or under an extradition order. It was on that basis that he resumed the adjourned inquest, at which Lugovoy is represented by counsel.
At a preliminary hearing last month, Hugh Davies, counsel to the inquest, told Owen that he would be asked to decide whether article two of the human rights convention was, as the lawyers say, “engaged”. Article 2 protects the right to life and has been interpreted as meaning that a proper inquiry is needed into any death at the hands of the state.
If article 2 does apply in this case, Owen will have to investigate “the possible culpability of the Russian state” in Litvinenko’s death “and/or the possible culpability of the British state … either in carrying out … the poisoning or in failing to take reasonable steps to protect Mr Litvinenko from a real and immediate risk to his life”.
Even if article two is not engaged, Owen may decide that these issues need to be decided anyway. But there is a potential problem: as a matter of law, the English courts will not normally rule on whether foreign states have behaved lawfully. Does that prevent the coroner from investigating whether Russia is responsible for what Emmerson alleged was “an act of state-sponsored terrorism on the streets of London”? Owen will also have to decide whether to sit with a jury. One would be normally required if there was a health and safety issue, but there must be little chance that others will be killed in future by rare radioactive isotopes. Even if the coroner decides that he is not required to summon a jury, he may still choose to do so.
A jury would probably enhance public confidence. On the other hand, its members would presumably have to be vetted by the security services before it could be shown intelligence-related material. And having to sit with a jury would certainly increase the length and hence the cost of the hearing.
Owen is likely to attach some weight to the view taken by Litvinenko’s cash-strapped widow. In her view, as relayed by counsel to the inquest, a jury is not required as a matter of law and should not be ordered as a matter of discretion. Her lawyers argued that “a comprehensive inquiry involving intrinsically sensitive material may be better promoted in procedural terms without a jury”.
Once the coroner has decided the scope and nature of the inquest, we should have a better idea of when it will start hearing witnesses. Some evidence has already been disclosed, in confidence, to Mrs Litvinenko and the other “interested persons”.
And we shall also find out where the inquest will sit. Until the law is changed next summer, an inquest must still be held in the coronial district covering the place of death. I hope a suitably secure and convenient location has been found somewhere in “inner north London” for a hearing that will attract worldwide attention next year.