BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just Β£1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales High Court (Administrative Court) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> GS, R (On the Application Of) v HM Senior Coroner for Wiltshire and Swindon [2020] EWHC 2007 (Admin) (24 July 2020) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2020/2007.html Cite as: [2020] EWHC 2007 (Admin), [2020] WLR(D) 441, [2020] 1 WLR 4889 |
||
[New search] [Printable PDF version] [View ICLR summary: [2020] WLR(D) 441] [Help]
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
and
MR JUSTICE LEWIS
____________________
| THE QUEEN (on the application of GS, a child by her grandfather and litigation friend STEPHEN STANLEY STURGESS) |
Claimant |
|
| - and - |
||
| H.M. SENIOR CORONER FOR WILTSHIRE & SWINDON |
Defendant |
|
| - and - |
||
| (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) ALEXANDER PETROV (3) RUSLAN BOSHIROV |
Interested Parties |
____________________
Nicholas Moss (instructed by Coroner's Service, Wiltshire Council) for the Defendant
Sir James Eadie QC and Jason Pobjoy (instructed by Government Legal Department) for the Home Secretary
The Second and Third Interested Parties did not appear and were not represented
Hearing dates: 14 & 15 July 2020
____________________
Crown Copyright ©
Lord Justice Bean and Mr Justice Lewis:
THE LEGISLATIVE FRAMEWORK
"1. Duty to investigate certain deaths
(1) A senior coroner who is made aware that the body of a deceased person is within that coroner's area must as soon as practicable conduct an investigation into the person's death if subsection (2) applies.
(2) This subsection applies if the coroner has reason to suspect that
(a) the deceased died a violent or unnatural death;
(b) the cause of death is unknown; or
(c) the deceased died while in custody or otherwise in state detention."
"5. Matters to be ascertained
(1) The purpose of an investigation under this Part into a person's death is to ascertain
(a) who the deceased was;
(b) how, when and where the deceased came by his or her death;
(c) the particulars (if any) required by the 1953 Act to be registered concerning the death.
(2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c42)) the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death.
(3) Neither the senior coroner conducting an investigation under this Part into a person's death nor the jury (if there is one) may express any opinion on any matter other than
(a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable);
(b) the particulars mentioned in subsection (1)(c).
This is subject to paragraph 7 of Schedule 5."
"10. Determinations and findings to be made
(1) After hearing the evidence at an inquest into a death, the senior coroner (if there is no jury) or the jury (if there is one) must
(a) make a determination as to the questions mentioned in section 5(1)(a) and (b)
(read with section 5(2) where applicable), and
(b) if particulars are required by the 1953 Act to be registered concerning the death, make a finding as to those particulars.
(2) A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of
(a) criminal liability on the part of a named person, or
(b) civil liability."
THE FACTUAL BACKGROUND
The Poisoning of the Skripals
The death of Dawn Sturgess
The involvement of the Senior Coroner
The Senior Coroner's ruling
"The function of an inquest is to seek out and record as many of the facts concerning the details of the death as [the] public interest requires".
"Scope of the Inquest
71. I have set out at paras 16 34 above the coroner's functions when the duty under section 1 of the Coroners and Justice Act 2009 is triggered. An inquest is not an adversarial process and as stated in my preliminary view to the Interested Persons in September 2019, it is not a public inquiry or a substitute for a criminal trial (or civil trial).
72. The purpose of the inquest in this case, as I have already ruled, is to determine the answers to the matters to be ascertained at section 5(1) Coroners and Justice Act 2009 and at the end of the inquest to record these determinations on the "Record of Inquest". Any issue that falls within scope, in my view, must be an issue involving the examination of evidence that is relevant to ascertaining the answers to the four statutory questions which will ultimately be recorded on the Record of Inquest, if the evidence supports the making of those determinations.
73. It is accepted that, as a coroner conducting an inquisitorial process, I have a broad discretion in relation to the scope of the inquest including what witnesses to call and the evidence to be adduced at the final hearing. It is a process in respect of which I am entirely responsible for.
74. In exercising both judgment and judicial discretion, any decision on scope will incorporate my view as to what is necessary, desirable and proportionate to ensure that the statutory function given to me under the Coroners and Justice Act 2009 is discharged.
75. In the exercise of that discretion sometimes scope does extend beyond determining the matters to be ascertained having regard to section 5(1) Coroners and Justice Act 2009. That can arise in particular when as part of the investigation a concern may arise that may form the subject or a Regulation 28 report to prevent future deaths having regard to the Coroners (Investigations) Regulations 2013. I have not as part of my investigation revealed any hint of an issue that may give rise to the possibility of such a report in this case.
76. In this case I have considered the issue of scope by reference to discharging the procedural duty under Article 2 with a view to ensuring that the inquest will be Article 2 compliant and as regards in particular answering the four main statutory questions that I am required to undertake as part of conducting a Jamieson inquest who died, when and where and how (by what means) that person came by their death? I have also considered the existence in law of any limitations on what I am able to record on the Record of Inquest when it comes to the matters to be ascertained. I will now cover all the issues that have been raised in the submissions.
The movements of the 2 Russian nationals who entered the United Kingdom on 2 March 2018 and left returning to Moscow the following Sunday and whether they may by act or omission have caused or contributed to Ms Sturgess' death (including how the Novichok came to be in Salisbury)
77. I have already indicated in my preliminary view that this issue should form part of the scope of the inquest and this is acknowledged and accepted by Mr Mansfield QC at para 36 of his submission and by Ms McGahey QC in her submission at para 43. As a result of reviewing the evidence, I have made both Mr Petrov and Mr Boshirov Interested Persons on the basis that they may by an act or omission have caused or contributed to Ms Sturgess' death. The investigation will include examining their movements in the United Kingdom following their arrival on 2 March 2018 until their departure on 4 March 2018. This will include what is known as regards their movements relative to the March 2018 incident here in Salisbury and in particular the attack on Mr Skripal and his daughter Yulia. It will also examine in detail their movements after they were spotted by a CCTV camera on the Wilton Road in Salisbury, a location which is in close proximity to Mr Skripal's home, and when they were subsequently picked up by other cameras closer to and in the centre of Salisbury. It will look at to what extent they were individually involved in bringing Novichok to Salisbury and what happened to the Novichok once it had been used in the attack relative to the appearance of Novichok again at the end of June 2018 in the town of Amesbury a few miles to the north of Salisbury. This part of the investigation is essential as, in discharging my judicial role and hearing the evidence, I may have to consider whether the evidence supports the finding of a conclusion of "Unlawful Killing" in respect of Ms Sturgess' death. This in my view would fill in any investigative gap as regards the investigation into Ms Sturgess' death as unlike the position in relation to the death of Mr Litvinenko and the March 2018 incident, the CPS have not made a decision as regards criminal charges in relation to Ms Sturgess' death. As stated already at para 68 above this in my view will plug any deficiency or gap in relation to fully discharging the procedural duty under Article 2 by conducting an Article 2 compliant Jamieson inquest.
Who was responsible for Ms Sturgess death?
78. For reasons that I will elaborate on with regard to the next issue in relation to scope, provided it is limited to the acts and omissions of the two suspects, Mr Petrov and Mr Boshirov and of course Mr Rowley, who gave her the bottle of what he believed was perfume, then this will be covered in the inquest investigation. I have already given my reasons as to why I do not believe the United Kingdom as a state or through the actions of its agents has triggered the enhanced procedural obligation under Article 2 (the Osman duty) although I will keep that under review.
Whether members of the Russian state were responsible for the death?
79. This issue for me causes a problem on 3 fronts. Firstly, I am prohibited from determining matters of criminal liability on the part of a named person as this would directly contravene section 10(2)(a) Coroners and Justice Act 2009 (para 18 above). If as part of an investigation and upon considering the evidence I identify individuals involved, then they could not be named in the Record of Inquest as the death of Ms Sturgess has undoubtedly involved the commission of a criminal act e.g. the usage of an organo-phosphate nerve agent which is prohibited under International Law and Domestic Law. To contravene and ignore section 10(2) referred to above would be unlawful.
80. Secondly, this issue not only refers to potentially identifying individuals but also linking them to a foreign state. The determination of such a link would in my view be a direct violation of section 10(2)(b) Coroners and Justice Act 2009 which prohibits me determining matters of civil liability generally and would therefore be unlawful. Whilst states do not generally attract criminal liability (unless legislation says otherwise) they are recognised in law as a separate legal personality in the sense that a state can sue and be sued. Mr Rowley has indicated only recently in the press that he intends to sue Russia for £1 million pounds. That would be a civil claim. The family may also possibly be able to sue for example under the Fatal Accidents Act 1976, an alternative civil claim.
81. Leading on from the above, if such a connection were to be found having analysed the evidence, then that potentially could amount to a violation of the European Convention on Human Rights in respect of the "Right to Life". The Russian Federation ratified the European Convention on Human Rights in 1998. It is for the purposes of the said Convention a Contracting State. Generally, the obligation to protect life under the Convention is the responsibility, as I have already stated, of the state within whose territory the individual(s) exist. The Convention is living instrument and over the years case law, as already highlighted, has developed exceptions to the jurisdictional territorial principle contained in Article 1 of the Convention. The Guzelyurltu case I have already highlighted as a prime example insofar as placing an obligation under Article 2 to investigate the deaths of individuals that occurred, in that case, within the territory of another Contracting State. Another example recognised by the European Court of Human Rights is where there is a use of force by a state's agents operating outside its own territory (see para 13 of Ms McGahey QC's submission referencing the case of Al Skeini and others v United Kingdom (2011)). This is something that has been suggested by Mr Mansfield QC in his submission and the United Kingdom Government insofar as the Russian Federation is concerned in relation to the March 2018 incident here in Salisbury. The Chamber of the European Court of Human Rights in the case of Issa and others v Turkey no. 31821/96 (2004) at para 71 found that Article 1 of the Convention (see para 50 above) cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the territory of another state, which it could not perpetrate on its own territory. Such a civil claim would be founded on the European Court of Human Rights power under Article 41 of the Convention to award "just satisfaction" to those who have suffered violations of their Human Rights. It is an award relative to a claim for compensation or damages to an injured party. Such a claim is also a civil claim so the identification and determination of any wrongdoing here involving a foreign state would again be unlawful and contravene section 10(2)(b) Coroners and Justice Act 2009.
82. The final concern relates to my exercise of judicial discretion relative to determining how, meaning by what means, Ms Sturgess came by her death. There is no evidence that points to Ms Sturgess being the intended target of the March 2018 attack. Evidence points to that individual being Mr Skripal. The incident involving Ms Sturgess occurred nearly four months after the attack on the 4 March 2018. Ms Sturgess, on the face of the evidence I have seen, appears to have been in the wrong place at the wrong time and her death may well have arisen as a result of "collateral damage", a phrase that I apologise in using but I am unable to express it any other meaningful way. Ms McGahey QC described Ms Sturgess as a victim of unpredictable misfortune. In my view issues to do with the possible involvement of a foreign state and members of that state relative to conducting a Jamieson inquest are too remote in circumstances where my focus should be on matters that are directly causative or contributory to the death and as a consequence of the above three concerns, I rule that they fall outside the scope of this inquest.
The source of the Novichok that killed Ms Sturgess?
83. Again, for the same reasons I have given in the previous paragraphs numbered 79 82, I rule that it falls outside the scope of this inquest for being too remote in respect of a Jamieson inquest and to determine the source of the Novichok would I fear involve determining a country of origin which is likely to give rise to a determination of civil liability which in itself would be unlawful.
84. In relation to this issue and the previous issue above, as I alluded to in my preliminary view dated 19 September 2019 which was sent to all the Interested Persons, the case of Coroner for Birmingham Inquests (1974) v Hambleton [2018] EWCA Civ 2081 provided helpful confirmation of the existing case law. When it came to the perpetrator issue and the identification of those involved in relation to the pub bombings, the Lord Chief Justice, Lord Burnett said as follows at para 56 in relation to the perpetrator issue:
"It is difficult to criticise the coroner, still less to stigmatise as unlawful a decision to refuse to explore a distinct question which the jury is prohibited by statute from answering."
The reference above of course is to the prohibition on appearing to determine matters, in an inquest, of criminal liability on the part of a named person or civil liability generally. He had earlier indicated at para 51 of his judgment in relation to the coroner's approach to the issue of scope as follows:
"The Coroner was correct to consider the question of scope in the context of providing evidence to enable the jury to answer the four statutory questions. The scope of an inquest is not determined by looking at the broad circumstances of what occurred and requiring all matters touching those circumstances to be explored."
This has very much been my approach when initially considering the issue of scope back in September 2019 and now, focussing on what evidence I need to examine so as to enable me, in accordance with the Coroners and Justice Act 2009 to ascertain the answers, subject to the evidence, to the four statutory questions namely, who, when, where and how (by what means) the deceased died."
THE PROCEEDINGS
Ground 1a. The Defendant's reasoning was inconsistent and irrational. The primary reason for not investigating other Russian officials (including others involved in the United Kingdom or those in command) was that there was a prohibition on determining civil or criminal liability. That prohibition applied equally to Mr Petrov and Mr Boshirov but did not prevent the investigation of the responsibility of those two men. Similarly, reliance on the fact that Ms Sturgess was not the intended victim of the attack was inconsistent as this was not being held to prevent an investigation into the responsibility of Mr Petrov and Mr Boshirov;
Ground 1b. The Defendant erred in failing to take into account material considerations relating to what informative inquest conclusions could in fact be reached. The Defendant failed to recognise that the prohibition on the determination of civil or criminal liability would not prevent informative conclusions as to the responsibility of Russian officials or agents nor that the investigation of these issues would in any event serve important functions;
Ground 1c. The Defendant failed to take into account relevant considerations namely the grave public interest at stake and the coronial function of exposing wrongdoing and allaying suspicion.
Ground 1d. The Defendant misdirected himself in holding that a determination of state wrongdoing would contravene the prohibition on a determination of civil liability.
Ground 2. The Defendant erred in concluding that Article 2 of the Convention did not require him to investigate the issue of Russian state responsibility and the source of the Novichok.
GROUND 2 ARTICLE 2 OF THE CONVENTION
Submissions
Discussion
"Article 2 Right to Life
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which no more than absolutely necessary:
(a) in defence of any person from lawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection."
"The obligation to protect the right to life under this provision, read in conjunction with the state's general duty under art. 1 of the Convention "to secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention" requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the state. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility."
"3. The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated."
"The procedural obligation to investigate deaths for which the state might bear responsibility was developed by the Strasbourg Court as an adjunct to the substantive obligations on the state not to take life without justification and, in limited circumstances, to protect life as well as to establish a framework of laws, procedures and means of enforcement that will protect life. The court set out its content in Jordan v United Kingdom (2001) 37 EHRR 2 between paragraphs 105 and 109. Critically, this procedural obligation requires the state to initiate an investigation into a death for which it may bear responsibility".
"188. In the light of the above-mentioned case-law it appears that if the investigative or judicial authorities of a Contracting State institute their own criminal investigation or proceedings concerning a death which has occurred outside the jurisdiction of that State, by virtue of their domestic law (e.g. under provisions on universal jurisdiction or on the basis of the active or passive personality principle), the institution of that investigation or those proceedings is sufficient to establish a jurisdictional link for the purposes of art.1 between that state and the victim's relatives who later bring proceedings before the Court.
189. The Court would emphasise that this approach is also in line with the nature of the procedural obligation to carry out an effective investigation under art.2, which has evolved into a separate and autonomous obligation, albeit triggered by acts in relation to the substantive aspects of that provision. In this sense it can be considered to be a detachable obligation arising out of art.2 and capable of binding the state even when the death occurred outside its jurisdiction.
190. Where no investigation or proceedings have been instituted in a Contracting State, according to its domestic law, in respect of a death which has occurred outside its jurisdiction, the Court will have to determine whether a jurisdictional link can, in any event, be established for the procedural obligation imposed by art.2 to come into effect in respect of that state. Although the procedural obligation under art.2 will in principle only be triggered for the Contracting State under whose jurisdiction the deceased was to be found at the time of death, "special features" in a given case will justify departure from this approach, according to the principles developed in Rantsev. However, the Court does not consider that it has to define in abstracto which "special features" trigger the existence of a jurisdictional link in relation to the procedural obligation to investigate under art.2, since these features will necessarily depend on the particular circumstances of each case and may vary considerably from one case to the other."
"231. By contrast, in the present case the two states concerned claimed concurrent jurisdiction to investigate a death and a free-standing obligation to carry out an art.2 -compliant investigation arose in respect of both of them.
232. The Court has previously held that in interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms. This collective character may, in some specific circumstances, imply a duty for Contracting States to act jointly and to co-operate in order to protect the rights and freedoms they have undertaken to secure within their jurisdiction. In cases where an effective investigation into an unlawful killing which occurred within the jurisdiction of one Contracting State requires the involvement of more than one Contracting State, the Court finds that the Convention's special character as a collective enforcement treaty entails in principle an obligation on the part of the states concerned to co-operate effectively with each other in order to elucidate the circumstances of the killing and to bring the perpetrators to justice.
233. The Court accordingly takes the view that art.2 may require from both states a two-way obligation to co-operate with each other, implying at the same time an obligation to seek assistance and an obligation to afford assistance. The nature and scope of these obligations will inevitably depend on the circumstances of each particular case, for instance whether the main items of evidence are located on the territory of the Contracting State concerned or whether the suspects have fled there.
234. Such a duty is in keeping with the effective protection of the right to life as guaranteed by art.2. Indeed, to find otherwise would sit ill with the state's obligation under art.2 to protect the right to life, read in conjunction with the state's general duty under art.1 to "secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention", since it would hamper investigations into unlawful killings and necessarily lead to impunity for those responsible. Such a result could frustrate the purpose of the protection under art.2 and render illusory the guarantees in respect of an individual's right to life. The object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective."
GROUND 1 DOMESTIC LAW
Submissions
Discussion
"(1) An inquest is a fact-finding inquiry conducted by a coroner, with or without a jury, to establish reliable answers to four important but limited factual questions. The first of these relates to the identity of the deceased, the second to the place of his death, the third to the time of death. In most cases these questions are not hard to answer but in a minority of cases the answer may be problematical. The fourth question, and that to which evidence and inquiry are most often and most closely directed, relates to how the deceased came by his death. Rule 36 requires that the proceedings and evidence shall be directed solely to ascertaining these matters and forbids any expression of opinion on any other matter.
(2) Both in section 11(5)(b)(ii) of the Act of 1988 and in rule 36(1)(b) of the Rules of 1984, "how" is to be understood as meaning "by what means." It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but "how the deceased came by his death," a more limited question directed to the means by which the deceased came by his death.
(3) It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame. This principle is expressed in rule 42 of the Rules of 1984. The rule does, however, treat criminal and civil liability differently: whereas a verdict must not be framed so as to appear to determine any question of criminal liability on the part of a named person, thereby legitimating a verdict of unlawful killing provided no one is named, the prohibition on returning a verdict so as to appear to determine any question of civil liability is unqualified, applying whether anyone is named or not.
(4) This prohibition in the Rules is fortified by considerations of fairness. Our law accords a defendant accused of crime or a party alleged to have committed a civil wrong certain safeguards rightly regarded as essential to the fairness of the proceedings, among them a clear statement in writing of the alleged wrongdoing, a right to call any relevant and admissible evidence and a right to address factual submissions to the tribunal of fact. These rights are not granted, and the last is expressly denied by the Rules, to a party whose conduct may be impugned by evidence given at an inquest.
(5) It may be accepted that in case of conflict the statutory duty to ascertain how the deceased came by his death must prevail over the prohibition in rule 42. But the scope for conflict is small. Rule 42 applies, and applies only, to the verdict. Plainly the coroner and the jury may explore facts bearing on criminal and civil liability. But the verdict may not appear to determine any question of criminal liability on the part of a named person nor any question of civil liability.
(6) There can be no objection to a verdict which incorporates a brief, neutral, factual statement: "the deceased was drowned when his sailing dinghy capsized in heavy seas," "the deceased was killed when his car was run down by an express train on a level crossing," "the deceased died from crush injuries sustained when gates were opened at Hillsborough Stadium." But such verdict must be factual, expressing no judgment or opinion, and it is not the jury's function to prepare detailed factual statements.
(14) It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. He must rule on the procedure to be followed. His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled."
"The scope of an inquest is not determined by looking at the broad circumstances of what occurred and requiring all matters touching those circumstances to be explored."
" the inquiry is almost bound to stretch wider than strictly required for the purposes of a verdict. How much wider is pre-eminently a matter for the coroner whose rulings upon the question will only be exceptionally be susceptible to judicial review."
"48. A decision on scope represents a coroner's view about what is necessary, desirable and proportionate by way of investigation to enable the statutory functions to be discharged. These are not hard-edged questions. The decision on scope, just as a decision on which witnesses to call, and the breadth of evidence adduced, is for the coroner. A court exercising supervisory jurisdiction can interfere with such a decision only if it is infected with a public law failing. It has long been the case that a court exercising supervisory jurisdiction will be slow to disturb a decision of this sort (see Simon Brown LJ in Dallaglio at [155] cited in [21] above) and will do so only on what is described in omnibus terms as Wednesbury grounds. That envisages the supervisory jurisdiction of the High Court being exercised when the decision of the coroner can be demonstrated to disable him from performing his statutory function, when the decision is one which no reasonable coroner could have come to on the basis of the information available, involves a material error of law or on a number of other well-established public law failings.
49. The dichotomy between judgement and discretion identified by the High Court, does not, with respect, assist in determining whether the coroner erred in law in deciding not to investigate the perpetrator issue. It is a false dichotomy in these circumstances which does not find support in authority. The court is not liberated from the ordinary constraints of judicial review on the basis that it considers that the coroner was "wrong".
50. The authorities speak in terms of a discretion to set the bounds of an inquest. The Chief Coroner's Law Sheet No. 5 sets out references to cases where that principle has been stated. It is sufficient to note the observations of Lord Mance at [208] in R v Secretary of State for Defence, ex parte Smith [2011] 1 AC 1 that "[e]veryone agrees that coroners have a considerable discretion as to the scope of their inquiry"; and of Hallett LJ in R (Sreedharan) v HM Coroner for the County of Greater Manchester [2013] EWCA Civ 181, at [48] that "the Coroner has a broad discretion as to the nature and extent of the inquiry". The principle was recently restated in R (Maguire) v Assistant Coroner for West Yorkshire (Eastern Area) [2018] EWCA Civ 6, at [3] where the context was whether to call certain witnesses .."
The Litvinenko case
The Coroner's reasons for his ruling on scope
The prohibition on determining criminal liability of a named person
"87. To permit the identity of perpetrators to be within scope, would be seen to be taking on the role, as one counsel put it, of a proxy criminal trial. If this were to result in a determination identifying those responsible for the attacks that would in my judgment be unlawful. It would contravene both the prohibition in section 10(2)(a) and in the case of the Birmingham 6 the additional prohibition in paragraph 8(5). It would also offend against the decision and explanation of Sir Thomas Bingham in Jamieson above. .
89. There are also practical difficulties which make the submissions on behalf of the families untenable. One cannot ignore the sheer size and complexity were the inquests to commence an investigation into the guilt of any named individuals. Years of police investigations, inquiries and reviews have yielded no clear result. It would be invidious for the inquests to attempt to do so now, 43 years on, with a fresh search. The approach would inevitably be piecemeal and incomplete, mostly reliant upon persons named in books and the press, mostly by journalists. It would be a task entirely unsuited to the inquest process and its limited resources; the Coroner's team does not have the resource of an independent police force. It would be disproportionate to the real goal in hand, which is important enough, namely to answer the four statutory questions."
The prohibition on determining civil liability
"(f) You should not say anything to the effect that a crime or a breach of civil law duty of any kind has been committed. Note that this rule does not affect your answer to question 6 [whether those who died in the disaster were unlawfully killed]. Because of this rule, when writing any explanations, you should avoid using words and phrases such as "crime / criminal", "illegal / unlawful", "negligence / negligent", "breach of duty", "duty of care", "careless", "reckless", "liability", "guilt / guilty".
(g) However, you may use ordinary and non-technical words which express factual judgments. So, you may say that errors or mistakes were made and you may use words such as "failure", "inappropriate", "inadequate", "unsuitable", "unsatisfactory", "insufficient", "omit / omission", "unacceptable" or "lacking". Equally, you may indicate in your answer if you consider that particular errors or mistakes were not made. You may add adjectives, such as "serious" or "important", to indicate the strength of your findings."
Remoteness
Conclusion
