Divisional Court addresses the issue of the ruling of the Senior Coroner for Wiltshire and Swindon on the scope of the Article 2 inquest conducted into the death of Dawn Sturgess.
Simon Jackson QC is a member of the 9 St John Street Inquest Team. To view our Inquest Team page, please click here.
The Queen (on the application of GS, a child by her grandfather and litigation friend Stephen Stanley Sturgess)-and-H.M. Senior Coroner for Wiltshire & Swindon and (1) Secretary of State for the Home Department (2) Alexander Petrov (3) Ruslan Boshirov
 EWHC 2007 (Admin)
Lord Justice Bean & Mr Justice Lewis
1. On 30 June 2018 Ms. Dawn Sturgess unknowingly sprayed herself with Novichok, (a military grade nerve agent), which was contained in a small bottle, which she had been unwittingly given by her partner; and which she believed to contain perfume. She immediately collapsed and was taken to Salisbury District Hospital, but she never regained consciousness, and she died on 8 July 2018.
2. It is important to note that four months previously, on 4 March 2018, Sergei Skripal, and his daughter Yulia Skripal, were also poisoned by Novichok, also in Salisbury, Wiltshire. There was evidence which indicated that the Novichok used in this poisoning may have originated in Russia.
3. Two Russian nationals, Alexander Petrov and Ruslan Boshirov, travelled from Russia to the United Kingdom at the beginning of March 2018. They visited Salisbury on the day of the poisoning. The UK Government considers the two men be intelligence officers from the Russian military intelligence service (GRU), who were seeking to kill Mr Skripal, who is a former GRU officer. It is important to note that police inquiries have led to charges, including charges of attempted murder, being brought against Mr Petrov and Mr Boshirov. [See later the Litvinenko case]
4. The Senior Coroner for Wiltshire and Swindon opened an inquest into Dawn Sturgess’ death. He has made provisional rulings on the scope of the inquest, although he stated that he would keep matters under review.
5. In the event the Senior Coroner went on to rule that the inquest would consider the acts and omissions of the two Russian nationals, and whether either of them may have caused or contributed to Ms Sturgess’ death. He ruled that he would also investigate who was responsible for Ms Sturgess’ death, provided that this issue was limited to the acts and omissions of Mr Petrov and Mr Boshirov, and that the inquest would not investigate whether other members of the Russian state were responsible for Ms Sturgess’ death; and he would not, for example, investigate the source of the Novichok that appeared to have killed her.
6. It is these rulings that was challenged in the High Court by Ms. Stugess' family.
THE LEGISLATIVE FRAMEWORK TO THE APPEAL:
7. As a background to his rulings, the Senior Coroner set out the law, confirming that the conduct of inquests is regulated by the Coroners and Justice Act 2009 ("the 2009 Act"). Section 1 of the 2009 Act sets out the obligation of the coroner to investigate certain deaths and is in the following terms:
“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.”
8. Sections 5(1) and (2) set out the matters to be ascertained in an investigation. Section 5(3) prohibits the coroner from expressing opinions on certain matters. The section is in the following terms:
“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.”
That under s 5(1)(b) of the 2009 Act, an inquest must ascertain how a person died, in the sense of by what means that person died. (See R v Humberside Coroner ex parte Jamieson  QB 1 at page 24A-B.) Where provisions of the ECHR (“the Convention”), apply, and in particular Article 2, that may require a broader inquiry as provided for by s. 5(2) of the 2009 Act. The inquest then will need not only to ascertain by what means the person died, but also to ascertain in what circumstances the person died.
10. In his final Ruling, the Senior Coroner set out the issues which he determined that he would investigate as part of the inquest, and of particular importance in the context of the appeal, those issues that he would not investigate. [See §§ 71-84 of his ruling: “Scope of the Inquest”]
11. Included in his analysis of the case law, and its implications for conduct of his inquiry, the Senior Coroner, dealt with a number of potentially relevant issues, including the source of the Novichok that killed Ms Sturgess? He ruled that this issue fell outside the scope of the inquest, reasoning this on the basis that it was too remote in respect of a Jamieson inquest; and that to determine the source of the Novichok would, he feared, involve determining a country of origin, which is likely to give rise to a determination of civil liability, which in itself, would be unlawful.
12. In relation to this issue, the Senior Coroner relied decision in the case of Coroner for Birmingham Inquests (1974) v Hambleton  EWCA Civ 208, in relation to the ‘perpetrator issue’ and the identification of those involved in relation to the pub bombings, in which 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."
13. The Court, as part of its judgment addressed the issue of the need to address the impact of the provisions of the Article 2, on the conduct of an inquest. Article 2 of the Convention provides:
14. “Article 2 Right to Life
- 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.
- 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."
15. The Court identified that the issue in the case of Ms. Sturgess, was whether a state where a death has occurred [UK] is required by Article 2 of the Convention to carry out an investigation into the actions of agents of a foreign state, who may be responsible for the death.
16. The Court held that the procedural obligation imposed on a state [UK] by Article 2 of the Convention is intended to ensure that a state is held accountable for breaches for which it is or its own agents are responsible. It is not intended to impose an obligation on a state to investigate the actions of a foreign state which may have caused or contributed to a death. That Article 2 of the Convention does not, therefore, impose an obligation on the United Kingdom to carry out an investigation of the actions of agents of a foreign state, Russia, in the present circumstances. [See §32]
17. In the course of its judgment, the Court underlined that the purpose underlying the procedural obligations imposed by Article 2 of the Convention, is to ensure that a state is held accountable for breaches for which its own agents are responsible, citing R (Middleton) v West Somerset Coroner  2 A.C. 182, in which Lord Bingham expressed the position in the following way:
"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."
18. In other words, the Court underlined that Lord Bingham had already identified that the potential link between a breach by a state of its substantive obligations under Article 2 of the Convention, and the fact that agents of that state are or may be implicated in the breach, is what gives rise to a need for an effective public investigation.
19. A similar approach was adopted by the Court of Appeal in R (Maguire) v HM Senior Coroner for Blackpool Fylde and others  EWCA Civ 738. This case concerned an inquest into the death of a woman with learning disabilities and behavioural difficulties in a care home where she had been placed by the local authority. At paragraph 11 of the judgment, the Court of Appeal observed that: “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.
20. Lastly, in this context, the Court made reference to the very similar considerations which arose in another fatal poisoning case where the actions of another state came under review. The Queen (on the application of Marina Litvinenko) v Secretary of State for the Home Department and Others  EWHC 194 (Admin) In that case the Divisional Court did not suggest that Article 2 of the Convention required the United Kingdom authorities to conduct an effective investigation into the actions of the Russian agents who had killed Mr Litvinenko. [
21. The purpose of a coronial investigation, to which the enhanced duty under s 5(2) of the 2009 Act, does not apply, is to ascertain the answers to the four questions of who the deceased was, and how, when and where she came by her death. [§61 of the judgment]
22. In Ms. Sturgess’ case, there was no difficulty about the “who, when and where” questions – the key issue, however, was the meaning of “how”. The ‘touchstone’ authority on this point, is the judgment of the Court of Appeal delivered by Sir Thomas Bingham MR in R v HM Coroner for North Humberside and Scunthorpe ex p Jamieson  QB 1. The Court, wryly noted that in Jamieson it was submitted to the court, on behalf of the coroner, by Mr Ian Burnett, (as he then was,) that “the “how” question (in that case) must not become equated with a “why” question”. Sir Thomas Bingham noting that:
"…… (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……"
23. Coming up to date, again, the Court referenced the decision in R (Hambleton) v Coroner for the Birmingham Inquests (1974)  1 WLR 3417, Lord Burnett of Maldon CJ (as he had by then become) said at  :- “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.”
24. The foundation of the Claimant’s case was the Senior Coroner had applied an over restrictive approach to his duty to investigate the death of Ms. Sturgess. In the course of its judgment, the Court considered in detail the reasons which the Senior Coroner had given for limiting the scope of his inquest:
The prohibition on determining criminal liability of a named person
25. As to the nature of the s 10(2)(a) prohibition, the Court’s attention was drawn to the Senior Coroner’s use, in paragraph 79 of his ruling, of the phrase “I am prohibited from determining” rather than “I am prohibited from investigating”.
26. At §73 of it judgment the Court concluded that the Senior Coroner’s analysis was flawed in that it elided the distinction between ‘investigating’ and ‘determining’, and that that was a material error of law.
27. The Senior Coroner had (wrongly) relied upon, the observation of the Lord Chief Justice in Hambleton that “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 Court’s view was that crucial word in that sentence, in was “distinct”.
28. In Ms. Sturgess’ case, unlike in Hambleton, in relation the Birmingham bombings, there has been no lapse of time of anything like 40 years, and there was no prospect of criminal trial of the alleged perpetrators. The Court concluding, on this point, that the Senior Coroner’s investigation of the source of the Novichok, and whether Petrov and Boshirov were acting under the direction of others either in London or in Russia, would not be a process designed to lead to a determination of a question which s 10(2)(a) prohibited the inquest from determining.
The prohibition on determining civil liability
29. In summary, on this point, the Court concluded that if the inquest were to investigate who was responsible for the death of Ms Sturgess – whether it was Mr Petrov and Mr Boshirov, and/or their alleged co-conspirators, (etc.,) then the Senior Coroner would not be infringing the prohibition in s 10(2)(b), and that the provisions of this section were not a valid reason for limiting the scope of the investigation, in the manner which the Senior Coroner had ruled.
30. The Court concluded, therefore, that the Coroner’s second reason (see paragraphs 80-81 of his ruling), like the first (paragraph 79), involved a material error of law, and since the three reasons given were cumulative, the Court considered that the Claimant’s claim for judicial review must succeed, that his ruling must be quashed, and the case remitted to the Senior Coroner.
31. As an adjunct to their Ruling the Court went on to address, at the request of the Claimant, the final third issue of ‘Remoteness’, this in order that the Senior Coroner “knows where he stands”. [See §§s 85-89 of the judgment]
32. In conclusion, the Court allowed the Claimant’s claim on Ground 1 only, and it dismissed it on Ground 2.
Simon Jackson QC
9 St John Street Chambers