News Professional Discipline 6th Aug 2020

Novichok inquest to examine possible responsibility of Russian state for the death of Dawn Sturgess

The poisoning of the former Russian double agent, Sergei Skripal, and his daughter Yulia in Salisbury in March 2018 was a truly shocking event. It was another throwback to the Cold War with the nerve agent, Novichok, playing the deadly role assumed by radioactive polonium in the 2006 assassination of Alexander Litvinenko in London.

Mr Skripal and his daughter survived but the case was to have a tragic coda. Nearly four months later, Dawn Sturgess died after spraying herself from what she thought was a perfume bottle but which, it became apparent later, was probably the container for the Novichok used to poison the Skripals. It had been discarded and remained undiscovered until it was picked up by Ms Sturgess’s boyfriend, who also believed it contained perfume and gave it to her as a gift.

The Senior Coroner for Wiltshire and Swindon was appointed to undertake the investigation into the death, and the inquest. He decided that the scope of the inquest would include the movements of Alexander Petrov and Ruslan Boshirov, two Russian nationals alleged to be members of the Russian intelligence services who had been blamed for the poisonings. However there would be no investigation into whether any other agents of the Russian state were responsible for Dawn Sturgess’s death. Nor would the inquest look at the source of the Novichok. He also ruled that Article 2 was not engaged, and that this would be a Jamieson and not a Middleton inquest.

Ms Sturgess’s family mounted a judicial review of these rulings. In R (GS) v HM Senior Coroner for Wiltshire and Swindon [2020] EWHC 2007 (Admin) the Divisional Court held that the ruling on scope was legally flawed. The argument that Article 2 was engaged as the UK was obliged to investigate the actions of Russia (a contracting member of the European Convention on Human Rights) in relation to a death in the UK for which Moscow might bear some responsibility was dismissed.

In his detailed ruling on scope, the Coroner had given three reasons why he would not be investigating the Russian state, or any of its agents apart from Petrov and Boshirov. First, he ruled that it would contravene the prohibition in section 10(2)(a) of the Coroners and Justice Act 2009 against appearing to determine criminal liability of a named person. Second, if any individuals could be linked to a named state this would be a violation of the 10(2)(b) prohibition on appearing to determine civil liability (of the state). He pointed out that Ms Sturgess’s boyfriend had said he would sue the Russian government for a million dollars. Third as Dawn Sturgess was not the intended victim of the Novichok, and nearly four months elapsed between the poisonings, these issues were too remote from the question of how she came by her death.

The Court rejected all these reasons. It emphasised that the section 10(2) prohibitions were strictly confined to the conclusions of the inquest. There was no logic to the distinction the Coroner had made between Petrov and Borishov, and other potential state actors. With regard to criminal liability, often factual findings will in reality be applicable only to an identified person but that did not mean they would offend the law.

In assessing the Coroner’s concern over civil liability the court expressed itself puzzled by his reasoning. Under the Coroner’s ruling, the inquest could investigate whether Petrov and Borishov used Novichok to attack the Skripals (which would expose them to civil liability) but it could not consider anyone else.

The Court quoted with approval from the directions given to the Hillsborough Inquest jury – which in essence reminded them not to use legal words like “crime”, “unlawful” (except with respect to unlawful killing), “negligence”, “breach of duty” and so on, but encouraged them to use non-legal terms such as “failure”, “inadequate”, “omission” or “lacking”.

The judgement also rejected the Coroner’s argument about remoteness. The Court held that the lapse of time made no difference. Nor did the fact that Ms Sturgess was not the main target. There was an “acute and obvious public concern not merely at the prime facie evidence that an attempt was made on British soil by Russian agents to assassinate Mr Skripal and that it led to the death of Ms Sturgess, but also … that it involved the use of a prohibited nerve agent exposing the population of Salisbury and Amesbury to lethal risk”.

In the absence of a criminal trial, the inquest was one place to investigate these issues. It need not lead to anything as broad and lengthy as in the Litvinenko case, but the narrow scope the Coroner envisaged could not be justified.

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