The Litvinenko Inquiry

42. On 27 November 2013, the Divisional Court allowed the Foreign Secretary’s judicial
review application and quashed my decision to order gists. The court made no formal
public decision regarding the lines of enquiry which I had concluded could be publicly
identified.
The steps to an inquiry
Appendix 1 | The history of the Inquiry and procedures adopted
43. In my PII ruling on 17 May 2013, I made some provisional observations about the
procedural consequences of the ruling. I identified that there was a choice between
considering issues such as preventability and Russian State responsibility on the
basis only of the available open evidence and disregarding the relevant material
which was known to exist but which had been the subject of a successful PII claim,
and withdrawing those issues from scope. Either way, that could lead to me failing to
discharge my duty to undertake a full, fair and fearless inquiry into the circumstances
of Mr Litvinenko’s death. However, I considered that it would arguably be better to
withdraw these issues from the scope of the inquest than to consider them on an
incomplete, inadequate and potentially misleading basis, which might be unfair to
interested persons or others who might be implicated including the Russian State.
I therefore invited submissions on whether I should ask the government to consider
exercising the power to order an inquiry under the Inquiries Act 2005, which would be
able to hear evidence that could not be publicly disclosed.
44. On 4 June 2013, following the receipt of submissions on this topic, I wrote to the
then Lord Chancellor and Secretary of State for Justice (Rt Hon Christopher Grayling
MP). I set out my firm view that an inquiry established under the Inquiries Act 2005
was necessary if Mr Litvinenko’s death were to be properly investigated. I asked for
consideration to be given urgently to the exercise of the power to establish such an
inquiry.
45. On 17 July 2013, the Secretary of State for the Home Department (Rt Hon Theresa
May MP) replied to my letter conveying the government’s response to my request.
The Secretary of State said that the factors militating against establishing an inquiry
at present substantially outweighed those in favour. Accordingly, the government had
decided not to establish an inquiry at that time.
46. On 9 September 2013, Marina Litvinenko commenced an application for judicial
review of the Home Secretary’s decision.
47. Before that application could be heard, the Divisional Court had heard and decided
the Foreign Secretary’s application for judicial review of my PII ruling. Following the
Divisional Court’s PII decision, I asked for further submissions on the consequences
of that decision for the scope of the inquest.
48. On 18 December 2013, I gave a ruling on whether the issues of preventability and
Russian State responsibility should remain within the scope of the inquest. I decided
that both issues should be withdrawn.
49. On 21 and 22 January 2014, a Divisional Court of the Queen’s Bench Division of the
High Court (constituted by Lord Justice Richards, Lord Justice Treacy and Mr Justice
Mitting) heard Marina Litvinenko’s application for judicial review. This took account of
my decision on 18 December 2013 to withdraw those two issues from the scope of
the inquest.
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