Miscellaneous procedural matters

Miscellaneous procedural matters

¶120. On 30 March 2015, I heard submissions on a number of legal matters which were relevant to the approach which I should take in reaching my conclusions.

¶121. I considered the question of whether and what standard of proof I should apply. There was a consensus that I should adopt the approach taken by Sir William Gage in the Baha Mousa Public Inquiry, which had been set out in a ruling of 7 May 2010. That had itself adopted; "the flexible and variable standard of proof as applied [by Dame Janet Smith] in the Shipman Inquiry". At paragraph 28 of his ruling, Sir William concluded:

"For the reasons which I have endeavoured to explain I have concluded that it is right for me to approach my task by initially adopting the civil standard of proof in relation to findings of facts, but indicating where appropriate where I am sure of a finding. As I have said, I shall record the level of satisfaction which I find established in relation to any finding of fact. Thus, I shall state where necessary that I find a fact proved on the balance of probabilities or to a higher standard where appropriate. I do not think it will be necessary expressly to refer to expressions such as 'inherent improbabilities' or the 'bare' balance of probabilities."

¶122. I agreed and adopted that approach.

¶123. On the same date, I also heard submissions on the question of whether I should or should not draw adverse inferences from the silence of any individual concerned in the events which the Inquiry was investigating, or their refusal to participate, and in particular the silence or refusal of Mr Lugovoy, Mr Kovtun or authorities of the Russian State. There was a consensus that there was no need or basis for adopting the approach taken in the criminal courts to such silence. I took the view that a failure to participate or to give evidence has the obvious consequence that I would make findings of fact without the benefit or otherwise of such a contribution.

¶124. Further, counsel to the Inquiry made submissions to me about the approach that should be taken to credibility generally if, on analysis of the evidence (including any relevant closed evidence), it were to become apparent that some witnesses had not given an accurate account of events in oral evidence. Counsel to the Inquiry submitted that I should be guided by the principles which underlie the direction commonly given to juries in criminal cases who have to consider what they make of the evidence given by a witness whom they consider has lied. Such a direction is commonly known as a Lucas direction, after R v Lucas [1981] QB 720. I did not consider it necessary to rule on that submission.

¶125. On the same date I also considered the interplay between sections 2(1) and (2) of the Inquiries Act 2005. These provide that an inquiry panel is not to rule on and has no power to determine any person's civil or criminal liability; but an inquiry panel is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from facts that it determines or recommendations that it makes. I considered that it was difficult to deal in the abstract with the interplay between those two sections and made no formal ruling on the issue.

¶126. Finally, I clarified the approach I would take to the interface between the open and closed evidence and findings. I said that I would perform a global analysis of the evidence adduced both in the open and the closed hearings. It followed that any facts as found and recorded in the open section of the report will have been informed both by the evidence that I heard in the open hearings and by the relevant closed hearings. I stated that I would provide a single report to the Home Secretary, but the consequence of the restriction notices and orders that had been made meant that parts would not be published if to do so would be to damage national security or international relations.

¶127. On 24 July 2015, I considered submissions on an issue which had arisen under the Crime (International Co-operation) Act 2003. Evidence had been obtained from Russia pursuant to a request made under that Act for the purposes of the criminal investigation and any criminal proceedings. This evidence included the records of the interviews conducted in Russia with Mr Lugovoy and Mr Kovtun.

¶128. In addition, the Russian authorities had given permission for that evidence to be used in the inquest proceedings. After the ICRF was granted interested person status in the inquest, it was formally represented at hearings in the inquest proceedings; at open Inquiry hearings, its English solicitors were routinely present. The Russian authorities were aware of the fact that the Inquiry was established to take over from the inquest in the investigation of Mr Litvinenko's death, and of the inclusion in the Inquiry's Terms of Reference that it should take into account the investigations that had already taken place within the inquest proceedings. In addition, in September 2014 I had directed that the inquest evidence would be adduced in the Inquiry in accordance with the Inquiry's Terms of Reference.

¶129. Notwithstanding their awareness of the status of the inquest and Inquiry proceedings, the Russian authorities did not expressly extend permission for that evidence to be used in the Inquiry. The part of the Home Office that deals with matters under this Act wrote to its Russian counterparts both before and after the commencement of the Inquiry's substantive hearings, but no response was forthcoming then, or at any time before the originally scheduled end of the Inquiry's substantive open hearings.

¶130. On 17 July 2015, the Inquiry was notified by the Home Office of a response which it had received on 15 July 2015 from the Russian authorities, declining permission for the evidence to be used in the Inquiry proceedings.

¶131. On 24 July 2015, I heard submissions on the consequences of this response. I concluded that section 9 of the Crime (International Co-operation) Act 2003 precluded the use of such material for any other purpose than that specified in the request, namely the original criminal investigation and any subsequent prosecution, without the consent of the Russian authorities. Accordingly, those records of interview could not be used by the Inquiry.

¶132. I invited further submissions on whether, on the proper construction of the relevant statutory provisions, I could admit evidence as to the content of the interviews from the MPS officers who were present at the interviews, other evidence obtained by the MPS during their trip to Moscow, evidence as to the level of cooperation of the Russian authorities in arranging the interviews, and evidence as to attempts made by a Russian official to pressure an interpreter to give an inaccurate translation of what was said in the course of the interviews.

¶133. On 25 September 2015, following consideration of further submissions, I gave a written ruling further concluding that it would not be permissible for me either to admit in evidence notes about the content of the interviews, or to hear evidence from the officers as to their content. But the statutory provisions did not preclude the admission of evidence as to the circumstances in which the interviews were carried out, provided that such evidence did not reveal the content of the interviews, either directly or by implication; nor did they preclude evidence as to the level of cooperation of the Russian authorities and as to their attempts to produce transcripts that did not reflect the true content of the interviews, or any notes made by the MPS officers as to such matters.