The steps to an inquiry

¶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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¶50. On 11 February 2014, the Divisional Court allowed Marina Litvinenko's application for judicial review and quashed the Home Secretary's decision. Accordingly, the Home Secretary was required to make a further decision on whether to establish an inquiry.

¶51. On 22 July 2014, the Home Secretary announced the government's decision to establish an inquiry under the Inquiries Act 2005 to investigate Mr Litvinenko's death.

¶52. On 31 July 2014, the Inquiry was formally set up. On that date, I held a short hearing at which the inquest was suspended, in accordance with the provisions of the Coroners and Justice Act 2009, and formally opened the Inquiry. The Terms of Reference can be found in Appendix 2.

¶53. On 5 September 2014, I published the List of Issues which the Inquiry would consider. This list can be found at Appendix 3.

The opening of the Inquiry and procedural hearings

¶54. At a short hearing on 31 July 2014, the formal setting up date of the Inquiry, I made a statement setting out the history of the events which had led up to the establishment of the Inquiry. I also set out procedural matters which would be dealt with in forthcoming directions hearings.

¶55. Open directions hearings were held on 5 September 2014, 16 October 2014, 14 November 2014, 17 December 2014 and 20 January 2015.

¶56. In addition, preparation for the closed substantive hearings required a number of closed directions hearings to be held.

Core participants

¶57. On 31 July 2014, I invited applications for core participant status under rule 5 of the Inquiry Rules 2006.

¶58. On 5 September 2014, I announced that applications had been received from Marina and Anatoly Litvinenko, the MPS, the Home Secretary (on her own behalf and as a representative of the government), The Atomic Weapons Establishment (AWE plc) and Mr Scaramella.

¶59. Mr Scaramella's application was refused, for which reasons were given in a written ruling dated 9 October 2014.

¶60. I granted the other applications.

¶61. The solicitors for the ICRF, which had been an interested person in the inquest, wrote to me to indicate that it would be making no application for core participant status in the Inquiry.

¶62. During March 2015, after the substantive hearings had already been under way for a substantial period of time, Mr Kovtun expressed a wish to take part in the Inquiry by giving oral evidence and by becoming a core participant. I summarise these events below.

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Funding applications

¶63. On 31 July 2014, I also invited applications for funding under the Inquiries Act 2005. Under section 40 of the Inquiries Act 2005, such funding may be made available to allow certain persons having a connection to the Inquiry to receive legal representation at public expense.

¶64. On 5 September 2014, I announced that applications for funding had been received from Marina Litvinenko and Anatoly Litvinenko, and from Mr Scaramella.

¶65. I granted the application by Marina Litvinenko and Anatoly Litvinenko in principle, with the precise terms of the award to be finalised following further submissions.

¶66. I refused Mr Scaramella's application as it did not meet the criteria set out in section 40(3) of the Inquiries Act 2005.

¶67. Later, during the course of the substantive hearings, a further application for funding was received from Mr Scaramella, who travelled from Italy to London on two occasions to give evidence to the Inquiry. I allowed this later application.

¶68. I also received and allowed applications from a number of other witnesses for expenses and legal costs.

Closed evidence – restriction notices

¶69. On 31 July 2014, I explained that the most important feature of the Inquiry, and the reason why I asked that it be established, was that it would permit me to consider closed evidence and hold closed hearings, from which the public, most of the core participants and the press would be excluded. It would not have been possible to hold such hearings at all during an inquest. I considered the reason why it was of great importance to be able to hold at least some closed hearings was that the government held some documents that were relevant to Mr Litvinenko's death, but which were of such sensitivity that they could not be used in open court. Had the proceedings remained as an inquest, those documents would have had to be excluded from my enquiries, in accordance with my PII rulings and the decision of the Divisional Court.

¶70. Because of the sensitivity of the government evidence, it was inevitable that at least some of my final report would also have to remain secret. But I have always made it clear that I intend to make public my final conclusion on the issue of Russian State responsibility, together with as much as possible of my reasoning in that regard.

¶71. I announced that, on 7 July 2014, the Home Secretary had made a restriction notice under section 19 of the Inquiries Act 2005, the effect of which was to require that specified sensitive material was considered only in closed session, and that the Home Secretary may make further restriction notices.

¶72. A second restriction notice was made by the Home Secretary on 4 November 2014. The first and second restriction notices were amended on 21 January 2015. Further restriction notices were made by the government on 9 March 2015 and 29 June 2015.

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