Secretary of State for the Home Department v HM Senior Coroner for Surrey & Ors, Court of Appeal - Administrative Court, November 23, 2016, [2016] EWHC 3001 (Admin)

Resolution Date:November 23, 2016
Issuing Organization:Administrative Court
Actores:Secretary of State for the Home Department v HM Senior Coroner for Surrey & Ors
 
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Case No: CO/4771/2016

Neutral Citation Number: [2016] EWHC 3001 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 23/11/2016

Before:

THE HON. MR JUSTICE CRANSTON

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Between:

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Mr James Eadie QC and Ms Melanie Cumberland (instructed by Government Legal Department) for the Claimant

Mr Peter Skelton QC and Ms Leanne Woods (instructed by Surrey County Council Legal Services Department) for the Defendant

Mr John Beggs QC and Ms Cecily White (instructed by Seddons Solicitors) for the 1st Interested Party

Ms Henrietta Hill QC and Mr Adam Straw (instructed by Hermitage Capital Management) for the 2nd Interested Party

Mr Bob Moxon Browne QC and Mr Lucas Fear-Segal (instructed by Legal & General Assurance Society Ltd) for the 3rd Interested Party

Written representations by Ms Heather Williams QC and Mr Jesse Nicholls for INQUEST (instructed by Hickman & Rose), and by Ms Caoilfhionn Gallagher and Ms Angela Patrick (instructed by Zoe Norden) for Guardian News and Media

Hearing date: 14 November 2016

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Judgment

Mr Justice Cranston:

Introduction

  1. This is an application by the Secretary of State for the Home Department (``the Secretary of State'') which the parties describe as unprecedented. She applies for an order permitting the non-disclosure of documents (``the sensitive material'') in the context of inquest proceedings on the ground that disclosure would damage the public interest. The inquest proceedings are before Her Majesty's Senior Coroner for Surrey, Mr Richard Travers (``the Coroner''). He is investigating the death of Mr Alexander Perepilichnyy, who died suddenly on 10 November 2012 while jogging near his home in Weybridge, Surrey. One of the issues before the Coroner is whether Mr Perepilichnyy died of natural causes or was unlawfully killed. The inquest itself is due to commence on 13 March 2017, with a time estimate of three to four weeks.

  2. The Coroner opened his inquest into the death before the Surrey Coroner's Court in April 2014. The inquest proceedings are governed by the Coroners and Justice Act 2009 (``the 2009 Act''). The interested persons (``IPs'') before the Coroner are Mr Perepilichnyy's widow, Mrs Perepilichnaya, Hermitage Capital Management Ltd (``Hermitage''), Legal and General Assurance Society Ltd (``Legal and General''), and the Chief Constable of Surrey Police. Hermitage is an investment company based in London. According to information provided by Mr Perepilichnyy to Swiss prosecutors before his death, Hermitage was used by senior Russian officials to perpetrate a multi-million dollar tax fraud against the Russian Treasury and Hermitage. Legal and General's interest is that it issued a substantial life insurance policy to Mr Perepilichnyy shortly before his death. Both Hermitage and Legal and General have suggested that Mr Perepilichnyy might have been murdered, possibly by agents of the Russian State. The Secretary of State is not an IP in the inquest.

  3. During the course of his investigations, the Coroner required both the Secretary of State and the Secretary of State for the Foreign and Commonwealth Office to produce material which he considered might be relevant. Material was produced but some of it was sensitive. The Coroner does not have security clearance to view this material. Consequently, he decided that he was not in a position to decide the Secretary of State's application that it not be publicly disclosed and ordered the Secretary of State to make an application for public interest immunity (``PII'') to the High Court.

  4. Thus the Secretary of State made the application under Part 8 of the Civil Procedure Rules (``CPR'') on 20 September 2016. On 27 September 2016, I ordered an expedited hearing. On 13 and 19 October, and 1 November 2016, I invited the IPs at the inquest to make oral representations during the OPEN part of the hearing, which they did. Later in November, INQUEST, the well-known charity and NGO, and Guardian News and Media (``Guardian News''), were invited to make written representations, which they did, with the exception of the Chief Constable of Surrey Police. All these submissions have been invaluable in my attempt to resolve this very difficult application.

  5. The legal issues before me are of narrow compass, (i) whether the High Court has jurisdiction to consider the Secretary of State's application, and (ii) if it has jurisdiction, whether it should exercise it in the case. There is the separate, but related, straightforward task of ruling on the application. However, the future conduct of the inquest and the position of the Coroner, which are not issues directly before me, bear on the resolution of these legal issues and I have had to say something about them.

    Background

  6. The Coroner was notified of Mr Perepilichnyy's death two days after it occurred, on 12 November 2012. Surrey Police conducted an investigation, led from 28 November 2012 by Detective Superintendent Pollard. The police investigation concluded in early 2014. In his statement for the Coroner, Det. Supt. Pollard says that the Surrey Police inquiry into Mr Perepilichnyy's death was ``perhaps the most rigorous enquiry into a sudden and unexplained death'' that he has been involved in and that he reached the following conclusions:

    ``a) Mr Perepilichnyy's immigration status: ... [T]here was no direct evidence he was seeking refuge in the UK or was in hiding;

    b) Travel in and out of the UK: Mr Perepilichnyy was a frequent foreign traveller, travelling without security or concerns for his safety;

    c) Status in Swiss enquiry: Mr Perepilichnyy was a willing and co-operative witness, who did not express concerns to the Swiss authorities as to his safety;

    d) Safety: [Mr Perepilichnyy] knew what he was ``getting into'' in assisting Hermitage and did not seek protection;

    e) Relationships: Mr Perepilichnyy had a complex private life involving international travel. His activities did not show signs of fear;

    f) Toxicology and other expert evidence: The experts involved [i.e. those who attended the multi-disciplinary meetings] did not find any trace of toxins or other substances that would have caused his death;

    g) Absence of injuries: The three post-mortems did not find any trace of injuries, wounds or puncture marks on Mr Perepilichnyy's body.''

  7. Hermitage and Legal and General have expressed concerns about the completeness and adequacy of the police investigation and do not agree with Det. Supt. Pollard's conclusions.

    The Coroner's investigation: an overview

  8. The Coroner received the police file in February 2014. The first Pre-Inquest Review hearing (``PIR'') was held on 1 April 2014. There have been twelve PIRs in all and there has been keen media interest in them. At a PIR prior to 6 August 2015 the Coroner ruled that Article 2 of the European Convention on Human Rights (``ECHR'') was not engaged for the purposes of the inquest.

  9. Mrs Perepilichnaya as the widow, Legal and General as the insurer, and the Chief Constable of Surrey Police were recognised as interested persons under sections 47(2)(a), (e), and (i), and 47(3) of the 2009 Act. On 10 January 2013, Hermitage applied to be recognised as an interested person. The Coroner refused the application on the ground that it had not demonstrated a sufficiency of interest for the purposes of section 47(2)(m) of the 2009 Act. However, on 6 August 2015 he reconsidered and Hermitage became an interested person.

  10. The inquest was initially listed to commence on 18 May 2015 with a time estimate of four days. That date was vacated and it was re-listed for 21 September 2015 with a time estimate of five days. That date was also vacated and the hearing was relisted for 9 November 2015, with an increased time estimate of ten days. That date was in turn vacated and the matter listed for a split final hearing beginning 29 February 2016, with a time estimate of five days, followed by a further hearing on 4 April 2016, with a time estimate of ten days. The hearing was then listed to commence on 12 September 2016 with a time estimate of 20 days. The current application has set the matter back yet further. The inquest will be held without a jury.

  11. The Coroner's initial view was that his inquiry should include, in relation to how Mr Perepilichnyy came by his death, its medical cause; the direct circumstances in which the medical cause arose (i.e. the sequence of events directly leading to this death, including the finding of the body and attempts at resuscitation); and the nature and extent of the toxicological analyses; and their reliability. The Coroner decided that the scope would not include any other deaths of Russian or Ukrainian nationals in the UK; the details of any alleged international fraud or money laundering; and family support after the incident. At a directions hearing on 10 May 2016, however, he widened the scope of the inquest to include:

    ``...proportionate background information as to who may have had a motive to murder Mr Perepilichnyy. Such evidence shall include information in respect of the alleged fraud against [Hermitage] and any connection with that incident and Mr Perepilichnyy.''

  12. The volume of evidence in the inquest is significant, about 5,000 pages of documents. There have also been written submissions and correspondence from the IPs. The current witness list includes evidence from 30 witnesses, and 25 of these will give oral evidence. The medical and toxicological evidence will come from Mr Perepilichnyy's GP, three pathologists, a cardiac pathologist, a consultant in medical genetics, a consultant physician, a consultant cardiologist, a forensic scientist, a senior lecturer in paleoecology, a senior lecturer in environmental radioactivity, a senior natural product chemist at...

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