Commissioners for Her Majesty’s Revenue & Customs (Respondent) v Parry and others (Appellants)  UKSC 35September 10, 2020
Interview with Amber Parslow, future trainee solicitor at Baker McKenzieSeptember 12, 2020
By Emily Watts
This judicial review case questions two rulings made by the Senior Coroner not to investigate certain aspects of the death of Dawn Sturgess. She died by accidental Novichok poisoning in Salisbury in 2018. In terms of Human Rights law, this case is important in clarifying that the state is not procedurally obligated to hold foreign agents to account under Article 2.
In March 2018, the shocking news of a double poisoning in Salisbury made headlines across the UK. The victims were Russian nationals Sergei Skripal and his daughter Yulia. It was discovered that Sergei was an ex Russian intelligence officer who had become a double agent for the United Kingdom in 1995 till his arrest in Russia in 2004. The Russian designed, Cold War nerve agent, Novichok was the poison used on the Sergei and Yulia. They were left in a critical condition in the hospital but both recovered by May 2018.
Four months later, the Novichok claimed the life of Dawn Sturgess. Her partner Charlie Rowley had found a box of perfume in a recycling bin and gave it to her. After spraying the ‘perfume’ onto her wrists she fell ill within fifteen minutes and was taken to hospital. She died a week later. Charlie survived and was released from hospital. The ‘perfume’ was the discarded Novichok from the Skripal poisonings.
The Senior Coroner for Wiltshire and Swindon opened an inquest into her death and made provisional rulings on the scope of the inquest. The Senior Coroner stated that the inquest would look at the ‘acts and omissions of the two Russian nationals Mr Petrov and Mr Borishov and whether any act or omission by them may have caused or contributed to Ms Sturgess’ death. Including an investigation of how the Novichok came to Salisbury’.
However, the inquest will not investigate:
- Whether other members of the Russian state were responsible for the death of Ms Sturgess.
- What the source of the Novichok that appears to have killed her was.
It is these two rulings that the claimant challenges in this case.
The Coroner was confronted with three problems when deciding whether or not to investigate these matters.
- Firstly, that he is prohibited by S.10(2)(a) Coroners and Justice Act 2009 to determine the criminal liability of a person.
- Secondly, if any individuals could be linked to a named state this would violate S.10(2)(b) CJA 2009 which prohibits determining civil liability
- Finally, as Ms Sturgess was not the intended victim of the Novichok and four months had passed, these issues were too remote from the circumstances surrounding her death.
The Coroner also held that Article 2 European Convention of Human Rights (Right to Life) was not engaged.
Judicial Review Proceedings:
Ground One: The claimant contends that the Senior Coroner’s decision was unlawful for four reasons:
- The reasoning was inconsistent and irrational.
- The Coroner failed to take into account informative inquest conclusions that could be reached by investigating these matters
- The Coroner failed to take into account the public interest at stake
- The Coroner misdirected himself stating that determining state wrongdoing would be an unlawful determination of civil liability.
Ground Two: The Coroner had erred by concluding that Article 2 of the ECHR did not require him to investigate the issue of Russian state responsibility and the source of the Novichok.
The Court allowed the judicial review claim on Ground One and quashed the decision of the Coroner. The three reasons given by the Coroner were dismissed for these reasons:
Prohibition of determining criminal liability: ‘Investigating’ whether other Russian state actors were responsible for the death would not contravene S.10.(a)(a) CJA 2009 because this is different to ‘determining’ criminal liability. However, if ‘investigating’ was prohibited by s.10(2)(a) to ‘investigate’ Petrov and Borishov. Therefore, the distinction he made between other state actors and the two men was irrational.
Prohibition on determining civil liability: The Court was puzzled with the Coroner’s decision here. If Petrov and Borishov could be investigated then this would open them up to civil liability in a Fatal Accidents Act claim. Additionally, if they were acting as agents for Russia then there could be a vicarious liability case in the English courts or even a ECHR case against Russia. But none of these possibilities mean that if the inquest was to investigate Petrov, Borishov and any other agents that the Corner would infringe S.20(2)(b). This is because he can only ‘investigate’ these people and not ‘determine’ their civil liability.
Remoteness: It makes no difference that the lapse of time between the poisoning of Mr Skripal and the death of Ms Sturgess was four months. The second poisoning was the consequence of the first. Additionally, the fact that Ms Sturgess’ death was unintended means that it is more likely that the Coroner would exclude discussing Mr Skripal’s links with Russia rather than the involvement of other Russian state actors.
The issue is whether a state where a death has occurred is required by Article 2 to investigate the actions of foreign agents who may be responsible for the death.
Reasoning and Decision of the Court:
The obligation imposed on a state by Article 2 is intended to ensure that a state is held accountable for breaches which it or its own agents are responsible not foreign agents.
This is because of the substantive obligations in the Article that the state as to not take life intentionally without lawful justification and to have effective criminal laws to deter crimes against the person. A state must also take reasonable measures to protect an individual where there is a real and immediate threat to their life. R (Amin) v Secretary of State for the Home Department  1 A.C 652
There are procedural obligations within the Article as well that are ancillary to this. The procedural obligations of the state where there are no state agents involved is to have criminal law provisions in place eg: police inquiry. If there has been an alleged or deliberate killing of an individual by an agent od the state then there is a obligation to have a public investigation by an independent body. Jordan v UK (2003) 37 EHRR CD.
In any case the purpose of the procedural obligations is to ensure that a state holds is agents to account. There is no procedural obligation to hold agents of foreign countries to account.
The Court held that the Senior Coroner was correct in ruling that the requirements of Article 2 ECHR did not oblige him to carry out an investigation into the responsibility of Russian agents or the state for the death of Dawn Sturgess.
In my opinion, the Court was correct to quash the decision of the Coroner. The Coroner if prohibited from determining civil and criminal liability of an individual or state. But they are permitted to investigate anyone who could be connected to the death and as the Court noted, these other state actors are not too remote to be investigated. The family of Dawn Sturgess can now receive a full investigation into her untimely death.
Regarding the Court’s decision to reject Ground Two, the UK has obligations to have an effective criminal justice system and prosecute offences but does not have obligations to investigate actions of agents of a different state where those led to a death in a UK jurisdiction. The aim of Article 2 is to protect the Right to Life. Therefore, why does it make a difference if a foreign agent (especially one of another ECHR contracting country) causes a death in the UK rather than a domestic agent. There has still been a breach and it should be investigated.