Unprecedented secrecy ruling sees High Court exercise last resort jurisdiction in Russian whistleblower inquest


Following an unprecedented application by the Home Secretary, the High Court today exercises its inherent jurisdiction to withhold documents from a Senior Coroner investigating the death of a Russian whistleblower in Surrey in 2012. 


Recognising that the application was “very difficult”, Mr Justice Cranston welcomed the “invaluable” representations made by all counsel, including several teams from Doughty Street Chambers.


The judgment strongly affirms the importance of open justice in the context of inquest proceedings and the central role played in the inquest process by bereaved families [34]–[35]. The inherent jurisdiction for the High Court to determine questions of secrecy should only be used as a last resort in circumstances where the circumstances have, as in this case, reached an impasse where they cannot proceed in the public interest.  Such questions of public interest immunity should ordinarily be dealt with by a Coroner pursuant to the Coroners and Justice Act 2009 and managed by the appointment of counsel to the inquest with developed vetting security clearance and/or replacing the coroner with a judge, as necessary [53]-[54]. The High Court was only able to exercise its inherent jurisdiction in this application as a “last resort” to avoid a “real injustice” [70].    


Although the High Court has no power to substitute the Coroner for a replacement with appropriate security clearance, the judgment makes clear that the inquest cannot proceed without such steps being taken by the Chief Coroner [77].  The Coroner’s position is now described as “untenable”:  “he cannot have sight of relevant, sensitive material which is the subject of the PII ruling.  To my mind that puts him in a position in which he cannot conduct a full and fair inquest”


Importantly, in any future, rare applications of this kind, Mr Justice Cranston confirms that Interested Persons and the press should be invited to participate through written representations “to the same extent as they could before the inquest” [61].


The Senior Coroner’s investigation concerns the death of Alexander Perepilichnyy four years ago.  He collapsed and died in the road whilst running in Weybridge, Surrey, on 10 November 2012.  In June 2013 Surrey Police indicated that they did not consider that there were any suspicious circumstances about his death.  However expert evidence suggests that there may have been a toxic plant present in his body, and that he may have been poisoned  A number of Interested Persons in the inquest proceedings believe that Alexander Perepilichnyy was murdered, probably through an undetected poison, as a reprisal killing for his role in whistleblowing on a £150 million fraud of which London-based investment company Hermitage Capital Management, represented by Henrietta Hill QC and Adam Straw, was the victim. 


The Home Secretary made an unprecedented application to the High Court: a free-standing PII application under Part 31 of the Civil Procedure Rules, in which she sought an Order permitting her not to disclose relevant documents to the Senior Coroner on the ground that disclosure would damage the public interest.   


Guardian News and Media and INQUEST were invited make written representations.  Both organisations have raised concerns regarding the Home Secretary’s approach, including the lack of transparency, damage to the open justice principle, and the side-stepping of important safeguards in the coronial system for bereaved families, other Interested Persons, the media and the public.  Guardian News and Media is represented by Caoilfhionn Gallagher and Angela Patrick, instructed by Zoe Norden of Guardian News and Media.  INQUEST is represented by Heather Williams QC and Jesse Nicholls, instructed by Daniel Machover and Eva Whittall, Hickman and Rose.


The Home Secretary’s application was heard before Mr Justice Cranston on Monday 14 November 2016. 


The full judgment in the case can be found here


Further background on the case is available here and press coverage in The Guardian, The TelegraphThe Daily Mail, The Times, and The Guardian.

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