2 Mamham Sherri, grill? 9133i: Sir Reheri Owen c/cr Solirzimr is the inquest 37 JUL 2&3 Dear Sir Robert 1 write in to your letter in the. Lord Chanceilor and Searetary State fer Justice claiad 4 dun-e 2013. First, may i thank yrzu for your letter, or: both the Lard Chanceilnr?s behaif and my awn, and apolcrgise fair nur delay in replying. Ynur request that a Miniater essiabl?ishes an inquiry under the Inquiries Act 29-65 into the death of Alexander Liiyinenko has been cansidered at the" highest Invels of Government. This has involved with Ministers and officials in a number {if Gnvernment departments and i regret that this firm taken us rather iange-r than had been anticipated. This letter represent?? the Government?s reSp-onse tr.) your requesi. May begin by assuring you that the Government shares your to make certain ihai the tragic death of Mr Lityi-nerrko is properiy investigate-d. Like you, the Government ifs-anxious that as much as pessibie of the investigation is canduginri in public, and in such- a way ihai Mr Litvinenko's family are: an Closely invcriyed in the process as is cansisient with the pubiic interest. As you know; a Minigier may cause an inquiry to he h?eid under the 2005 Act in relation to a case where it appeara in him (Cir her) that particular events have caussed, or are capable cri causing, pubiir; concern 0r that there is pubiic concern that particular events may have (recurred. The apparent murder {3f iVir Li?ryinenkn has indeed nail-Sec} public concern and, as a reauit, the 2005 Anti gives me (car other Mininters) the phwer to estabiish an inquiry. The Ger/eminent recognises that a number of cansideraiions {mini inwards; establishing a statutory inquiry. First, in your capacity as Assistant {Deputy Corener with responsibility fer canduciing the inquest into Mr Litvinenk?n?s death, yeu ans} ynur iegal team have hirer} engaged for Gama time in a detailed enhsicieration 0f the evidence relating in thin case, ?rnu have been able: in cansicier a substantial handy (if police maieria-l, together with either evidenne that is haw in the public domain car has been made availgble to the in-qu-esi?s ?properly intaresied panama" on the basis {if their annfid-raniia-iity undertakings, Ynu ham aiso hari amass to whatever sensitive governmental materiai yer; hayrr ineught it prn-per to sail As a resuii, ihe Government recognisses that yer: are particulariy we? po-siticned tr.) 883%33 the significance 0f the ayailabie evidance. The Government regards the waighi is ?33 attached if} yaw yiezw a'bnui the need for a $taiutory irregurry as substantial. Secnnd, the: Govarnrneni notes that having anaiyned this availabie material you have; decided that the 35:99:52 01? ysur inquest. shnuld innlude the 533% of ?Russian Stain for tho death and the isaua of whathar tho death oouid reasonably have been pravehtad by actions of the British state (?preventability?). You have indicated that: you ragard tho-so two as of central importa'hoa to the case. You have upheld, in Significant part, the Pit oartiftoata of the Foreign Sacratary, but, as you wilt know; the Foreign Secretary ta Seeking judicial review of your dooisioa in respect of those issuaa where you overturned his oartifioata. As you point out in your letter: tho affect of a oiaim for Pi! is the exclusion of tho matarial from the avidah-oa to be oonsidarao in the inquest The Government notes that you do not believe that ?a proper investigation oouid ha conducted without consideration of the HMG and that you have concluded that a statutory inquiry "is necessary if Mr Litviaohkoa death is to be properly investigated?. You go on to say that ?any investigation of the death which excludes a proper ahaiyaia of tho HMS matarial will ha ihaoaquata,.." Your views or: those m-attara are plainly important oonsidaratioos in otaoidirig whether an inquiry ahouid ha astahii-ahad. Third, as you observe, the provisions of $19 and $20 of tha- 2005 Act would aiiow some evidence in an inquiry to be heard it: oiosad session from which both the pubtio and core participants may be excluded. The result of that woutd ba that material excluded from the inqueat by operation of ?ll could be inducted in an inquiry, whiist atiil prasarvtog the sensitivity of tho matariati Fourth, you have i'n-dioataci that you: would be wiiling to act as Chairman of tho prop-oaad inquiry, and that it may ha possible for the administrative arrahgamaota in pia-oe for the inquest to be adapted" for use by an ihquiry. That would minimise the delay and d?i'aroptioh which might othemiae ha by the at an inquiry in ptaoa of the inquest. The Government aocaota that, whether taker: singuiarly or togathar, are important factors pointing in favour of o-atabliahing an inquiry. The Govaramaht has. taken tho-m ail caratuity into account in raaohirig its Thara ara, however, factors; pointing ii?) the opposite diraotion which also hava to ba oomaiciarad First, it is the View of the Government that, despite the serious oohoarh?s you express, an inquest wilt go a aubataatiai way to addressing or ail-laying pubiio concern about this incident. l't wi-il be able to use open material, for example, to axplora the oiroomstanoas in which the poionium was brought into this country; to aaoartaih the likely movement of the polonium and those who were appaiahti-y carrying it around the country; to axooaa tho avidahoa about the avarita loading up to tho murder; to ascertain who the deceased was and when, whara and by what means he mat his death; to reach a View as to tho appropriata vardiot aod to make raoommaodatioas moor rota 43 ii thought appropriate, All the-3a can be axoiorad on tho basis of evidence that will be amt-labia to the property ihtaraatao poisons, thoi'udihg tha raoorti The question whothar or not public; oonoa-m ramaina at tho and of that is a mattar primariiy Ministers and one baat juogad at: the of the inquest. to tho maanttma the normal lea-gal foliowihg a suspicious; daath ah-ooici ha parmittad to run its course. Second, there; is at present Flt} basis to cmclude that Article 2 0f the ECHR is engaged in this case. The Government hates that y?tl do not suggest the cantrary. in yrrur ruling at i? Febrtrary 2613; yOLi rabustly retracted the suggeatian that the alleged of the Russian auth-mrities irr- Mr death led an Articira 2 ohligatian an the British truth-critter; tr) lnvastigate the circumstances; at the death. Them has been no challenge to that ruling. As you point wt in letter, in their undated Nate cancemirtg materiali Gimme! to the inquest indicated that there was no prima facie case at culpability 0f ih? British state eithrar in the Cieath itself or irr failing to take reagonable amps tr} prefect Mr Litvinertkr} from a real and immadiate risk tr: his life. Although you have made clear that ytru wit! keep the partition under revi'aw, at he} mint have yet; indicated that yriu take a different view on theatre isaue?s; from that expressed by your era-unset. That being 530, Articte '2 is not saga-93d and the questirm now falls to be considerad in a demestic, rather than an ECHR, comext. Third, whilst the notes and re$pects your View that in the context. of this were year would shcase to exercise yeur di-scretiori as tn the scope at the inque$t lama-city, so as to anca-mpass the issues; {31? Russian state and preventahility, that involves a; wider investigation than ycu are necessarily obliged to cart-duct as a coroner. As yau wilt be aware, your trbligati-rm in circumstances where the ECHR is .th engaged is to ascertain who the deceased was, and haw, when and where he cam-e by his death. The Chart of Appeal held in Jamiescrl HM Grimmer for Nurth Humberside arid Seuntharpe that ?haw? in this context meaha ?by what means" arid not ?in what braad circumstances? in aciditicm, an inquest (just like an inquiry) camel: determine civil or criminal liability (see rule 42 at the Coroner-s Rules 1&84). in those circumstances, the Gsverrtme-nt believes, with respect, that it wan-mid be perfectly to cart-duct an inquest aimed at answering the statutory questions; considering the serrsitive material at all. That being 30 the need for an inquiry tr; be established tr: consider that material in ordar ta fulfill the obligattQ-n-s em you as smarter does not arige. Fourth, the material which be considered in the inquest because at the operatirm of Pit amid anly be ashram-erred by an inquiry it it were: to sit in aimed session. The ream-r25; which ted it) that making {2f the Pit carti?firzate would ahply with equal farce to the decision whether to make a restriction natice a restrictton order tinder $19 of the tram-tries; Act. Neither the material nor the questions barred upon it. amid be made public at revealed to these who are currently designated p-rcperty interested persons. The remit which fellowed arr tnquiry weald have it?) be drafted, 0r alternatively published, ii?t such a way as tr) exclude all refererrce to the sensitive materiai. the result wculcl b@ that an inquiry weuld reveal publicly {Wily that which the inquest wauld reveal publicly. The permits perhaps most slasely come-med with the investigation. namely Marina and Anatcly Litvirrarzko, 'wauld team m3 mare arr inqrriry than they waultt tram the inquest. The Gsverhmerzt is, at marge. already aware 0f the content of the classed material. An inquiry (just like an inquest) cannst rula gr: Cir determine arty peraeh?s hivii Gr crimir?rai tlahitity (althsugh it i3 mt to be inhibited in discharging. its; lurrctiarzs by the po3si-t3tlity {at being interred tram the factts it determines or the re?ommendatiohrs it makes- set? :32 at the 2085 Act). one benefit t9 tit? gatherd tram an inquiry in this regard watrid be that the clotted material woaid be mastdered by arr independent judicial figure, That might well be a significant bahafit but it (lees net need to occur within the same process ee the open consideration (if the evidence. The Gn-vernrnent eouid consider the pe-eeibiliiy of an independent review at the eo-neiusien of the inquest, depending era whet emerges frern the open evidence ei: the inquest. it ie not o-bvieus is the Government. why eueh an arrangement would create, as we suggest it might, a risk of incomplete investigation, er of misieeding er unfair outcomes. On the eentrery, in the Government?s View it wouid enable any such investigatieri te be cleariy focused on any ee-neerne that remain after the inquest. Certainly, in the Government?s View it is not at all that the in aci-du-ee evidence necessitates or justifies the establishment of a stetutery inquiry at Fifth, an inquiry is air-nest eerie-in in be. more costly of time, money and resources than an inquest. Since the whale paint of an inquiry weuid be to enable the chairman to consider materiel additienel is that which the inquest would Gen-skier, the inquiry would be very iikeiy to take ceneideraizily lenger tn eempiete, in circumstances where there is justifiebie public cnneem to see thie matter brought to a preper conclusion. The effect of acceding te your request wouid be that the ennsidereiien 0f closed meteriei, which can never be revealed publicly, would delay the pubiiceiien of that can be drawn the open materiel. Furthermnre, even aliewing for your helpful after to act as Chairman and in adapt the existing edminietretiye aireng-emente in fit an inquiry, ii is the G-nvernmeni?e assessment that the exercise would be substantieily mere expensive than an inquest. in times when the pubiic purse is under reef strain and the whole 01? {Severnn?ieni is required to exercise restraint in incurring additienel expenditure, this is teeter nf reei eubeience which must be taken into account. Fineliy, it is true that iniemetienel reietiene have been a faster in the Government?s An inquest managed and run by an independent cerener is more reenliiy expieineble to some of our foreign partners, and the integrity (if the process more readily grasped, than an inquiry, established by the Gavemmeni, under 3 Chairmen appointed by the Government which has the newer in see Government meieriel, petentieily relevant in their interests, in secret. However, this has not been a decisive factor and if it had steed eiene wnuid not have ted the Gnvernment to refuse en inquiry. it remains, however, a feeter the: the Government takes inte account. in the Government?s View the factors militeting against eetebliehing an inquiry at present substantially eutwei-gh these in favour. and for eli the reasons set out abeye, enheidenng them hath individueily and celleciively, the Geyernment has decided {10in eetabiieh an inquiry under the 2695: As: at this time. The Government undertakes, however, to keep this matter under Clo-3e review and, if {he balance of the eempeting censideretiene were to nhan-ge, t0 revisit this decision. My in