Litvinenko and the Demise of British Justice

by James O’Neill February 11th, 2016

Just as with Skripal, the media never entertained any doubt who poisoned Alexander Litvinenko

In the wake of the bizarre and troubling elisions and falsehoods already apparent in the Skripal case, it seems an opportune time to revisit the equally controversial case of Alexander Litvinenko, the former KGB officer and employee of Boris Berezovsky, allegedly poisoned with polonium on orders of the Kremlin in 2006. In a companion piece to our earlier study by British lawyer Alexander Mercouris, here barrister James O’Neill gives his own opinion on the case

The publication on 21 January 2016 of the report by British Judge Sir Robert Owen on the death of Alexander Litvinenko was predictably seized upon by anti-Russian elements as confirmation of their conviction that Russia in general and President Putin in particular were the personification of modern day evil.
Almost completely absent amidst the anti-Russian hysteria was any perspective on the history of Mr Litvinenko1; the circumstances leading up to his death; and any understanding of what a totally flawed exercise Owen’s inquiry actually was.

Who Was Alexander Litvinenko?

Litvinenko was generally described in the western media as a Russian defector, vehement critic of Vladimir Putin, and the victim of polonium 210 poisoning delivered to him while taking tea at an upmarket London hotel by his teatime companions Andrei Lugovoi and Dimitry Kovtun.
The motive for his killing was generally portrayed as the removal of a critic by the Russian power structure in general, and President Putin in particular, via the use of the two Russian agents.
The actual evidence to support any of these contentions was never better than murky at best. That murkiness was not resolved by the publication of Sir Robert Owen’s report, which in many respects, sets a new low in inquiry procedures and the reports that flow from them.
Litvinenko was formerly a low level KGB officer whose main tasks seem to have been in the investigation of organized crime. There was much to be investigated in Yeltsin’s Russia in the 1990s.
Litvinenko resigned from the KGB and through most of the 1990s he worked for private security firms. The frequent media descriptions of Litvinenko as a “spy” therefore seem somewhat fanciful.
Litvinenko fell foul of the Russian authorities and spent some time in jail. He fled to the United Kingdom in 2000 (having had his asylum application turned down by the Americans). Again, the description of Litvinenko as a “defector” is also somewhat fanciful. He was, in fact, a fugitive from the Russian justice system.
Between his flight in 2000 and 23 November 2006 when he died, presumably by poisoning from Polonium 210, Litvinenko lived in London. During this time he had contact with, and worked for, a number of people and organisations. The persons who feature most prominently in this history are the aforementioned Lugovoi and Kovtun with whom he had numerous dealings; convicted felon Mario Scaramella (of whom more below), and fellow Russian émigré Boris Berezovsky. Berezovsky was also a notable critic of Mr Putin.
Berezovsky was also Litvinenko’s employer for several years in London although precisely in what capacity remains unclear. Litvinenko also had business dealings with Lugovoi, Kovtun and Scaramella. Significantly, after years of denial by his widow Marina, it was acknowledged that Litvinenko was also working for the British Security Services MI5 and MI6, although the details remain suppressed by Judge Owen.
Evidence given to the Owen inquiry by both MI5 and MI6 were given in closed session, and the report merely says that it cannot publish the details of that evidence. The suppression orders were made pursuant to a directive from the Home Secretary Therese May. The western media saw no reason to comment on this direct interference in a judicial proceeding by a member of the executive branch of government.
Because of these suppression orders we do not know what the MI5 and MI6 witnesses said or whether they were cross-examined by counsel assisting the inquiry. It is only one of the many unsatisfactory aspects of the inquiry.

How did Litvinenko Die?

Even the exact details of Litvinenko’s death are classified. We are told it was from polonium 210, but the autopsy report itself remains classified. This is an extraordinary situation, given that Owen used the alleged fact of polonium poisoning to attribute responsibility to Russia and its alleged agents. It is also extraordinary given the propaganda purposes to which the Owen’s report has been put.2
If, in fact, Litvinenko died of polonium poisoning, diagnosed only two hours before he died and three weeks after it was ingested, the obvious question is how was that polonium ingested? That in turn would be strong evidence as to who was responsible for causing the ingestion, assuming for the moment that Litvinenko did not poison himself, either deliberately or accidentally as has been frequently suggested.3
The popular version much liked by the western media and duly reported by Owen himself as to causality, was that the polonium was somehow slipped into his pot of tea at the Millennium Hotel where he was with Lugovoi and Kovtun. Despite the presence of video cameras at the Millennium there is no evidence available to show how this was actually done.
This hypothesis of polonium in the teapot is a good example of the fantastical nature of the Owen Report. Polonium is a rare, hugely expensive and highly dangerous substance. It glows blue when exposed to the air which would itself presumably excite curiosity. It cannot be handled with bare hands and even exposure to the air creates a danger for the perpetrator.
A measure of its dangerousness is that later investigators, when examining possible sites associated with Litvinenko’s presence, wore protective clothing with the utmost security. That was weeks after the ingestion, which one will recall, was only diagnosed two hours before death and hence three weeks after it as ingested.
There are other problems with the alleged scenario presented by Owen. The teapot, into which the polonium was allegedly slipped, was not examined until several weeks after the alleged poisoning, at which time we are told that it had readings “off the charts”. This is in spite of multiple washings in the intervening six weeks, and not a single case of a staff member at the Millennium being affected. That alone would be a fruitful area for cross-examination in a proper inquiry.
The problems do not end there. Litvinenko had been overseas prior to the meetings with Scaramella in the early afternoon and later Lugovoi and Kovtun at the Pine Bar of the Millennium on 1 November 2006. He arrived at Heathrow at approximately 11.30 am. The plane tested negative for polonium, which would appear to rule out Litvinenko carrying it into the country.
Litvinenko then went to the Itsu sushi bar for a lunch meeting with Mario Scaramella. This sushi bar tested positive for polonium. This is hours before Litvinenko had contact with Lugovoi and Kovtun. I will come back to this point.
Precisely where Litvinenko spent the hours between his meeting with Scaramella and his later date at the Pine Bar is unclear. There is some evidence to suggest that he was at Berezovsky’s office, which was nearby. Litvinenko was known to use Berezovsky’s photocopying facilities. That office also tested positive for polonium, which again raises a number of possibilities other than the scenario that Owen was determined to portray.
This evidence strongly suggests that Litvinenko was, in fact, contaminated prior to his tea meeting with Lugovoi and Kovtun at the Pine Bar. In a proper inquiry this fact alone, if established, would be of huge significance and utterly destroy the Owen scenario.
Immediately prior to his death it was initially reported that Litvinenko had made a death bed statement in which he accused Mr Putin of being responsible. Litvinenko had a track record of making bizarre allegations against Mr Putin, unhindered by any need to produce actual evidence.
That death bed allegation, made to an employee of Berezovsky, was later admitted to be completely fabricated. In the interim, however, it became fodder for the hysterical anti-Putin, anti-Russia campaigns of the tabloid press and those of Rupert Murdoch in particular.4
Part of the media disinformation at the time following Litvinenko’s death was that polonium was exceedingly rare and produced only in Russia. This is simply untrue. Any country with a nuclear reactor can produce polonium. Among the countries that had nuclear reactors in 2006 but were not subject to IAEA inspections, were South Africa, Israel, Pakistan and North Korea.
Russia is a producer of polonium, as are France and the United Kingdom. A fact not mentioned by the western media at the time was that Russia exported polonium to the United States at a cost of $2 million per gram.
That raises another obvious question. Why would an assassin use such an inherently dangerous and highly expensive substance when a bullet through the head is quicker, highly effective immediately, does not leave the same scientific trail and can be done well away from the world of closed circuit cameras that are ubiquitous in London?
Although there has never been an inquest into Litvinenko’s death that reached a conclusion the British government leapt to the conclusion that Lugovoi and Kovtun had been responsible and filed an application for their extradition with the Russian authorities.5
The most reasonable inference open on this evidence is that the purpose of the extradition request was to set the scene for further denunciation of the Russian government for “not co-operating” when the extradition request was denied as it was bound to be.
The reason for the refusal was not because of any lack of willingness to co-operate by the Russian authorities, but because there was no legal basis upon which the request could be granted. Article 61 of the Russian constitution prohibits the extradition of any Russian citizen, as the British surely knew.
Even without the constitutional prohibition it is doubtful that the extradition request would have been granted. In order to persuade a court to grant an extradition request, the requesting authority must adduce sufficient evidence that there is at least a prima facie case against the accused.
In a homicide case, one of the essential documents required is the autopsy report showing exactly how the victim died. The British request did not enclose such a report, and even today it has still not been released.
One of the prime reasons for the continued suppression of this vital document is reported in the Daily Telegraph (hardly a supporter of modern Russia). It was reported that there were two separate polonium “spikes” in Litvinenko’s body.
The compelling inference from that evidence is that Litvinenko was exposed to polonium 210 at two different times. That immediately undermines Owen’s case of the poisonous teapot and the culpability of Lugovoi and Kovtun.
It is not only the timing of the ingestion that is crucial. The ancillary question is how the polonium was ingested. For that, one needs at a minimum the autopsy slides from the forensic examination of Litvinenko’s vital organs. That information was also absent from the British extradition request. Neither is it to be found in the Owen report.
On that basis a Russian Judge would be entirely justified in asking the obvious question: where is your evidence for your allegation that Litvinenko was fatally poisoned at the Pine Bar by polonium 210 administered to him by Lugovoi and/or Kovtun?

The Coronial Process

In all cases where a person’s death is unusual in any way a coronial inquest is held to determine the circumstances under which the person died. The coroner is specifically prohibited from establishing criminal liability for the death.
The original coroner did not reach a conclusion of any description. Sir Robert Owen replaced him. It was clear that Owen sought to circumvent the legal limits placed on the coronial inquiry. He began to carry out what amounted to a criminal investigation. As the American writer William Dunkerley makes clear in his two books6 on the subject, Owen was acting outside his jurisdiction to such an extent that he was officially reprimanded by the Home Secretary Therese May in July 2013.
Again according to Dunkerley, May was resisting Owen’s request that the coronial inquiry be converted into a “public” inquiry, which would have given him vastly greater powers as to the taking of evidence and other matters.
The British government maintained their opposition to a public inquiry until July 2014 when the government did a volte-face and authorised a public inquiry. Rather astonishingly, Owen was appointed the inquiry head, notwithstanding his manifest bias as what Dunkerley describes as a “man on a mission” to pin the blame on Russia.
What brought about this sudden change of heart by the British government, nearly eight years after Litvinenko had died? It is probably a fair inference that the shooting down of MH17 over Eastern Ukraine on 14 July 2014 gave rise to a fresh outburst of anti-Russian hysteria. That hysteria was assiduously cultivated by the same elements of the western media that had promoted the notion of Russian responsibility for Litvinenko’s death.

The Inquiry Report

The UK government passed the Inquiries Act in 2005. This Act permits the setting up of an Inquiry in lieu of a coronial inquest. The Act has been used on other occasions where inquiries into well-publicized deaths were preferred to be kept hidden from too close a public scrutiny.7
Where the Litvinenko case differed was that there had been a coronial inquiry in existence from the time of Litvinenko’s death in 2006 right up until July 2014 when the inquiry was set up.
A British coronial inquest has a number of advantages. The evidence is given in public. Relevant witnesses can be cross-examined by counsel for all legally interested parties. A jury gives the verdict. Apportioning guilt is specifically unavailable to a jury. The available verdicts are natural causes; suicide; misadventure (which includes murder but also accidents); or an open verdict where the evidence is insufficient to point to a cause.
The public inquiry has none of these advantages or safeguards. The term “public” is itself a misnomer. It can, and in this case certainly did, hear evidence in secret, hear it from unidentified witnesses, and have evidence suppressed. Further, the evidence is not open to cross-examination from counsel for persons potentially subject to an adverse finding. Even when cross-examination occurs, that in turn can be suppressed.
In the present case neither Lugovoi nor Kovtun were present at the hearings, nor did counsel represent them. Their initial willingness to attend and give evidence in addition to the statements they had already given to the Police disappeared when the nature of the inquiry was changed in July 2014.
They were refused the right to know the nature of the evidence against them (as was the case with the extradition request). This was a fact the Judge omitted to mention when criticizing them for their non-attendance. They were not permitted to be represented by counsel in their absence, something that is permissible under the rules.
In many respects an Inquiry is akin to the infamous Star Chamber Courts in the UK from the late 15th century until the middle of the 17th century. Witnesses and defendants were examined in secret, although they did have notice of the charges against them. They also had the right to be legally represented. Over time the Star Chamber evolved into an instrument of repression and abuse of power by the monarchy and the Courts. Juries that returned unfavourable verdicts (from the executive’s point of view) were punished. The Habeas Corpus Act of 1640 abolished them. They have now returned in modern form.
The Inquiries Act removed the possibility of inconvenient jury verdicts by abolishing them in the case of inquiries.
Even given the latitude of a public inquiry to conduct its proceedings in secret, if its findings are to have any credibility it must nonetheless observe some basic legal principles.
Under British law an accused person has as a minimum:

• The right to know the evidence against them beforehand.
• The right to challenge by cross-examination the witnesses for the prosecution.
• The right to be legally represented.
• The right to challenge the admissibility of evidence on the grounds, for example, that is irrelevant, inadmissible opinion, hearsay or otherwise contrary to the rules of evidence.
• The right to a finding that is only open on the admissible evidence to the standard of beyond reasonable doubt.
• To begin the trial with the presumption of innocence that is only rebutted by the weight of evidence to the standard of beyond reasonable doubt.
• The onus of discharging that burden of proof rests with the prosecution from beginning to end.

It is not an overstatement to say that the Owen Inquiry violated each and every one of those basic principles. As such, this was not so much an inquiry to establish the truth, but a travesty of what was once favourably known as “British justice”. Alexander Mercouris rightly called it an absurd show trial.8
I also agree with Mercouris’ analysis when he says that the inquiry was a farce, and just the latest twist in a long running smear campaign against Russia and its President. Cunningham reached a similar conclusion.9
One aspect alone illustrates many of these points. The Judge concluded that the murder was “probably” carried out by Lugovoi and Kovtun; was “probably” ordered by the head of the FSB; who in turn “probably” took his orders from President Putin.
“Probably” is not a word that belongs in a finding of criminal liability. Either it is proven beyond reasonable doubt or it is not, in which case the presumption of innocence prevails.
And the evidence Owen presented for this remarkable conclusion? If there is any, Owen did not cite it other than by reference to secret evidence that we are not allowed to know about. There is no possible reasonable basis upon which one can test the veracity of claims such as these.
In order for Nikolai Patrushev (the head of the FSB) and Mr Putin to be held liable as the principals for the crimes allegedly committed by Lugovoi and Kovtun there has to be evidence that they were acting on the instructions of, or on behalf of, the former. There is no such evidence. Assertions of “probability” are in this context farcical.
On the other hand there is a great deal of evidence to suggest that Lugovoi and Kovtun were two of the most unlikely assassins. Neither had any known training in carrying out such a dangerous task. Neither had any links to the FSB although Lugovoi had been with its predecessor the KGB until the mid-1990s in what appears to have been a bodyguard role.10
Nor could any plausible motive be attributed to the Russian State for eliminating Litvinenko. During the six years Litvinenko lived in London prior to his death he had made a number of allegations against Mr Putin, but then so had a lot of other people who are alive to this day.
If Russia had wanted to eliminate Mr Litvinenko, there were vastly better ways to do it rather than use two amateurs with a volatile, highly dangerous and expensive substance to carry out the task.
There was, in fact, evidence of motive before the inquiry. It came from Dr Yulia Svetlichnaya, a London based post-graduate scholar, who gave evidence that the Judge accepted. That evidence was to the effect that Litvinenko had been talking about blackmailing persons before his death.11
Those persons included criminal elements that Litvinenko had been investigating (also his task with the KGB) who have a well-documented propensity for eliminating people who threaten their activities. Yet the Judge considered none of this worthy of further examination.
The Judge did, however, place considerable weight on the evidence of Boris Berezovsky. Quite why he should do so remains a mystery. Berezovsky himself is now dead, allegedly by suicide, so he is not around to enlighten us as to his change of character.
The Judge did have the benefit of previous judicial views on Mr Berezovsky. In the case of Berezovsky v Abramovich Her Honour Mrs Justice Gloster had this to say about Mr Berezovsky:

An unimpressive and inherently unreliable witness, who regarded truth as a transitory, flexible concept which could be moulded to suit his purposes.

This less than flattering assessment did not seem to deter Justice Owen.
Mr Litvinenko lingered painfully for three weeks before dying, the medical staff inexplicably unable to identify polonium as the cause of his illness. Had they done so in a timely fashion he might have been saved.
Before he died, however, Litvinenko did nominate his killer and I am not referring to the manifestly false allegation referred to above.12 The man he pointed to was Mario Scaramella, a convicted felon who also happened to be an expert in nuclear waste.
Litvinenko had lunch with Scaramella at a sushi bar before his evening meeting with Lugovoi and Kovtun at the Pine Bar. Scaramella apparently did not eat or drink anything at that lunch, but he did require hospital treatment shortly thereafter for a mild case of polonium poisoning.13
Disregarding the wildly improbable, the logical possibilities therefore seem to be:

• Litvinenko was himself carrying the plutonium, which was shown to Scaramella thereby causing Scaramella’s later symptoms. This does not explain why Litvinenko would ingest the substance voluntarily. Recall also Litvinenko pointing the finger at Scaramella as the source of his illness and there seems no other plausible explanation for that accusation.
• Litvinenko was already infected when he met Scaramella. This would be consistent with the twin “spikes” of polonium poisoning said to have been found in Litvinenko’s body.
• Litvinenko deliberately ingested the polonium himself. This seems the least likely hypothesis.
  Litvinenko was known to be trading in nuclear materials (but ignored by the media) accidentally poisoned himself. This was the hypothesis most favoured by Epstein in his 2008 article and it still best fits the known facts.
• Scaramella poisoned Litvinenko at some stage through the course of the sushi lunch (which he himself did not partake of). Scaramella’s abstinence from food or drink is odd to say the least.
  This is not to accuse Scaramella of doing the deed, but it is a logical possibility that the Judge did not seem to consider despite the supporting evidence, including Scaramella’s own illness that is otherwise difficult to explain.

Instead the Judge relied upon a series of bizarre conclusions that paid scant regard to logic, the evidence, or even the most basic principles of criminal procedure. As such the real victims here are not only the unfortunate Mr Litvinenko but also to what was once known as “British justice.” In the light of this travesty of a report, that term now seem to be an oxymoron.

James O’Neill is a Barrister at Law and geopolitical analyst. He can be contacted at [email protected].

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