PoisonOn Sunday 4 March, Skripal and his daughter were found on a park bench in Salisbury town centre in a state of near-unconsciousness. They were taken to hospital by emergency services, where they remain in a serious condition. (A policeman, Nick Bailey, was also exposed and taken for emergency treatment, but he has since been discharged from hospital).

Investigations by experts from the UK’s Defence, Science and Technology laboratory at Porton Down concluded that they had been poisoned with Novichok, a military grade nerve agent of a type developed by Russia. On that basis, the UK government has suggested that the poisoning was either a direct attack by the Russian government (in effect an attempt to assassinate its former agent) or that Russia has culpably lost control of the nerve agent which it developed.

Having officially blamed Russia for the attack, the UK government subsequently took a number of measures including the expulsion of 23 Russian diplomats. There has been international condemnation of Russia’s alleged conduct, and support for the UK’s position. Other nations have also expelled Russian diplomats, and Russia has in turn expelled foreign diplomats from its own soil.

International law

As it happened, the attack came shortly before the OPCW was about to hold the 87th session of its Executive Council. Both Russia and the UK are members and signatories of the international Chemical Weapons Convention (1997) which the OPCW polices. The UK’s permanent representative there, Ambassador Peter Wilson, made an initial statement to the council on 13 March, expressing the UK’s suspicions about Russian involvement in the attack.

This was met with a response by the Russian Federation ambassador later that day, basically accusing the UK of making “unfounded allegations” in pursuit of a “dirty information war being waged on Russia”. If it had a serious case to answer, the UK should “avail itself of the procedures provided for by paragraph 2 of Article 9 of the” Convention to “contact us for clarifications regarding any issues that raise doubts or concerns” over compliance. “We will require material evidence of the alleged Russian trace in this high-profile case”.

The UK has refused, asserting that Russia is already in breach of the Convention by reason of its failure to declare its own Novichok production facilities and delays in destroying stockpiles of other chemical weapons, and that “There are no provisions in the Convention that require the UK to share its samples collected as part of a criminal investigation with Russia in this type of scenario.”

Instead the UK has invited the OPCW, as an independent and internationally recognised body of experts with responsibility for the enforcement of the Chemical Weapons Convention, to send its own scientists to independently verify the Porton Down analysis of the nerve agent used.

The Court of Protection

It may seem odd that a case which has such important international legal and diplomatic ramifications (there has even been talk of a new “cold war”) should nevertheless find itself in the Court of Protection. The reason is that Sergei Skripal and, at the relevant time, his daughter Yulia (she has since regained consciousness) were both lying unconscious in their hospital beds, under heavy sedation, and lacked mental capacity to consent to medical intervention.

The proceedings took the form of an application by the Secretary of State for the Home Department for “personal welfare orders” in respect of Skripal and his daughter under the Mental Capacity Act 2005, seeking declarations that it would be lawful for the NHS Trust which currently has care of them to take a blood sample for the OPCW to test, and to disclose relevant medical records to OPCW.

Needless to say, the Skripals had already been subject to medical treatment as emergency patients, for which prior legal approval is not necessary. Moreover, the NHS trust had by then already appointed Independent Mental Capacity Advocates (IMCAs) under the 2005 Act, to assist with “best interests” decisions on clinical matters, in the absence of anyone known to the patients who could be consulted on their welfare. But the additional procedures required by the OPCW experts were not part of the essential emergency treatment, and in any event had a wider legal/political purpose, and hence required the approval of the court.

Giving judgment in the case (Secretary of State for the Home Department v Skripal [2018] EWCOP 6), Mr Justice Williams noted that the taking of blood samples was unlikely to adversely affect the Skripals’ condition, and there were a number of reasons why, weighing the pros and cons, it would be in their interests to allow it.

The concept of a patient’s “best interests” is, under existing case law, a wide one and includes (under a Code of Conduct issued by the Lord Chancellor under ss 42-43 of the 2005 Act) “the effect of the decision on other people … or the duties of the responsible citizen”. So the court’s evaluation involved a broad survey that went beyond purely medical benefit and included “every consideration that might bear on what is in their best interests”.

While the judge was unable to ascertain the Skripals’ past or present wishes and feelings, as required by section 4(6) of the Act, in the absence of any evidence to the contrary he would approach the matter on the assumption that they were reasonable citizens. He said, at para 31:

“Most reasonable citizens”, he said at para 31, “have a quite acute sense of justice and injustice” and would “want to secure the best information about what has happened when a serious crime is alleged to have been committed”. They would believe in the rule of law and support the effective operation of international conventions on the basis that “no-one whether an individual or a State is above or beyond the reach of the law”.

Criminal law

Depending on the outcome of the investigation, there are a number of offences which may have been committed, as Crimeline Complete (edited by Andrew Keogh) has suggested in a commentary entitled The Salisbury Chemical Weapon Attack.

They include attempted murder, grievous bodily harm (GBH) (contrary to section 18 of the Offences Against the Person Act 1861), administering a noxious substance (contrary to section 23 of the 1861 Act), and offences under the Chemical Weapons Act 1996.

However, the piece concludes, “It is unlikely that this attack will meet the definition of a terrorist act, see section 1, Terrorism Act 2000”.

Suppose a person or persons were to be identified as responsible for the attack. Even if they remained in this country, which they may not (especially following the diplomatic expulsions), there could well be a claim for immunity from prosecution under the Diplomatic Privileges Act 1964, which gives the force of law to article 31(1) of the Vienna Convention on Diplomatic Relations: “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.”

If, on the other hand, they were not present, there would be all the difficulty of extraditing them (from a possibly hostile foreign jurisdiction) to face trial in this country. So for the moment we can do no more than speculate as to the engagement of the criminal law.

Meanwhile, we await the OPCW’s investigation, and further developments on the political front.

Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project.