Skripal case becomes even weirder

Those trying to make sense of the Skripal poisoning will have their work cut out following the news which have been coming out about it over the past week.

Firstly, the British police have announced that they now believe that Sergey and Yulia Skripal came into contact with the deadly chemical which poisoned them because it was smeared onto their front door.

This announcement has come after weeks of speculation during which a bewildering range of competing theories explaining how the poisoning supposedly took place have appeared in the British media.

These theories have included claims that Sergey and Yulia Skripal were (1) sprayed with the supposedly deadly chemical by a passer-by; (2) sprayed with the supposedly deadly chemical by an aerial drone; (3) contaminated by the supposedly deadly chemical which was brought from Russia in Yulia Skripal’s suitcase where it had been hidden by some third party; and (4) were poisoned by having the supposedly deadly chemical somehow inserted into Sergey Skripal’s car.

The British and other critics of Russia have recently taken to citing as ‘proof’ of Russian guilt the fact that the Russians have supposedly been proposing various theories about who might have poisoned Sergey and Yulia Skripal.

The British – who unlike the Russians have control of the crime scene and samples of the poison – have however been at least as busy proposing various theories about how Sergey and Yulia Skripal were poisoned.

In both cases the fact that the Russian media and the British media – though not it should be stressed the Russian or British governments – have been busy engaging in their respective speculations about who who and how Sergey and Yulia Skripal were poisoned is not proof of guilt.

Rather it suggests ignorance, which if anything (especially in Russia’s case) is an indicator of innocence.

As I have said on many occasions, it is the guilty who so far from engaging in a variety of different speculations tend to come up with a single alternative narrative to explain away the facts, which they then pass off as the truth in order to provide themselves with an alibi.

As to the present theory – that Sergey and Yulia Skripal came into contact with the chemical agent on their front door – note the following:

(1) The British police have not said whether the chemical agent was smeared on the outside of the door or on the inside of the door.

If it was smeared on the outside of the door, then it was an extremely reckless act which might have easily poisoned a delivery person to the house such as a postman.

If it was smeared on the inside of the door, then whilst it might have been placed there by a burglar, the greater probability must be that it was placed there by a visitor.

If so then it is likely that either Sergey or Yulia Skripal or possibly both of them have some knowledge of the identity of this person.  That might make the fact that Yulia Skripal is said to be recovering and is now conscious a matter of great importance for the solution of this mystery.

(2) If Sergey and Yulia Skripal really were poisoned with the chemical agent by coming into contact with it because it was smeared on their front door, then that would mean that the chemical agent took 7 hours to take effect.

Russian ambassador to Britain Alexander Yakovenko has claimed that the British authorities have told him that Sergey and Yulia Skripal were poisoned by nerve agent A-234, a Novichok type agent which is supposedly “as toxic as VX, as resistant to treatment as soman, and more difficult to detect and easier to manufacture than VX”.

I am not a chemist or a chemical weapons expert, but such a slow acting poison seems at variance with the descriptions of A-234 and VX which I have read.

(3) The suggestion that Sergey and Yulia Skripal were poisoned by coming into contact with the chemical agent on their front door must for the moment be treated as no more than a theory.  It does however appear to confirm the presence of the chemical agent in the house.

If the latest theory that Sergey and Yulia Skripal were poisoned by coming into contact with a chemical agent smeared on their front door begs many questions, then the news that Yulia Skripal is apparently recovering well from the effect of her poisoning, and is now conscious and speaking and is no longer in intensive care, though extremely welcome, in some ways adds further to the mystery.

It suggests that her contact with the poison was either very slight, or – if the poison was A-234 – that its potency has been exaggerated, or that it was not A-234.

That of course adds to the questions raised by the latest British theory that Sergey and Yulia Skripal were poisoned by coming into contact with the chemical agent on their front door.

Regardless, the fact that Yulia Skripal is recovering is very welcome news, not just at a human level but also because she is a key witness in the case.

Perhaps, once her recovery is complete, she can answer some of the many unanswered questions about the case.

However Yulia Skripal’s recovery highlights another extraordinary fact about the case.

In the recent proceedings in the High Court where a Judgment was obtained to allow blood samples to be taken from Sergey and Yulia Skripal in order to enable the OPCW investigators to research the chemical, Sergey and Yulia Skripal were represented by lawyers instructed by the Official Solicitor, a British official who regularly acts for parties who cannot represent themselves.

The High Court Judge who heard the case – Mr. Justice Williams – granted the Official Solicitor’s request for blood samples to be taken, saying the following

Given the absence of any contact having been made with the NHS [National Health Service] Trust by any family member, the absence of any evidence of any family in the UK and the limited evidence as to the possible existence of family members in Russia I accept that it is neither practicable nor appropriate in the special context of this case to consult with any relatives of Mr Skripal or Ms Skripal who might fall into the category identified in s.4(7)(b) of the Act

(bold italics added)

This is beyond strange given that no less a person than Sergey Skripal’s niece – who lives in Russia with the rest of Sergey Skripal’s family including his 90 year old mother – had previously been interviewed by the British media.

In fact Skripal’s niece was telling the BBC just days ago of her lack of knowledge of Sergey and Yulia Skripal’s condition, and was even being reported as saying on Wednesday that she understood that they had no more than a 1% chance of survival – this just hours before the British authorities announced that Yulia Skripal was making an impressive recovery.

This failure to keep the Skripal family in Russia properly informed of Sergey and Yulia Skripal’s condition and of the taking of blood samples from them, is matched by the refusal of the British authorities to allow the Russian authorities consular access to them notwithstanding that Yulia Skripal is a Russian citizen not a British citizen (the Russians say that Sergey Skripal has dual nationality and is also a Russian as well as a British citizen).

This is despite the fact that both a bilateral treaty – the 1965 Consular Convention between Britain and the USSR (of which Russia is legally the successor state) – and an international treaty – the 1963 Vienna Convention on Consular Relations – both appear to require the British authorities to grant consular access to the Russian authorities to Russian citizens such Yulia Skripal who find themselves in difficulties in Britain.

The 1965 Consular Convention between Britain and the USSR was moreover presented by the British government to Parliament and came into legal effect in 1968, which presumably makes it a part of British domestic law.

Article 35 (1) of the 1965 Consular Convention reads as follows

A consular officer shall be entitled to propose to a court or other competent authority of the receiving State the names of appropriate persons to act as guardians or trustees in respect of a national of the sending State or in respect of the property of such a national in any case where that property is left without supervision.

Article 36 (1) of the 1965 Consular Convention reads as follows

(a) A consular officer shall be entitled within the consular district to communicate with, interview and advise a national of the sending State and may render him every assistance including, where necessary, arranging for aid and advice in legal matters.

(b) No restriction shall be placed by the receiving State upon the access of a national of the sending State to the consulate or upon communication by him with the consulate.

Article 5 of the 1963 Vienna Convention reads in part as follows

Consular functions consist in:

(1) (a) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;……

(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;….

(h) safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;….

Article 36 of the 1963 Vienna Convention reads in part as follows

1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison,

custody or detention, to converse and correspond with him and to arrange for his legal representation.  They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2.The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.

(bold italics added)

Article 37 of the 1963 Vienna Convention reads in part as follows

If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty:

…..

(b) to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments;…..

(bold italics added)

(I am grateful to John Helmer for sending me copies of these two treaties)

In other words it appears that the British authorities as a matter of both international law and British law should not only have informed the Russian consular authorities of Yulia Skripal’s condition and granted them full access to her, but they should also have discussed with the Russian consular authorities the application to the High Court for the taking of blood samples from her, with the Russian consular authorities rather than the Official Solicitor representing her in those proceedings.

Mr. Justice Williams, the Judge in the High Court case, was clearly worried that the Russian consular authorities were not involved in the proceedings and that members of Sergey and Yulia Skripal’s family had not been contacted or consulted.

This resulted was this fascinating discussion referred to in paragraph 12 of his Judgment

……As a result of my having appointed a Litigation Friend for Mr and Ms Skripal I raised the issue with the parties of whether this gave rise to any notification obligation pursuant to Articles 36 and 37 of the Vienna Convention on Consular Relations of 24 April 1963 as Ms Skripal is a Russian national although Mr Skripal became a British national. In the field of care cases in the Family Court the President gave some guidance on this issue in In Re E (A Child) [2014] EWHC 6 (Fam). Mr Thomas QC submitted that as there is no domestic implementation of Art 37 no obligation arises. He also questioned whether the court could be a competent authority. He noted that the Convention is implemented by section 1 and Schedule 1 of the Consular Relations Act 1968 and that this does not include Article 37. I note that at paragraphs 41 and 44 in Re E (above) the President noted the issue in relation to the effect of Article 37 in public international and English domestic law. Mr Sachdeva QC drew my attention to the context in which the President offered the guidance and that it was guidance only for the purposes of care cases in the family court. Both Mr Thomas QC and Mr Sachdeva QC also submitted that even if (and it is a very big if) that guidance could be transposed into the Court of Protection there was good reason for not imposing a notification obligation still less the other obligations the President identified in paragraph 47 of Re E. I am satisfied for the reasons set out above that there is no notification obligation in law on this court. The nature and extent of any good practice which might be followed in Court of Protection cases where a foreign national is the subject of an application may require consideration in another case. In practice, the Russian consular authorities will be made aware of these proceedings because this judgment will be published. I do not consider it necessary to list the issue for the sort of further extensive argument that would be necessary to enable the court to determine if any good practice guidance should be given.

(bold italics added)

Note that Mr. Justice Williams does not seem to have been told by the lawyers representing the Official Solicitor and the British National Health Service about the 1965 bilateral Consular Convention between Britain and the USSR (see above) whilst the discussion which did take place seems to have been narrowly restricted to a discussion of Article 37 of the 1963 Vienna Convention – with the lawyers telling the Judge that this has not yet been made part of the law of Britain – with nothing however being said to the Judge about what look to me to be the equally important provisions of Articles 5 and 36 (see above).

I am no expert in this area of the law, but it seems to me that Mr. Justice Williams’s unease about the way the British authorities are handling the matter is made clear by the way he went out of his way in his Judgment to say that the Russian consular authorities would be “made aware of the proceedings because this judgment will be published”.

The hearing in which Mr. Justice Williams made his Judgment took place in private, but Mr. Justice Williams specifically decided that the Judgment itself should be made public, as its preamble makes clear

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the witnesses must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Perhaps I am wrong but my impression from the Judge’s words is that one of his reasons for deciding to make his Judgment public was because he was concerned that the Russian consular authorities should know about it.

In addition, as various people have pointed out, the lawyers representing the Official Solicitor and the British National Health Service seem to have told the Judge that there was only limited information about Sergey and Yulia Skripal’s family in Russia, and that the Russian consular authorities had made no attempt to contact the hospital where Sergey and Yulia Skripal are being treated.

The claim that the British authorities have only limited information about Sergey and Yulia Skripal’s family in Russia is difficult to reconcile with the fact that Sergey Skripal’s niece had by the date of the Judgment already been giving interviews to the British media (see above), whilst the point about the Russian consular authorities not contacting the hospital looks to me something of a red herring since I presume that the British agency which the Russian consular authorities are contacting is not the hospital but the British Foreign Office.

Now that the Russian consular authorities know of the Court proceedings concerning Yulia Skripal which have been underway it would in theory be open to them to instruct lawyers to apply for them to be joined as a party to those proceedings so that they can represent Yulia Skripal in them.

I have no idea whether they are considering doing so, but I do frankly wonder whether the sudden announcement of Yulia Skripal’s recovery – welcome news that it is – might also in part have been intended to forestall such a step by the Russian consular authorities on the grounds that Yulia Skripal is now in a position to make her own decisions.

Irrespective of what happens in the British proceedings, the Russians are now convening a meeting of the OPCW executive council on 2nd April 2018 to discuss the Skripal case and to demand answers to the questions about the case that they have been asking.

It seems however that the only role the OPCW has in the case is to verify the identity of the chemical agent used.  It is not a competent body to investigate what the British authorities say is a  murder attempt on Sergey and Yulia Skripal, which is currently being investigated by the British police.

The High Court Judgment however appears to confirm that the British authorities are doing all they can to freeze the Russians out of the investigation of the case – which involves an attack on a Russian citizen – and to prevent them from learning any of the facts of the case.

That looks to me not just a violation of due process, but based on the texts of the 1965 Consular Convention between Britain and the USSR and the 1963 Vienna Convention which I have seen also a violation of both British and international law.

Given the increasingly strange look the facts of the case are taking (see above), it is however perhaps not so surprising that the British are reluctant to share with the Russians the full facts of the case.