Russia Insiderby Alexander Mercouris for Russia Insider: http://russia-insider.com/en/politics/litvinenko-inquiry-was/ri12452

Despite twisting the evidence and throwing legal procedure out of the window it failed to show the Russian authorities killed Litvinenko.  It could only say “probably” – an absurd verdict the evidence contradicts.

What follows is a long and very detailed 11,000 word expert legal analysis of the Litvinenko inquiry by Russia Insider‘s International Affairs Editor, who was a practicing lawyer for 12 years at the Royal Courts of Justice, the venue of Litvinenko inquiry.  

It is the most comprehensive and definitive analysis to date.  The author’s conclusions are summarized in the first few paragraphs of the article.

This analysis shows why the Litvinenko Inquiry was a farce and why its report is in the end worthless.

The Judge who headed the Inquiry was obsessed with proving the Russian state murdered Litvinenko.  In order to prove what he always believed he threw legal procedure out of the window and interpreted the evidence how he wanted.

In the end even he could not prove that the Russian state murdered Litvinenko, which is why he could only say they “probably” did.

In reality the facts – if looked at objectively – show the Russian state almost certainly did not murder Litvinenko and played no part in his death.

The Inquiry and its report actually say more about the pathological hostility to Russia of some sections of the British establishment than they do about the Litvinenko case.

The first point to grasp about the Public Inquiry that has now delivered its verdict in the Litvinenko case is that it should never have happened at all.

The second point is that Inquiry’s decision that the Russian authorities were “probably” behind Litvinenko’s murder is unsustainable and makes no sense.

A TRIAL NOT AN INQUIRY

The Public Inquiry was in all essentials a murder trial.  Any legal proceedings which examine a case of murder and which pronounce on the guilt or innocence of the individuals accused is in effect a trial.

The Public Inquiry into Litvinenko’s death has ended in a pronouncement of guilt for the crime of murder against two individuals: Lugovoi and Kovtun.  That makes it a trial of those two men, regardless of what it is called.

THE RIGHT TO FAIR TRIAL

In Britain a trial for murder is conducted in open court with the defendant present and represented by lawyers of his or her choice.

The defendant is entitled to cross-examine the witnesses and to look at – and challenge – all the evidence.

The final verdict of guilt and innocence is delivered by the jury – twelve citizens selected at random – after they receive directions on legal questions from the judge.

Strict rules apply on what evidence can be presented to the court and how the court is to decide how the evidence is proved.  As a general principle only evidence actually presented to the court at the trial can be considered, and only witnesses who physically come and give their evidence to the court – and are cross-examined on it – are heard, though it is now becoming more and more common for evidence to be given by video link.

A court cannot convict on the basis of evidence given anonymously by witnesses who do not disclose their identities to the defendants save in very exceptional circumstances.

The burden of proof lies on the prosecution to prove its case, and it must do so beyond reasonable doubt.

It is a fundamental legal principle that anyone accused of a crime is deemed by the law innocent until the verdict of the court is delivered.

Once the verdict is delivered, a defendant who is found guilty has a right to appeal.

VIOLATION OF THE RIGHT TO FAIR TRIAL

The Public Inquiry that has now delivered its verdict in the Litvinenko case has thrown all this out of the window.

There was no jury.

Part of the evidence was secret and the defendants and their lawyers were denied sight of it. Some of the witnesses gave their evidence to the Judge in secret and their identities were not disclosed to the defendants.

Since technically it was not a trial and the Public Inquiry is not a court there is no right of appeal.

Since the defendants – Lugovoi and Kovtun – were denied sight of part of the evidence, they refused to take part.  The judge who tried the case – Sir Robert Owen – commented at length in his judgment about their refusal to take part, but failed to state the reason for it.

The trial nonetheless proceeded in the absence of the defendants though that is almost unprecedented in Britain.  Moreover no lawyers were appointed to represent their interests in their absence as it is perfectly possible to do, and as happens from time to time in other kinds of proceedings.

The result is that the evidence of what we must call the prosecution went entirely unchallenged.

Moreover since what happened was technically speaking not a trial but a Public Inquiry, the Judge felt free to look at evidence that was not produced to the court, including especially the possible evidence of potential witnesses who did not attend the court, but which was provided to him at second hand, whilst engaging in all sorts of speculations on the evidence that he would not have been able to engage in in a proper trial.

Needless to say any notion that the guilt of the accused had to be proved beyond reasonable doubt went out of the window.

VIOLATION OF PRESUMPTION OF INNOCENCE

This extraordinary process has ended in a clearcut verdict of guilt.

With it any pretence of adherence to the principle of the presumption of innocence has gone out of the window.  Lugovoi and Kovtun have been declared guilty of murder by a judicial body set up by the British state despite the fact that there has been no proper trial.

This is the single most important thing to say about this Inquiry.

I hold no brief for Lugovoi or Kovtun.  There is a possibility they did murder Litvinenko.

However the procedure the British state has used to declare them guilty is profoundly and completely wrong, and has forever prejudiced the possibility of their having a fair trial in Britain  – or indeed anywhere else – on this charge in the future.

That is why this Public Inquiry should never have been set up in the first place.

ARE WE CLOSER TO THE TRUTH?

Do the findings of the Public Inquiry – for all the fundamental problems in how it carried its work – take us any further forward in establishing the truth about Litvinenko’s death?

In my opinion they do, though only to a very limited degree, and in ways that actually contradict the final conclusions of the Inquiry.

RUSSIAN REJECTION OF EXTRADITION REQUEST

Firstly, though it is not directly pertinent to the issue of Litvinenko’s death, an entirely overlooked fact is that the Inquiry has fully endorsed the reason the Russian authorities gave for refusing to extradite Lugovoi and Kovtun to Britain.

When the British authorities in 2007 demanded Lugovoi’s and Kovtun’s extradition to Britain, the Russian authorities refused to extradite them on the grounds that this was contrary to Russia’s constitution.

The Russian government was widely ridiculed in Britain for saying this, and the British government imposed sanctions on Russia because of the Russian government’s refusal to extradite Lugovoi and Kovtun.

The Inquiry Judge has now said the Russians were right all along:

“Refusal of extradition requests

Russia has refused requests made by the British authorities to extradite Mr. Lugovoi and Mr. Kovtun to face criminal charges in the UK.  No inferences can be drawn from this. Article 61(1) of the Russian constitution provides that, “A citizen of the Russian Federation may not be deported from Russia or extradited to another state””.

Needless to say, in all the flood of commentary that has followed the verdict in Britain, no one has  admitted this or said that the sanctions Britain imposed on Russia in 2007 should not have been imposed because the Russians were right on this point all along.

LITVINENKO WAS KILLED BY POLONIUM POISONING

Secondly, it is now conclusively established Litvinenko was killed by polonium poisoning.

Whilst this may seem obvious, one of the unanswered mysteries of the case is why the British authorities delayed for so long to make the evidence of Litvinenko’s poisoning with polonium public.  They did not for example release the autopsy report until the Judge demanded it.

The evidence that was submitted to the Inquiry – including the autopsy report – has now put the question beyond doubt.  Litvinenko died from polonium poisoning and from no other cause.

LITVINENKO WAS MURDERED

Thirdly, the Inquiry has shown that Litvinenko was almost certainly murdered.

I have never found the various claims of polonium smuggling, accident and suicide various people have come up with to explain Litvinenko’s death very convincing.  There has never been anything that looked to me remotely like evidence to substantiate any of them.

The one part of the Inquiry report where I fully agree with the Judge – and find his reasoning convincing – is the section where he rejects these theories.

The only convincing explanation for Litvinenko’s death is that someone deliberately poisoned him with polonium.  That is why he died, and that makes his death murder.

THERE IS A CIRCUMSTANTIAL CASE AGAINST LUGOVOI AND KOVTUN

Fourthly and lastly, there is a circumstantial case that Lugovoi and Kovtun murdered Litvinenko.

Again this has been denied by many people – including of course by Lugovoi and Kovtun – but that there is a case against them on the basis of the traces of polonium they left behind them as they moved around London, and which were found in the Pine Bar at the Millennium Hotel where Litvinenko was probably poisoned, seems to me unarguable.

The case is however entirely circumstantial and is based wholly on the so-called polonium trail.  In the absence of a properly contested hearing in which lawyers acting for Lugovoi and Kovtun could challenge and test this evidence, it is impossible to say how strong the case against them is.

WHAT A FAIR DECISION BY THE INQUIRY WOULD HAVE BEEN

If the Inquiry had stopped at this point and had said that Litvinenko was poisoned with polonium, which caused his death, and that this polonium was administered to him intentionally and maliciously in order to cause his death, and that his death was therefore a murder, and that there is a circumstantial case that Lugovoi and Kovtun are the guilty parties, that would have been a good and proper result, and a worthwhile outcome to the Inquiry.

It would have resolved many of the doubts and speculations about the case, and might have set the scene for a future prosecution of Lugovoi and Kovtun in Russia (see below).

Unfortunately the Inquiry, or rather the Judge, did not stop at this point, and from this point on I am afraid it is downhill all the way.

SPECULATION AND DOUBTFUL EVIDENCE

Since the Inquiry ended with a finding that Lugovoi and Kovtun murdered Litvinenko despite their absence and lack of representation and despite the case against them being circumstantial, the obvious point to start in order to illustrate the problems is to look at the way the Judge handled the case against them in order to reach his verdict of guilty.

The Judge appears to have convinced himself of Lugovoi’s and Kovtun’s guilt right from the start of the Inquiry, and indeed practically from the moment when he was appointed the coroner to head the inquest which preceded the Inquiry.  The result is that in their absence he was unable to resist the temptation to ginger up the case against them by engaging in speculations and using evidence that in my opinion had no place in his report.

Here are some examples:

(1) The Judge places far too much reliance on the evidence of a German witness identified as D3.  This person told the German police that Kovtun asked him for help to find a cook whose help he needed to poison someone.  The Judge accepted the truth of this evidence, and treated what D3 told the police Kovtun had told him as an admission of guilt.

In my opinion D3’s evidence should never have been considered at all.  D3 refused to come to the Inquiry to give his evidence there.  The Judge only knew of what he had said to the German police from transcripts of his interviews provided by the police.

People tell all sorts of stories to the police to make themselves appear important, and it is surely possible that that is all that D3 was doing.  His refusal to come to the Inquiry to give evidence strongly suggests it.  Since he refused to give his evidence to the Inquiry, and since he obviously was not questioned by the Inquiry on it, no reliance should be placed on what he said.

I would add that the idea that a cold-blooded FSB assassin – which is what the Judge says Kovtun is – would ask a friend who was not a member of the FSB – which is what D3 is – to suggest someone else – also not a member of the FSB – to help him commit a high profile political murder in London seems to me frankly bizarre.

If Kovtun really did try to find a cook to help him poison Litvinenko then in my opinion it is evidence against FSB involvement.

In the event Kovtun did contact a cook in London.  There is no evidence he brought up the subject of poisoning with this person.  The Judge ridicules Kovtun’s claim he was looking for a cook to help him set up a restaurant in Moscow, which is what Kovtun claims.  Isn’t that however a far more likely reason to want a cook than to have his help to poison someone?

(2) The Judge admits Litvinenko did not initially think Lugovoi and Kovtun had poisoned him, and that it took him a very long time to come to that conclusion.  He explains this by saying Litvinenko felt professionally humiliated by the fact the murderers – who he supposedly always knew were Lugovoi and Kovtun – had got to him, and that he maintained his silence in order to lure them back to London.

Nothing Litvinenko ever said supports this theory.  I do not think it is right or proper to try to enter the mind of a dying man.  I also think this theory is farfetched.

I would add in passing that the Judge – rather grudgingly – has confirmed the truth of what the US journalist William Dunkerley has always said about Litvinenko’s famous death-bed statement.

It did not originate with Litvinenko but was put together by others who got him – as he was dying – to sign it.

The Judge has nothing to say about the ethics – or lack of them – of this behaviour, though they weighed on some of the people involved, including his widow.

The fact Litvinenko’s famous death-bed statement – long accepted as his own words – is in reality the concoction of someone else should make one especially wary of attempts to read Litvinenko’s mind as he lay dying.

(3) The Judge treats as evidence against Lugovoi the fact Lugovoi sent Berezovsky a provocatively worded T-shirt that referred to nuclear poisoning.  The Judge treats this as a threat and sees it as an admission of guilt.

Whilst that interpretation is possible, so are other interpretations.  The T-shirt could for example have been intended to taunt Berezovsky if Lugovoi thought Berezovsky was responsible for the crime and had set him up – as Lugovoi has claimed.  Without hearing from Lugovoi himself on this issue how is it possible to form a view?

(4) In Lugovoi’s and Kovtun’s absence the Judge reconstructed their answers to specific points on the basis of things they have said in media interviews.

He repeatedly cast doubt on the truth of things they have said and drew attention to various discrepancies he claims to have seen in their comments.

This is to elevate what Lugovoi and Kovtun have said to the media to the level of court testimony.

People speak more freely to the media than they do in court.  There is also always the worry the media is not reporting words properly.  When discussing the evidence of Dr. Yulia Svetlichnaya                 (see below) the Judge found the media had misreported some of the things she had told them.  Why might the same not be true of things Lugovoi and Kovtun have told the media as well?

If defendants or witnesses say things in court that contradict what they say to the media, it is right and proper to question them about the discrepancy.  In their absence it is wrong – and so far as I know unprecedented – to try to reconstruct what might have been their court testimony from what they have said on television and what the media say they have said.

(5) The Judge admits Lugovoi’s behaviour at the Pine Bar of the Millennium Hotel – the place where Litvinenko was probably poisoned – is not fully consistent with his being the poisoner.

Lugovoi showed indifference to whether Litvinenko drank the poisoned tea or not.  He also introduced to Litvinenko his young son, which he presumably would not have done if he thought there was danger to his son from the polonium.

The Judge gets round this by saying (1) Lugovoi would have felt under no time pressure to poison Litvinenko in the Pine Bar because – if the attempt failed – he could poison Litvinenko later somewhere else; and (2) Lugovoi probably hadn’t been told by his FSB controllers how dangerous the polonium was.

Perhaps so, but again these are pure guesses and it is easy to construct contrary arguments.

Would Lugovoi really feel happy chasing after Litvinenko in London with a vial of polonium in his pocket day after day?  Would he not be afraid he might be caught?  Would he not want the murder over and done with as quickly as possible so he could make his escape?

Would the FSB really send two agents on a secret assassination mission to London without briefing them about the dangers of the poison they were carrying?

Ultimately, since Lugovoi’s behaviour depends on his state of mind, how can one reconstruct it without hearing from him?

I don’t make these points to prove Lugovoi and Kovtun’s innocent.  However I think it is wholly wrong in their absence to say they are guilty on the strength of what can only be guesses and on the basis of “evidence”, which I don’t think is really evidence at all.

RUSSIAN STATE INVOLVEMENT

If the Judge’s conduct of the case against Lugovoi and Kovtun was troubling to say the least, the same was far more true of the part of the case where he decided the Russian authorities were “probably” guilty of Litvinenko’s murder, and that Lugovoi and Kovtun were acting on their behalf.

SECRET EVIDENCE

The evidence the Judge saw in secret, and which has not been disclosed to the public or the Russians, apparently bears mainly on this issue.  There is it seems a whole secret section of the Inquiry report about it, which has not been made public.

That it is wholly wrong for a Judge in what is actually a trial to say that someone or some people are guilty of a crime on the basis of evidence they are not allowed to see should by now be obvious.

It should be said that the British government is in a different position.  Since the British government has no judicial role, it is fully legitimate for it to say that on the basis of secret information in its possession, which it cannot disclose because that would compromise intelligence sources, it thinks the Russian authorities were probably involved in the murder of Litvinenko.

Others might wonder how strong that evidence really is, and might question whether the British government is right to form such a view, but that is another matter.

The Judge however, as is clear from the Inquiry report, was performing a judicial or at least a semi-judicial role.  His Inquiry not only looked into the facts of Litvinenko’s death in much the same way a court would do, but it ended in a clear verdict of guilty against the two men involved in the crime – Lugovoi and Kovtun.  That puts anything he says in a different position.

Since we do not know what the secret evidence is, it is impossible to comment on it.  However the Judge said in the Inquiry report that his conclusion that the Russian state was “probably” responsible for Litvinenko’s death is made out by the publicly disclosed evidence.

It is on that evidence therefore that his conclusions stand or fall, and it is to that evidence – and the Judge’s handling of it – that I shall now turn.

DID THE RUSSIAN AUTHORITIES OBSTRUCT THE INVESTIGATION

The British police were unhappy that the Russian authorities did not give them the full cooperation that it seems they wanted.  The Judge however was in the end unable to see in this evidence of actual obstruction, and decided that the Russian authorities’ guilt could not be inferred from it.

What the Judge does not say is that the reason the Russians have given for their lack of cooperation with the British investigation is that the British refused to cooperate with them.

Specifically the British refused to let the Russian investigators question Litvinenko’s friend, the exiled Russian oligarch Boris Berezovsky.

They also refused Russian requests for the polonium evidence and declined Russian suggestions that Lugovoi and Kovtun be tried in Russia on the basis of evidence provided by the British.

There are rumours that the Russians even suggested that Lugovoi and Kovtun be tried in Russia in a British court with a British Judge and jury that had been physically transported to Russia (there are actually precedents for this).

The reason the British gave for their refusal to consider a trial of Lugovoi and Kovtun in Russia was apparently that the prosecution witnesses would refuse to travel there.

This is to put the wishes of the witnesses above the rights of the defendants.  Besides it is not clear why the evidence of witnesses unwilling to travel to Russia could not have been given by video link.

The Russian offer of a trial of Lugovoi and Kovtun in Russia shows what might have happened if the British authorities had been willing to work with the Russian authorities – as opposed to criticising them and looking for ways to declare them guilty.  Since however the Judge made no inferences from any seeming lack of cooperation on the part of the Russian authorities, there is nothing more to say about this.

2006 RUSSIAN LAWS AUTHORISING LITVINENKO’S MURDER?

In 2006 – shortly before Litvinenko was killed – the Russian parliament passed two laws that authorise Russia’s security agencies to take action against persons involved in extremism and terrorist activities.

One of these laws gives legal authority to the Russian President to order the Russian security services to kill persons who are abroad beyond the reach of Russian justice and who are undertaking terrorist acts against Russia.

These two laws are commonly cited by believers in the theory of Russian state involvement as giving the FSB the legal authority it needed to kill Litvinenko.

Two experts on Russian law consulted by the Inquiry – one of them Russian – flatly contradicted this view, and the Judge accepted their advice:

“…..

The only legal route to extra-territorial action against Mr Litvinenko was therefore under the Terrorism Law. However, action could only have been taken against Mr Litvinenko under this law had he been involved in, or no doubt suspected of involvement in, some form of terrorist activity. Article 3 of the Terrorism Law contains definitions of terrorism and terrorist acts that are broadly conventional, and certainly not as expansive as the definition of ‘extremism’ in the second of the 2006 laws. Mr Batmanov’s letter (above) states that, “Alexander Litvinenko did not make part of a terrorist organization and was not accused by Russian law enforcement bodies of having committed a terrorist crime.” That accords with my understanding of the evidence

On the basis of the evidence currently before me, and in light of the considerations set out above, I am therefore not persuaded that any action could have been taken by the FSB against Mr Litvinenko in 2006 under the terms of either of the 2006 laws.”

In other words the two laws have no bearing whatsoever on Litvinenko’s death.  They did not authorise it or give the green light for it, and they would not have made his killing legal under Russian law.

Though this is a useful finding, something must be said about the strange discussion that followed.

Having heard from two jurists expert on the interpretation of Russian law, and whose opinion ought to be final on such a subject, the Judge also solicited the opinion of Professor Robert Service, a historian who has written a book on Soviet history, and whose qualifications to give advice on how Russian law should be interpreted are not obvious.

I will have more to say later about the extraordinary role Professor Robert Service has played in the Inquiry.

Professor Service appears to be a believer in the theory that though the laws do not actually authorise the FSB to murder someone like Litvinenko, given the political atmosphere in Russia they could be interpreted by the FSB as giving it the green light to do so.

The Judge sets out Professor Service’s speculations on this point at length and without comment, giving the strong impression he agrees with them.

This theory is no more than a guess.  It is very unlikely to be true.

If the FSB really were the sort of criminal organisation that routinely murders its enemies why would it need the green light of two laws that do not in fact authorise it to take that action?  There is no logic here and the “green light” theory is absurd.

LUGOVOI’S AND KOVTUN’S BACKGROUNDS – A LINK TO THE RUSSIAN STATE?

The entire case of Russian state involvement in the murder of Litvinenko rests on either Lugovoi or Kovtun or preferably both of them being agents of the Russian state – specifically of the FSB.  If neither Lugovoi nor Kovtun are agents of the FSB the whole case for Russian state involvement collapses.

The Judge decided that Lugovoi’s and Kovtun’s backgrounds do show a link between them and the Russian state.

On the contrary, one of the most interesting things that came out of the Inquiry is what unlikely people Lugovoi and Kovtun are to be agents of the FSB, and what unlikely assassins they are for the FSB to employ.

The first and obvious is that there is no evidence – and no suggestion – that either man ever killed anyone before Litvinenko was killed.

Would the FSB send two inexperienced men to carry out a complicated high-profile assassination in a foreign capital?  Doesn’t the FSB have more professional and experienced people to carry out such a complicated killing?

The picture that emerges of Kovtun is of a shiftless character, characterised by his German family as a charming rogue with a fondness for gambling, women and drink.  His only known service for the Russian government was as a soldier in the Soviet army.

Since most Russian men serve in the Russian army nothing can be made of this.

More relevant is the fact Kovtun deserted from the army and fled to West Germany where he claimed asylum – a fact which in itself makes Kovtun a most unlikely person to be an FSB agent.

Life in West Germany was apparently not to Kovtun’s liking and he returned to Russia.  He has followed an erratic career as a sometime businessman ever since.

Though the Judge has nothing to say about it, there is in fact no evidence the FSB ever recruited Kovtun, no information he ever attended any of its special  schools where the FSB trains its operatives, no blank spaces in his life such as might be expected of a secret agent, no information he has ever carried out anything that looks remotely like a secret mission, and nothing to suggest that prior to meeting with Litvinenko he ever killed anyone.

As the Judge rather grudgingly admits, this hardly looks like the profile of a cold-blooded killer – much less of an FSB agent.

Lugovoi is a more impressive character.  He did join the KGB and did rise within its ranks to a senior position in its special protection unit, continuing in that unit after it was separated from the KGB right upon to his eventual retirement in 1996.

Though the Judge does not mention it in his report, it seems that whilst working for this unit Lugovoi provided bodyguard services for various senior Russian politicians.

After leaving the special bodyguard service Lugovoi set up various private security companies providing security and bodyguard services to various high-profile Russian individuals and companies – first and foremost the oligarch Boris Berezovsky.  At some point he seems to have become almost entirely dependent on Berezovsky, providing security services for Berezovsky’s television station ORT.

Lugovoi is now a successful businessman, as well as a member of Russia’s parliament for the opposition Liberal Democratic Party.

Lugovoi has however had no visible connection to the FSB at any time since it was established shortly after the KGB was disbanded in the early 1990s.  Contrary to some reports he has never been formally employed by the FSB.

Any claim Lugovoi was an FSB agent therefore requires him to have been recruited into the organisation or employed by it in a covert way.

There is no evidence of it and is it likely?

The fundamental problem with thinking the FSB might have sought to recruit Lugovoi is that his closest and most visible connections since the 1990s were not with the FSB but with the Russian oligarch Boris Berezovsky, whose relations with the FSB were already very bad whilst Berezovsky was a major figure in the Russian politics in the 1990s (as the Judge notes, Berezovsky with Litvinenko’s support, at one point even accused the FSB of plotting to kill him).

After Berezovsky left Russia in 2000 he became an opponent and critic of the Russian government and of President Putin in particular.

A close associate of Berezovsky’s after this time is not someone one would naturally assume to be an FSB agent.  Lugovoi was such an associate.  The Judge admits Berezovsky continued to think of Lugovoi as his friend right up to the moment when Litvinenko was killed.

It also turns out that Lugovoi not only had a close association with Berezovsky right up to the moment of Litvinenko’s death, but was also convicted by a Russian court shortly after Berezovsky fled Russia of trying to arrange the escape of Nikolai Glushkov, one of Berezovsky’s close associates, from a hospital where he was in pre-trial detention on a fraud charge.  It seems that Lugovoi spent 15 months in prison for the crime.

These facts make it very unlikely Lugovoi was an FSB agent.

The Judge tries to cast doubt on Lugovoi’s prison sentence, citing Glushkov who says he knows nothing about it, and who also says his attempted escape – supposedly arranged by Lugovoi – was an FSB set-up.

Alternatively, the Judge refers to speculation the FSB might have recruited Lugovoi in prison.

In the absence of information from Russia’s prison records the Judge has no grounds to question the hereto publicly acknowledged fact of Lugovoi’s prison sentence.

Glushkov’s evidence anyway is open to challenge.  If he really thought the escape attempt had probably been an FSB set-up why did he not warn Berezovsky about Lugovoi who had arranged it?

It is unlikely Glushkov did warn Berezovsky about Lugovoi.  As the Judge admits, Berezovsky continued to trust Lugovoi right up to the moment when Litvinenko was killed.  Would he have done so if Glushkov had warned him that he was involved with the FSB in setting up a fake escape attempt?

Glushkov is a former friend of Berezovsky’s, is a critic of the Russian government and is a believer in the theory of Russian state involvement In Litvinenko’s murder.  Given that this theory requires Lugovoi to be an FSB agent, that is a good reason to treat with caution his evidence that the escape attempt was a probably fake.

As for Glushkov’s doubts about whether Lugovoi ever went to prison, how would Glushkov know whether Lugovoi had been to prison or not given that he presumably has no access to Russia’s prison records?

As for the suggestion Lugovoi might have been recruited by the FSB whilst in prison, that again is no more than a guess and there is no evidence for it whatsoever.

There is in fact no evidence Lugovoi was ever an FSB agent, and on the face of it, it is very unlikely.

What of the possibility that Lugovoi might have been turned and become an FSB informer?

There is no evidence for that either.  The fact Berezovsky continued to trust Lugovoi right up to the moment of Litvinenko’s death argues against it.

Here perhaps it is worth pointing out that if Lugovoi really had been turned he would have been a priceless intelligence asset for the FSB at the heart of Berezovsky’s organisation.

Would the FSB have risked blowing the cover of such an asset by having Lugovoi murder a secondary character like Litvinenko?  If they really had resolved to kill Litvinenko would they not have sought to protect Lugovoi’s cover by employing someone else?

In the absence of any actual evidence Lugovoi was an FSB agent, the Judge was forced to fall back on cliches (“once a KGB man, always a KGB man”), and the fact Lugovoi has frequently appeared on television in Russia, has been elected to parliament, has received a state decoration, and has had a successful business career.

The Judge sees in all this evidence that “Putin backs him”.  Is this however really true?

One of the big problems of the Inquiry is the Judge’s obvious and profound ignorance of Russia, and here we have a good example.

The media in Russia – including the television media – are nowhere near as controlled as the Judge thinks they are.  It is in fact normal for all sorts of people – including opponents of President Putin – to appear on it.

The fact Lugovoi had a known connection to Berezovsky and had served a prison sentence would not have prevented him from having a successful business career in Russia.  Many other associates of Berezovsky still live in Russia and their businesses thrive.

Lugovoi’s expertise in bodyguard services – obtained whilst serving in the KGB – would have made him an obvious person for wealthy Russians seeking such services, and it is not difficult to see why despite his prison term and his connection to Berezovsky his security business might have prospered.

Given Lugovoi’s extraordinary celebrity after the British authorities accused him of murdering Litvinenko with polonium, it is completely understandable the Russian media queued up to interview him.

It is also completely understandable – and entirely unsurprising – that Lugovoi has revelled in the attention, and has cashed in on his celebrity by getting himself elected to parliament and wangling for himself a state decoration.  Russia is hardly the only country where such things happen.

The fact Lugovoi appears so regularly on Russian television, and gives so many unscripted interviews – including to the foreign media – is in fact a strong reason to doubt he is an FSB agent.

Would the FSB really let an agent who has carried out a top secret assassination mission loose to roam freely the television studios and meet the media – including the foreign media – telling them whatever he wants to say?

Would any secret service anywhere in the world allow that sort of behaviour by one of its agents?

There is a circumstantial case Lugovoi and Kovtun murdered Litvinenko.

The case that either man is an FSB agent is in Kovtun’s case non-existent and in Lugovoi’s case threadbare.  The facts if anything argue against it.

It is difficult to avoid the impression that the reason the Judge thinks Lugovoi and Kovtun are FSB agents is not because there is any evidence that they actually are, but because that is the only way the FSB could have been involved in the murder of Litvinenko.

In truth the improbability Lugovoi or Kovtun are FSB agents is so great that – if they really did kill Litvinenko – it is actually a strong reason to doubt the FSB or the Russian state were involved.

THE POLONIUM EVIDENCE – SOURCE OF THE POLONIUM

The single strongest reason up to now for thinking the Russian authorities might have been responsible for Litvinenko’s murder is that he was poisoned with polonium.

The story as it is usually told is that polonium comes exclusively from Russia where it is produced at a single tightly controlled government facility.  It has been claimed it contains a trace element that enables it be traced back to this facility.

It has also been said that polonium is extremely expensive.  The lawyer representing Litvinenko’s widow claimed the cost of the amount used to kill Litvinenko would have run into millions of dollars.

Moreover it has been claimed that the history of Lugovoi’s and Kovtun’s movements in London made it impossible for them to have polonium in their possession unless they brought it with them from Russia.

If all these claims were true then the case for Russian state involvement in Litvinenko’s murder would be compelling.

It turns out that none of them are true.

It seems polonium can be produced – and probably is being produced – in any number of facilities outside Russia.

It turns out that commercially produced polonium contains no trace elements such as would make it possible to identify the facility it comes from – be that facility in Russia or anywhere else.

It turns out polonium is not expensive at all, with a police officer telling the Inquiry that an amount of polonium much greater than the amount used to poison Litvinenko sold in New York for just $20,000.

Lastly the Judge himself decided that there is simply insufficient information about Lugovoi’s and Kovtun’s movements in London to say definitely that they must have brought the polonium with them from Russia and could not have obtained it in London.

All this information demolishes the keystone of the case for Russian state involvement.

It turns out that it was not solely the Russian state that could have provided the polonium to murder Litvinenko.  Anyone with the right contacts and a few thousand dollars to spare could have obtained it.

The Judge’s frustration and disappointment is all too obvious from this truly remarkable comment:

“Although it cannot be said that the polonium 210 with which Mr Litvinenko was poisoned must have come from the Avangard facility in Russia, it certainly could have come from there.”  (Underlining in the original)

Of course in a sense this statement is true.  The polonium could have come from Russia.  It could also however just as well have come from any of the other places where it is being produced.  This comment is neither here nor there and I at this point register my surprise to see a Judge saying it.

Even if the polonium did come from Russia what does that prove?  Given how inexpensive polonium turns out to be there is no reason why it could not have passed through any number of different hands before it poisoned Litvinenko.

The case for Russian state involvement because Litvinenko was poisoned with polonium simply cannot be made, and this part of the case – the part that has attracted the most attention – has collapsed.

The way it has collapsed shows something else.

The polonium evidence collapsed because the Inquiry heard the advice of more than one expert.

One expert – Professor Dombey – was instructed by the supporters of the theory of Russian state involvement.  Unsurprisingly he supported the claim the polonium could only have come from a single closely guarded facility in Russia and could be traced back there.

The other expert – identified only as A1 – flatly contradicted this advice.  Her view is that it is impossible to trace the source of the polonium and that it could have been produced in any one of various facilities around the world.

It is quite clear that A1 – whoever she is – is the more senior scientist, and the Judge was obliged to defer to her.

This gives a glimpse of what might have happened in a proper trial if all the evidence and not just the polonium evidence had been contested in the same way.

MOTIVE – DID THE RUSSIAN STATE HAVE A MOTIVE TO KILL LITVINENKO?

Given the collapse of the polonium evidence, and the lack of any evidence definitely linking Lugovoi or Kovtun to the FSB, the only evidence the Russian authorities were involved in Litvinenko’s murder is that they supposedly were the only party with a motive to kill him.

It is because the case against the Russian authorities ultimately depends on motive that the Judge was only able to say that the Russian authorities were “probably” involved.

This has been widely – and rightly – ridiculed.

However it was the only thing the Judge could say given his determination to say the Russian authorities killed Litvinenko, and the absence of any evidence – apart from motive – to show that they did.

It is in fact impossible to the read the text of the Inquiry report without being struck by the extent to which the Judge has absorbed and internalised the typically negative Western view of Russia.

Thus the Judge refers to the Russian government as “Putin’s regime”.  He calls a book of Litvinenko’s placing responsibility for the 1999 Moscow apartment bombings “well-researched”.  He reels off Litvinenko’s allegations that President Putin is a paedophile, a criminal associate of the Tambov gang, and a heroin smuggler, without comment.  He repeats Litvinenko’s claim the FSB has supplied arms to Al-Qaeda, also without comment.  He casts doubt on the reality of Lugovoi’s prison sentence purely on the strength of the testimony of an accomplice in the crime.  Whilst he admits the claim the Russian government was involved in the murder of various of its opponents has not been proved, he claims nonetheless to see a pattern and says Litvinenko’s murder must be considered in the context of that pattern.

Amazingly, he uses the killing of known or suspected terrorists like the notorious jihadi terrorist Ibn Khattab and the Chechen militant Zelimkhan Yandarbiev to draw inferences about Russian state involvement in the killing of Litvinenko, who was not a terrorist.

As we have seen, he also believes the Russian government tightly controls Russian television and that Lugovoi’s various appearances on Russian television could not have happened without the Russian government’s consent.

In this deeply negative view of Russia he meets his match in Professor Robert Service, the expert the Inquiry consulted about the Russian political scene, who not only shares the Judge’s bleak view of today’s Russia but who actually lends his weight to it.

Professor Service is a historian and well-recognised authority on Soviet history.  However his strongly negative view of contemporary Russian realities is not one everyone would share.  I can think of various equally well-regarded scholars of Russian affairs who might for example take issue with his claims that Litvinenko’s book on the Moscow apartment bombings is “credible” and “well-researched”, that the Russian government has become more secretive since President Putin came to power (for the record I think the opposite), or that Berezovsky’s former associate Alex Goldfarb is a generally reliable witness.

The trouble however is not so much that the Inquiry heard from Professor Service.  It is that on the gigantic subject of the state of politics and society in today’s Russia it didn’t hear from anyone else.

In saying this I should say that I do not know whether the Inquiry solicited alternative opinions about this subject from other people.  Perhaps it did, and perhaps they declined to come.  It is however troubling that on this key issue only one view was heard, and one which moreover is not Russian.

The Judge decided that Litvinenko’s association with Berezovsky, the circumstances of his leaving the FSB (after supposedly exposing an FSB plot to have Berezovsky killed), his opposition activity in London, his two books about the supposedly criminal practices of the FSB – including its alleged role in the Moscow apartment bombings and in arming Al-Qaeda, and his relentless personal attacks on Putin – whom he has variously called a paedophile, a gangster and a heroin smuggler – would have made him a traitor in FSB eyes, and would have given the Russian authorities the motive to kill him.

An alternative and arguably much better informed view, is that Putin has had to put up with an enormous of criticism – much of it highly personal – ever since he became President, both in Russia and outside, and that the wild and wholly unsubstantiated allegations made by Litvinenko together with his well-known connection to Berezovsky meant that scarcely anyone in Russia took Litvinenko seriously until he was killed.

An alternative view might also question whether the FSB really is the vengeful and ruthless organisation the Judge – and apparently Professor Service – think it is.  There are after all any number of former KGB and FSB defectors critical of the Russian government alive and active both in Russia and the West.  One of them actually gave evidence to the Inquiry.

An alternative view might also question the degree to which Litvinenko within the FSB was regarded as a traitor.

Litvinenko’s work for the FSB was crime investigation.  He was – as his family has said – essentially a policeman.  He was not a spy or an intelligence or counter-intelligence officer, and he does not seem to have had access to classified material.  He was not in possession of any information that might compromise Russian security or an intelligence asset.  He was hardly in a position to be a traitor.

The Judge made much of Litvinenko’s role in supposedly exposing an FSB plot to kill Berezovsky.  The Judge appears to think that exposing this plot would have made Litvinenko a traitor in the eyes of his colleagues in the FSB.

Litvinenko was involved in a bizarre rumpus in 1998 when he accused his colleagues in the FSB of plotting to have Berezovsky killed.  Contrary to what the Judge – and some other people – appear to believe, this murder plot was almost certainly an invention of Berezovsky’s intended to discredit the new Primakov government that had just come to power in Russia.

Primakov was a known enemy of Berezovsky’s who made no secret of his wish to have Berezovsky arrested.  He was also a person with a long background in intelligence work who had headed Russia’s foreign intelligence agency, the SVR. It suited Berezovsky’s purposes at the time to play up Primakov’s connections to Russia’s intelligence and security establishment by hinting that Primakov was planning to use to them in order to have him killed.

Though some members of the FSB have subsequently claimed that there was indeed some talk in the organisation of having Berezovsky killed, it is clear that there was no formal order, and the gossip of former operatives should be treated with caution.

The whole episode was farcical and embarrassing, but was hardly unusual in the baroque politics of 1990s Russia.

Though Litvinenko’s involvement would undoubtedly have annoyed many people within the FSB – and led directly to his dismissal – the problem in seeing in it a motive for his murder is that Litvinenko was under the FSB’s control until he eventually left Russia in 2000.  No attempt to murder him was made in that time, and nor was such an attempt in the six years he lived afterwards in Britain.  It is not obvious why if the FSB considered Litvinenko a traitor because of this episode it waited for so long.

It is in fact most unlikely that this episode did cause Litvinenko’s death.  In the end it did no damage to the FSB and by 2006 it was receding into the past and was almost forgotten.

No doubt Litvinenko was unpopular with his former comrades in the FSB, but if they thought him a traitor the facts suggest they can’t have thought him a very important one.

As for the idea the FSB systematically murders opponents of the Russian government, an alternative view might question whether this is true, and might say that the evidence in the trials of the murderers of Sergey Yushenkov and Anna Politkovskaya – whose killings were mentioned by the Judge – does not implicate the Russian authorities, whilst the facts of the death of Yuri Shchekochikhin – whose death was also mentioned by the Judge –  suggest a violent allergic reaction to drugs mistakenly given during medical treatment for a viral infection.

VIKTOR IVANOV AND THE ‘DUE DILIGENCE’ REPORT – THE MOTIVE AT LAST?

Perhaps because of doubts Litvinenko’s public activities really were sufficiently damning to provoke his murder, a theory was floated in December 2006 – shortly after his death – that he was killed in revenge for a Due Diligence report he had provided which was highly critical of Viktor Ivanov, a senior Russian official who now heads Russia’s anti-drugs force.

The theory is that Litvinenko showed or gave the report to Lugovoi who passed it on to Ivanov and the Kremlin, who were in turn so furious they ordered Litvinenko killed.

As with so many other theories that have floated around the Litvinenko case, this theory is exactly that: just a theory with no evidence behind it.

The Inquiry report shows that there is some evidence from some things Litvinenko is reported to have said that he showed or gave the report to Lugovoi, who had helped him with other Due Diligence reports.

There is no evidence however that Lugovoi passed the report on to Ivanov or the Kremlin or told them about it or that they in response ordered Litvinenko killed.

In the end the Judge was reluctant to place much reliance on this theory.  The fact Lugovoi could only have forwarded the report – or news of it – to Ivanov and the Kremlin a few short weeks before Litvinenko was killed – leaving them very little time to arrange Litvinenko’s murder – argues strongly against this theory – a fact the Judge admitted.

Without hearing from Lugovoi or Ivanov this is all just anyway just a line of speculation, and claiming to see in it a motive for the Russian authorities to want Litvinenko killed is unwarranted.

For the record, Viktor Ivanov has categorically denied any role in Litvinenko’s case.  Everything I have heard about him suggests he is telling the truth.

BEREZOVSKY – NO MOTIVE TO KILL LITVINENKO?

What of the Judge’s argument that it must have been the Russian authorities who killed Litvinenko because only they – and no one else – had any motive for wanting him killed.

The short answer to that is that though the Judge argues otherwise, the facts show if anything an over-abundance of motive on the part of lots of other people to want to have Litvinenko killed.

Though the Judge tries to downplay the fact, it is clear for example that Litvinenko and Berezovsky had a major quarrel shortly before Litvinenko was killed.

There is some dispute about what this quarrel was about – despite what some of the witnesses said it was probably about money – but that the quarrel happened is beyond doubt.

The Judge tries to get round this by saying that Berezovsky and Litvinenko had patched up their quarrel before Litvinenko was killed.

Possibly, but the evidence for that is hardly compelling.  Besides might not Berezovsky – if he had decided to have Lugovoi killed – want to appear to have made up with him, if only to give himself an alibi and to draw attention away from himself?

Here it is worth saying that though the Judge – backed by Professor Service – apparently believes the FSB routinely murders people, and that Lugovoi is an FSB agent, the evidence that Berezovsky was involved in political killings and that Lugovoi – the presumed assassin – was his agent, is actually far more compelling.

Berezovsky for example admitted financing elements of the Chechen insurgency against the Russian government, whilst Lugovoi’s long and close association with Berezovsky is a matter of public record.

BLACKMAIL

Then there is the well-substantiated fact that in the months before his death Litvinenko was talking about blackmailing people.

This evidence of this was provided by Dr. Yulia Svetlichnaya, a postgraduate student at Westminster University, who interviewed Litvinenko no fewer than 6 times before he was killed.  She says that during these meetings Litvinenko harped on continuously about the blackmail he was going to carry out.

This evidence provides a good example of the way in which investigation of Litvinenko’s murder has been thrown off-course by the obsession with Russian state involvement.

Though Dr. Svetlichnaya’s evidence has been known about since just after Litvinenko’s death, her evidence has been largely ignored, with some casting doubt on the truth of it.

The Inquiry report shows that Dr. Svetlichnaya was closely questioned by the Inquiry, and it is clear from the report that she came through the cross-examination well.  The Judge never casts doubt on her truthfulness, and there is no reason to doubt therefore that her story is true.

We know therefore that in the months leading up to his death Litvinenko was talking about blackmailing someone.

Unlike the nebulous claims of motive that have been made against the Russian authorities, blackmail is a classic motive for murder.  If one chooses to use motive as a guide to the solution of a murder, then the obvious thing to do in Litvinenko’s case would be to try to identify the person or persons he was blackmailing or intending to blackmail.

The obsession with the issue of Russian state involvement means this has not been done.

The Judge in the end decided that Dr. Svetlichnaya’s evidence is irrelevant since Litvinenko’s talk of blackmail cannot explain his murder.  The reason the Judge gave for this is that Litvinenko’s words show he never put his threat to blackmail someone into practice.

The Judge also rejected the theory the person Litvinenko was intending to blackmail was Berezovsky on the grounds that Litvinenko gave the impression that more than one person was involved and that those persons had some connection to the Kremlin, which Berezovsky at the time did not.

Again it is very easy to construct contrary arguments.

Would Litvinenko really tell Dr. Svetlichnaya that he was actually blackmailing someone – as opposed to just intending to do so?  It is already astonishing that he told Dr. Svetlichnaya that he was intending to blackmail someone.  Would he have taken her so far into his confidence as to tell her he was actually doing it?

The Judge said that at the time he was killed Litvinenko was looking for alternative sources of income following a reduction of the funds he was getting from Berezovsky.  Might that not give him a motive to blackmail someone?  Might that not mean he was actually doing it?

As for Berezovsky, given that it was Berezovsky who had put Dr. Svetlichnaya in touch with him, would Litvinenko have told her it was Berezovsky he was blackmailing?  Might he not have tried to disguise the fact it was Berezovsky he was blackmailing by hinting that he was blackmailing more than one person?

As for Berezovsky having no connection to the Kremlin, a book was published which called him “The Godfather of the Kremlin” (its author – the US journalist Paul Khlebnikov – was subsequently killed).

As it happens, if one wants to construct a theory it was Berezovsky Litvinenko was blackmailing, the timing of some of the events in the last months of Litvinenko’s life might actually support it.

Litvinenko appears to have first told Dr. Svetlichnaya that he intended to blackmail someone in April 2006.  At some point that spring or summer he had a major row with Berezovsky.  Might that have been because he was blackmailing Berezovsky – as he might have been hinting to Dr. Svetlichnaya that he was?

OTHER POSSIBLE SUSPECTS

Alternatively, if it was not Berezovsky Litvinenko was blackmailing, he might have been blackmailing any number of other people, any one of whom might have wanted him killed.  Litvinenko’s previous work as a policeman might have given him knowledge about all sorts of people he might try to blackmail.

One possibility is the now destroyed Tambov gang in St. Petersburg, whose activities Litvinenko had investigated in the 1990s.  If he was trying to blackmail them then their reputation suggests they would not have hesitated to kill him.

In 2004 – two years before Litvinenko was killed – a St. Petersburg businessman called Roman Tsepov with a shady reputation and alleged links to organised crime died suddenly showing symptoms that seem suspiciously like polonium poisoning.  As in Litvinenko’s case Tsepov’s postmortem found he had died from poisoning by a radioactive material, which might have been polonium.

Contrary to claims that are sometimes made Tsepov was not close to Putin, and there is no reason to think the Russian authorities killed him.  Though Tsepov’s case has never been solved, it seems likely he was killed by some of his criminal associates in St. Petersburg.

If Tsepov was killed with polonium, then that might suggest polonium poisoning was a favoured method for eliminating enemies in the mid 2000s in the underworld in St. Petersburg, the city where the Tambov gang was based.  That might connect Litvinenko’s murder to St. Petersburg and to his previous work there.

The Judge also mentioned work Litvinenko carried out – or was in the process of carrying out – preparing Due Diligence reports that touched on individuals like the alleged Russian gangster Semion Mogilevich (an individual also without links to Putin despite numerous claims to the contrary).  On the eve of his death Litvinenko was also helping the British and Spanish authorities investigate various Russian gangsters or alleged gangsters in Spain.

The Judge doubts these people could have known anything about this work because none of the people Litvinenko was working for would have leaked it to them.

The obvious answer to that is that of course they would have known about it if Litvinenko had told them about it because he was blackmailing them.

Then there is the Chechen connection.  As the Judge himself admits Litvinenko had got very close to the Chechen independence movement, which he was actively supporting for some years before his death.  Supposedly he even converted to Islam just before he died.

The Chechens have a reputation for ruthless action against people they fall out with.  If Litvinenko was unwise enough to try to blackmail them – or betray them in some other way – then it is not difficult to believe they might have taken steps to put him out of the way.

Last but not least there is Lugovoi himself.

The Judge dismissed the possibility that Lugovoi – the presumed killer – might have been acting on his own behalf, saying Lugovoi had no possible motive to kill Litvinenko.

Again it is difficult to understand how the Judge can be so sure.

Lugovoi has a long history of close association with Litvinenko, who would have presumably known a great deal about him.  Lugovoi’s background is shady and he has a criminal past.  He has a record of providing bodyguard services to senior Russian politicians so to say he is connected to the Kremlin might not be too much of a stretch. Lastly, at the time of Litvinenko’s death he was a successful businessman and a wealthy man.

On the face of it Lugovoi seems to fit rather well the profile of the persons Litvinenko told Dr. Svetlichnaya he was blackmailing.

Lugovoi’s trips to London to meet with Litvinenko might in that case have been to discuss the blackmail.  If so that might explain why he brought his trusted friend and sidekick Kovtun with him – to support him in the meetings with Litvinenko where they discussed the blackmail.

The Judge was baffled at what went on at the various meetings Lugovoi and Litvinenko had together – many of which appear to have been rather aimless.  He also questioned the reasons for Kovtun’s trips to London.

If Litvinenko was blackmailing Lugovoi at these meetings that might explain why they happened and why there is so little information about them and why Kovtun was coming to London and attending some of these meetings.

As it happens Lugovoi’s meetings with Litvinenko in London do have the look of a negotiation about them.  If Lugovoi was not being blackmailed at these meetings, then it is not impossible he was acting as the representative of someone else who was.

If Lugovoi was being blackmailed by Litvinenko, then his wealth and security connections might have made it possible for him to get hold of the polonium he needed to get Litvinenko out of the way.  If he was representing someone else, then presumably that person could have obtained it.

All this of course is sheer speculation.  How is it more so however than the speculation the Judge has himself indulged in to prove Russian state involvement?

As speculation goes, I would suggest that any one of my speculations is altogether more plausible than the Judge’s speculations that Litvinenko was killed because he said some bad things about Putin and the FSB – things which were said and repeated by lots of other people many other times both in Russia and elsewhere before Litvinenko was killed.

I do not know whether Litvinenko was blackmailing anyone, or if he was blackmailing someone whether the person or persons he was blackmailing were any of the persons I have mentioned.

Perhaps Litvinenko was killed for some completely different reason unconnected to blackmail at the behest of somebody whose identity is completely unknown.

The point is that the Judge was wrong to say only the Russian authorities had a possible motive for Litvinenko’s murder, just as he was wrong to use motive as a means to identify his killer.

Motive can only be used safely as a guide to the identity of the killer in very straightforward cases.  As should by now be obvious, this is not a straightforward case.

SHOULD THE RUSSIANS HAVE COOPERATED WITH THE INQUIRY DESPITE ITS FLAWS?

All this begs the question whether anything could have been done to make the outcome of the Inquiry different?

Throughout the Inquiry report the Judge repeatedly laments Lugovoi’s, Kovtun’s and the Russian authorities’ refusal to participate in the Inquiry.  Might the outcome have been different if they had participated as the Judge says he wanted them to?

Unfortunately the short answer is almost certainly no.  If Lugovoi, Kovtun and the Russian authorities had been present, they might have been able to challenge the evidence.  It is well-nigh impossible however to believe they would have changed the outcome.

The US journalist William Dunkerley has described Sir Robert Owen – the Judge in the case – as a “man with a mission” and in the light of how he conducted the Inquiry it is impossible to disagree.

The mission the Judge set himself – obvious to anyone observing him from the moment he was first appointed coroner – was to do, as he saw it, justice to Litvinenko’s widow by exposing the murderers of her husband – who it is quite clear he always believed were the Russian authorities acting through Lugovoi and Kovtun.

The Judge has pursued this objective with a single-mindedness worthy of a better cause, despite the British government’s attempts to rein him him.

It was the Judge – not the British government – who decided to convert what was originally an Inquest into a Public Inquiry, and who then converted the Public Inquiry into what amounts to a trial.

It was the Judge – not the British government – who insisted on looking at the secret evidence – denying it to Lugovoi, Kovtun and the Russians – in order to help him decide that they were guilty.

I have already spoken of the extent to which his report shows the Judge has internalised the typically bleak Western view of Russia.

What is perhaps even more striking is his extreme partiality towards anyone who believes in the theory of Russian state involvement.

Thus the extraordinary action of presenting a concocted death-bed statement to a dying man goes by without censure.  The evidence of people like Goldfarb, Glushkov and Shvets is accepted uncritically and called reliable despite their obvious interest as opponents of the Russian government in a finding that the Russian state was responsible for Litvinenko’s death.

Theories about Litvinenko’s and Lugovoi’s state of mind coming from these people are eagerly seized on when they offer ways out of evidential difficulties that stand in the way of what the Judge believe is the truth.  Even Berezovsky – a person whom the Judge admits Mrs. Justice Gloster in the High Court found had no regard for truth – receives posthumous recognition as a reliable witness.

As for Litvinenko himself, he can do no wrong.

His history of moonlighting for Berezovsky whilst working for the FSB, his bizarre claims that Putin is a paedophile, a heroin smuggler and a gangster, his peculiar death-bed conversion to Islam, and his repeatedly stated intentions to blackmail people (explained away as just wild talk) count for nothing.

In the Judge’s eyes he is a truth-teller (his book on the subject of the Moscow apartment bombings is “not just a political tract” but is “well-researched”), a man “remarkable for his devotion to his adopted country” (ie. Britain) and someone who the Judge clearly thinks is a fearless fighter against crime and tyranny who has paid a fearsome price for his ideals.

The Judge even repeats with seeming approval the claim of a witness that Litvinenko was not financially acquisitive – a comment which in light of Litvinenko’s longstanding association with Berezovsky would in Russia raise a hollow laugh.

Given such opinions it is completely understandable that Lugovoi, Kovtun and the Russian authorities decided to have nothing to do with the Inquiry fearing that their presence would simply legitimise a process that was fundamentally flawed and which was predestined to find them guilty.

THE WAY FORWARD FROM HERE?

Since the Inquiry is not a court there is no appeal against its findings.

Lugovoi and Kovtun might conceivably try to get the European Court of Human Rights to set the findings of the Inquiry aside on the grounds that the Inquiry has violated the presumption of innocence and was conducted in a way that has violated their rights to a fair trial.

The problems involved in doing that seem to me overwhelming, and if I was them I wouldn’t bother.

Having said that one should not overstate the political importance of what has happened.

Far from welcoming the Inquiry’s report the British government is deeply embarrassed by it, as the tepid tone of the statement from Home Secretary Theresa May purporting to welcome it shows.

Though there has been a predictable flood of angry commentary in the British and US media, the only action the British government has taken is to protest to the Russian ambassador, and to impose asset freezes on Lugovoi’s and Kovtun’s non-existent assets in Britain.

As for the British public – now hardened by US and British drone attacks to state sponsored killings – the Litvinenko affair is for them simply a real life James Bond story.  It has if anything enhanced their cynical but nonetheless real respect for Putin and Russia as a man and a country not to be trifled with.

The Russian government for its part has simply shrugged its shoulders at an outcome it always expected.

That does not mean that the Litvinenko affair is entirely without significance.

What it has revealed – not for the first time – is the pathological Russophobia of a large part of the British establishment – including not just the media and the political class but as it turns out a part of the British judiciary and legal establishment, which has willingly set aside some of its most cherished principles in order to find Russia guilty of the murder of a single man.

It is in fact the British legal system which has come out worst from this affair.

As for who murdered Litvinenko, I am fairly sure the Russian authorities by now know the truth, though I doubt the British authorities do.

One day we may find out from the Russian archives what the truth is.  I suspect that will be a long time in the future, when it will only be of interest to historians.

Until then the only thing we can say with reasonable confidence is that the Russian authorities almost certainly had nothing to do with Litvinenko’s murder, even if Lugovoi and possibly Kovtun perhaps did.

That is not perhaps a very satisfactory conclusion to this case, but it is the most we can say as we finally draw down the curtain on the whole affair.