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By John Helmer, Moscow

An application to a British court for a writ of habeas corpus on behalf of Yulia Skripal is the last chance, British and international lawyers believe, to preserve for public accountability the evidence of the poison attack against her and her father, Sergei Skripal. The attack occurred on Sunday afternoon, March 4, after the poison  had been prepared at the Skripal home in Salisbury. The Skripals themselves were exposed several hours later at a nearby restaurant.  

Bulletins on their medical condition are being issued by the National Health Service. In addition, Salisbury District Hospital has been publishing daily Twitter feed on the public health risks since the attack, along with a notice: “Salisbury Hospital is open and operating normally. We are advising patients to attend for their scheduled appointments as normal.” When hospital officials were asked today what is the condition of the Skripals, they reported  they are “in a critical, but stable condition in intensive care… The police officer, who was also part of the initial response, is conscious in a serious but stable condition.”

The lawyers say it is already impossible for the evidence collected by the police and military investigators at sites around Salisbury to be admissible in a court of  law. This, they add, is because samples of the poison may have been tampered with before or after Prime Minister Theresa May (lead image) announced to the House of Commons the ongoing forensic investigation on March 12, and then announced the government’s conclusions on March 14.

Securing the chain of custody of the evidence required by British courts has been compromised by the state secrecy surrounding the case, legal sources believe.  It stopped altogether with May’s second statement to parliament yesterday.   In that speech, the prime minister implied that no samples of the poison have been despatched to the international Organization for the Prohibition of Chemical Weapons (OCPW) in The Hague.

The only accessible evidence about the source of the poison, according to the lawyers, is in the bodies and medical records of Yulia Skripal and her father.  Accordingly, the lawyers are now considering an application to a British court for habeas corpus on Yulia Skripal’s behalf, so that the poison and the allegations surrounding the attack on the Skripals can be tested by a judge, according to the British laws of evidence.

Prime Minister May told parliament on May 12 that “as a nation that believes in justice and the rule of law, it is essential that we proceed in the right way – led not by speculation but by the evidence. That is why we have given the police the space and time to carry out their investigation properly.” No details of the investigation or the evidence collected have been released officially to the public; nor the measures taken to secure the chain of evidence for admissibility,  if the perpetrators of the attack are identified and a prosecution eventuates.

Instead, May announced in the House of Commons on March 14 the conclusions of the investigation. To explain the poisoning of the Skripals,  parliament was told officially,   “there is no alternative conclusion other than that the Russian State was culpable for the attempted murder of Mr Skripal and his daughter”. The poisoning, said May, was “an unlawful use of force by the Russian State against the United Kingdom.” 

This announcement implies that the government has now ruled out the possibility of bringing its evidence to court for a prosecution. This is despite an earlier announcement by the Home Secretary Amber Rudd (right), the minister in charge of the Skripal investigation, that “we are committed to doing all we can to bring the perpetrators to justice – whoever they are, and wherever they may be”. According to Rudd, “people are right to want to know who to hold to account. But, if we are to be rigorous in this investigation, we must avoid speculation and allow the police to carry on their investigation.”

May’s March 14 statement charges only one perpetrator – and this is a government with sovereign immunity which cannot be prosecuted. “The UK government concluded it was highly likely that Russia was responsible for this reckless and despicable act. And there were only two plausible explanations. Either this was a direct act by the Russian State against our country. Or conceivably, the Russian government could have lost control of a military-grade nerve agent and allowed it to get into the hands of others. Mr Speaker, it was right to offer Russia the opportunity to provide an explanation…They have provided no credible explanation that could suggest they lost control of their nerve agent. No explanation as to how this agent came to be used in the United Kingdom; no explanation as to why Russia has an undeclared chemical weapons programme in contravention of international law.”

Although the British Foreign Office summoned Russian Ambassador Alexander Yakovenko, shortly before the Russian Foreign Ministry summoned British Ambassador Laurie Bristow, reportedly  no evidence was presented by the British officials at either meeting.

Left, Ambassador Laurie Bristow at the front door of the Foreign Ministry in Moscow on March 13. The Foreign Ministry communique released as he left said: “the Russian Federation was not involved in the incident that took place in Salisbury on March 4, 2018. From the Russian side, it was emphasised that Moscow will not respond to London’s ultimatum until it receives samples of the chemical substance to which the UK investigators are referring and until the UK demonstrates compliance with the Chemical Weapons Convention that stipulates a joint investigation into the incident, for which Moscow is ready.” Click to read in full.  Right, Ambassador Alexander Yakovenko leaving the Foreign Office in London on March 12; no British communique was released. Instead, the British representative to the OPCW, Peter Wilson, announced in The Hague: “We have engaged bilaterally with the Russian Federation. On 12 March my Foreign Secretary summoned the Russian Ambassador to London and sought explanations from his government within 24 hours… Russia has provided no explanation; and no meaningful response.” For details, read this.

In a statement at the OPCW meeting on March 13, the Russian representative Alexander Shulgin invoked the procedures of the international chemical weapons convention (CWC).  Russia and the UK signed the CWC in 1993; both ratified it in 1997. “If London, “ Shulgin said, “does have serious reasons to suspect Russia of violating the CWC – and the statement read by distinguished Ambassador Peter Wilson indicates directly that this is so – we suggest that Britain immediately avail itself of the procedures provided for by paragraph 2 of Article 9 of the CWC. They make it possible, on a bilateral basis, to officially contact us for clarifications regarding any issues that raise doubts or concerns.”

The convention can be read in full here.  Article 9, to which Shulgin referred, provides a detailed procedure for dealing with cases of chemical warfare alleged by one state against another. The paragraph Shulgin cited is this:

Resolving the dispute between the UK and Russia over the Skripal case is also covered by Article 14 of the convention:

According to May’s March 14 statement in the Commons, “we have also notified the Organisation for the Prohibition of Chemical Weapons about Russia’s use of this nerve agent. And we are working with the police to enable the OPCW to independently verify our analysis.”  The May notice doesn’t comply with the convention because the charge of Russian culpability came after (repeat after) the notification was sent to the OPCW.

This timing is revealed in yesterday’s UN Security Council (UNSC) presentation by the British chargé d’affaires, Jonathan Allen. “On 8 March,” Allen said, “the UK formally notified the OPCW Technical Secretariat that a chemical attack had taken place on UK soil.”   Allen, speaking in New York after May’s speech in the Commons, did not repeat May’s claim that the OPCW notification included the charge of “Russia’s use of this nerve agent.”

Left: Jonathan Allen for the UK at the UNSC, New York; right, Alexander Shulgin for Russia at The Hague.

In cases of suspected or alleged chemical warfare, Shulgin told the OPCW at The Hague “such clarifications under the Convention are provided to the requesting member state as soon as possible, but in any case no later than 10 days following receipt of the request.”

May’s speech foreclosed the possibility that evidence of the poison will be transmitted to the Russian government.  She has also prevented the Russians, through OPCW, making an “on-site challenge inspection of any facility” in Salisbury. According to the convention, “this inspection [may be] conducted anywhere without delay by an inspection team designated by the Director-General [of the OPCW].” 

The only source of evidence of the Skripal attack which remains accessible is in Salisbury Hospital. The only lawful method of producing it is by a British court order, and the procedure for that is one of the oldest protections of human rights in British legal history, the writ of habeas corpus (medieval Latin for ‘let you produce the body’). Dating from the Assize of Clarendon in 1166, the history of habeas corpus is more than 850 years long. It is reiterated in the British constitution known as Magna Carta, signed in 1215 and republished as an enactment in 1297. For a snapshot  history, read this

British sources claim they know nothing for certain about the medical condition of the Skripals; they concede they are not optimistic the Skripals will survive. Officially, the British government will say only that they “remain in a very serious condition”. This adds to the urgency of a court application on Yulia Skripal’s behalf, and in response,  for the court to review,  a presentation by May’s law officers and Rudd’s police of the evidence, including identification of the poison, the methodology of treatment, and the antidote provided.

Records of the expert testing of the poison in Yulia Skripal’s case are likely to be the same as those for her father. They will either lead to the chemical marker for the nerve agent identified by the prime minister in the two cases; or evidence that the marker customarily introduced by state chemical weapons producers is missing.

No evidence of marker; no evidence of the Russian source announced by May.

Legal experts on habeas corpus say there is precedent for applications to be made to the courts on behalf of individuals too ill or incapacitated to speak for themselves.  They refer to this case,  in the Supreme Court of Victoria (Australia), for the precedent that judges may overrule the opinion of doctors and medical institutions on evidence of what is in the best interests of an incapacitated individual in a hospital.  

According to the judgement by Justice Kevin Bell (below), “the purpose of habeas corpus is to protect personal liberty, which is the birthright of every individual under the common law. The bedrock value of personal liberty goes back to Magna Carta

1297 (which is in force in Victoria) and is now recognised in a number of human rights in the Charter of Human Rights and Responsibilities Act 2006. Under the common law of habeas corpus, personal liberty can only be restrained where this is authorised by law, and the courts have a duty to protect individuals from any infringement of that principle… Everybody whose personal liberty is being restrained without lawful authority has the right to seek from the court a writ of habeas corpus or an order for release from the restraint. By the proper exercise of this common law jurisdiction, the court is especially concerned to protect vulnerable people, such as the mentally ill. As the restraints being imposed on Ms Antunovic were without lawful foundation, she was entitled to the relief which she sought and I made orders against the [medical] unit and the doctor for her immediate release from the unit accordingly.”

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