R Gentle & Clarke v The Prime Minister and Others

JurisdictionEngland & Wales
Judgment Date20 December 2005
Neutral Citation[2005] EWHC 3119 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/6097/2005
Date20 December 2005

[2005] EWHC 3119 (Admin)




Royal Courts of Justice


London WC2


Mr Justice Collins


The Queen On The Application Of Rose Gentle And Others
(1) The Prime Minister
(2) The Secretary Of State For Defence
(3) The Attorney General



Tuesday, 20th December 2005


This is an application for permission to claim judicial review of the refusal to hold an inquiry into the circumstances which led to the invasion of Iraq. I should say that I propose to refuse to grant permission for the reasons that I shall now give.


The six claimants are all close relatives of British servicemen who were killed in Iraq when serving with forces there between 20th March 2003, when the United States-led invasion commenced, and 28th June 2004 when the administration of Iraq was transferred to an interim Iraqi government. They seek a mandatory order requiring the defendants, that is to say the Prime Minister, the Secretary of State for Defence and the Attorney General, to establish an independent inquiry to examine all the circumstances of their deaths, including whether the decision to use force against Iraq was lawful. It is this aspect of an inquiry which lies behind the claim.


It is important that I make clear at the outset of this judgment that I am concerned only to decide whether the claim is arguable. Nothing that I say must be taken as an indication that I have decided that any particular aspect of this claim, were I to allow it to proceed, has been established. I am merely deciding whether the claim or any aspect of it is arguable.


The threshold for deciding on arguability is a relatively low one. However the fact that it has been persuasively argued over a full day's hearing does not mean that it crosses that threshold. As would be expected, Mr Rabinder Singh's arguments have been attractive, but arguable does not mean that a claim can be the subject of apparently well-reasoned argument. It is only if those arguments show that there is a real prospect that the claim will succeed that an arguable case is established. The test is, in reality, no different from that applied by the Court of Appeal in deciding whether to grant permission to appeal. It would be pointless to grant permission for a full and costly hearing which, however attractive the arguments deployed, had no real chance of success.


The six deceased were killed in different circumstances. Two were involved in accidents, one a helicopter crash, the other a road traffic accident. One was killed by so-called friendly fire and the remaining three as a result of roadside bombs planted by insurgents. Four had been stationed in the United Kingdom and two in Germany before being sent to Iraq. Their relatives claim that none of them would have been in Iraq and so able to be killed but for the decision to send troops to support the United States-led invasion.


That invasion may have been unlawful, but insufficient information at present exists to enable it to be known whether or not it was. But there is material, some of which has been placed in the public domain as a result of apparent leaks, which raises serious questions about its lawfulness. Those questions can only be answered if there is a proper independent inquiry.


Since this judgment concerns whether or not permission should be granted, it is neither necessary nor desirable to go into great detail, but I should, because I am conscious of the importance of the issue and the great public concern that it has aroused, set out, at least in outline, the material circumstances upon which reliance has been placed.


There is, it is said, material in the form of leaked memoranda which suggests that, as early as March 2002, it had been decided that a United States-led invasion of Iraq should be supported and the motive behind this was a desire for regime change. Since the regime led by Saddam Hussein was believed to be flouting the United Nations Resolutions, and possibly to be engaged in producing weapons of mass destruction, it is difficult to see that there is anything necessarily sinister in any reference to regime change. If an invasion was justified because the regime was involved in terrorism or otherwise in breaking the United Nations Resolutions, then it would follow that that regime would need to be changed.


The key question, as it seems to me, is whether the invasion could lawfully take place in the absence of a further United Nations resolution positively permitting it. In a lengthy advice, dated 7th March 2003, the Attorney General set out the arguments and the history of the manner in which the United Nations had dealt with the problem. He concluded that resolution 1441 left the position unclear, but he summarised the position in these terms. I cite paragraph 27 onwards of his opinion:

"In these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force. I have already advised that I do not believe that such a resolution need be explicit in its terms. The key point is that it should establish that the Council has concluded that Iraq has failed to take the final opportunity offered by resolution 1441, as in the draft which has already been tabled.

"Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.

"However, the argument that resolution 1441 alone has revived the authorisation to use force in resolution 678 will only be sustainable if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity. In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation. Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect. In the light of the latest reporting by UNMOVIC, you will need to consider extremely carefully whether the evidence of non-cooperation and non-compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity.

"In reaching my conclusions, I have taken account of the fact that on a number of previous occasions, including in relation to Operation Desert Fox in December 1998 and Kosovo in 1999, UK forces have participated in military action on the basis of advice from my predecessors that the legality of the action under international law was no more than reasonably arguable. But a 'reasonable case' does not mean that if the matter ever came before a court I would be confident that the court would agree with this view. I judge that, having regard to the arguments on both sides, and considering the resolution as a whole in the light of the statements made on adoption and subsequently, a court might well conclude that OPs 4 and 12 do require a further Council decision in order to revive the authorisation in resolution 678. But equally I consider that the counter view can be reasonably maintained. However, it must be recognised that on previous occasions when military action was taken on the basis of a reasonably arguable case, the degree of public and Parliamentary scrutiny of the legal issue was nothing like as great as it is today."


Ten days later, on 17th March 2003, the Attorney General gave to the House of Lords a written answer on the legality of hostilities against Iraq. This, so far as material, stated as follows:

"1. In resolution 678 the Security Council authorised force against Iraq, to eject it from Kuwait and to restore peace and security in the area.

"2. In resolution 687, which set out the ceasefire conditions after Operation Desert Storm, the Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area.

Resolution 687 suspended but did not terminate the authority to use force under resolution 678.

"3. A material breach of resolution 687 revives the authority to use force under resolution 678.

"4. In resolution 1441 the Security Council determined that Iraq has been and remains in material breach of resolution 687, because it has not fully complied with its obligations to disarm under that resolution.

"5. The Security Council in resolution 1441 gave Iraq 'a final opportunity to comply with its disarmament obligations' and warned Iraq of the 'serious consequences' if it did not.

"6. The Security Council also decided in resolution 1441 that, if Iraq failed at any time to comply with and cooperate fully in the implementation of resolution 1441, that would constitute a further material breach.

"7. It is plain that Iraq has failed so to comply and therefore Iraq was at the time of resolution 1441 and continues to be in material breach.

"8. Thus, the authority to use force under resolution 678 has revived and so continues today.

"9. Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended.

"Thus, all that resolution 1441 requires is reporting to and...

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