R (Gentle) v Prime Minister

JurisdictionEngland & Wales
JudgeSir Anthony Clarke MR,Sir Anthony Clarke Mr
Judgment Date12 December 2006
Neutral Citation[2006] EWCA Civ 1689,[2006] EWCA Civ 1078
Date12 December 2006
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C1/2006/0187

[2006] EWCA Civ 1078







[2005] EWHC 3119 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL


Sir Anthony Clarke, Master of the Rolls

Sir Igor Judge, President of the Queen's Bench Division


Lord Justice Dyson

Case No: C1/2006/0187

The Queen on the Application of Gentle & Others
(1) The Prime Minister
(2) The Secretary of State for Defence
(3) The Attorney General

Rabinder Singh QC and Richard Hermer (instructed by Public Interest Lawyers) for the Appellants

Philip Sales and Jemima Stratford (instructed by the Treasury Solicitor) for the Respondents

Sir Anthony Clarke Mr

This is the judgment of the court on an application for permission to appeal against an order of Collins J made on 20 December 2005 in which he refused permission to claim judicial review of the refusal by the Government to hold an independent inquiry into the circumstances which led to the invasion of Iraq. The judge refused permission to appeal. The applicants renewed their application to this court and because of the potential importance of the issues the Lord Chief Justice directed that the application be adjourned to be heard on notice to the respondents before three members of the court.


When the case was before the judge there were six claimants all of whom are close relatives of those who lost their lives in Iraq while serving with the British Armed Forces there. Of the six original claimants, only four seek permission to appeal. They are the relatives of Shaun Andrew Brierley, Gordon Campbell Gentle, David Jeffrey Clarke and Phillip Hewett. Shaun Andrew Brierley was killed in a road incident while on patrol in Southern Iraq on 30 March 2003. Gordon Campbell Gentle was killed by a roadside bomb on 28 June 2004. David Jeffrey Clarke was killed by "friendly fire" on 25 March 2003 and Phillip Hewett was killed by a roadside bomb on 16 July 2005.


The purpose of these applicants is not to obtain an inquiry into the immediate cause of death in each case. It is, as we understand it, accepted on all sides that there will be an inquest in each case in which a body is returned to the United Kingdom will be able to hear evidence and reach appropriate conclusions on that question. The applicants say that those who lost their lives were sent to Iraq to take part in an illegal invasion or at least that there is a serious question whether the invasion was illegal, which is a question of international law which it is in the public interest should be fully considered by an independent inquiry. They say that some or all of the deceased lost their lives as a result of the illegal act of requiring them to take part in an unlawful invasion because it was only to be expected that members of the armed forces would be killed in such circumstances, whatever the immediate cause of death.


We say at once that we were reluctant to grant permission to appeal against the decision of the judge. On the face of them, the applications for judicial review are unpromising. Matters of this kind are essentially matters for the executive and Parliament. Our initial reaction was that the issues which the applicants seek to raise at an inquiry are not justiciable. They are matters to be resolved by political debate and, as it might be put, at the bar of public opinion.


However, having heard oral argument we have reached the conclusion that we should grant permission to appeal, or more accurately permission to apply for judicial review, so that the matters can be fully debated. We are conscious, as the judge expressed himself to be, of the importance of the issue and the great public concern that it has aroused. When we asked counsel how much further argument (if any) would be necessary on a full hearing we were told that the appeal might take two or three days.


Under CPR 52.3(6) there are two bases upon which this court has power to grant permission to appeal. They are that the appeal has a real prospect of success or that there is a compelling reason why an appeal should be heard. We have decided to grant permission on the second of those bases because the case raises questions of considerable general importance which should we think be finally decided after full argument. In these circumstances we have concluded that we should say very little about the questions to be debated in argument. We only say this.


The applicants' case is that the United Kingdom has an implied obligation to hold an independent inquiry into the circumstances which led to the invasion under Article 2 of the European Convention on Human Rights ("the Convention"). There are a number of issues between the parties.


The judge said in paragraph 13 of his judgment that the important starting point was whether it is arguable that the deaths were, in terms of Article 1 of the Convention, within the jurisdiction of the United Kingdom. He held that it was arguable that they were, on the basis of the principles identified by the European Court of Human Rights in Soering v United Kingdom (1989) 11 EHRR 439. He set out paragraphs 86 and 87 of the judgment in Soering and said in paragraphs 19 and 20:

"19. It is arguable that there is no difference in principle since Soering was, just as this case is, concerned with the actions of the state in compelling the subject in question to go overseas where he might suffer the relevant breach of his human rights. The test applied is whether there is a real risk that such treatment would occur. If a member of the armed forces is sent to engage in war, or war-like activities, there is likely to be a real risk that he may be killed. Accordingly, there is jurisdiction, since the act which constituted the breach occurred here. Thus the fact that the deaths occurred in Iraq cannot mean that the breach occurred outside the jurisdiction.

20. Thus the argument goes: when a death occurs the full obligations of Article 2 apply, so that inquiry into the circumstances of the death is needed. Since the deceased was only where he was because he was sent to war, if that was unlawful his relatives may be entitled, perhaps, to some form of compensation, but at least they must know whether it was lawful, and, if it was not, steps should be taken to ensure that the same cannot happen again."


The judge then said that the argument was straightforward but that there were considerable difficulties. They included the nature of the decision to go to war, which must depend upon a multitude of factors and be the subject, ultimately, of political control; the fact that the lawfulness of the invasion as a matter of international law may not provide the proper test since an honest and reasonable belief in its lawfulness may suffice; and there are real issues of causation. He referred in particular to paragraphs 115 and 116 of Osman v United Kingdom (1998) 29 EHRR 245 and noted that that case and all the cases in the European Court have been concerned with what happened to an individual who had been killed by, or was under the protection of, agents of the state.


As to Mr Sales' submissions, the judge said this in paragraphs 26 to 29:

"26. Mr Sales' answer to the argument based on Soering is three-fold. He relies, first, on the lack of specific and individualised risk. I recognise, as I have said, that the cases so far relate to individuals who face a particular risk. But that is not fatal, as the asylum claims show. An applicant may not be able to establish that he runs any specific risk, but that he is in the category of persons, for example, failed asylum seekers returned to Zimbabwe, who run a real risk of treatment contrary to Article 3, or indeed, in certain circumstances, perhaps even Article 2. Thus, in my view, the absence of a real and immediate risk to an identified individual is not an essential prerequisite of a possible breach of Article 2. On the other hand, it is a relevant consideration to be taken into account in deciding whether or not an inquiry is, in the circumstances of any particular case, required.

27. Secondly, Mr Sales submits that a decision to send armed forces abroad does not compare to sending a helpless victim to face torture or death. That may well be so, but it is, in my judgment, arguably a difference of degree rather than one which suffices to make a claim impossible.

28. Thirdly, he submits that the legality of the military action is irrelevant to whether there has been a breach of Article 2.

29. This is, as it seems to me, a serious obstacle to relief. It is coupled with the arguments relating to causation. While, as I have said, I believe that it is not essential to identify an individual who is at risk, nonetheless the Strasbourg jurisprudence which deals with the need for an inquiry has been in that context. The same can be said of the United Kingdom authorities. An effective investigation may be needed whether or not the deaths were caused by state agents so that it cannot be ruled out in circumstances where the breach occurred in the sending out to a real risk of death."


Thus far, the judge was willing to hold that the applicants' case was arguable. However, after quoting paragraph 69 of the speech of Lord Bingham in R (Amin) v Secretary of State [2004] 1 AC 653, where Lord Bingham focused on the duty of a state in circumstances where the death involved state agents or bodies, the judge said this:

"31. In this case the circumstances in which the deaths occurred are, of course, known. The only purpose of the inquiry which is...

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