Square Mile Partnership Ltd v Fitzmaurice McCall Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 12 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1690 |
| Docket Number | Case No: C1/2006/0187 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 December 2006 |
[2006] EWCA Civ 1690
Sir Anthony Clarke Master of The Rolls
Sir Igor Judge, President of The Queen's Bench Division and
Lord Justice Dyson
Case No: C1/2006/0187
Rabinder Singh QC and Richard Hermer (instructed by Public Interest Lawyers) for the Applicants
Jonathan Sumption QC, Philip Sales QC and Jemima Stratford (instructed by Treasury Solicitor) for the Respondents
Sir Anthony Clarke MR:
This is the judgment of the court, to which all members have contributed.
Introduction
This is an application for judicial review of the refusal by the government to hold an independent inquiry into the circumstances which led to the invasion of Iraq. The application was originally heard by Collins J, who refused it on 20 December 2005. He also refused permission to appeal but the application was renewed to this court and adjourned by the Lord Chief Justice to be heard on notice to the respondents. We heard the application and on 26 July 2006 decided that this was a proper case in which to grant permission, not on the basis that we had concluded that the application for judicial review had a real prospect of success within the meaning of CPR 52.3(6) , but on the basis that, because of the importance of the issues, there was a compelling reason why an appeal should be heard. We then considered whether, instead of giving permission to appeal, we should give permission to apply for judicial review under CPR 52.15(3) and, if so, whether this court should consider the application under CPR 52.15(4) . We answered both questions in the affirmative and reserved the application to the same constitution. We have now heard detailed argument on the application.
The applications
The original application before the judge was brought by the relatives of six members of the armed forces who lost their lives while serving in Iraq. There are now only two applicants, Rose Gentle and Beverley Clarke. The invasion of Iraq began on 20 March 2003 and Mrs Clarke's son, Trooper David Clarke, was killed only five days later on 25 March. He was killed by 'friendly fire'. Mrs Gentle's son, Fusilier Gordon Gentle, was killed by a roadside bomb on 28 June 2004.
The applicants seek judicial review of the refusal by the government to hold an independent inquiry into the circumstances which led to the invasion of Iraq. As outlined by Mr Rabinder Singh QC on their behalf, the applicants seek an inquiry by reason of the terms of article 2 of the European Convention on Human Rights ("the Convention") into the question whether the government took reasonable steps to be satisfied that the invasion of Iraq was lawful under the principles of public international law. We will call that 'the invasion question". The applicants do not seek an inquiry into the physical circumstances in which Fusilier Gentle and Trooper Clarke were killed.
In the case of Fusilier Gentle there will be an inquest. In the case of Trooper Clarke there cannot unfortunately be an inquest because no mortal remains were recovered so as to give a coroner jurisdiction. However, Trooper Clarke died at the same time as Corporal Allbutt and the coroner who is investigating the death of Corporal Allbutt has agreed that the family of Trooper Clarke will be treated as an interested party at that inquest. The position is therefore that the circumstances surrounding the deaths of both Fusilier Gentle and Trooper Clarke will be investigated at inquests. The applicants thus accept that the only relevant question which will not be considered at the proposed inquests is the invasion question. If (contrary to the respondents' case) the applicants are entitled to an investigation into the invasion question under article 2, no one has suggested that the invasion question could or should be considered at an inquest.
Article 2 of the Convention and the invasion question
The question which the applicants now seek to have investigated is not quite the same question as that formulated when the case was before the judge. In the claim form the remedy sought by the applicants was formulated as follows:
"1. A declaration that as article 2 has been violated, an independent inquiry must be held, and that its remit is to examine all the circumstances of these deaths including whether the decision to use force against Iraq was lawful
2. A mandatory order requiring the defendants to establish an independent inquiry as above."
It can immediately be seen that that is not the same question as the invasion question identified above, namely whether the government took reasonable steps to be satisfied that the invasion of Iraq was lawful under the principles of public international law. The reason the questions are different is because the applicants' case depends entirely upon article 2 of the Convention and because it is correctly accepted by Mr Singh that there could be no duty to investigate the lawfulness of the invasion under article 2.
Article 2, which is entitled "Right to Life", provides by paragraph 1 that "everyone's right to life shall be protected by law". It is common ground that article 2 imposes both substantive and procedural (or adjectival) obligations on contracting states. Those obligations are authoritatively summarised by Lord Bingham, giving the opinion of the Appellate Committee, in R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182, at [2] and [3]:
"2. The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life. See, for example, LCB v United Kingdom (1998) 27 EHRR 212, para 36; Osman v United Kingdom (1998) 29 EHRR 245; Powell v United Kingdom (App No 45305/99, unreported 4 May 2000) , 16–17; Keenan v United Kingdom (2001) 33 EHRR 913, paras 88–90; Edwards v United Kingdom (2002) 35 EHRR 487, para 54; Calvelli and Ciglio v Italy (App No 32967/96, unreported, 17 January 2002) ; Öneryildiz v Turkey (App No 48939/99, unreported, 18 June 2002) .
3. The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated. See, for example, Taylor v United Kingdom (1994) 79-A DR 127, 137; McCann v United Kingdom (1995) 21 EHRR 97, para 161; Powell v United Kingdom, supra p 17; Salman v Turkey (2000) 34 EHRR 425, para 104; Sieminska v Poland (App No 37602/97, unreported, 29 March 2001) ; Jordan v United Kingdom (2001) 37 EHRR 52, para 105; Edwards v United Kingdom, supra, para 69; Ö neryildiz v Turkey, supra, paras 90–91; Mastromatteo v Italy (App No 37703/97, unreported, 24 October 2002) ."
In the light of those principles it is common ground that the procedural obligation upon a member state to conduct an inquiry only arises where there is at least arguably a breach of the substantive obligation. On that basis it follows that the first question for consideration is whether the applicants have an arguable case that the United Kingdom is in breach of that obligation. It further follows that the question is whether the United Kingdom is arguably in breach of the obligation identified by Lord Bingham in Middleton.
It has not, so far as we are aware, been suggested in the present case that the United Kingdom took the lives of either of the deceased, whether without justification or at all. Even if it could be said that it took the life of Trooper Clarke, who was killed by 'friendly fire', without justification, it is not said that it is that fact which triggers the need for an inquiry into the invasion question. As we understand it, it is accepted that the physical circumstances of Trooper Clarke's death, including how he came to be killed by 'friendly fire', will be investigated by the coroner at an effective public investigation by an independent official body, namely the coroner, at the inquest into the death of Corporal Allbutt. Moreover, it is not suggested that such an inquiry will not satisfy article 2 (if it is otherwise applicable) , so far as the physical circumstances of the death are concerned. That is because it will be an inquiry into 'by what means and in what circumstances' Trooper Clarke and Corporal Allbutt died: see eg Middleton at [30] to [32] and R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440, [2006] 1 WLR 461 at [81].
The applicants' case that the United Kingdom is in breach of the substantive obligation implicit in article 2, as explained in Middleton, is put in this way. It is the substantive obligation of member states, in the words of Lord Bingham, to establish a framework of precautions and procedures which will, to the greatest extent reasonably practicable, protect life. In the present context, where a member state owes duties to the...
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