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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gentle & Ors, R (on the application of) v Prime Minister & Ors [2006] EWCA Civ 1078 (26 July 2006) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2006/1078.html Cite as: [2006] EWCA Civ 1078 |
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OF
JUDICATURE
COURT OF
APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF
JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE COLLINS
![]() ![]() Strand, London, WC2A 2LL |
||
B e f o r e :
CLARKE
, MASTER
OF
THE ROLLS
SIR IGOR JUDGE, PRESIDENT OF
THE QUEEN'S BENCH DIVISION
and
LORD JUSTICE DYSON
____________________
THE QUEEN ON THE APPLICATION ![]() ![]() |
Applicants |
|
- and - |
||
(1) THE ![]() ![]() (2) THE ![]() ![]() (3) THE ![]() ![]() |
Respondents |
____________________
for
the Appellants
Philip Sales and Jemima Stratford (instructed by the Treasury Solicitor) for
the Respondents
Hearing date: 7 June 2006
____________________
OF
JUDGMENT
Crown Copyright ©
SIR ANTHONY CLARKE
MR :
"19. It is arguable that there is no difference in principle since Soering was, just as this case is, concerned with the actionsof
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 obligationsof
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."
"26. Mr Sales' answer to the argument based on Soering is three-fold. He relies, first, on the lackof
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 differenceof
degree rather than one which suffices to make a claim impossible.
28. Thirdly, he submits that the legalityof
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 needfor
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."
"31. In this case the circumstances in which the deaths occurred are,of
course, known. The only purpose
of
the inquiry which is sought would be to seek to know whether or not the invasion
of
Iraq was contrary to international law. There was a clear and unequivocal statement from the
Attorney General
given to Parliament that it was lawful. So far as the British forces are concerned, they can have no liability
for
their actions since they are protected by that statement. Equally, they are doing their duty as Her Majesty's forces in the knowledge that they risk death in action and their relatives can have no redress against the
state
, even if the invasion was not, in international law terms, lawful. Thus the only purpose
of
having the inquiry is to try to make a political point or to show that the
Prime
Minister has not told the truth. That, in my view, is not a proper reason
for
requiring an inquiry where a member
of
the armed forces has been killed in circumstances such as these."
"to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicionof
deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction
of
knowing that lessons learned from his death may save the lives
of
others."
Mr Singh submits that an investigation as to whether the invasion (and therefore the order to send the deceased to Iraq) was unlawful as a matter of
international law falls within those aims and, if it is found to have been unlawful, may help to save the lives
of
others in the future. It seems to us to be arguable that such an inquiry, if otherwise appropriate, would have such a legitimate purpose.
"32. Although so-called floodgate arguments are not particularly persuasive in most cases, it is important to see where the availabilityof
relief, such as is sought in this case, might lead. Is the government to consider every world situation where British interests are affected or requests are made
for
assistance
of
troops in maintaining order in the light
of
a possible inquiry if any allegations are made, the whole picture has not been known, and so there are doubts about the lawfulness
of
any such action? As I have said, the reality is that an inquiry in the circumstances here is too remote."
As we see it, it is not part of
the applicants' case that the government must consider any proposed action in the light
of
a possible future inquiry. Their case is simply that Article 2
of
the Convention requires that a member
state
should consider whether an invasion
of
this kind is lawful before embarking upon it, as indeed the government did, and that on the facts the invasion was arguably unlawful as a matter
of
international law on the ground that no such invasion could lawfully take place in the absence
of
a further United Nations resolution positively permitting it.
"12. The answer to that is that theAttorney General
may well have changed his approach and had been satisfied, notwithstanding his reservations, that resolution 1441 did provide the necessary power to invade, in the sense that it was not necessary
for
there to be a further resolution by the Security Council to use force provided that Iraq had failed to comply with the previous resolutions. It may well be, also, that he received further information which enabled him to be satisfied that there was hard evidence to support the failure to comply and thus to justify the use
of
force. It seems to me that the suggested basis
for
requiring some information as to what had changed in the meantime is exceedingly shaky in the circumstances."
"33. The observationsof
Pill LJ in Sacker v Her Majesty's Coroner
for
West Yorkshire [2003] EWCA Civ 217, upon which some reliance was placed by the claimants, were clearly made in the context
of
the particular facts
of
that case. Whether or not the whole truth was told and whether or not the invasion was in accordance with international law, are no doubt matters
of
considerable interest to many, but the decision whether or not to disclose further material or to hold an inquiry
of
any sort is a political decision and not one which can be imposed by what would amount to an over-generous application
of
the Human Rights Act.
34. A government is accountable to parliament and ultimately to the electorate in respectof
decisions
of
this kind, but the claimants can be assured that there is no evidence available which can begin to establish that the invasion
of
Iraq was carried out in the knowledge that it was unlawful. There are many who believe that it was unlawful, but that does not mean that a contrary belief must have been wrong, let alone that the invasion was carried out in bad faith."
"30…A chargeof
aggression, if laid against an individual in a domestic court, would involve determination
of
his responsibility as a leader but would presuppose commission
of
the crime by his own
state
or a foreign
state
. Thus resolution
of
the charge would (unless the issue had been decided by the Security Council or some other third party) call
for
a decision on the culpability in going to war either
of
Her Majesty's Government or a foreign government, or perhaps both if the
states
had gone to war as allies. But there are well-established rules that the courts will be very slow to review the exercise
of
prerogative powers in relation to the conduct
of
foreign affairs and the deployment
of
the armed services, and very slow to adjudicate upon rights arising out
of
transactions entered into between sovereign
states
on the plane
of
international law."
Lord Bingham then referred to a number of
authorities and continued:
"I do not suggest these rules admitof
no exceptions: cases such as Oppenheimer v Cattermole [1976] AC 249 and Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883 may fairly be seen as exceptions. Nor, in the present context, is the issue one
of
justiciability, to which many
of
these authorities were directed. In considering whether the customary international law crime
of
aggression has been, or should be, tacitly assimilated into our domestic law, it is none the less very relevant not only that Parliament has, so far, refrained from taking this step but also that it would draw the courts into an area which, in the past, they have entered, if at all, with reluctance and the utmost circumspection."
It is said on behalf of
the respondents that similar considerations lead to the conclusion that it would not be appropriate to order an inquiry
of
the kind sought by the applicants.
"1. In timeof
war or other public emergency threatening the life
of
the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies
of
the situation, provided that such measures are not inconsistent with its other obligations under international law.
2. No derogations from Article 2, except in respectof
deaths resulting from lawful acts
of
war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision."
Mr Singh has also referred us to Article 1 of
Protocol 1, which provides among other things that no one shall be deprived
of
his possessions except in the public interest and subject to the conditions provided
for
by the law and by the
general
principles
of
international law.