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England and Wales Court of Appeal (Civil Division) Decisions
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  EWCA Civ 1078 (26 July 2006)
Cite as:  EWCA Civ 1078
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE COLLINS
Strand, London, WC2A 2LL
B e f o r e :
SIR IGOR JUDGE, PRESIDENT OF THE QUEEN'S BENCH DIVISION
LORD JUSTICE DYSON
| THE QUEEN ON THE APPLICATION OF GENTLE & OTHERS
|- and -
|(1) THE PRIME MINISTER
(2) THE SECRETARY OF STATE FOR DEFENCE
(3) THE ATTORNEY GENERAL
Philip Sales and Jemima Stratford (instructed by the Treasury Solicitor) for the Respondents
Hearing date: 7 June 2006
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 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."
"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."
"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 suspicion of 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 availability of 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 the Attorney 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 observations of Pill LJ in Sacker v Her Majesty's Coroner for West Yorkshire  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 respect of 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 charge of 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 admit of no exceptions: cases such as Oppenheimer v Cattermole  AC 249 and Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5)  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 time of 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 respect of 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.