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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 & Anor, R (on the application of) v Prime Minister & Ors  EWCA Civ 1689 (12 December 2006)
Cite as:  EWCA Civ 1689,  HRLR 10,  QB 689,  2 WLR 195
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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
|- and -
|(1) THE PRIME MINISTER
(2) THE SECRETARY OF STATE FOR DEFENCE
(3) THE ATTORNEY GENERAL
Jonathan Sumption QC, Philip Sales QC and Jemima Stratford (instructed by Treasury Solicitor) for the Respondents
Hearing dates: 6, 7 & 8 November 2006
Crown Copyright ©
Sir Anthony Clarke MR :
This is the judgment of the court, to which all members have contributed.
Article 2 of the Convention and the invasion question
"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."
"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; Öneryildiz v Turkey, supra, paras 90-91; Mastromatteo v Italy (App No 37703/97, unreported, 24 October 2002)."
26. To sum up, the language of resolution 1441 leaves the position unclear and the statements made on adoption of the resolution suggest that there were differences of view within the Council as to the legal effect of the resolution. Arguments can be made on both sides. A key question is whether there is in truth a need for an assessment of whether Iraq's conduct constitutes a failure to take the final opportunity or has constituted a failure fully to cooperate within the meaning of OP 4 such that the basis of the cease-fire is destroyed. If an assessment is needed of that sort, it would be for the Council to make it. A narrow textual reading of the resolution suggests that sort of assessment is not needed, because the Council has pre-determined the issue. Public statements, on the other hand say otherwise.
27. 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.
28. 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.
29. 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 nature 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."
36. Finally, I must stress that the lawfulness of military action depends not only on the existence of a legal basis, but also on the question of proportionality. Any force used pursuant to the authorisation in resolution 678 (whether or not there is a second resolution):
- must have as its objective the enforcement of the terms of the cease-fire contained in resolution 687 (1990) and subsequent relevant resolutions;
- be limited to what is necessary to achieve that objective; and
- must be a proportionate response to that objective, i.e. securing compliance with Iraq's disarmament obligations.
That is not to say that action may not be taken to remove Saddam Hussein from power if it can be demonstrated that such action is a necessary and proportionate measure to secure the disarmament of Iraq. But regime change cannot be the objective of military action. This should be borne in mind in considering the list of military targets and in making public statements about any campaign."
"As the CDS subsequently put it in a media interview, he needed an "unambiguous black-and-white statement saying that it would be legal for us to operate if we had to"."
On 13 March there was a discussion between the Attorney General and his Legal Secretary which is described in this way in paragraph 24 of the disclosure statement:
"As the Legal Secretary recorded at the time, the Attorney confirmed in that discussion that, after further reflection, having particular regard to the negotiating history of resolution 1441 and his discussions with Sir Jeremy Greenstock and the representatives of the US Administration, he had reached the conclusion that the better view was that there was a lawful basis for the use of force without a second resolution. The crucial point was that Operative Paragraph 12 of resolution 1441 did not stipulate that there should be a further decision of the Security Council before military action was taken, but simply provided for reports of further breaches by Iraq to be considered by the Council. The Attorney General made it clear that he had fully taken into account the contrary arguments as set out in his 7 March minute to the Prime Minister. In coming to the conclusion that the better view was that a further resolution was not legally necessary, he had been greatly assisted by the background material he had seen on the negotiation of resolution 1441."
"Authority to use force against Iraq exists from the combined effect of Resolutions 678, 687 and 1441. All these resolutions were adopted under Chapter VII of the UN Charter which allows the use of force for the express purpose of restoring international peace and security:
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 discussion by the Security Council of Iraq's failures, but not an express further decision to authorise force."
On the same day the Foreign Secretary submitted a memorandum to the Foreign Affairs Select Committee which gave further details of the legal position.
"[Resolution 687] provided for a formal or permanent cease-fire and that the United Nations could "take such further steps as may be required to implement the present resolution and to secure peace and security in the area." There was the specific provision enabling "all necessary measures" which clearly would have included force, to guarantee the inviolability of the boundary between Kuwait and Iraq. But in sharp contrast there was no provision at all in this resolution for the use of force to enforce the disarmament obligations. Nor has there been any subsequent resolution that provided for the use of force against Iraq. Hence the government desperately trawled way back to Resolution 678 to find a flag of convenience, a flag disowned by Kofi Annan. But the flag simply cannot fly.
The language of Resolution 660 was restrictive, clearly designed to achieve the end of the Iraqi invasion of Kuwait. Resolution 678 was backing this resolution with the potential use of force. Resolution 660 was complied with. Resolution 678 was contemplated as only remaining in force until the consequences of the Iraqi invasion of Kuwait had been dealt with. Resolution 687 introduced the wider and distinct issue of weapons of mass destruction. It gave no comfort to the use of force to achieve this aim and specifically contemplated that the United Nations, and not any member countries acting unilaterally, would remain in charge of the issue, as was cogently argued by Rabinder Singh QC and Charlotte Kilroy in one of their impressive opinions on the conflict. The suggestion that the authority "revives" like spring flowers in the desert after rain, to be invoked by the US and the UK contrary to the wishes of the Security Council is risible. Nor does it find any support in international law."
The substantive obligation in article 2
i) The decision to deploy armed forces in a foreign conflict in which they are killed is not of itself capable of being in breach of the substantive obligation in article 2 to protect life. Such risks are inseparable from any decision by a state to engage in military operations and such a decision does not itself engage any provision of the Convention.
ii) Even if there were a Convention obligation to investigate deaths occurring in the course of military operations overseas, the lawfulness of those operations as a matter of international law would be irrelevant to such an investigation, as a matter of causation.
iii) Subject to limited exceptions, which do not arise on the facts, the Convention and the Human Rights Act 1998 ('the HRA') impose obligations on the state in relation to matters occurring within the territory of the United Kingdom. Neither the substantive nor the procedural obligations in article 2 apply to deaths occurring outside the United Kingdom. The fact that the death occurred in the course of military operations resulting from a prior political decision in the United Kingdom makes no difference.
iv) The extra-territorial actions of a state are not justiciable and nothing in the Convention makes them justiciable.
It is convenient to consider the first and fourth points together under the heading of justiciability, then to consider the second point under the heading of causation and, finally, to consider the third point under the heading of jurisdiction.
"84. Lord Scarman said, at p 407, that the controlling factor in considering whether a particular exercise of prerogative power was subject to review was "not its source but its subject matter." Lord Diplock, at p 411, expanded on the categories of prerogative decision which remained unsuitable for judicial review:
"Such decisions will generally involve the application of Government policy. The reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the Executive discretion is to be wisely exercised, need to be weighed against one another - a balancing exercise which judges by their upbringing and experience are ill-qualified to perform."
85. Those extracts indicate that the issue of justiciability depends, not on general principle, but on subject matter and suitability in the particular case. That is illustrated by the subsequent case of R v Foreign Secretary ex p Everett  1 QB 811. This court held, following the GCHQ case, that a decision taken under the prerogative whether or not to issue a passport was subject to judicial review, although relief was refused on the facts of that particular case. Lord Justice Taylor, at p 820, summarised the effect of the GCHQ case as making clear that the powers of the court "cannot be ousted merely by invoking the word 'prerogative'"
"The majority of their Lordships indicated that whether judicial review of the exercise of a prerogative power is open depends upon the subject matter and in particular whether it is justiciable. At the top of the scale of executive functions under the Prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making war, dissolving parliament, mobilising the armed forces. Clearly those matters and no doubt a number of others are not justiciable but the grant or refusal of a passport is in a quite different category. It is a matter of administrative decision affecting the right of individuals and their freedom of travel. It raises issues which are just as justiciable as, for example, the issues arising in immigration cases.""
"What is sought here is a ruling on the interpretation of an international instrument, no more and no less. It is one thing, as in cases like Kebilene and Launder, for our courts to consider the application of an international treaty by reference to the facts of an individual case. (That, indeed, would have been the position in Lyons itself had the courts been prepared to undertake the exercise.) It is quite another thing to pronounce generally upon a treaty's true interpretation and effect. There is no distinction between the position of the United Kingdom and that of all other States to whom Resolution 1441 applies. Why should the English courts presume to give an authoritative ruling on its meaning? Plainly such a ruling would not bind other States. How could our assumption of jurisdiction here be regarded around the world as anything other than an exorbitant arrogation of adjudicative power?"
Simon Brown LJ ultimately concluded that, as he put it at , there was simply no foothold in domestic law for any ruling to be given on international law, in which he included a ruling on the meaning and effect of resolution 1441.
"many of the most important prerogative powers which are concerned with control of the armed forces and with foreign policy and with other matters which are unsuitable for discussion or review in the law courts."
Maurice Kay J treated that principle as one of justiciability, or perhaps more accurately, non-justiciability. He thus treated consideration by the government of the question whether military action would be lawful under international law by reason of resolution 1441 as part of the exercise of the prerogative powers of the executive and non-justiciable.
i) There is nothing in the text which suggests that there are such areas.
ii) There is no Strasbourg jurisprudence which precludes consideration of particular subject matters and the court has engaged in highly sensitive areas of government such as the activities of secret service organisations: McCann v UK (1996) 21 EHRR 97.
iii) The domestic courts have been willing to enter what might otherwise have been forbidden areas in identifying and upholding Convention rights: see eg A v Secretary of State for the Home Department  UKHL 56,  2 AC 68 and A v Secretary of State for the Home Department (No 2)  UKHL 71,  2 AC 221. The latter case was of course concerned with evidence obtained in cases of torture.
iv) Similarly, domestic courts routinely consider the behaviour of foreign states, as for example when considering whether there is a real risk that deportation to a particular state will result in torture or persecution.
v) It would be strange indeed if a Convention designed to protect individuals from abuse of power on the part of the state permitted the government what amounts to immunity from judicial review in such important areas.
vi) In particular, article 15 of the Convention and article 1 of protocol 1 show that the principles of international law are imported into the Convention.
"40. Secondly, however, this primacy which the common law accords to elected Government in matters of defence is by no means the whole story. Democracy itself requires that all public power be lawfully conferred and exercised, and of this the courts are the surety. No matter how grave the policy issues involved, the courts will be alert to see that no use of power exceeds its proper constitutional bounds. There is no conflict between this and the fact that upon questions of national defence, the courts will recognise that they are in no position to set limits upon the lawful exercise of discretionary power in the name of reasonableness. Judicial review remains available to cure the theoretical possibility of actual bad faith on the part of ministers making decisions of high policy. In the British state I assume that is overwhelmingly unlikely in practice. Closer to reality, perhaps, is the possibility that a statute might itself require the courts to review high policy decisions (or decisions involving judgment of deeply controversial social questions) upon which traditionally they would advisedly have had no voice. That, I think, was the position in Operation Dismantle. In this jurisdiction such a state of affairs may most obviously arise in the execution of the judge's duty under the Human Rights Act 1998.
42. But there is no point under the Act of 1998 in this case. And there is no other statute which requires (it would have to be a mandatory provision) that the respondent examine the merits of defence policy, specifically the Trident programme, however remotely. Certainly, the RSA 1993 does not do so."
"The Commission acknowledges that neither the criminal proceedings nor the Inquiry addressed the wider issues relating to the organisation and funding of the National Health Service as a whole or the pressures which might have led to a ward being run subject to the short comings apparent on Ward Four. The procedural element contained in Article 2 (Art 2) of the Convention however imposes the minimum requirement that where a State or its agents potentially bear responsibility for loss of life the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims. The Commission finds no indication that the facts of this case have not been sufficiently investigated and disclosed, or that there has been any failure to provide a mechanism whereby those with criminal or civil responsibility may be held answerable. The wider questions raised by the case are within the public domain and any doubts which may consequently arise as to policies adopted in the field of public health are, in the Commission's opinion, matters for public and political debate which fall outside the scope of Article 2 (Art 2) and the other provisions of the Convention."
It can be seen from that paragraph that there are some areas of policy which are outside the purview of the Convention and merely give rise to matters of public and political debate.
"While reference has also been made to the future protection of citizens, presumably through either continued risk of unlawful conduct by the two soldiers or through a deterioration in attitudes and standards in the armed forces generally, this would appear somewhat hypothetical and speculative and certainly remote in consequence as regards any effect on the rights of this applicant. To the extent concerns might arise as to the composition of the armed forces and existence of appropriate disciplinary regulations and machinery, these would appear to be matters of general policy for public and political debate falling outside the scope of Art 2 of the Convention as applicable in this case.
The court finds that the procedures adopted in this case complied with the procedural obligation contained in Art 2 of the Convention and that the applicant cannot claim to be the victim of any breach of provision as regards the decision to retain the two soldiers in the army. It follows that this part of the application must be rejected as incompatible ratione personae pursuant to Art 35(3) and (4) of the Convention."
The court thus approached the case in the same way as in Taylor and held that the proposed inquiry raised matters of general public policy and political debate falling outside article 2.
"The domestic courts accept that an essential purpose of the inquest is to allay rumours and suspicions of how a death came about. The Court agrees that a detailed investigation into policy issues or alleged conspiracies may not be justifiable or necessary. Whether an inquest fails to address necessary factual issues will depend upon the particular circumstances of the case. It has not been shown in the present application that the scope of the inquest as conducted so far has prevented any particular matters relevant to the death being examined." (Our emphasis)
The sentence we have italicised shows that the European Court recognises that there are some areas of policy which may be outside the legitimate scope of an inquiry under article 2.
"The purposes of such an investigation are clear: to ensure as 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."
We do not think that in that paragraph Lord Bingham had in mind the kind of allegation contemplated in this case.
"67. Where the failures are of the kind identified in the present case, I do not consider that the Commission's statement in Taylor that "wider questions" fall outside the scope of Article 2 is, as the law has now been interpreted, applicable to render unnecessary enquiries beyond the factual investigation provided by the Inquest. The statement in Jordan that detailed investigation of policy issues may not be necessary was in the context of a defective investigation of the facts. Such a defect does not necessarily give rise to policy issues. Lord Bingham's proposal in Middleton (paragraph 36), as interpreted by the Coroner in the present case, was to put a detailed questionnaire to the jury on a range of issues."
He added at :
68. The evidence at the Inquest revealed a worrying situation with regard to the detention of young offenders. On the evidence, vulnerable young offenders, such as Joseph, have been detained in conditions unsuitable for their safety and their lives. That having been revealed in a properly conducted Inquest, there is, in my judgment, a duty upon the Secretary of State to investigate further what remedial action can be taken. Thorough investigation of facts at an Inquest would have little value in preventing a repetition and in maintaining public confidence, unless followed up. "
"Questions of sentencing policy and of the allocation of resources are essentially for collegiate consideration and decisions by the Government, following procedures which are well established, including those by which guidance is given to judges. I cannot hold that the only appropriate action is for a judge, however eminent, to be given the task of resolving such issues, at or following a public inquiry."
"82. There is, however, a distinction to be drawn between legal and political questions. In A v Secretary of State for the Home Department at paragraph 29, Lord Bingham also held:
"The more purely political (in a broad or narrow sense) the question is, the more appropriate it would be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller therefore would be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions."
83. Likewise, in this case, as it seems to me, Mrs Scholes is in part seeking, by way of individual rights under article 2 of the Convention, to intervene in the political process which determines the allocation of resources to institutions such as secure children's homes. In my judgment, in so far as she seeks to do so or to establish a right for members of the public to be consulted on these matters, she seeks to carry Convention rights further than authority or Convention jurisprudence would require (see, for example, the Taylor case, cited by Pill LJ in para 60 of his judgment)."
"Article 1 – Obligation to respect human rights
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.
Article 15 – Derogation in time of emergency
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 derogation 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.
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
Extent of the obligation under article 2
What if our decision were different?
SIR ANTHONY CLARKE: For the reasons set out in the draft judgment, a copy of which was sent to the parties in advance, and which we have corrected in the light of the slight correction suggested, the appellant's appeal against the order striking out his claim against the commissioner is allowed. And I think there remains a question of costs?
MR SINGH: My Lord that's right. My Lord (inaudible) this morning. I have passed up a draft order. The contentious part of it is paragraph 2, and ?
SIR ANTHONY CLARKE: There's no dispute about the rest of it is there? No.
MR SINGH: I think not, and my Lords I think you have a skeleton argument from my friend although not from me on this very short point. My Lords, so far as we on this side of the court are concerned we say that we should have our costs of the appeal, and so far as the costs below are concerned, paragraph 2 is intended to indicate a course that on assessment the costs judge considers, considers which court, which costs are attributable to the case as against the first defendant as opposed to the second defendant, who of course was not part of the appeal, and I think it is worded in a way which deals with that, but perhaps my Lords can hear first from my friend.
SIR ANTHONY CLARKE: But it's intended to ? so your application is for the costs of the appeal?
MR SINGH: My Lord, yes
SIR ANTHONY CLARKE: But the costs below insofar as they are attributable to the case against the second defendant ?
MR SINGH: The first defendant.
SIR ANTHONY CLARKE: Oh sorry, the first. Who was the ? the police were the first defendant, were they?
MR SINGH: The Commissioner (inaudible).
SIR ANTHONY CLARKE: The Commissioner, I am sorry, yes. Yes I see, thank you. Yes?
MR SUMPTION: My Lord, first of all may I apologise for the late submission on that?
SIR ANTHONY CLARKE: That's quite alright.
MR SUMPTION: My Lord, I hope that encapsulates my submissions in relation to the question of costs.
SIR ANTHONY CLARKE: You don't object to the costs of the appeal, I understand. Is that right? Or do you?
MR SUMPTION: We object to the costs of the appeal from the ? up until the date of the second skeleton argument, my Lord, which was?
SIR ANTHONY CLARKE: 19 July.
MR SUMPTION: 12 July, it's dated. The 19th was when it was lodged, my Lord, yes. My Lord, if I can put it this way, I think by our concerns therefore in paragraph 3 have been assuaged by my learned friend, and they are not seeking to recover the costs that they incurred in suing the Home Office or indeed (inaudible) costs they have been ordered to pay the Home Office, and if need be the order can be redrafted to reflect that. But, my Lord, the thrust of our?
SIR ANTHONY CLARKE: (Inaudible). But even so in the court below, assuming we are going to make some order, the order would be ?
MR SUMPTION: Well, my Lord ?
SIR ANTHONY CLARKE: The costs attributable to the case against the first defendant or something like that ...
MR SUMPTION: The first defendant only ?
SIR ANTHONY CLARKE: Or costs solely attributable perhaps?
MR SUMPTION: Yes.
SIR ANTHONY CLARKE: ?to the case against the first defendant in the court below.
MR SUMPTION: Yes. But my Lord, the main thrust of our objection to paying the costs below and also the costs up until the second skeleton argument submitted are based on two limbs. First of all, the ever changing position brought about by the House of Lords' decision in Watkins. We accept that the ?
SIR ANTHONY CLARKE: Well I am probably partly to blame for that because I was part of the decision in the Court of Appeal in Watkins, which is how it stood, as I recall, when it was before the judge, the district judge.
MR SUMPTION: Yes. My Lord, the fact of the matter remains that we submit that in the light of the House of Lords' decision in fact the contention to be put forward to the district judge, and indeed accepted by the district judge albeit in a modified form subject to the earlier Court of Appeal's decision in Watkins, were correct, and therefore that sort of limb of the appeal effectively went with the decision in the House of Lords, which left therefore the question of whether ?
SIR ANTHONY CLARKE: So what order are you ? you are not asking them to pay your costs in the court below are you? Or are you?
MR SUMPTION: Well, my Lord, in the light of the circumstances, yes we are, though we wouldn't press that greatly, but ultimately ?
SIR ANTHONY CLARKE: They have actually won in the end?
MR SUMPTION: Ultimately the question of damage ? below there was a concession made that if the case against the Home Office was struck out, the Commissioner's case was to be struck out as well. It was only effectively before the Court of Appeal that the distinction was taken between the two defendants, and in particular the section 12 (inaudible).
SIR ANTHONY CLARKE: I mean the point about the date, then, is what, that??
MR SUMPTION: Well my Lord it ? the point about the date is that 12 July was referred to in my skeleton argument as the date of the second skeleton argument. That postdates of course the decision in Watkins but at that stage we say that finally the issues crystallised were going to be argued before your Lordships.
SIR ANTHONY CLARKE: So that's the point, really
MR SINGH: My Lord, yes
SIR ANTHONY CLARKE: Well what do you say about that (inaudible)?
MR SINGH: Well my Lord so far as the, so far as the principal point, the changing legal landscape, is concerned, which is of course, which is responsible for fluctuating arguments on this side of the court, we would simply say that this is a situation which happens from time to time, and as the common law is discovered by the Appeal Court ?
SIR ANTHONY CLARKE: You say it's one of those things, not your fault?
MR SINGH: It's not our fault, but my Lord, my Lord, so far as this specific case is concerned, when the matter was before District Judge Evans, part of the, part of the skeleton argument advanced, which is in the appeal bundles, the skeleton argument of Mr Sefton Smith, was that, was to the effect that the denial by the defendant that loss of liberty could, could give rise to actionable damage that was not sustainable -- my Lord one finds that at page 131 of the appeal bundle -- and that is precisely the point at the end of the day on which we won.
SIR ANTHONY CLARKE: It doesn't seem to have been debated at all below, as far as one can see, it doesn't seem to have been a live issue before the district judge.
MR SINGH: Well, my Lord ?
SIR ANTHONY CLARKE: Touched on is the most you can say, really, by the looks of it ?
MR SINGH: Touched on is the most I can say, but there it is in the, there it is fair and square in the skeleton arguments, or the skeleton argument on this side of the court, and my Lord that is the point that in due course succeeded and on that basis we say that we should have our costs on the usual basis
SIR ANTHONY CLARKE: Very well, we'll think about it.
Well, the costs order must plainly reflect the fact that the appellant has been successful in this appeal. However, below the point was at best touched upon and does not appear to us to have been developed in any way. Looking at the matter broadly, we think that the fair order would be that there should be no order in relation to the costs below, but that the respondent should pay the whole of the appellant's costs of the appeal. Looking at the matter broadly, we will not limit it in the way suggested on behalf of the respondent.
Well, thank you very much for your assistance in what has been certainly an interesting case.