Neutral Citation Number: [2006] EWCA Civ 1078
Case No: C1/2006/0187
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION 
ADMINISTRATIVE COURT
MR JUSTICE COLLINS
[2005] EWHC 3119 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/07/2006
Before :

SIR ANTHONY CLARKE, MASTER OF THE ROLLS
SIR IGOR JUDGE, PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
LORD JUSTICE DYSON
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Between :

	THE QUEEN ON THE APPLICATION OF GENTLE &  OTHERS	Applicants	
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	(1) THE PRIME MINISTER 
(2) THE SECRETARY OF STATE FOR DEFENCE
(3) THE ATTORNEY GENERAL	

Respondents	

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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

Hearing date: 7 June 2006
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Judgment
SIR ANTHONY CLARKE MR : 
1.	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.
2.	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.
3.	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.  
4.	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.
5.	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. 
6.	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.
7.	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.
8.	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.”

9.	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.
10.	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.”

11.	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 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.”

12.	Mr Singh submits that the purpose of the proposed investigation is not to try to make a political point, as the judge said, but to discover the full facts relevant to the deaths in order to meet the aims identified by Lord Bingham in paragraph 31 of his speech in Amin, namely:
“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.
13.	In paragraph 32 the judge said this:
“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.  
14.	On the facts the judge set out, on the one hand, parts of the written advice given by the Attorney General on 7 March 2003 and, on the other, the written answer he gave in the House of Lords ten days later on 17 March.  The judge noted that it was said by the applicants that the written answer was inconsistent with the advice.  In paragraph 11 of his judgment he said that the question was what, if anything, happened in the intervening period to enable the Attorney General to be positive when he had been doubtful.  He said in paragraph 12:
“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.”                
15.	Since the hearing before the judge certain further information has come to light under the Freedom of Information Act.  In the light of all the information at present available it seems to us that, if it is otherwise appropriate to hold an inquiry, it is at least arguable that the question whether the invasion was lawful (or reasonably thought to have been lawful) as a matter of international law is worthy of investigation.
16.	Finally, the judge added in paragraphs 33 and 34:
“33.	The observations of 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 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.”
17.	As to that, Mr Singh submits that it is not necessary for the applicants to show that the invasion was carried out in bad faith, merely that there is evidence to suggest that the circumstances leading up to the invasion remain unclear and deserve investigation, as does the lawfulness of the invasion and the question whether the unlawfulness of the invasion was causative of the deaths.  We have reached the conclusion that there is some force in those submissions.
18.	As stated at the outset, we are doubtful whether it would be appropriate to order a public inquiry of the kind sought.  However, as we understand it, Mr Sales does not submit that the matters raised would not be justiciable if an inquiry were otherwise required by Article 2.   He accepted in the course of the argument that the issue is not one of justiciability, although we would welcome assistance at the full hearing on the meaning of justiciability in this context.  
19.	We were referred in this regard to R v Jones (Margaret) [2006] 2 WLR 772, where Lord Bingham said at paragraph 30, in a different context:
“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 [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.
20.	Nevertheless the question whether an inquiry should be ordered into the lawfulness of the invasion depends upon the true ambit of Article 2 and is therefore of some considerable importance.  In this connection Mr Singh has referred us to Article 15 of the Convention, which is entitled “Derogation in time of emergency” and, provides so far as relevant:
“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.  
21.	In these circumstances Mr Singh submits that the Convention requires member states to comply with international law.  He further submits that since, in the particular context of Article 2, they can only derogate from Article 2 in respect of deaths resulting from lawful acts of war, it follows that Article 2 must apply to deaths resulting from unlawful acts of war, including deaths arising from an unlawful war or invasion and that in these circumstances Article 2 must contemplate an inquiry into the lawfulness of the war or invasion.
22.	These are questions of some general importance and it is, as stated earlier, for that reason that we have reached the conclusion that we should grant permission to appeal, not on the basis that we have concluded that the application for judicial review has 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 and the uncertainty of the present position there is a compelling reason why an appeal should be heard.  We stress that, although we have decided to grant permission, we see formidable hurdles in the way of the applicants and do not wish to encourage them to think that they will succeed.
23.	The question then arises 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 have concluded that we should grant permission to apply for judicial review, essentially for the reasons set out above.  We have also concluded that it would be appropriate for this court to hear the application.  Mr Singh submitted that we should take that course, whereas Mr Sales submitted that we should not.  He submitted that the respondents might wish to adduce evidence of fact which it would be more appropriate for a judge than for this court to analyse.  
24.	In many cases that would be a powerful point.  However, we do not at present see any reason why we should not be able, so far as necessary, to consider the facts with the assistance of counsel.  We have therefore concluded that we should not remit the application for judicial review to the High Court but consider it ourselves subject only to this.  If, after seeing the evidence or indeed after hearing argument about it, we conclude that justice requires that the application be remitted to a judge we will take that course.  In the meantime, we think that the best course is to consider the application for judicial review ourselves and to resolve the whole matter in November.  In these circumstances we have reserved three days in November during which this constitution of the court can hear the application.