Rose Gentle & Ors, R (on the application of) v The Prime Minister & Ors

Permission for judicial review requires more than persuasive or attractive argument. The claim must have a real prospect of success.

Article 2 may arguably apply where members of the armed forces are sent abroad by the United Kingdom and face a real risk of death, even though the deaths occur overseas and no individualised risk was identified in advance. The absence of an identified individual risk is relevant to whether an inquiry is required, but is not necessarily decisive.

However, the investigative obligation under Article 2 exists to secure effective protection of life and accountability for deaths occurring under state responsibility. It does not require an inquiry whose only purpose is to determine the international legality of a war, where the circumstances of death are known and no arguable state liability or remedial purpose is shown.

The six claimants were relatives of British servicemen killed in Iraq between March 2003 and June 2004. They sought permission to challenge the refusal of the Prime Minister, the Secretary of State for Defence and the Attorney General to establish an independent inquiry.

The proposed inquiry would examine the circumstances of the deaths and, in particular, whether the decision to invade Iraq was lawful. The claim relied on Articles 1 and 2 of the European Convention on Human Rights, together with the Human Rights Act 1998.

The central issues were whether the deceased remained within United Kingdom jurisdiction for Convention purposes, whether Article 2 arguably required an investigation, and whether the legality of the invasion was sufficiently connected with any procedural obligation.

1. Permission refused. The court was concerned only with arguability. The threshold is relatively low, but a claim must have a real prospect of success. Persuasive advocacy alone is insufficient (paras [3]-[4], [35]).
2. The territorial approach in Bankovic v Belgium did not make the claim unarguable. The case concerned victims of military action abroad, whereas the present claim concerned members of the British armed forces. The court regarded that distinction as material (paras [14]-[16]).
3. The principles in Soering v United Kingdom were arguably applicable. A serviceman required by the United Kingdom to engage in war or war-like activity faced a real risk of death. The relevant act said to constitute the breach could therefore be treated as occurring within United Kingdom jurisdiction, despite the deaths occurring in Iraq (paras [18]-[20]).
4. The absence of a real and immediate risk to an identified individual was not an essential prerequisite to a possible Article 2 breach. It remained a relevant consideration when deciding whether an inquiry was required. The reasoning in Osman v United Kingdom arose in a different context and did not make the claim impossible (paras [23]-[29]).
5. The decisive difficulty concerned the purpose and relevance of the proposed inquiry. The investigative obligation under Article 2 exists to secure effective implementation of laws protecting life and accountability for deaths occurring under state responsibility. Here the circumstances of death were known, the only proposed purpose was to determine whether the invasion breached international law, and no practical liability or remedial consequence was identified. That was not a proper basis for compelling an inquiry (paras [30]-[33]).
6. The decision whether to disclose further material or hold an inquiry into the legality of military action was political. It could not be imposed through an over-generous application of the Human Rights Act 1998. Permission was therefore refused (paras [32]-[35]).
7. Costs were assessed at £5,522.17. Permission-application costs should generally be modest, although the individual circumstances of an important and unusually complex case justified a figure above the ordinary level (paras [104]-[109]).

First-instance judicial review permission decision. No prior decision in the same litigation is stated in the judgment.