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

Under CPR 52.3(6), permission to appeal may be granted either because the appeal has a real prospect of success or because there is a compelling reason for it to be heard. Questions of considerable general importance and uncertainty may satisfy the latter ground, even where success is not considered likely. The court may also grant permission to apply for judicial review and hear the application itself where it can fairly address the evidence with counsel. This decision was preliminary. It did not determine the scope of Article 2, the lawfulness of the invasion, causation, justiciability or whether an inquiry was ultimately required.

Four relatives of British service personnel killed in Iraq renewed an application for permission to appeal after Collins J refused permission to seek judicial review of the Government’s refusal to establish an independent inquiry into the circumstances leading to the invasion of Iraq.

The applicants argued that Article 2 of the Convention arguably required an investigation, including consideration of whether the invasion and the deployment of the deceased were lawful under international law. The Court of Appeal considered whether the issues were sufficiently arguable and important to warrant full argument, and whether it should determine the judicial-review application itself.

The High Court decision is reported at [2005] EWHC 3119 (Admin).

The Court of Appeal granted permission to apply for judicial review. It did so under the compelling-reason limb of CPR 52.3(6), rather than because it had concluded that the application had a real prospect of success. The issues raised questions of considerable general importance and uncertainty which should be resolved after full argument.

1. Article 2 and arguability. The applicants’ case was that Article 2 arguably imposed an obligation to investigate the circumstances leading to the invasion, including its lawfulness under international law and any causal connection with the deaths. The court accepted that an investigation could arguably have a legitimate purpose, including bringing facts to light, exposing culpable conduct, allaying unjustified suspicion, rectifying dangerous practices and identifying lessons capable of saving lives.
2. Issues reserved. The court did not decide the true ambit of Article 2. It noted substantial difficulties concerning individualised risk, the distinction between military deployment and the circumstances in Soering v United Kingdom (1989) 11 EHRR 439, causation, the political character of decisions to go to war and the interaction with Article 15. It also did not finally determine justiciability, the legality of the invasion or whether an inquiry should be ordered.
3. Procedure. The court granted permission under CPR 52.15(3) and decided under CPR 52.15(4) to hear the judicial-review application itself rather than remit it to the High Court. It considered that it could address any necessary factual issues with counsel’s assistance, while retaining power to remit the matter if justice later required it.

The substantive application was reserved for determination in November.

1. Court of Appeal (Civil Division): granted permission to apply for judicial review under CPR 52.15(3), directed that the application be heard by the Court of Appeal under CPR 52.15(4), and reserved the substantive hearing.
2. High Court, Administrative Court: Collins J refused permission to claim judicial review on 20 December 2005, reported at [2005] EWHC 3119 (Admin).