Campaign Against Arms Trade, R (On the Application Of) v The Secretary of State for International Trade

A public authority applying a predictive risk-based policy must ask the correct legal question and make a reasonable inquiry, but need not investigate every alleged historical incident as if conducting a trial. Under Criterion 2c, the decision-maker must assess in the round whether there is a clear risk that licensed items might be used in a serious violation of international humanitarian law. Civilian casualties or isolated alleged violations do not automatically establish that risk. The assessment may properly take account of the recipient’s record, intentions, investigative procedures, military processes, cooperation and capacity for future compliance. Where the assessment involves complex information, expert advice, sensitive material and finely balanced predictive judgments, the court must apply rigorous review while respecting the executive’s institutional competence.

The claimant sought judicial review of the Secretary of State’s decisions to continue granting, and not suspend, licences for the export of arms and military equipment to Saudi Arabia for possible use in the Yemen conflict. The claimant relied on reports alleging repeated serious violations of international humanitarian law and challenged the decisions on three grounds: insufficient inquiry and failure to ask the right questions; failure to operate the suspension mechanism; and irrationality in concluding that Criterion 2c was not satisfied. The court considered open and closed evidence concerning the Government’s assessment processes, Saudi military procedures, investigations and engagement with the United Kingdom.

1. Legal question. Criterion 2c required the Secretary of State to decide whether there was a clear risk that licensed items might be used in the commission of a serious violation of international humanitarian law. It was a legal test, not an invitation to apply additional political considerations.
2. Intensity and scope of review. The gravity of the subject required rigorous and intensive review. Nevertheless, the assessment was predictive and depended on complex facts, expert military and diplomatic advice, sensitive information and matters for which the executive had institutional competence. The Secretary of State’s assessment was therefore entitled to considerable respect.
3. Inquiry. The User’s Guide was non-binding. Its three principal matters—past and present compliance, formal intentions and capacity to ensure compliant use—could be investigated flexibly. The Secretary of State was not required to address every subsidiary question or determine whether every alleged past incident amounted to an international humanitarian law breach.
4. Evidence and risk. Third-party reports had to be considered but created no legal presumption that Criterion 2c was triggered. Civilian casualties did not by themselves establish a breach, still less a serious breach. Isolated violations did not automatically establish a clear future risk. The Secretary of State was entitled to assess the material in the round, including Saudi investigations, targeting procedures, public commitments, cooperation and willingness to learn from incidents.
5. Suspension and outcome. The suspension policy was case-specific and was not automatic. The Secretary of State could rationally conclude that the available information, including its gaps, was sufficient for a proper assessment. The claim for judicial review, including the challenge to the refusal to suspend and the continuing grant of licences, was dismissed.