Thring sought judicial review to quash decisions by the United Kingdom government to order the Royal Air Force to fly over Iraqi territory and attack targets inside Iraq. The applicant sought an order from the court to require the Secretary of State for Defence to finance such operations otherwise than through receipts from taxpayers. Mr Thring based his case on the Geneva Conventions Act 1957. The court refused to issue any of the orders sought by the applicant.

See also Cheney v. Conn (Inspector of Taxes) [1968] 1 Weekly Law reports 242 ; R. v. Starkey (1987), unreported .

Text:

PANEL: PILL, CLARKE, BENNETT LJJ

PILL LJ: This is an application by Mr James P Thring, who is a United Kingdom taxpayer and elector, to quash decisions of the United Kingdom government. It is a renewed application.

Permission to apply for judicial review was refused on paper by Latham J., and was refused following an oral hearing on 23 March 2000 by Hidden J. Latham J. refused on the ground that it was not arguable that Mr Thring, whom I will describe as the applicant, had standing. Before Hidden J., it was held that it was not arguable that the applicant would not be defeated by delay.

The applicant seeks an order quashing the order of the Secretary of State for Defence to the Royal Air Force to fly over Iraqi territory and attack targets inside Iraq. Alternatively, an order is sought quashing the order of the Secretary of State for Defence to finance the operation of the Royal Air Force over Iraq from the revenue provided by taxpayers. In the alternative, declarations of illegality are sought by the applicant.

At page 11 of the bundle it is put in this way; what it is sought to quash is:

«The decision by the Secretary of State for Defence to over-fly the sovereign State of Iraq by military Air Forces in cooperation with United States Air Forces and to attack Iraqi Air Forces and ground defences including communications equipment and dual-use facilities.»

Reference has been made to operation Desert Storm which was conducted by governments, including the British and United States governments, in Iraq about ten years ago. Reference has been made to a subsequent resolution of the United Nations' security council. It is accepted that there are military operations by the Royal Air Force over the territory of Iraq, which is a sovereign state.

I can say at once that I would not refuse permission to apply by reason of any lack of standing of the applicant or by reason of delay on his part. If, upon the merits of the application, there were to be an arguable case, then I would not prevent it being put forward upon a full application for either of those reasons. That is not to say that upon the full hearing the questions of standing and of delay could not be argued by the respondent and considered by the court.

It is in my judgment at this stage appropriate to look at the merits of the application.

The grounds on which relief is sought are set out on page 7 of the principal bundle. It is recited that the Gulf war ended on 6 April 1991 and that the government of Iraq subsequently accepted United Nations security resolution 687 of 1991, which has been included with the papers. The applicant submits that there is no express approval of the imposition of a no-fly zone over parts of Iraq in that resolution. The grounds conclude by stating at para (7):

«These activities of the British Air Force, [that is flying over Iraq and conducting bombing operations there] are being unlawfully financed by the tax payer in the UK. There is no war declared by the UK on the Republic of Iraq and Parliament has not authorised such spending.»

I say in parenthesis that, as presented to this court, Mr Thring's application does not depend upon whether or not there is a state of war in existence. He submits that whether or not that is the position, the action of the government in instructing the Royal Air Force to conduct operations over Iraq is unlawful.

The applicant puts it in this way: these attacks damage the reputation of the United Kingdom for justice, they damage the concept of the peaceful resolution of conflicts and undermine the credibility of the government's policy in seeking to pronounce on moral and humanitarian issues. He submits that the government is spending £4.5m a month on the operations over Iraq.

In support of the application that delay should not deprive him of permission, the applicant has referred to notes of an interview which he conducted with Mr Hans von Sponeck, who is a former United Nations representative in Iraq. The object of the reference to it is to establish that there has been an escalation of the activity of the Royal Air Force over Iraq and since there is, in the submission of the applicant, a continuing operation, he should not be defeated on grounds of delay. In any event, he submits, the escalation introduces a new factor which means that he should not be defeated by delay. I have already indicated my view on the question of delay.

The aspect of his submission which has this morning gained prominence is by reference to the Geneva Convention. That has been adopted by the United Kingdom and appears as a schedule to the Geneva Conventions Act 1957, as amended by the Geneva Conventions (Amendment) Act 1995. The applicant has included with his bundle of papers extracts from the Convention, and he submits that there is sufficient evidence of a breach of the Convention, by reason of the operations of the Royal Air Force, to ensure that permission to apply for judicial review should be given.

The applicant refers to art 51 of the Convention, headed 'Protection of the civilian population'. That provides in para 4 that:

«Indiscriminate attacks are prohibited.»

There is then a definition of indiscriminate attacks and at para 5, the paragraph upon which the applicant relies, it is stated:

«Among others, the following types of attacks are to be considered as indiscriminate. . .

(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.»

The suggestion that in the absence of a state of war there could be no direct military advantage was understandably abandoned by the applicant, and I approach the case on the basis that the Geneva Convention does apply, without deciding whether the Geneva Convention does cover operations of the Royal Air Force and the United States Air Force in Iraq.

The submission is that there is sufficient evidence in the papers, including the notes of interview with Mr Hans von Sponeck, to establish that it is arguable that there is a breach of that paragraph. It is submitted that there is a breach which constitutes a crime committed by the United Kingdom government and the court upon this application should address that crime. It is submitted that, even if the operations are lawful, taxpayers' money is being wasted. There is no evidence of any positive results being achieved by the operations of the Royal Air Force and it follows, at least as an arguable case, that there is a waste of money which the court should intervene to prevent.

The applicant further submits that he has established at least an arguable case that the court should not refuse permission. If such an arguable case is established as to the test, the applicant has referred to statements by Lord Donaldson and Lord Diplock.

In my judgment no arguable case has been established to justify the grant of permission in this case. I deal first with the case specifically put upon the Geneva Conventions Act, though it does in my view overlap with the more general case which has been put forward as to the duty of the court to intervene in operations abroad of the armed forces.

I note first that s 1 of the 1957 Act, headed 'Punishment of offenders against conventions' and 'Grave breaches of scheduled conventions' provides that (and I paraphrase) any person who whether in or outside the United Kingdom permits, aids, abets or procures the commission by any person of any grave breach of the scheduled conventions as referred to in the following articles shall be guilty of felony. Provision is made for punishment. The articles set out include art 51, on which the applicant relies. The precise wording of s 1 (1) has been amended in the 1995 Act, s 1, but for present purposes I need not consider that amendment in detail. What the Act provides is for the punishment of a criminal offence by an individual. That is a wholly different matter from an application by way of judicial review. Criminal matters are dealt with in the criminal courts, not by way of challenge to government action, which is what is the applicant seeks to achieve in this case. That is not a mere technicality. The courts have developed remedies for particular purposes, and the remedy of judicial review is a wholly different one from the criminal sanction which is enacted in the 1957 Act, as amended.

Moreover, the factual difficulties involved are not appropriate for consideration by way of judicial review. I have read the relevant paragraph of art 51. As Mr Justice Bennett has pointed out in the course of argument, it involves complex factual issues with which, in my judgment, upon judicial review it is quite inappropriate to deal. Courts are not deterred by complexities or difficulties in evidence from discharging their duty, but the issues which arise under art 51 confirm and demonstrate the fact that judicial review is not an appropriate remedy in the present circumstances.

In my view, that also applies to the more general submission which is made. The applicant accepts that it is not the duty of the courts to intervene in the activities of the forces of the Crown world-wide. He accepts, as he has to, that an ordered system of government cannot require the courts of a country to conduct in detail the operations of its armed forces abroad. The constitution of the United Kingdom, as developed by Parliament and the courts, certainly does not operate on that footing.

What the applicant does submit, by reference to the Geneva Convention and to the material which he has provided, is that the courts should intervene in this particular case. Moreover, he submits that it is for the Ministry of Defence to come to court and persuade the court that what it is doing is legal. I say at once that I find that submission to be a misconception. The courts do not operate on the principle that whenever anyone makes an accusation against a government body, he is entitled to a remedy in court unless that government body comes along to satisfy the court that the action taken is a lawful one. It is for an applicant to show on a permission application that it is arguable that an act is unlawful by the law of England.

In my judgment it is not appropriate for the court to intervene upon judicial review in the deployment of the armed forces abroad. Parliament has authorised a defence budget. The Secretary of State for Defence is answerable to Parliament and not to the courts for the conduct of military operations abroad. The court has no power to control how money is spent by the executive arm of government on overseas operations. Any remedy must be political remedy. The applicant and those who take the same view as he has and he has many supporters in court today have sought a political remedy and have not achieved one which satisfies them.

The applicant has provided us with notes of the official record in Hansard of debates in the House of Commons where the then Secretary of State for Defence set out the policies of the government towards Iraq. He is answerable for the conduct of those policies to Parliament. I refer to the statement of Sir William Wade in the 7th edition of Administrative Law, Wade & Forsyth, at page 841 :

«. . . acts of force committed by the Crown in foreign countries are no concern of the English courts. In the time of the naval campaign against the slave trade, for example, a Spanish slave trader failed in an action for damages against a British naval commander who destroyed one of his establishments in West Africa (Buron v Denman (1848) 2 Ex 167). It is by this fundamental rule that acts of violence in foreign affairs, including acts of war, if committed abroad, cannot be questioned in English courts.»

I respectfully adopt that statement as an accurate one.

Mr Thring has addressed us courteously and, if I may say so, forcefully. He has produced documents for the court's consideration. In my judgment he has not shown an arguable case that the relief he seeks should be granted by the courts and for the reasons I have given I would refuse this application.

CLARKE LJ: The decision or decisions which it is sought judicially to review are described in the material before us in this way:

«The decision by the Secretary of State for Defence to over-fly the sovereign State of Iraq by military Air Forces in cooperation with United States Air Forces and to attack Iraqi Air Forces and ground defences including communications equipment and dual-use facilities.»

The relief sought is put in this way:

«(1) An order of certiorari to quash the order of the Secretary of State for Defence to the British Air Force to fly over Iraqi territory and attack targets inside Iraq,

(2) Alternatively an order of certiorari to quash the order of the Secretary of State for Defence to finance the operation of the British Air Force over Iraq from the taxpayer revenue,

(3) Alternatively for a declaration that the orders of the Secretary of State for Defence to the British Air Forces to fly over Iraqi territory and attack targets within Iraq and finance these operations from taxpayer revenue are unlawful.»

It appears to me that those decisions as so defined are not susceptible to judicial review. None of those orders involves an unlawful act contrary to any provision of English domestic law.

However, it is said that the policy has involved indiscriminate bombing of civilians which is unlawful under art 51 of the Geneva Convention 1957. The problem is that the Geneva Convention is not itself part of English domestic or municipal law. As my Lord has indicated, the Geneva Conventions Act 1957, as amended by the Geneva Conventions (Amendment) Act 1995, provides in essence that a person who commits certain breaches of the Convention, including breaches of art 51, is guilty of a criminal offence.

However, as I read the Acts, neither the Crown nor the United Kingdom government could be prosecuted under either of those statutes. In these circumstances I do not think that the 1957 or the 1995 Act provide a sufficient basis upon which the court could entertain an application for judicial review of this kind.

This is highlighted by a further consideration, to which my Lord has referred. The court would face what seems to me to be an almost insuperable problem. In order to determine whether an attack was indiscriminate within art 51 (5)(b) of the Geneva Convention, it would be necessary to consider whether an attack or attacks might be expected to cause:

«. . . incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.»

This would involve a consideration of the military advantages concerned. For my part, while I see the force of the submissions made by the applicant, I do not think that the court could sensibly carry out an analysis of such a military advantages or disadvantages, which would involve a consideration of the activities of United Kingdom military operations over Iraq.

In these circumstances, I would not for my part grant permission to move for judicial review. Nor do I think that this is a case in which it would be appropriate to adjourn the application for the respondent to be represented, although I recognise that there are many cases in which such a course would be appropriate. For these reasons, I agree that the application should be refused.

BENNETT J: I agree with both judgments and wish to add only a few words. In my judgment, the issue is whether or not the subject matter raised in Mr Thring's application is amenable to the process of judicial review. In the fifth edition of Judicial Review of Administrative Action, De Smith Woolf & Jowell, it is said at para 6-042, page 319:

«However, the question of whether or not prerogative powers could be reviewed was authoritatively determined in favour of their being reviewable by the House of Lords in the GCHQ case. The majority of their Lordships were of the opinion that the exercise of powers authorised by the prerogative may be reviewable when their exercise is open to judicial review. It depended on the subject-matter. The minority preferred to leave open the question as to whether prerogative powers were reviewable until it had to be determined. Prerogative powers may, however, relate to areas which because of their nature are not justiciable. As Lord Roskill said in the course of his speech in the GCHQ case: 'Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of Ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter is such as not to be amendable to the judicial process'.»

Lord Scarman considered that:

«The controlling factor in determining whether the exercise of prerogative power is subjected to judicial review is not its source but its subject matter'.»

I do not rest my decision on whether or not the policy and operations of the armed services in Iraq are the exercise of prerogative powers, but I derive considerable assistance from the passages that I have quoted. In my judgment the nature and subject-matter of Mr Thring's application is not amenable to the process of judicial review. His application would involve consideration of the policy and the nature of the operations of the armed services abroad, and particularly of the Royal Air Force. In my judgment, those are not matters which can be the subject of judicial review, because the courts are not equipped so to do.

The fact that the courts are ill-equipped in these matters is graphically shown by the terms of para (5) of art 51 of the Geneva Convention, now in the Geneva Conventions (Amendment) Act 1995, which my Lord has quoted. During the course of Mr Thring's concise, courteous and moderate submissions, he accepted that it would be necessary to go into what happened on the occasions upon which the Royal Air Force used either missiles or bombs. It would then be necessary for the court to have evidence about the 'concrete and direct military advantage anticipated'; and, having had that, it would then be necessary for the court to exercise its judgment, as I read the paragraph, as to whether or not that advantage was excessive in relation to the incidental loss of civilian life, injury to civilians or damage to civilian objects, or a combination thereof. In my judgment, the resolution of such issues is not susceptible to judicial review.

Thus, for those reasons and the reasons given by my Lords, Lord Justice Pill and Lord Justice Clarke, I would refuse the application.

DISPOSITION:

Application refused.

References: National Laws and Regulations
Geneva Conventions Act 1957 .


References: International Treaties and Documents
Additional Protocol I 1977: Art. 51 .