Archive for July 27th, 2006

I know what linkiewinkie does – but I think that it may not like the fact that I know and is ignoring me! Certainly I have had no flirtatious winking from linkiewinkie yet!  Maybe linkiewinkie doesn’t like lawyers?

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The Queen on the application of Gentle and others v (1) The Prime Minister (2) The Secretary of State for defence (3) The Attorney General [2006] EWCA Civ 1078 26th July

The families of soldiers killed in Iraq have won what Phil Shiner of Public Interest lawyers calls a ‘stunning victory’ and challenge the government’s claim that the war in Iraq is legal.

Interestingly, The Lord Chief Justice convened a court made up of Sir Anthony Clarke MR, Sir Igor Judge, President QBD and Lord Justice Dyson – three of the most senior judges in the country. The judgment makes interesting reading. The judges, overturned the High Court ruling:

  1. 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.
  2. 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.

The point Phil Shiner makes, in describing this as a stunning victory, is this: that it will force the government to explain why the Attorney General changed his equivocal advice of 13 pages into an unequivocal advice of one page that the war was legal.

Early days and as the CA noted – there are still formidable hurdles ahead. It is, at least, a start. Perhaps we may yet see clarity and accountability for a war which many regard as illegal.

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