The Smith case

Secretary of State for Defence v R and HM Assistant Deputy Coroner for Oxfordshire and Equality and Human Rights Commission

Summary

The Equality and Human Rights Commission (the Commission) intervened in this case between the mother of Private Jason Smith and the Secretary of State for Defence. The Commission argued that armed forces personnel serving overseas are protected by both Article 2 (Right to Life) of the European Convention and the Human Rights Act.

The Court of Appeal held that this protection applies whether or not soldiers are physically on an armed forces base or elsewhere.As a result of the case, the Ministry of Defence (MoD) will have to provide proper protection to soldiers serving overseas and more information to bereaved families. This has important implications for ensuring that the lives of troops are properly safeguarded, for example ensuring they have adequate equipment and medical facilities. It will also mean that future investigations into deaths similar to Jason Smith's will have to be independent, open to scrutiny, and involve the family.

The Commission's intervention

The Commission is the authoritative voice on the issue of human rights in the UK. It is neutral and independent of any other party. The UK Parliament has recognised the value of the Commission's expertise, imposing on it an obligation to intervene in certain legal proceedings by virtue of section 30 of the Equality Act 2006. The Commission takes a strategic approach when deciding to intervene. It will generally intervene in cases where it can use its expertise to clarify or challenge an important element of the law. The cases generally involve serious matters of public policy or general public concern. The outcome of these cases often has a wide impact as they set precedents to be followed by the lower courts.The Commission's interventions are often recognised by the Court in helping it come to a decision. For example, in this case, the Court's judgment stated: 'The importance of the questions is also stressed by the Equality and Human Rights Commission, which has intervened in this appeal with our permission and has produced both evidence and written submissions which we have found of great assistance.'

The Case

In this case, the Commission intervened to argue that, as British soldiers serving abroad are under the jurisdiction of the UK government, they should also receive the protection granted to other British citizens. Private Jason Smith was deployed to Iraq in 2003. He spent the first eight days of his deployment acclimatising in a tented camp in the desert in Kuwait. He then moved to his base in Iraq in an old athletic stadium where he had a room with no air conditioning. By August 2003, the outside temperature had reached 50 degrees C.In early August, Private Smith repeatedly told army medical staff that he was feeling seriously unwell due to the temperature. He continued to carry out duties on the base. Four days later he was found lying face down, short of breath, confused and behaving erratically. He suffered a cardiac arrest and was pronounced dead from hyperthermia within an hour. The Coroner held an Inquest into the death, during which the family was initially denied access to crucial documents relating to the circumstances of Jason's death. Jason's mother, Catherine Smith, sought a judicial review. At the review, the High Court ruled that the Human Rights Act applied to all armed forces personnel serving outside the UK whether or not the death took place on an army base.

The MoD accepted that the Human Rights Act applied to Jason Smith's case as he died on a British army base. However, it argued it did not apply to a British soldier who is off base and the MoD appealed the High Court ruling.

The Court of Appeal judgment

The Court of Appeal accepted the Commission's interventions. In its judgment, it stated:'As the Commission succinctly puts it in its skeleton argument, there is no question that members of the British armed forces are subject to UK jurisdiction wherever they are. They remain subject to UK military law without territorial limit and may be tried by court martial whether the offence is committed in England or elsewhere. They are also subject to the general criminal and civil law. Soldiers serve abroad as a result of and pursuant to the exercise of UK jurisdiction over them. Thus the legality of their presence and of their actions depends on their being subject to UK jurisdiction and complying with UK law. As a matter of international law, no infringement of the sovereignty of the host state is involved in the UK exercising jurisdiction over its soldiers serving abroad. 'In these circumstances we accept the submission made by the Commission that there would have to be compelling reasons of principle for drawing a distinction for the purposes of jurisdiction under article 1 of the Convention between the soldier while at his base and the soldier when he steps outside it, at any rate so long as he is acting as a soldier and not, in the old phrase, on a frolic of his own.' Specifically, the court ruled on two issues:

1.Jurisdiction
Article 1 of the European Convention on Human Rights provides that rights and freedoms should be available to all those within the State's jurisdiction. The Court of Appeal had to decide whether British soldiers serving in Iraq were within the UK's jurisdiction and so protected by the Convention.

The three senior Appeal Court judges, led by Master of the Rolls Sir Anthony Clarke, found that the Human Rights Act did protect British soldiers serving overseas when they were on a British base or otherwise.

They said: 'It is accepted that a British soldier is protected by the HRA and the Convention when he is at a military base. In our judgment, it makes no sense to hold that he is not so protected when in an ambulance or in a truck or in the street or in the desert.

'The Court found no compelling reason to distinguish between a soldier while at their base and the solider when he steps outside it 'at any rate so long as he is acting as a soldier and not ... on a frolic of his own'.

In coming to this conclusion, the Judges considered the fact that members of the British armed forces are subject to UK military law wherever they are. They may be tried by a court martial whether the offence is committed in England or elsewhere.

The Judges likened the case of British soldiers serving abroad to that of diplomatic or consular agents abroad in that these agents too, have a sufficient link to the UK to entitle them to protection of the Human Rights Convention. They said 'that is so whether or not they are at the relevant time in an embassy or consulate'.

Implications of the Court's decision

The judgment imposes an obligation on the MoD to take reasonable steps to ensure that the soldiers it sends off to war are prepared; that they are kitted out correctly and have adequate medical facilities. What the judgment does not imply is that the MoD must protect soldiers at all costs as that would be patently impossible in combat situations.
The judgment did not address the issue of compensation to a family of a soldier killed due to a failure by the MoD to safeguard their human rights. The MoD has stated that the judgment will open the floodgates on this type of litigation. However, it is difficult to see how this will happen. The Human Rights Act imposes limits on the circumstances in which an award of damages may be made, with damages being a residual remedy to be adopted when other remedies cannot provide full reparation or afford ‘just satisfaction'. Only a handful of reported cases have taken place in the UK where a Court has awarded monetary damages for a breach of the Human Rights Act. Even in these cases the amount awarded is typically low. There is little evidence to suggest that this situation will change.

Investigation

Article 2 of the European Convention on Human Rights imposes on the state a positive duty to protect the right to life which includes a procedural obligation on the State to take measures to investigate following a death. Such an investigation is one which is:

  • commenced by that State,
  • conducted by an independent official body,
  • open to public scrutiny; and
  • the family has a proper opportunity to participate.

The initial inquest into Private Smith's death did not conform to these principles. The Court held that such an inquest should have taken place.The judges said that in the case of Private Smith, they 'would expect the coroner to consider the questions of whether there were any systemic failures in the army which led to Smith's death and, indeed, whether there was a real and immediate risk of his dying from heatstroke and, if so, whether all reasonable steps were taken to prevent it'.

Implications of the Court's decision

The Court's ruling means that bereaved families will get more information from the MoD than would have usually have been provided, leading to greater transparency. Families should also be entitled to public funding for any inquiry.

The next step

The Ministry of Defence has been given leave to appeal to the House of Lords. If it chooses to do so, it must pay the costs of both parties, whatever the outcome.

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