MoD loses landmark Human Rights case
18 May 2009
The Court of Appeal has given a landmark ruling on
the issue of human rights and our armed services. Catherine
Smith today fought off the challenge from the MoD and has succeeded
in protecting the human rights of our armed forces personnel.
Catherine Smith is represented by Jocelyn Cockburn of
Hodge Jones & Allen LLP.
Catherine says “I am absolutely
delighted and relieved by the result. This victory is not for
me, nothing can bring Jason back, but it is for all those brave men
and women who are still risking their lives in our name. It
is also for families who still have to go through the trauma of an
inquest.”
The case arises out of the inadequate first
inquest into Jason Smith’s death. Although the case applies
to his particular circumstances the Court of Appeal has laid down
principles which must be applied to all service personnel.
The MoD’s appeal which the Court of Appeal has
ruled on today was on two bases, firstly the MoD argued that the
Human Rights Act only applies to those on UK territory and
therefore doesn’t apply to soldiers who are deployed abroad (unless
on a UK army base). Secondly the MoD argued that military
inquests should not have a wide scope – requiring investigation
into systemic failings – but should be restricted to a narrow
interpretation of the facts.
The First ground of appeal – whether the Human
Rights Act applies to soldiers on active service
Everyone within the UK’s jurisdiction enjoys
the protections of the Human Rights Act 1998. However until
today it has been unclear as to whether this includes those sent
abroad to fight on our behalf. The Court of Appeal accepted
Catherine Smith’s argument and has ruled that “jurisdiction”
includes those under UK “control” and therefore soldiers are
protected by the Act.
The Ministry of Defence’s position is that “UK
jurisdiction” means within the territory of the UK and therefore
once a soldier steps out of the army base in Iraq he is outside the
UK jurisdiction and not protected by the Human Rights
Act.
Jocelyn Cockburn says “Had the MoD
been successful today then the law regarding the legal protection
of our armed forces would be in a shambles. If a soldier
loses his human rights when he steps off a base (as they argue)
what is the position if he has one foot on base and one foot
off? Does an outpost or makeshift camp constitute a
base? This decision provides certainty which is in the
interests of the MoD and soldiers themselves”.
If the MoD had won the challenge today then
the law would be that the moment soldiers were sent out from the
base, onto the battlefield, they would lose the legal protection of
their fundamental human rights. In particular the Right to
Life. This is a shocking proposition which has today been
avoided. The fact is that troops on the front line until
today had almost no legal.
The most fundamental human right is the “right
to life” which is set out at article 2 of the Act:
“Everyone’s right to life shall be protected by law.”
The implications of Article 2, and in order to
comply with it, the government must “establish a framework of law,
precautions, procedures and means of enforcement which will, to the
greatest extent reasonably practicable, protect life”.
The MoD has argued that it would be impossible
to provide these rights to soldiers on the battlefield and that it
would make it difficult for the UK to go to war. However this
is not true – they are only expected to provide protection so far
as it is reasonable and proportionate.
The Court of Appeal today rejected the MoD’s
argument that soldiers on the battlefield are outside the UK’s
jurisdiction (para 28):
“there is a degree of artificiality in
saying that a soldier is protected so long as he remains in the
base or military hospital but that he is not protected as soon as
he steps outside.”
…”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”.
Jocelyn Cockburn says: “The
implications of this Judgment are simple – our armed forces now
have the same protections as all the rest of us. The MoD
suggestion that they should lose these protections when on the
battlefield is outrageous. Soldiers have the right to know,
when risking their lives for us, that we have taken reasonable
steps to protect them. This should be a given and it does no
credit to the MoD to be challenging it.”
Catherine Smith says: “Jason knew he
could die and I accept this. But I found out at the inquest
that simple steps that could have been taken, like providing air
conditioning units which were available 12 kilometres away, weren’t
taken and this put his life at risk unnecessarily. Every day
the soldiers were asking for air conditioning but they were
ignored. Perhaps if the army knew that the Human Rights Act
applied, perhaps then they would have done something about
it”
The type of inquest
required
The second part of the appeal relates to the
type of inquest where a soldier loses his life whilst on active
service.
An inquest is a type of investigation which is
carried out by a Coroner in relation to each suspicious or
unnatural death. There has been, or will be, an inquest into
the death of each soldier killed in Iraq or Afghanistan (unless the
body is not recovered). The question is what type of inquest
must be held.
All inquests must decide 4 questions: who
died, when, where and how (by what means). If the inquest is
subject to Article 2 of the Human Rights Act 1998 then the scope of
the inquest must be widened to identify systemic failings, the
purpose being that these failings will be remedied and further
deaths will be avoided. A further requirement of an article 2
inquest is to involve the next of kin in the investigation so that
they can satisfy themselves so far as is possible that they
understand what happened to their loved one.
The Court of Appeal has today decided that
military inquests should be conducted in accordance with Article 2.
They decided that soldiers, as a group, had a peculiar
vulnerability which puts them into a category of deaths, including
deaths in custody and deaths of mental health patients or
conscripted soldiers, where a wider investigation is needed.
The Court of Appeal said (at para 104 and
105):
“there is no doubt that [the need for a
wider inquest under article 2] would apply to Private Smith if he
were a conscript. We do not think that it could be rights to
draw a distinction between a regular soldier who is not a conscript
and a member of the TA when in active service. When in active
service both regular soldiers and members of the TA are subject to
army orders, instructions and discipline in the same way. So
there could be no principled distinction between them.
The question is therefore whether the
principles apply to soldiers on active service in Iraq. We conclude
they do. They are under the control of and subject to army
discipline. They must do what the army requires them to do.
If the army sends them into the desert they must go. In this
respect they are in the same position as a conscript. Once they
have signed up for the particular period they can no more disobey
an order than a conscript can. ”
The implications of this are that military
inquests must be wider in scope and must provide families with
proper access including funding if they are of low means.
Catherine Smith comments: “Having gone
through the trauma of being misinformed and ignored at the inquest,
I am delighted that the coroner and MoD will now have to recognise
the rights of the family to be involved. Families yet to go
through an inquest will benefit from this case and hopefully that
will make an already difficult process less painful.”
Jocelyn Cockburn comments: “This
Judgment will have resource implications as inquests will have to
be wide enough to identify systemic failings, funding may have to
be provided to families and delays in holding inquests will have to
be eliminated so far as possible. However this will be money
well spent because it provides an opportunity to learn lessons and
putting right failings which will minimise the risk of future
deaths. This also means that the government will not be able
to reintroduce plans to hold some military inquests in
secret.”
background
Private Jason Smith was deployed to Iraq in
June 2003. He repeatedly told army medical staff that he was
feeling seriously unwell due to the temperature, which was in
excess of 50 degrees Celsius, before reporting sick in August 2003.
Four days later he was found lying face down, short of breath,
confused and in an erratic state. He was taken to accident
and emergency but sustained a cardiac arrest and was pronounced
dead from hyperthermia within an hour.
Following a Coroner’s inquest, during which
the family were initially denied access to crucial documents
relating to the circumstances of her son’s death, Jason Smith’s
mother, Catherine, 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. It also ruled that a wider human
rights compliant inquest was required. This has now been
upheld by the Court of Appeal.
While in this case, the MOD accepted that the
Human Rights Act applied to Jason Smith’s case as he died on a
British army base, the case proceeded on the point of principle
which applies to all soldiers wherever they are.
View the ruling in
full here.
For further information please call:
Jocelyn Cockburn: 020 7874 8452 or email jcockburn@hja.net
Ed Kirton-Darling: 020 7874 8422 or
email ekirton-darling@hja.net