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Supreme Court rules on MoD’s duty to equip troops

Posted on: 19th June 2013

Smith and Others (Appellants) v The Ministry of Defence (Respondent)
Ellis (Respondent) v Ministry of Defence (Appellant)

This morning, Wednesday 19 June, the Supreme Court has handed down its judgment in the above matters.

Known as the Snatch Land Rover families, Susan Smith, Colin Redpath and Karla and Courtney Ellis brought claims against the Ministry of Defence (MoD) for causing their loved ones, all British soldiers serving in Iraq, to carry out high risk activities in poorly armoured Snatch Land Rovers. In each case the soldiers were killed when their respective vehicles were struck by improvised explosive devices (IEDs), also known as roadside bombs.

At the Supreme Court this morning, Lord Hope gave the majority judgment dismissing the MoD’s applications to strike out their claims under the Human Rights Act 1998 and in negligence.

In finding that British Troops remain within the UK’s jurisdiction when deployed on active service abroad, and so attract the protections of the Human Rights Act, the Supreme Court overturned its own earlier decision in R Smith v Oxfordshire Coroner (the Catherine Smith case) which was handed down in 2010.

All four claimants are being represented by award-winning civil liberties lawyer, Jocelyn Cockburn of Hodge Jones & Allen, who also represented Catherine Smith in the earlier Supreme Court case, she says:

“The right to life under the European Convention on Human Rights is a fundamental right which applies to ‘everyone’. It reflects poorly on our Government that they have sought to establish a different rule for soldiers who are sent overseas to fight on our behalf so that they alone would not have the protections owed to every other person under UK jurisdiction.

“It is fantastic that the Supreme Court has at last recognised that our armed forces are within the control and authority of UK authorities at all times and therefore within the UK’s jurisdiction, including when deployed abroad.

“It is essential that we recognise the human rights and dignity of our own soldiers. Apart from the fact that they are entitled as human beings to rights that we recognise as ‘universal’, how else can we expect them to uphold the fundamental human rights of those they come across in conflict if they themselves are not protected?”

The majority of the Justices (five) held that the Snatch Land Rover cases should not be struck out but that the extent of any duty owed, and whether such duty was breached, will be fact specific and have to be explored at trial.

Lord Hope made clear that in deciding whether or not the state had breached its duties, the courts should not impose an ‘impossible’ or ‘disproportionate’ burden on the authorities. Equally ‘the widest measure of appreciation’ must be given to commanders for decisions taken on the ground and actively involved in armed conflict.

Jocelyn Cockburn continues:

“It is clearly in the public interest that the authorities are legally required to consider the safety of its soldiers in times of military conflict. Safety will not be the only consideration or even perhaps the primary consideration, but it is right that our soldiers should expect to be properly equipped.

“Snatch Land Rovers were known to be inadequate for many years before the Iraq conflict, they were known to be unsafe and were becoming increasingly so as the insurgency grew and were nicknamed “mobile coffins”. There seems to have been no intent to act upon the clear evidence regarding the safety of these vehicles and it took individuals such as Sue Smith to highlight the issue publicly so that, finally, the vehicles were replaced.

“Despite widespread criticism of Snatch Land Rovers the MoD has never recognised that the vehicle was substandard or that it was at fault. It will now have an opportunity to prove that the continued use of this vehicle was a high level military tactic rather than purely incompetence.

“On a separate but important point, the Snatch Land Rover claimants would not have been able to bring these claims if the Legal Aid cuts currently being proposed by Chris Grayling were enacted. It is therefore crucial that the cuts are urgently reconsidered.”

Each of the families gave their reaction to the judgment:

Susan Smith’s son Private Phillip Hewett was killed in Al Amarah in Iraq on 16 July 2005, she says: “It has been a long hard battle to get to this decision today and we now finally have permission to proceed and prove the MoD were at fault. They can no longer treat soldiers as sub-human with no rights.”

Colin Redpath, whose son Lance Corporal Kirk Redpath was killed near Basra City in Iraq on 9 August 2007, says: “This is a good result for our Armed Forces personnel. The MoD has a duty to supply the right equipment in a combat zone for all our Armed Services, especially after being in Iraq for six years. Hopefully this will help our Armed Forces safety in future combat zones.”

Karla Ellis, the sister of Private Lee Ellis who was killed in Al Amarah on 26 February 2006, who was also bringing a case of negligence against the MoD, says: “I’m proud that we’ve come this far. The explanation I received about my brother Lee’s death did not make sense and in order for me to properly move on I have to make sense of what happened, not just for me but for my family and most of all for my brother. I’ve raised awareness of what is happening, I’ve done my brother proud and I will pursue whatever course of action is necessary in future. Hopefully this will prevent the unnecessary loss of other great men.”

All of the claimants were represented at trial by Robert Weir QC, who has been involved with the case for several years, and Jessica Simor QC who was also involved in the Catherine Smith case.

To speak to Jocelyn about the legal implications of the decision or to speak with the claimants, please contact:

Kerry Jack, Black Letter PR on 020 8736 0442 or 07525 756 599, email: kerry.jack@blackletterpr.co.uk

Notes to editors:

Hodge Jones & Allen LLP was founded in 1977 in Camden and has 200 staff based in Euston NW1. The firm practices personal injury, clinical negligence, civil liberties, family law, wills and probate, housing, dispute resolution, criminal defence and serious fraud.

Jocelyn Cockburn is a leading Civil Liberties lawyer and in 2012 was awarded Partner of the Year by The Lawyer magazine.

Snatch Land Rovers are lightly armoured vehicles designed to provide no more than limited protection against ballistic threats mainly small arms bullets. They provide little or no protection against IEDs.

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