Smith & Ors v The Ministry of Defence  EWCA Civ 1365 – Read judgment
Updated – the first two paragraphs of this post have been amended as they were factually inaccurate. Many apologies for this.
Last month, the Court of Appeal decided that the negligence claims of the families of five British soldiers killed or injured on duty in Iraq could go ahead. It would be for the High Court to decide on the facts whether decisions made about troops’ equipment and training fell within the long-standing doctrine of ‘combat immunity’. The appellants were however unsuccessful in arguing that the Human Rights Act 1998 (HRA) applied.
The case concerned claims brought by the families of five men killed or injured in south-east Iraq. Corporal Allbutt was killed and Troopers Twiddy and Julien injured in Challenger II tanks in fratricide, or ‘friendly fire’, incidents on 25 March 2003. Privates Hewett and Ellis and Lance Corporal Redpath were killed in their Snatch Land Rovers by improvised explosive devices (IEDs) on 16 July 2005, 28 February 2006 and 9 August 2007 respectively (the ‘Snatch Landrover claims’).
Did the HRA apply?
The Court of Appeal first had to decide whether at the time of their deaths the soldiers in question fell within the jurisdiction of the UK under the European Convention on Human Rights (ECHR). Article 1 ECHR provides:
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
In reaching its conclusion as to whether the soldiers were covered by the Convention, the Court of Appeal grappled with the ECtHR’s decision in Al-Skeini v United Kingdom  53 EHRR 18 (7 July 2011 – see our post). The Grand Chamber of the European Court of Human Rights decided that five Iraqi civilians shot and killed during UK security operations in South East Iraq fell within UK jurisdiction for the purposes of Article 1. Through a combination of the state agent authority exerted over the individuals in question and the effective control British forces had over the relevant area, the Grand Chamber held that during the course of British military operations the individuals in question had been brought within the UK’s jurisdiction.
However, the Court of Appeal saw Al-Skeini v UK as a case about ‘third parties’ (para 17). The Convention obligations were only engaged where those third parties were brought by force within the jurisdiction of the UK through the physical power and control of state agents. Further the Court of Appeal interpreted Al-Skeini to require a degree of power and control that was analogous to detention and internment. However, is the notion of “state agent authority” really to be limited to such situations? At paragraph 136 the ECtHR appeared to suggest a much broader test for determining when acts fell within its jurisdiction:
137. It is clear that, whenever the state through its agents exercises control and authority over an individual, and thus jurisdiction, the state is under an obligation under art. 1 to secure to that individual the rights and freedoms under s. 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be divided and tailored. [emphasis added]
Further, the Court of Appeal held that the “control and authority” test which it derived from Al-Skeini was not satisfied on the facts of the case before it. However, it is not clear why a soldier should not be considered to be under the control and authority of his commanding officer. Indeed, one might consider this to be a very close and exacting kind of control and authority. It is undoubtedly a different kind to being hooded and detained. However, control and authority plainly arises where disobeyed orders can result in a court martial.
This is to be contrasted with the level of control exercised over, for example, the third applicant in Al-Skeini v United Kingdom, who died having been struck by a stray bullet that entered her home as she sat at her dinner table during a UK military operation. For the Grand Chamber in Al-Skeini, that was enough to bring her within the UK’s jurisdiction.
Duty of care in negligence
The Court next had to decide whether a duty of care in negligence arose. The Court dismissed the MoD’s submission that “combat immunity” applied; alternatively that it was not “fair, just and reasonable” to impose a duty of care upon the MoD.
It is well established that the court will not allow a claim for negligence to be brought where this would involve the courts considering matters of policy which Parliament cannot have intended it to assess and that would involve the Court substituting its views for the views of elected ministers (see Barrett v. Enfield  2 AC 550). Issues relating to procurement of equipment for the armed forces plainly involve policy decisions regarding the allocation of scarce resources. This is political and technical territory into which the Court should tread with reluctance.
However, the Court of Appeal dismissed such arguments on the basis that the MOD’s duty of care already existed and had been recognised “without demur” by the Courts on a number of previous occasions in the Queen’s Bench Division. However, surely the imposition of a duty of care in previous cases (on different facts) did not answer the question of whether it was fair, just and reasonable for the Court to apply a duty of care on the current facts. Nor was it an answer to this question to note, as the Court of Appeal did, that the imposition of a duty was not precluded by the Crown Proceedings Act 1947
The Court also dismissed arguments based upon combat immunity (see Adam’s post on the Rachel Corrie case for a summary of the principles) on the basis that the decisions in question were not necessarily made in “battle conditions” or “in the course of hostilities”. However, it might be argued that the rationale for combat immunity is not limited to protecting the state from liability for difficult decisions made in the “heat of battle”. Surely, the rationale lies – at least in part – in a recognition, rooted in public policy, that it is not appropriate for the Court to second-guess decisions taken by military chiefs as to the proper conduct of war. Still less, it may be argued, is it appropriate for such decisions of to be influenced by the threat of civil litigation?
Al-Skeini v United Kingdom was widely regarded as the European Court’s opportunity to consolidate and rationalise the confusing ECHR cases on Article 1 in an extraterritorial context. However, the Court of Appeal’s judgment may well be regarded, by some, as muddying the waters not only in relation to Article 1 but in relation to the proper scope of combat immunity. Permission to appeal to the Supreme Court has been granted.
Robert Kellar is a barrister at 1 Crown Office Row
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- Al-Skeini may open door to more war claims
- War, power and control: the problem of jurisdiction
- Strasbourg judge: “Those who export war ought to see to the parallel export of guarantees against the atrocities of war”
- The troubling case of Rachel Corrie
- Where in the world does the Human Rights Act apply? (Smith & Ors v Ministry of Defence, 2011)