Article 2 and combat immunity – where next after Al-Skeini and Susan Smith?

27 July 2014 by

British_soldier_during_Operation_Desert_ShieldR(Long) v Secretary of State for Defence [2014] EWHC 2391 (Admin) – read judgment

When will a court order an inquiry into the deaths in combat of soldiers serving overseas? Following recent judgments of the English and Strasbourg courts extending the application of the European Convention on Human Rights to zones of armed conflict overseas in certain circumstances, the question is likely to arise frequently over the coming years. In R(Long), the Divisional Court strongly endorsed the doctrine of combat immunity and appeared to set its face against the recent rise in claims against the MoD by soldiers deployed abroad and their next of kin.

This claim involved the deaths of six military police, who were murdered by an armed mob in Majar-al-Kabir, Iraq on 24 June 2003. They were visiting an Iraqi police station and, contrary to standing orders, did not have an iridium satellite telephone with them. The Oxfordshire Coroner had previously held an inquest into the deaths, which opened in 2004 and closed with an unlawful killing verdict on 31 March 2006. He dealt with the lack of effective communications equipment in a Rule 43 report (now a Report to Prevent Future Deaths), but it could not be said in the circumstances that, had they had a radio, their lives would have been saved. As the coroner said, the only person who might have been able to help them in time was the commander of a nearby paratroop patrol and he thought it possible that “had he endeavoured to help, I would be holding an inquest into the deaths not of six brave men but of 18” – [49].

The military authorities had then conducted further investigations into the soldiers’ deaths, including how it had come about that they had no satellite telephone with them, in breach of the standing order. The Board of Inquiry decided that there was no evidence that any military offence had been committed, and it would be inappropriate to take any administrative action for misconduct because this would lead to finger-pointing which would be unfair and could damage long-term operational effectiveness – [96] – [98]. The claimant, who was the mother of one of the dead soldiers, argued that there was a duty to conduct a further Article 2-compliant investigation into why the soldiers had not had a satellite telephone. The Divisional Court firmly rejected the claim.

The scope of Article 2 in principle

The scope of Article 2 has expanded considerably in recent years, leading to an increase in potential claims following the Supreme Court judgment in Susan Smith v MoD [2013] UKSC 41. In that case, which involved servicemen killed by IEDs while driving Snatch Land Rovers, the Supreme Court applied the principles set down by the Strasbourg court in Al-Skeini v United Kingdom (2011) 53 EHRR 18 and found it was arguable that the MoD owed the servicemen a common law duty of care in negligence and a human rights duty under Article 2. (Somewhat confusingly, the Supreme Court was departing from its previous decision in the case of a different Mrs Smith, R(Catherine Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, in light of the evolving Strasbourg jurisprudence. R(Catherine Smith), while remaining a leading case on coroners’ inquests, should now be approached with caution in relation to combat deaths).

In Susan Smith, Lord Hope had said at [76] that:

“the court must avoid imposing positive obligations on the state in connection with the planning for and conduct of military operations in situations which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual to be afforded the protection of the article. It will be easy to find that allegations are beyond the reach of article 2 if the decisions… [were] closely linked to the exercise of political judgment and issues of policy. So too if they relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy. But finding whether there is room for claims to be brought in the middle ground, so that the wide margin of appreciation which must be given to the authorities or to those actively engaged in armed conflict is fully recognised without depriving the article of content, is much more difficult. No hard and fast rules can be laid down. It will require the exercise of judgment. This can only be done in the light of the facts of each case”

The scope of article 2 in practice

The Divisional Court agreed that the failure to carry a satellite phone in R(Long) fell within the “middle ground”, but said at [69] “we do not agree that the Susan Smith case is authority for the proposition that in every case within this middle ground there has been a breach of article 2. Far from it”. It went on to say at [73] – [74] “we reject the notion that article 2… gives a member of the armed forces a civil right to be protected by the state against errors, including negligent errors, in the military chain of command in carrying out an order relating to the conduct of operations in theatre where such an error creates or increases the risk of loss of life… it would be wholly unrealistic to expect the state to prevent such errors from occurring at all and correspondingly unjustified to impose an obligation on the state to protect the lives of soldiers which is broken whenever such an error is made by an individual soldier which increases or fails to mitigate a risk to the lives of other soldiers”.

The Court also said the doctrine of combat immunity amounted to a good reason of principle for finding that article 2 does not apply in combat operations. See, for instance, [78] – “the armed forces covenant… recognises a moral obligation owed to members of the armed forces in part because of the fact that military service requires them to forego legal rights that they would have in ordinary civilian life”, [79] – “if a legal duty of care was owed in the execution of military operations, the prospect would exist of legal proceedings being brought whenever a soldier on active service is killed… It is likely that, when all the facts were exposed through evidence given at a trial and due allowance made for the exigencies under which soldiers sent to fight a war or attempt to keep the peace in dangerous and difficult conditions were operating, many claims of negligence which at first sight appeared tenable would fail” and [81] – “if commanders in the field have to be concerned in taking such decisions by the prospect of being sued for negligence if death or injury occurs, there is a danger that their calculation of risk may be distorted in a way which makes the British army less effective as a fighting force”.

Comment

The Divisional Court made as clear as it possibly could that it thought the claim before it should not be allowed to proceed further. However, in circumstances where the Supreme Court has explicitly left the possibility of claims in negligence and under article 2 open, the Divisional Court’s comments on combat immunity appear to go too far and to amount to the very blanket assertion of combat immunity which the Supreme Court has now rejected.

This is a case where the Court would probably have dismissed the claim in any event, on the basis that there had already been an investigation into why the soldiers didn’t have a satellite telephone with them and on the basis of delay – see [88] – [122]. Whereas it was already clear in around June 2006 that the Secretary of State had no intention of holding any further investigation, the claim form for this claim was not filed until July 2012 (the normal time limit for judicial review claims being, of course, three months).

Given the clear indication that the claim would probably have been dismissed anyway, it is possible that no appeal will follow and the Divisional Court’s comments on the application combat immunity will therefore stand. (Public Interest Lawyers, representing the claimant, have indicated that there may be an appeal.) However, it is respectfully submitted that the Divisional Court’s comments on combat immunity here ought to be closely scrutinised in future cases of a similar nature, rather than being taken as an indication that similar claims should not be brought.

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