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British Court Rules MoD May Be Liable for Combat Casualties

The Ministry of Defence (MoD) will have to provide proper protection to soldiers serving overseas and more information to bereaved families, following today’s landmark human rights judgment in a Court of Appeal hearing.

The Commission intervened in the hearing between the mother of Jason Smith and the Secretary of State for Defence, to argue that armed forces personnel serving overseas are protected by both Article 2 (Right to Life) of the European Convention and the Human Rights Act. This protection applies whether or not they are physically on an armed forces base.

The case is significant as it is the first time the Courts have considered how the Human Rights Act applies to British forces serving abroad.

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 – who should be entitled to public funding.

John Wadham, Group Legal Director at the Equality and Human Rights Commission said:

“Our service personnel are sometimes required to lay down their lives for this country. In return, we should afford them the same human rights protection as every other citizen. We therefore welcome the Court’s decision today.

“Of course, we recognise that the armed forces are operating in dangerous situations. We can’t protect their life at all costs in a combat situation, but we can do our best to ensure they remain as safe as possible.

“Where there has been a tragic loss of life, families are entitled to know what happened to their loved ones and what measures could be taken as a result to stop other families suffering the same fate. They should not be locked out of the process.

“I am also pleased the Court has recognized the work of the Commission in this case.”

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 behaving erratically. 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 into her son’s death, during which the family were initially denied access to crucial documents relating to the circumstances of her son’s death, 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 that it did not apply to a British soldier who is off base and appealed the High Court ruling. It also argued that inquests into soldiers killed should not be enhanced “Article 2” enquiries which would require the coroner to investigate systemic failures.

The Court of Appeal’s judgement finds that there were no compelling reasons for drawing a distinction between a soldier while at their base and the soldier while he steps outside it “at any rate so long as he is acting as a soldier and not ..... on a frolic of his own”. The Court also found that the inquest into Private Smith’s death would be expected to consider whether there were any systematic failures in the army which led to his death, 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.

The Court of Appeal also praised the assistance provided by the Commission in the case, saying the evidence and written submissions they provided were “of great assistance”.

The Equality and Human Rights Commission intervened in this case to assist the Court given its expertise and statutory duties in respect of human rights.

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. Article 2 deals with the right to life and provides that the State should safeguard life and take measures to investigate following a death. If forces serving abroad are not within the State’s jurisdiction under Article 1 then the duties under Article 2 do not apply.

Under the terms of the Human Rights Act public bodies have a duty of care to protect the rights of those under the Government’s jurisdiction. The Commission has intervened in this case to ensure proper protection of the human rights of armed service personnel serving abroad. This could lead to policy and procedure change within the MoD and other public authorities responsible for personnel abroad.

In this case the MoD would be under a positive obligation to safeguard the lives of its troops, such as ensuring that they have adequate equipment and medical facilities. It would also mean that they would have a duty to hold an enhanced investigation – which is independent, open to scrutiny, and involves the family, who would be entitled to public funding (subject to financial eligibility) - into deaths in circumstances where the MoD may be responsible.

The Commission has previously raised its concerns about the provisions within the Coroners and Justice Bill on Certified Inquests, and is pleased that Government has stated its intention to remove these provisions in the Bill.

The Equality and Human Rights Commission is a statutory body established under the Equality Act 2006, which took over the responsibilities of Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission.

The Equality and Human Rights Commission is the independent advocate for equality and human rights in Britain. It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights.

(EDITOR’S NOTE: “Families of soldiers killed as a result of poor or outdated equipment are thought to be most likely to use the decision against the MoD, including the 37 soldiers who have died in the Snatch Land Rover, which has been criticised as too weak to withstand roadside bombs,” the Daily Telegraph reported May 18. “Deaths in other vehicles which have been shown to be vulnerable to roadside bombs, such as Jackal, Viking and Vector, could also leave the MoD liable to prosecution.
Also on May 18, The Times profiled Andrew Walker, the Deputy Coroner for Oxfordshire, who in his verdicts on the deaths of British soldiers in Afghanistan and Iraq “labelled MoD behaviour as ‘inexcusable,’ ‘a breach of trust,’ ‘penny-pinching’ and ‘unforgiveable.’” Walker’s verdict was the foundation of the case brought against MoD by the family of Private Smith)

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