Scottish Human Rights Law Group

This case concerns the jurisdictional scope of the Human Rights Act 1998 and the procedural requirements of inquests into soldiers’ deaths.  The appeal arose out of the inquest of the death of Pte Jason Smith from heatstroke and raised the question of whether, and if so the extent to which, British soldiers serving in Iraq were protected by the 1998 Act, and whether an inquest into a soldier’s death has to comply with the procedural requirements of Article 2 of the ECHR.

The Court of Appeal upheld the judgment of Collins J. that the 1998 Act applied to British soldiers wherever they were operating in the world and that soldiers’ deaths must be investigated by a fully Article 2-compliant inquest.  The determinative question for the purposes of establishing jurisdiction is whether there was a sufficient link between the victim under section 7 of the 1998 Act (in this case a British soldier) and the UK, such that the “victim” could be said to be “within” or “subject to” the jurisdiction of the UK for the purposes of article 1 of the Convention.  The Court noted that since the legitimacy of British soldiers’ acts derived from their being subject to UK law, the link was established.  There was no rational basis for only according soldiers’ rights when they were on a military base.

As regards the requirements of an inquest, Strasbourg authority established that an Article 2-compliant inquest would be required if Pte Smith was a conscript, and there was no principled reason why a regular solider or member of the TA on active service should not have the same protection as afforded to a conscript.

[2009] EWCA Civ 441, 18th May 2009

To download the decision of the Court of Appeal of England and Wales, click here:

R (Smith_and_others) v. Secretary of State for Defence 18/05/09 (210)