Scottish Human Rights Law Group

by Gordon Junor, Advocate

INTRODUCTION

In their well-publicised decision (reversing the approach of the Court of Appeal) in Gentle the House of Lords, although with sympathetic comment, rejected the claim of the mother of a soldier killed by “friendly fire” seeking an independent inquiry as to whether reasonable steps had been taken to determine whether the invasion of Iraq was lawful under international law under reference to Article 2 (Right to Life) of the Convention.

Although the (more indirect) facts in Gentle were (very substantially) different – given, in particular, the terms of the judgement of Lord Bingham (see below) – the Ministry of Defence now continue to resist claim by the mother of a soldier who died of heat stroke in Iraq following the outcome of the (initial) inquest thereon founding, likewise, upon Article 2 requirements.

Basis for these arguments continues to be the (proper) extent of the “jurisdiction” available under the Convention and how, if at all, Article 2 is to be applied thereon. Both at first instance (Collins J-on which see Volume 9 Issue 2 2008) and now before the Court of Appeal (2009 EWCACIV 44) the arguments of the MoD have not been accepted. Leave to appeal this decision to the Lords has since been granted albeit on condition that the MoD meet the expenses involved whatever the ultimate outcome.

R (Smith) v Secretary of State for Defence

As outlined above, while on duty in Iraq with the Territorial Army, Private Smith found difficulty dealing with the local climate and subsequently died of heat stroke, events which, for the Court of Appeal, “naturally called for investigation” including as to whether there had been “a defective system operated by the state to offer adequate protection to his life by ensuring, so far as reasonably practicable, that he was an appropriate person, with proper training and equipment, to expose to the extreme heat of Iraq” and whether “there was a real and immediate risk of his dying of heat stroke and, if so, whether all reasonable steps were taken to prevent it.”

Although, for more specific-but sadly familiar- reasons (of non-disclosure by the MoD- and his response to that), the “inquisition” of the coroner was to be quashed with new inquest to be required more fundamental questions had been raised and, it was agreed by the Court of Appeal, to be dealt with at their hearing of this appeal before them, namely:-

To what extent are/were British soldiers serving in Iraq  protected by the Convention (the jurisdiction question), and

Whether the inquest (to follow) would have to comply with Article 2 (the Article 2 question)

The jurisdiction question

Strictly speaking, in Smith, the jurisdiction question was an “academic” one to the extent that Private Smith had died in medical facilities on a UK base where, it had already been conceded, there is jurisdiction under Article 1 of the Convention (R (Al-Skeini) v Secretary of State for Defence 2008 1AC253).

But, in “unusual turn” broader/fuller argument followed upon whether a soldier is subject to UK jurisdiction throughout Iraq. Collins J had delivered judgement to that effect before the judgements in Gentle were delivered, and following thereon, he issued addendum to his judgement maintaining its justification. Given, in particular, the remarks of Lord Bingham in Gentle, however, appeal from the MoD duly followed.

Starting point for discussion upon this question remained/remains Article 2 of the Convention under which “Everyone’s right to life shall be protected by law” and Section 6(1) of the Human Rights Act 1998 under which it is unlawful for a public authority (such as the British Army) to act in a way which is incompatible with a Convention right.”

The MoD maintained that the Convention jurisdiction includes geographical jurisdiction but (only) some personal jurisdiction over a soldier serving in Iraq because he is under the personal jurisdiction of the Army and, therefore, of the UK. Recognising their concession in Al-Skeini jurisdiction was accepted to extend to a UK base or hospital as may be extended to other places where the UK “has effective control.”

Reference to available ECHR authorities – in particular Bankovic 2001 11 BHRC 435 (in relation to claims following NATO bombing in Belgrade) as applied in Al-Skeini - Article 1 had there been said to reflect “an essentially territorial notion of jurisdiction” but might be extended to avoid a “vacuum in human rights protection” and to include “circumstances in which the Court has exceptionally recognised extra-territorial exercise of jurisdiction by a state” – including (i) where the state has effective control of the relevant territory . . .  abroad as a consequence of military occupation or through the consent . . .  of the Government of that territory and exercises all or some of the public powers normally to be exercised by that Government (ii) in cases involving diplomatic or consular agents abroad where recognised under international law (iii) where a state’s responsibility “could, in principle, be engaged because of acts . . . which produced effects of were performed outside their own territory.” The Court of Appeal accepted themselves to be “bound by that analysis” as had been given in the Lords.

In the result, in Bankovic, there had been found to be no jurisdictional link between the victims of the bombing and the respondent states (and therefore no Convention jurisdiction). But, in Al-Skeini it was held, Lord Bingham dissenting, that the Human Rights Act could extend to the exercise of UK public authorities such as the Armed Forces undertaken abroad as well as the UK – although only one of the there claims (in the well-known case of Baha Mousa –now to be subject itself to full independent inquiry !) was allowed. By contrast, however, Private Smith, as the “victim” was “at that time a soldier in the British Army and in every sense under its control.”

Founding upon the approach taken by Lord Rodger in Al-Skeini the question to answer was recognised as whether there was sufficient link between the victim and the contracting state since without that link (however reprehensible the conduct of the state agents may have been) no legal consequences or entitlement for the victim could follow.

Approaching this question – albeit recognising that it remained for the ECHR as to how this part of its jurisprudence develops – the Court of Appeal adopted (commendably?) robust view of the position. In terms of the judgement of the Court “if it is permissible to answer the question . . . namely whether there was a sufficient link between Private Smith and the UK when he died, on the assumption for this purpose that he died outside the base or a hospital, in a broad and commonsense way the answer is in our opinion plainly yes (my emphasis). The “degree of artificiality” in saying that “a soldier is protected so long as he remains in the base or military hospital but that he is not protected as soon as he steps outside” was (understandably?) recognised.

Support for this approach was drawn from the fact(s) that members of the British Armed Forces are subject to UK jurisdiction wherever they are, that they remain subject to UK military law without territorial limit and may be tried by court martial wherever their offence is committed/they are subject to the general criminal and civil law and they serve abroad as a result of and pursuant to the exercise of UK jurisdiction over them with legality of their presence and of their actions depending on their being subject to UK jurisdiction and complying with UK law.

While it was accepted that it did not follow that because the Army owed a duty of care to its soldiers they were within the jurisdiction of the UK under the Convention – which was a “different question” – nonetheless since “it is accepted that a British soldier is protected by the Human Rights Act and the Convention when he is at a military base . . . it makes no sense to hold that he is not so protected when in an ambulance or a truck or in the street or in the desert” with “no sensible reason for not holding that there is a sufficient link between the soldier as victim and the UK whether he is at a base or not.” As the Court pointed out if the soldier is court-martialled for an act committed (in Iraq) he should be entitled to the protection of Article 6 of the Convention wherever the court martial takes place. In short “there would have to be compelling reasons of principle for drawing a distinction for the purposes of jurisdiction under Article 1 of the Convention between the soldier while at his base and the soldier when he steps outside it, at any rate so long as he is acting as a soldier”; no such compelling reason was thought to have been advanced for the Government.

While Convention rights cannot be “divided or tailored” it was recognised that “the right to life of a soldier in combat is different from that of a soldier not in combat”; the Government failed to satisfactorily explain, however, how the UK could secure Convention rights to a soldier when at a base and not when he is outside it.

It was noted that the European Commission of Human Rights have consistently observed that “authorised agents of a state (including diplomatic or consular agents and armed forces) not only remain under its jurisdiction when abroad but bring other persons or property “within the jurisdiction” of that state, to the extent that they exercise authority over such persons and property – as British Forces did (or at least attempted to do) in Iraq.

Adopting the foregoing approach the Court of Appeal (thereafter) had to deal with the possible implications for that approach of the decision of the Lords in Gentle. In general terms, maintaining that that case dealt with “very different point” (see above) they found the approach to that question not of assistance to the immediate issues they had under discussion. In particular, the MoD attempted to found upon the judgement of Lord Bingham (specifically his “third reason”) to seek to maintain the “territorial” application of the Convention. Considering his there remarks, however, as well as those of his then colleagues, in Gentle, the Court found them not to have been addressed at the current question.

Article 2 question

As noted above, the question of whether/how far Article 2 was applicable in the circumstances had become academic since further inquest is being required and, moreover, it has been conceded that it should proceed as if it conforms to UK procedural obligations under Article 2.

Such observation/concession on the part of the MoD simply highlights the (developing) different approach being taken to the “traditional” as opposed to “Article 2 compliant” inquest in England. (Such distinctions, without any further definition , appear to be being maintained within the current Coroners Bill before Parliament.) Although such distinctions might justify separate treatment in their own right Article 2 compliance in this respect seems to require “an explicit statement, however, brief, of the jury’s conclusions on the central issues with such requirement being justified to allow the expectations of the deceased’s family to be met and, beyond their use of lethal force, any systematic failure on the part of agents of the state to protect human life requiring investigation. Such requirements – originating from R (Middleton) v West Somerset Coroner 2004 2AC182 -are to be contrasted with those required from the traditional inquest as set out in R v Coroner for North Humberside ex parte Jamieson 1995 QB1. Attempting to “rationalise” these distinctions, differing approach to what is required in determining the “how” of an incident are to be adopted ,with that being extended,  for Article 2 compliance, to encompass “by what means and in what circumstances.” On either approach, however, expressions of “opinion” are (still) to be avoided. While the relative Rules have removed the jury’s powers to add any “rider” to their verdict, it is left to the coroner to make appropriate report where he believes that action should be taken to prevent the recurrence of fatalities similar to those under review which intention/ the terms of any report, the Court has said, should be publicly known. (Whether coincidentally or otherwise attempt on the part of the Government to legislate for further inquests to be held in private have latterly been abandoned.)

While related to the Smith circumstances it must be foreseen, as discussed, that other incidents may require Article 2 compliant inquests (such as deaths in custody) although there appear limits to such likely requirements. Even “systematic failure in an NHS hospital” appears not to be regarded as justifying such obligations which, in consequence, may be limited to the holding of traditional inquest with or without related civil process (R (Takoushis) v Inner North London Coroner 2006 1WLR461 – albeit “full, fair and fearless investigation” remains to be expected.)

Specifically , for the Scottish practitioner – not having to be unduly concerned as to the distinctions between types of inquest – Lord Rodger’s reference to the subsisting requirements of fatal accident inquiries in Scotland may be noted.

Article 2 requirements

In Smith the MoD sought to maintain that Article 2 did not require an independent investigation to be held unless there was some positive reason to be believe that the authorities had been in breach of their obligation (to protect the prisoner). This argument was, firmly, rejected. As Lord Mance put it “the relationship between the state and prisoners is such that a state is bound to conduct an Article 2 compliant inquiry whenever its system for preventing suicide fails or as a results the prisoner suffers injuries in circumstances of near-suicide significantly affecting his or her ability to know, investigate, assess and/or take action by him or herself in relation to what has happened.” As Lord Rodger put it “authorities are under an operational obligation in well defined circumstances, namely where there is a real and immediate risk that the prisoner will commit suicide, to take reasonable steps to prevent it”

Invoking the prisoner/custody dimension argument was attempted, in Smith, that none of the (above) principles should apply “to someone in his position”. By reference, however, to/comparison between the serving soldier and conscript, the Court did “not think that it could be right to draw a distinction between a regular soldier who is not a conscript and a member of the TA when in active service. When in active service both regular soldiers and members of the TA are subject to army orders, instructions and discipline in the same way. So there could be no principled distinction between then.”

CONCLUSIONS

In terms of the decision of the Court of Appeal in Smith (a) the inquest to follow will have to be Article 2 compliant and (b) will be expected to consider whether “there were any systematic failures in the army which led to Private Smith’s death and, indeed, whether there was a real and immediate risk of his dying from heat stroke and, if so, whether all reasonable steps were taken to prevent it. ”How – if differently! – the House of Lords may approach these questions, in the further appeal now to follow, must remain to be seen.

In the meantime further application for judicial review has been allowed as to whether the Government should be required to hold an independent inquiry upon the (continuing) use of (too) lightly armoured “snatch” vehicles in Afghanistan, further (Article 2 compliant) inquests into the –continuing- deaths of at least services personnel in that country will be required and ,following on from those, where justified ,actions in negligence against the MoD for both deaths and injuries sustained there and in Iraq will ,no doubt, continue.

These “conflicts” – in which such military deaths and injuries are being caused- continue to give rise to questions as to jurisdiction and (literally!) in the “passing”of those being killed to the liabilities of the state following thereon. Although nothing can be certain! that such  (consequent) litigation will continue so long as those conflicts (or others yet unforeseen) are continued seems only inevitable?

Finally , in this review , it is difficult not to see the (profound) irony that our forces are (ostensibly) fighting for human rights abroad (for others) yet , at the same time, their own representatives are having to continue to fight for (their own) human rights at home?