Case Comment: Smith & Ors v Ministry of Defence  UKSC 41
28 Friday Jun 2013
On the 19th June the Supreme Court handed down judgment in Smith. These proceedings arose out of the deaths of three soldiers and the injuries of another two, while serving in the British Army in Iraq between 2003 and 2006.
The ‘Challenger claims’ are brought under negligence in respect of the death of Corporal Albutt and injuries of Trooper Andrew Julien and Lance Corporal Twiddy. These resulted from a friendly fire incident while they were in a Challenger II tank taking part in the offensive on Basra in 2003. They allege failures by the Ministry of Defence to provide available equipment and technology to protect against the risk of friendly fire and to provide adequate vehicle recognition training pre-deployment and in theatre.
The ‘Snatch Land Rover claims’ arise from the deaths of Private Philip Hewett and Private Lee Ellis when the Snatch Land Rovers in which they were travelling were detonated by improvised explosive devices in 2005 and 2006 respectively. They allege that the MoD was in breach of the obligation to safeguard life protected by ECHR art 2 due to failing to take reasonable measures in light of the real and immediate risk of soldiers with patrolling obligations.
The ‘Ellis negligence claim’ arises from the MoD’s’s failure to provide suitable armoured vehicles for patrolling and in deciding to put the Snatch Land Rovers back into use, after they were withdrawn following the first death (paras 1-12).
The MoD argued that the Challenger and Ellis claims should be struck out on the basis of combat immunity and that it would not be fair, just or reasonable to impose a duty of care on the MoD in the circumstances of those cases. Regarding the strike out of the Snatch Land Rover claims, the MoD argued that at the time of their deaths Hewett and Ellis were not within the jurisdiction of the United Kingdom for the purposes of ECHR art 1 and that the MoD did not owe a duty at the time of their deaths under art 2 (para. 13).
Owen J of the High Court stuck out the Land Rover claims under art 2 on the ground that Hewett and Ellis were not within the jurisdiction of the UK for the purposes of art 1 of the Convention when they died. Narrowly construing the doctrine of combat immunity, Owen J upheld the Challenger claims and part of the Ellis claims in negligence because the equipment and pre-deployment claim had a chance of success (para. 14).
The Court of Appeal (Lord Neuberger MR, Moses and Rimer LJJ) struck out the Snatch Land Rover claims under art 2 because it found that the deceased were not within the jurisdiction of the UK. Nevertheless, it held that the Challenger claims and part of the Ellis negligence claim should proceed to trial because there were factual questions regarding the circumstances in which MoD decisions were made, where the defence of combat immunity could be raised (para. 15).
The Supreme Court were concerned with three main issues:
1. Regarding the Snatch Land Rover claims, whether Hewett and Ellis killed during military operations abroad were, at the time of their deaths, within the jurisdiction of the United Kingdom for the purposes of art 1.
2. Whether the United Kingdom owed a positive duty to the deceased soldiers at the time of their deaths pursuant to art 2 of the Convention, with a view to preventing the death of its own soldiers in active operations against the enemy.
3. Regarding the Challenger and the Ellis negligence claims, whether the complaints of negligence fall within the scope of combat immunity and whether it would otherwise not be fair, just and reasonable to impose a duty of care to protect against death or injury on the MoD in the circumstances of the case (para. 16).
The Supreme Court Decision
Regarding the Snatch Landrover claims the Court found unanimously that Hewett and Ellis were within the United Kingdom jurisdiction for the purposes of the Convention at the time of their deaths. In the Snatch Land Rover claims the majority (Lord Hope, Lord Walker, Lady Hale, Lord Kerr) found that the claims could proceed to trial because they fell within the scope of art 2. The Challenger claims and Ellis negligence claim could also proceed to trial on the ground of falling outside the scope of combat immunity or on the ground that it would be fair, just or reasonable to extend the MoD’s duty of care to those cases (para. 101).
The Court distinguished the present case from the Al-Skeini v. United Kingdom (2011) 53 EHRR 589 judgment of the ECtHR Grand Chamber on its facts, because that case concerned Iraqi civilians who had died as a result of the actions of British armed forces in Iraq (para. 21). While departing from the case of R (Smith) v Oxfordshire Assistant Deputy Coroner  UKSC 29, the Court relied on two main elements that can be extracted from the Al-Skeini judgment. First, it relied on the principle that there must be exceptional circumstances for a state to be held to be exercising its jurisdiction extra-territorially: that the normal presumption that applies throughout the state’s territory is not applicable (para. 46). Second, that the package of rights in the Convention is divisible and can be divided and tailored to the particular circumstances of the extra-territorial act in question (para. 48 & 77).
Given that a state’s extra-territorial jurisdiction over local inhabitants exists because of the authority and control that is exercised over them as a result of the control a state has over its own armed forces (para. 50), it logically followed that, in light of the way that armed forces operate, that authority and control is exercised throughout the chain of command from the very top all the way down to individuals operating in the front line. Given that servicemen and women relinquish total control over their lives to the state, the Court found it impossible to separate them, in their capacity as state agents, from those whom they affect when they are exercising control on the state’s behalf (para. 50). The Court therefore concluded that the jurisdiction of the United Kingdom under art 1 extended to securing the protection of art 2 to members of the armed forces when they served outside its territory and that at the time of their deaths Hewett and Ellis were within the jurisdiction of the UK (para. 55).
Art 2 obligations
Regarding the positive obligations incumbent upon the UK to protect the right to life, the Court recognised that it could only impose such obligations on the state in connection with the planning for and conduct of military operations in situations of armed conflict that are realistic and proportionate (para. 76). The United Kingdom enjoys a wide margin of appreciation regarding decisions about training, procurement or the conduct of operations at a high level of command because they are closely linked to the exercise of political judgment and policy issues (para. 76). Nevertheless, positive obligations under art 2 should be given effect where it is reasonable to expect the individual to be afforded protection. This is however a matter of judgment, determined in light of the facts of each case (para. 76).
The Court considered that details about the facts of this case were needed to determine whether there was a breach of art 2. This case could not be decided without hearing further evidence at trial (paras 78-80). The Court accordingly did not strike out the claims, but put the claimants on notice that the trial judge would be expected to follow the Supreme Court’s guidance as to the wide margin of discretion accorded to those responsible on the ground for the planning and conduct of the operations during which these soldiers lost their lives and the way issues as to procurement should be approached (para. 81). It was unclear for the Court that the claimants would be able to demonstrate a breach of art 2(1) of the Convention in taking preventative operational measures (para. 81).
The doctrine of combat immunity was narrowly construed to apply only to actual or imminent armed conflict and not to failures at the earlier stage of planning and preparation for active operations against the enemy (para. 92). There was a real distinction between actual operations against the enemy and other activities of the combatant services in time of war (para. 94). The Challenger claims were upheld because they fell in the latter category: the training and preparation phase, whether pre-deployment or in theatre, because they were sufficiently far removed from the pressures and risks of active operations against the enemy. It was therefore reasonable to impose a duty of care, which was sensitive to the nature of these activities and to their circumstances (para. 95). Since the Ellis claim occurred during a phase where there was constant threat of enemy action by insurgents likely to cause death and injury, it arguably fell within the scope of combat immunity. This factual issue was left to be determined at trial (para. 96).
The considerations in the context of claims made under art 2 (paras 64-66 and 76-81) are just as relevant in assessing whether it is just fair and reasonable to impose a duty of care on the MoD. Regard must be had to the time when the alleged failures took place and to the circumstances in which and the persons by whom the decisions that gave rise to them were taken (para. 99). The Court must be cautious not to impose duties that are unrealistic or excessively burdensome to decision-makers in the battlefield (para. 99) and it must have regard to the public interest, the unpredictable nature of armed conflict and the inevitable risks it entails when balancing was is fair, just and reasonable (para. 100).
Lord Mance, with whom Lord Wilson agreed, would have struck out all three sets of claims in their entirety mainly because they were not suitable for a resolution by a court (paras 102-152). Lord Carnwath would have also struck out the Challenger claims, but he considered that the Snatch Land Rover claims were not necessarily excluded because major combat operations had ceased by the time of the relevant incidents (paras 153-188).