New Judgment: R (Smith) v Secretary of State for Defence & Anor  UKSC 29
30 Wednesday Jun 2010
On appeal from:  EWCA Civ 441
By majority, the Court allowed the Secretary of State’s appeal on the grounds that British troops operating on foreign soil did not fall within UK jurisdiction on a true interpretation of ECHR, art 1. The appeal against the decision that the fresh inquest into the death of Pte Smith must conform with the requirements of art 2 was unanimously dismissed. “Jurisdiction” within the meaning of art 1 was essentially territorial, but was extended in exceptional circumstances. In practice, the exceptions recognised by Strasbourg had consisted of (i) territorial jurisdiction by a state over the territory of another contracting state; (ii) extensions of territorial jurisdiction by analogy and (iii) common-sense extensions of the notion of jurisdiction. Per Lord Collins, jurisdiction could not be established simply on the basis of the UK’s authority and control, nor where there policy grounds for extending the scope of the ECHR to armed forces, which would involve the court in issues relating to the conduct of armed hostilities which were essentially non-justiciable.
Some form of internal investigation would always be held into military deaths in service, and a public inquest was required when a body was brought back into the country. This would satisfy many of the procedural requirements of art 2. In Pte Smith’s case, the courts below were correct to hold that the coroner should have found a possible breach by the state of its positive obligations under art 2 (the potential failure of the system to protect soldiers in extreme temperatures) and so it followed that the new inquest should comply with the procedural requirements of art 2.