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This appeal is listed before a nine-Justice Supreme Court on 16 March 2010. Five of the Justices were members of the nine-judge House of Lords which decided R (Gentle) v Prime Minister [2008] 1 AC 1356.

The Court will decide the important issue of whether a solider on military service in Iraq was subject to the jurisdiction of the UK within the meaning of Article 1 of the Convention and is therefore protected by the Human Rights Act.

The jurisdictional question is particularly important for the deceased soldier’s family because an Article 2-compliant inquest is more far-reaching than a traditional inquest. Private Smith died of heatstroke. A traditional inquest would only consider what were the immediate causes of his death. An Article 2-compliant inquest, however, would consider whether there were any systemic army failures which led to his death and whether all reasonable steps were taken to prevent it.

The Court of Appeal (Sir Anthony Clarke MR, Keene and Dyson LJJ) ([2009] EWCA Civ 441) had dismissed the Secretary of State’s appeal from Collins J’s judgment ([2008] EWHC 694 (Admin)) that the Convention applied to protect soldiers serving abroad.  The Equality and Human Rights Commission intervened in the Court of Appeal and strongly supported the claimant’s arguments.
The jurisdictional question is whether a British soldier on military service in Iraq was subject to the jurisdiction of the UK and thereby entitled to the protection of the Convention or whether that only applied to a soldier when he was at a British military base or in a military hospital.  Although Private Smith died in a British medical facility, and so the point was academic, the question was of great general significance and was fully argued.
The core dispute is whether the UK’s jurisdiction is essentially geographical (as the Secretary of State contends) or whether jurisdiction can be personal (as the claimant and the EHRC contend).
In R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153, Lord Rodger focussed on the relationship between the victim (in that case Iraqi nationals some of whom were held in a British detention centre) and the contracting state for the purposes of Article 1.
The Court of Appeal adopted a similar approach: holding that there was plainly a sufficient link between Private Smith and the UK when he died. British soldiers were subject to UK jurisdiction wherever they went; they were subject to UK military law without territorial limit and could be court-martialled for offences wherever committed.  Soldiers served abroad pursuant to and as a result of the exercise of UK jurisdiction over them. There was no sensible reason for concluding that the link between the British soldier and the UK only existed whilst he was at a base/hospital but not when outside the base.
Although Al-Skeini had limited the Convention’s jurisdiction to persons held in British military custody and had not extended it to persons, say, who were killed or mistreated outside a UK detention facility abroad, those were very different facts albeit involving the same jurisdictional questions and so not dispositive of Smith’s case.
The Court of Appeal and the Administrative Court both reached their conclusion by distinguishing the otherwise binding decision of the House of Lords in Gentle.  The House of Lords in Gentle had refused to hold that the deaths of British soldiers (outside bases/hospitals) gave rise to any Article 2 obligation to hold a public inquiry into the circumstances surrounding the Iraq war.  Lord Bingham in Gentle had stated that the soldiers in question were not within the jurisdiction of the UK when they died. But he did not give that as a free-standing reason for holding that Article 2 did not apply.  In other words, the jurisdiction issue was not part of the ratio of Lord Bingham’s decision (nor of the other Law Lords’ speeches).
The appeal will be closely watched for a number of reasons:
  • Al-Skeini is listed before the Grand Chamber of the ECtHR in June
  • Will the Supreme Court feel at all constrained by the House of Lords’ decision in Gentle on the jurisdiction issue?
  • The relative position of British soldiers and persons from the state in conflict – if British soldiers are protected whether inside/outside military bases, should victims of soldiers’ actions be similarly protected whether inside/outside such bases or is their relationship with the UK fundamentally different?
  • In the criminal law the UK Government has gone to great lengths to limit public authorities’ liability for death – see e.g. the Corporate Manslaughter & Corporate Homicide Act 2007
  • The interaction between international humanitarian law and international human rights law is in a state of flux.

There is a simple, intuitive point  – if a soldier is always subject to UK law, wherever he may be, should he not thereby be also entitled to the protection of UK law (including the Human Rights Act)?