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Last week, the Court of Appeal ruled in the case of Private Jason Smith, the Territorial Army soldier who died of heatstroke while serving in Iraq in 2003, that the Human Rights Act (HRA) could apply to British troops, even on the battlefield.
This is a hugely important decision with far-reaching implications. Human rights legislation and claims in tort against the Ministry of Defence (MOD) are still developing areas of jurisprudence and, as an appeal is inevitable in the Smith case, the law is by no means concluded.
The two questions before the Court of Appeal were: to what extent is a serving soldier in Iraq covered by the HRA, and should the inquest comply with Section 2 of the European Convention on Human Rights, which says the right to life for every citizen should be protected by law?
It was the claimants’ (Smith’s family) argument in the High Court that a British soldier on service in Iraq is subject to UK jurisdiction, so as to benefit from the rights guaranteed under the HRA.
The arguments were extended to consider UK jurisdiction throughout Iraq and not only when on a UK base, on the basis that the British soldier serving in Iraq is within the personal jurisdiction of the Army and thus the UK. The judge at first instance accepted this submission.
The Secretary of State previously conceded in R ( Al-Skeini) in the House of Lords that a soldier who dies on a UK base dies within the jurisdiction of the UK.
When Smith went to appeal, the Secretary of State argued that although there is some UK jurisdiction in Iraq it is limited to locations over which it has control.
The key differences are that the Secretary of State argued the jurisdiction was geographical, while the claimant argued it was personal and that a solder in Iraq is within the personal jurisdiction of the UK.
Distinction was drawn between the Al-Skeini case and Smith in that only one of the claimants in Al-Skeini died on a UK base and he was an Iraqi citizen. Smith was a UK citizen who died on a UK base.
The court decided it was important to have a link between the ‘victim’ (Smith) and the contracting state (the UK). The key question was whether the Army in Iraq was within Parliament’s legislative grasp when in Iraq.
The Court of Appeal has now ruled that there was a sufficient link between Smith and the UK when he died, and that the link would be established had he died on a UK base in Iraq or not, as there would be a degree of artificiality in saying a soldier is protected when he is on a UK base or military hospital but not when he steps outside.
The court made the distinction between the Army’s duty of care and the HRA. It emphasised it was not stating the HRA applied because there was a duty of care. The HRA applied to a British solider under the personal jurisdiction of the UK - whether at an Army base or in the desert.
This does pose the question on where we stand with duty of care and combat immunity cases. At present, if a claim is brought by a soldier in Iraq, the MOD enjoys immunity if it can prove the incident happened in the heat of battle. The reasoning behind this is the captain who gives a wrong order under the pressure of battle cannot be sued for his mistake.
Can a claim now be brought in circumstances in the heat of battle where an inadequate system or the wrong or inadequate equipment has been supplied?
One of the arguments used by the Human Rights Commission (which was an intervener in this case) is that British armed forces are subject to UK jurisdiction wherever they are and can be court-martialled for any acts in Iraq regardless of location (on base or not), or in combat. If a claim in negligence fails under the combat immunity defence, can we now claim under the HRA legislation?