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The Court of Appeal (CoA), led by then Master of the Rolls Lord Neuberger (now president of the Supreme Court) heard the appeals in the Snatch Land Rover claims in June and handed down its judgment on Friday 19 October. The judgment clarifies the extent of the Ministry of Defence’s (MoD) duty to provide safe equipment and to protect the armed forces personnel it deploys abroad, says Jocelyn Cockburn.
The appeals arose out of claims brought by families of soldiers killed in poorly armoured land rovers during the Iraq conflict (Phillip Hewett in July 2005, Lee Ellis in February 2006 and Kirk Redpath in August 2007) and specifically the MoD’s application to strike them out on the grounds that they were “unarguable”. The claims allege that the MoD is responsible for the deaths, which would not have occurred had it provided better armoured vehicles that it knew, or ought to have known, were necessary to withstand the road side bombs in use by insurgents at that time. Each claim alleged breaches of article 2 of the European Convention on Human Rights (the right to life) and the Ellis case – the only one to include a dependency claim – was also brought in negligence.
The crux of the MoD’s argument was that it did not owe a duty of care in negligence to soldiers killed on the battlefield and that the Human Rights Act claims should also fail because the soldiers were killed outside UK’s jurisdiction for the purposes of article 1 of the European Convention on Human Rights, such that the Human Rights Act did not apply to them. The Snatch cases were heard with cases relating to deaths in a Challenger tank in 2003 as these contained similar allegations of equipment failure.
At the High Court the parties had mixed success and there were cross appeals that were heard by the CoA.
The CoA found in favour of the claimants in relation to the negligence claims and was not persuaded by the arguments put forward by the MoD. The MoD argued that equipment procurement issues were matters within the military and political sphere and as such were “non-justiciable”; it warned the court not to “trespass” into this area. The MoD argued that it would not be right to impose a duty of care in such cases. The court felt that it was undeniable that the MoD owed a duty of care as an employer to its soldiers – and noted that this had long been recognised. The issue of policy considerations of scarce resources may well be relevant but not to the question of whether a duty is owed at all, rather to the question of whether that duty has been breached, ie the standard of care. This is a question that will depend on the specific circumstances of each case and has yet to be decided in the Snatch Land Rover cases.
The judgment succinctly clarified this complex area and, hopefully, puts an end to the MoD’s attempts to establish a blanket immunity from suit for military claims alleging inadequate equipment (equivalent to police cases where, for public policy reasons it is considered to be unreasonable to impose any duty on the police in terms of the investigation and suppression of crime).
The other strand of the defence put forward by the MoD in relation to the negligence claim was that it owed no duty of care to the Snatch Land Rover soldiers because of combat immunity. It is a matter of public policy that the MoD does not owe soldiers a duty of care in relation to decisions made in combat and the MoD argued that as the Snatch Land Rover soldiers died on the ‘battlefield’ there was no duty to protect them. On this issue the CoA found that “it is the emphasis on ‘actual engagement’ or ‘the heat of battle’ that the rationale lies. Courts cannot adjudicate on decisions made in active operations. The rationale extends to the full width of active operations. But the question whether a decision alleged to have been negligent was a decision made during the course of active operations is a question of fact to be determined at trial”. The court noted that the allegations put forward by the Snatch Land Rover claimants were of acts or omissions that occurred well before combat and well off the battlefield. As such the allegations would not be ruled out by combat immunity.
The MoD had also sought to argue that combat immunity covered not only war itself but also the preparations for war. The court preferred a much narrower interpretation of combat immunity, which has clarified that the relevant issue in terms of whether a duty of care is owed is not so much the location of the outcomebut the location of the decisiongiving rise to the outcome. It is therefore difficult to see how a case alleging equipment failings could be excluded by the combat immunity principle – if a gun misfires on the battlefield then the relevant failures, if there are any, will have occurred outside of combat. Of course the application of the decision will not be confined to equipment cases and will define the law in this area, given the MoD is not appealing.
This decision is seen as a success not only by the Ellis claimants but also by Sue Smith and Colin Redpath despite the fact that their claims remain struck out, having been brought under the Human Rights Act only. Rather than compensation, the issue that has spurred them to bring their claims is the refusal of the MoD to acknowledge that it owes any duty to adequately equip soldiers. This can no longer be denied.
The other part of the case relates to allegations by all the Snatch claimants that the MoD breached the right to life of their deceased loved ones under article 2 of the European Convention on Human Rights. They alleged that the MoD owed the soldiers a duty to take reasonable steps to protect them from real and immediate risks to their lives, of which the MoD was aware. It also owed the soldiers a duty to put in place adequate systems to protect them.
This argument had previously been run in my case of R (Smith)v Assistant Deputy Coroner for Oxfordshirein the Supreme Court. Although that case was successful - because the deceased died on a UK army base - the court decided that British soldiers deployed on active service abroad were no longer within the convention jurisdiction when they stepped outside a UK army base. The court found that jurisdiction was territorial and therefore soldiers on the battlefield, for instance, were outside the jurisdiction of the UK for the purposes of article 1 and tso could not rely upon the protections in the act.
Subsequent to the Supreme Court judgment,the Grand Chamber of the European Court of Human Rights in Strasbourg considered the case of Al Skeini v United Kingdom. The Strasbourg court found that six Iraqi civilians killed in 2003 by UK forces in Iraq didcome within UK convention jurisdiction, although only one of them was killed inside a UK army base, the others being shot dead by British military patrols. The reasoning was that although jurisdiction is principally territorial, in exceptional cases it can be conferred through control and authority and effective control of an area. The means by which the Iraqi civilians were brought within the UK jurisdiction was by the actions of the UK soldiers. Therefore the relatives of the deceased Iraqis could seek remedies against the UK under the European Convention on Human Rights for breaches of their loved ones’ right to life.
As this decision was handed down in Strasbourg it outranks the Supreme Court in terms of human rights law and as such the interpretation of jurisdiction seemed to have moved on significantly from Smith. The Snatch claimants argued that Smith must have been wrongly decided on jurisdiction and, given that the Iraqi civilians were brought within the UK’s jurisdiction by the soldiers, logic dictates that the soldiers must have been within the jurisdiction themselves even while off base. Furthermore the relationship between soldiers and the MoD is clearly one where the latter imposes control and authority over the former.
Unfortunately, the CoA did not see the arguments in these terms – it considered that although not strictly bound by the Supreme Court decision in Smith, it could only reach a different conclusion if “compelled” to do so by the judgment of the Grand Chamber in Al-Skeini. The court did not feel Al Skeinihad this effect.
The CoA found that the Snatch Land Rover case could not be regarded as the same as Al Skeinibecause the latter case related to jurisdiction over third parties. The court analysed Al-Skeiniand asserted that the Grand Chamber “did not abandon the principle” that jurisdiction was primarily territorial. It pointed out that “what is decisive in such cases is the exercise of physical power and control over the person in question”and that this differentiated the Iraqi civilians from the position of the soldiers themselves. In terms of extending the exceptions to include soldiers, there were good public policy reasons against this and “paramount”, according to the Supreme Court justices’ reasoning inSmith,was that “issues relating to armed hostilities were essentially non-justiciable and outwith the scope of questions likely to arise in relation to … article 2”.
To the Snatch claimants this decision is unsatisfactory for a number of reasons, which will be explored in the Supreme Court when their appeals are heard. It is hard to see how questions of justiciability can be relevant to the issue of jurisdiction. Similarly, it is hard to see how Smith and Al Skeini can both be right on jurisdiction. The Snatch claimants will continue to argue that British soldiers remain within the UK jurisdiction at all times when deployed on active service abroad, whether by control and authority, ratione personae or otherwise and it is artificial to suggest that anything is different for them when they step outside a UK base. Why should British soldiers be in the uniquely unlucky position of being excluded from the definition set out in article 1, which dictates that such rights apply to everyone?
The issue is likely to be resolved before the Supreme Court gets to decide this case because Strasbourg is considering a case called Pritchard v UK,which relates to the death of a British soldier in Iraq. It is this case that will ultimately define the jurisdictional reach of the convention in terms of soldiers deployed on active operations abroad.
Jocelyn Cockburn is a partner at Hodge Jones & Allen. She acted for the Snatch Land Rover claimants, who were represented in the Court of Appeal by Robert Weir QC of Devereux Chambers and Jessica Simor of Matrix Chambers.