Opinion: Helping to protect our soldiers

As the Snatch Land Rover case ends, recognition of soldiers’ legal status abroad is welcome, if overdue

The Supreme Court’s landmark decision in Smith & Ors v Ministry of Defence [2013], aka the Snatch Land Rover claims, defines the extent and nature of the Government’s obligations to protect armed service personnel on active service abroad.

In finding they remain within the UK’s jurisdiction for the purposes of art.1 of the European Convention on Human Rights and so attract the protection of the Human Rights Act (HRA), the court departed from its 2010 ruling in R (Smith) v Oxfordshire Coroner (the ‘Catherine Smith’ case). This could no longer be regarded as good law in light of the 2011 Strasbourg ruling in Al Skeini v UK. Although jurisdiction is principally territorial, soldiers deployed abroad are an exception.

I represented the families in both cases. My clients find it incomprehensible that it could be argued that soldiers leave the UK’s jurisdiction when they step off the base in Iraq despite there being no change in their relationship with their employers. As Lord Hope said in the judgment, “no other state is claiming jurisdiction over them”. This anomaly would have been apparent to the Supreme Court when it reached the contrary decision in Smith, but it is good, and morally right, that this has been rectified and the law has now established that personnel remain within the UK’s jurisdiction at all times when deployed abroad.

The extent to which there is a duty, and the extent to which any duty has been breached both in negligence and under art.2, remain unresolved. Lord Hope made it clear these issues are fact-sensitive. He dismissed the MoD’s application to strike out the claims.

In giving guidance, he said courts should not impose an “impossible” or “disproportionate” burden on the authorities. High-level policy decisions are “beyond the reach of art.2”. Equally, ‘“the widest measure of appreciation” must be given to commanders for decisions taken on the ground. However, he said there was a “middle ground” and noted “it will be easier to find the duty of care has been breached where failure can be attributed to decisions about training or equipment taken before deployment, when there was time to assess the risks to life…”.

The Snatch Land Rover claimants believe their cases are in the middle ground. For them, this has never been about money but highlighting an issue so lessons are learned. -Despite criticism of Snatch Land Rovers (including among top military brass) the MoD continues to defend its use of them.

While this is a controversial issue I am disappointed by the poor quality of media debate and, sad to say, that among some Conservative MPs too, including the Secretary of State. 

The HRA and Europe are easy targets for those seeking to derail debate on the implications of this decision. This fails to recognise that Parliament decided many years ago to provide enforceable rights to soldiers who had nothing to do with Europe and also that the negligence claims raise similar, if not identical, issues to the Convention claims.