Thursday, 1 July 2010

British Military Action and Human Rights of Service Personnel

The Supreme Court of the U.K. delivered judgment in R (Smith) v Secretary of State for Defence [2010] UKSC 29.  Private Jason Smith went to serve in Iraq in 2003 and was sent to a base from where he was billeted at an old athletics stadium where daytime temperatures exceeded 50 degrees celsius (i.e. above 122F).  He reported sick but was still used on various duties off the base.  On the evening of 13th August 2003, he collapsed at the stadium and died of heat stroke.  An inquest found that Smith's death was caused by a failure to address the difficulty he had in adjusting to the hot climate.  Smith's mother wished to have the inquest verdict quashed and a new inquest held.  She argued that the U.K. owed her son a duty to respect his right to life (Article 2 of the European Convention) and that the more searching form of inquest demanded by Article 2 had to be held.

The government's case was that soldiers on military service abroad were not subject to the protections afforded by the Convention when outside their base.  However, the government accepted that Private Smith had died within the U.K.'s jurisdiction on the base.  The government had also argued that a fresh inquest was not required on the facts of this case.  The High Court and Court of Appeal found against the government.  Interestingly, in the Court of Appeal, the government conceded that it would not argue to a new coroner that the requirements of Article 2 did not apply.  At this point, Mrs Smith had actually achieved her aim.    However, despite this concession, the Court of Appeal and the Supreme Court looked at two issues of general importance:

1.  Whether British troops serving on foreign soil were entitled to the protection of the Convention and
2.  Whether the fresh inquest into Private Smith's death had to conform with Article 2 requirements.

The Supreme Court, by a 6 to 3 majority, allowed the government's appeal on [1] "the jurisdiction issue".   The court unanimously dismissed the government's appeal on issue [2] "the inquest issue".

Comment: This case was decided in the knowledge that the Al-Skeini case has been heard by the European Court of Human Rights (Grand Chamber) though judgment remains to be delivered.  The Al-Skeini case is also concerned with the extent of jurisdiction under the European Convention on Human Rights.

There is further comment on this case on the UK Human Rights Blog which argues that - ".... the Supreme Court justices have possibly written a very powerful academic essay, but not a binding judgment on battlefield human rights."  This is because it was accepted that Private Smith was within the jurisdiction of the U.K. at his base where he died and it was therefore irrelevant to discuss what the situation might have been had he died off the base.  The words of Lady Hale are worth noting - "The Ministry of Defence have appealed to this court because both the trial judge and the Court of Appeal accepted the invitation of both parties to decide more than they needed to decide. Of course they meant to be helpful. But because the Ministry of Defence did not like what they said, Mrs Smith has had to wait for more than two years for the case to be over so that the fresh inquest can be arranged."  Nevertheless, even if statements about the situation of British troops when not on their base are technically obiter dicta, in practice those dicta will be followed by lower courts unless and until Strasbourg makes some alternative ruling - see here.

 "The Human Rights Blog also carries an interesting item about the Article 2 duty to investigate deaths and questions whether the "two-speed" inquest system which has developed in the U.K. is actually in line with Strasbourg jurisprudence on this subject.

Further information about the al-Skeini and al-Jedda cases may be seen here.
See also BBC.

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