Armed forces and health and safety: Supreme Court decision
In the case of Smith and others v Ministry of Defence, the Supreme Court has ruled, in summary, that British soldiers killed in Iraq were under UK jurisdiction and were entitled to human rights protection to the extent that it is reasonable and does not interfere with the demands of active service.
The proceedings concerned three sets of claims, as follows:
!. The Challenger claims, brought in negligence, alleging failures by the MOD to properly equip tanks and to give soldiers adequate recognition training.
2. The Snatch Landrover claims, alleging that the MOD had breached Article 2 of the European Convention on Human Rights by failing to take preventive measures to protect life in the light of the real and immediate risk to life of soldiers who were required to patrol in Snatch Landrovers.
3. The Ellis negligence claim, based on various alleged failures on the part of the MOD.
The issues for the Supreme Court were as follows:
• In relation to the Snatch Landrover claims, whether two deceased soldiers were, at the time of their deaths, within the jurisdiction of the UK.
• If so, whether Article 2 imposes positive obligations on the UK with a view to preventing the deaths of soldiers in active operations against the enemy.
• Whether allegations of negligence should be struck out because of the principle of combat immunity or because it would not be fair, just or reasonable to impose a duty to take care to protect against death or injury in the circumstances.
The decision of the Supreme Court, in summary, was that all three claims could proceed to trial. The court made the following points:
• Extra-territorial jurisdiction can exist whenever a state through its agents exercises authority and control over an individual.
• Obligations imposed by Article 2 must be given effect where it would be reasonable to expect an individual to be protected.
• Policy decisions made at a high level and things done on the battlefield will fall outside the scope of article 2. But whether claims which are between these two categories are within the scope of Article 2 will require the exercise of judgment in the light of the facts of each case.
• In relation to claims in negligence, the doctrine of combat immunity should be construed narrowly and should not be extended beyond its established scope to the planning of and preparation for active operations against the enemy. The Challenger claims were not within the scope of the doctrine because they related to decisions which were sufficiently far removed from the pressures and risks of active operations against the enemy.
• The question whether the claims entailed subjecting the MOD to duties which were unrealistic or excessively burdensome could not properly be determined without a hearing.
The Supreme Court made the general point that the circumstances in which active operations are undertaken by the UK’s armed services today vary greatly and cannot all be grouped under a single umbrella as if they were all open to the same risk of judicialising warfare.
The Equality and Human Rights Commission, which made submissions to the Supreme Court, has commented that serving in the armed forces inevitably involved risks and dangers which servicemen and women took on willingly. The Supreme Court ruling would extend the same protections of their rights to members of the armed forces abroad which already existed when they were in the UK or an overseas base. If their equipment was proven to be faulty then they should be protected from that at home and abroad. Simply being on active service should not mean that our armed forces lose all protections of their rights.
In the view of the EHRC, the ruling meant that human rights protections have now been levelled up so that we are no longer expecting our armed forces to fully respect the rights of civilians abroad while not being properly protected themselves. This was not about interfering with the way military decisions were made in the field, but how everyone serving in the armed forces is given the protections they deserve.
In the context of health and safety, the doctrine of combat immunity was recently considered by the High Court in the case of Multiple Claimants v Ministry of Defence (2003). The facts, in summary, were that approximately 2000 former service personnel claimed compensation from the MOD on the basis that they had suffered psychiatric injury as a result of exposure to the stress and trauma of combat or analogous situations between 1969 and 1996. It was alleged that the MOD had been negligent in failing to take any or adequate steps to prevent the development of psychiatric illness and also in failing to detect, diagnose or treat such illness.
It was accepted by the claimants that no duty of care arose in common law in a service setting when related to immediate operational decisions and actions within a theatre of war or analogous situations. The issue was the scope of combat immunity.
The court made the following points:
• In relation to combat immunity, there was no basis for ruling that, as a matter of principle, all claims for personal injury sustained in combat could not be the subject of legal proceedings.
• A soldier did not owe a fellow soldier a duty of care in tort when either, or both, was engaged with the enemy in the course of combat.
• The MOD was not under a duty to maintain a safe system of work for service personnel engaged with an enemy in the course of combat.
• The term “combat” had an extended meaning, in that the immunity of the MOD was not limited to the presence of the enemy or occasions when contact with the enemy had been established. It extended to all active operations against the enemy in which service personnel were exposed to attack or the threat of attack.
• Combat immunity extended to the planning of, and preparation for, operations in which the armed forces might come under attack or meet armed resistance. It also applied to peace-keeping operations in which service personnel were exposed to attack or the threat of attack.
• The claimants had failed to establish that the MOD was in breach of its duty of care with regard to its systems for the prevention, detection and treatment of psychiatric reactions to the stress and trauma of combat.