R (on the application of Smith) v Secretary of State for Defence (Equality and Human Rights
Court of Appeal, Civil Division, Sir Anthony Clarke MR, Keene and Dyson LJJ, 18 May 2009
A British soldier in the Territorial Army (TA) who is on military service in Iraq is subject to the jurisdiction of the UK within the meaning of Art 1 of the European Convention on Human Rights (the Convention), so as to benefit from the rights guaranteed by the Human Rights Act 1998 (HRA 1998), while operating in Iraq, not simply while on a British military base or in a British hospital. Inquests into deaths of soldiers in Iraq have to satisfy the requirements of R (on the application of Middleton) v West Somerset Coroner [2004] 2 All ER 465 (Middleton).
Ben Emmerson QC and Jessica Simor (instructed by Hodge Jones & Allen) for the claimant. Pushpinder Saini QC and Sarah Moore (instructed by the Treasury Solicitor) for the secretary of state.
HM Assistant Deputy Coroner for Oxfordshire, appearing as an interested party, was not represented. Michael Beloff QC and Raza Husain (instructed by the Legal Director of the Equality and Human Rights Commission) for the intervener.
The deceased, a member of the TA, was serving in Iraq in August 2003. Temperatures reached in excess of 50 deg centigrade. On 9 August, he reported sick, complaining that he could not stand the heat. Over the next few days he carried out various duties off the base. On 13 August he was found face down. He was taken to the medical facilities but sustained a cardiac arrest and died.
A Board of Inquiry (BOI) was convened and an investigation was undertaken by the special investigations branch of the Royal Military Police. The BOI produced a report and then a further report which was produced to the coroner at the inquest. The coroner found that the death had been caused “by a serious failure to recognise and take appropriate steps to address the difficulty that [the deceased] had in adjusting to the climate”. The coroner subsequently conceded that his decision should be quashed.
The secretary of state applied for judicial review. The issues arose as to, first, whether a British soldier in the TA on military service in Iraq was subject to the jurisdiction of the UK within the meaning of Art 1 of the Convention, so as to benefit from the rights guaranteed by HRA 1998 while operating in Iraq, or whether he was only subject to the jurisdiction for those purposes when, as was common ground, he was on a British military base or British hospital.
The second issue was whether the inquest into the deceased’s death had to conform with Art 2 of the Convention in a particular way. It was common ground that there were two types of inquest, namely a traditional inquest and a Middleton inquest. The essential difference between them was that the permissible verdict or verdicts in a traditional inquest was significantly narrower than in a Middleton inquest. The judge ruled that the Convention applied to serving soldiers, not simply while on a British base or in a British hospital, and that a Middleton inquest was required. The secretary of state appealed.
Sir Anthony Clarke MR (giving the judgment of the court): The facts found by the judge were that the Coalition Provisional Authority in Iraq (following the ousting of the government of Saddam Hussain) had issued an order whereby the multinational force (of which British troops formed a pArt) should be “immune from Iraqi legal process” and that all personnel should be “subject to the exclusive jurisdiction of their sending States”. Thus the UK’s jurisdiction over its own nationals was clearly maintained.
On the assumed facts a soldier in the position of the deceased was a potential victim within Art 34 of the Convention. The question remained whether it was open to the court to reach that conclusion or whether it was bound by the decision of the House of Lords in R (on the application of Gentle) v Prime Minister [2008] 3 All ER 1 to hold that on the assumed facts a soldier who lost his life as the deceased had was at the relevant time outside the jurisdiction of the UK for the purposes of Art 1 of the Convention.
His lordship considered that decision and concluded that he was not so bound. It could not fairly be held that the House in Gentle had intended to express a view as part of the ratio of the opinions of the appellate committee that a soldier in the assumed position of the deceased in the instant case was not “within the jurisdiction” or “relevant de leur jurisdiction” within the meaning of Art 1. A majority of the appellate committee had not so held.
The appeal on that ground would therefore be dismissed. He turned to the second issue. His lordship consdered the Middleton case and European authorities. There was no doubt that the European Court would require a Middleton form of inquest and would not be satisfied with a lesser inquest. Soldiers on active service in Iraq were under the control of and subject to army discipline. They had to do what the army required them to do. If the army sent them out into the desert they had to go. In that respect they were in the same position as a conscript. Once they had signed up for a pArticular period they could no more disobey an order than a conscript could. The army owed them the same duty of care at common law. There was no reason why they should not have the same protection as is afforded by Art 2 to a conscript.
The precise limits of the inquest would be a matter for the coroner but his lordship would expect the coroner to consider the questions whether there were any systemic failures in the army which led to the deceased’s death and, indeed, whether there was a real and immediate risk of his dying from heatstroke and, if so whether all reasonable steps were taken to prevent it.
The appeal would therefore be dismissed.
