New Constraint on British Military Operations
From The Times
London
May 19, 2009
Courts rule British soldiers covered by right to life
Michael Evans, Defence Editor
Army chiefs can be sued over decisions taken in the heat of battle after a Court of Appeal ruling that troops must be protected by the Human Rights Act.
The judgment by Sir Anthony Clarke, the Master of the Rolls, and two other judges, makes the Ministry of Defence liable to civil prosecutions by families who claim that the treatment of soldiers who have died on operations overseas might have breached their human rights.
The landmark ruling follows a long-running battle between the MoD and Andrew Walker, the assistant deputy coroner of Oxfordshire, who has criticised the ministry for sending troops to war allegedly with defective equipment.
The judgment provoked anger from General Sir Mike Jackson, the former head of the Army. He told The Times: “I cannot imagine that this is what Parliament had in mind when it voted for the Human Rights Act . . . It’s potentially very dangerous and could damage operational effectiveness because commanding officers will be concerned that they run the risk of being taken to court over decisions they have had to make.”
Yesterday’s judgment concerned the case of Private Jason Smith, 32, of the Territorial Army, who died of heatstroke in Basra six years ago. At the inquest, in 2006, Mr Walker said that his death was caused “by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate” — temperatures of 50C. The coroner said that it amounted to a breach of his human rights.
Private Smith, from Hawick, in the Scottish Borders, was serving in the 52nd Lowland Regiment. He was unmarried but had a long-term partner.
The MoD conceded that Private Smith was within the jurisdiction of European and British human rights laws because he died while in hospital at a British base in Iraq. But MoD lawyers challenged a general-principle ruling by Mr Justice Collins in the High Court in which he said that members of the Armed Forces always remained in the jurisdiction of the UK and were therefore covered by the Human Rights Act wherever they were serving overseas.
The MoD argued that soldiers could not be protected by human rights laws if they were fighting “beyond the wire” of a base. Mr Justice Collins dismissed the MoD appeal and yesterday the Master of the Rolls, one of the most senior judges, agreed with his judgment and also threw out the ministry’s case.
“For the purpose of determining whether there is a sufficient link with the UK to qualify for protection, it seems to us to make no sense to hold that there is a distinction between a person inside and outside premises controlled by the UK,” the judges ruled.
Catherine Smith, Private Smith’s mother, said: “I welcome the judgment, but I really feel let down by the Army. The Army used to be a family but that doesn’t seem to be the case any more. There is no back-up. It is too late for my son but it is a good thing that everyone in the Army now will be covered by the Human Rights Act.”
Mrs Smith criticised the MoD for failing to provide her son’s medical records at the inquest, and a new inquest is now to be held. Yesterday’s ruling by the Court of Appeal also obliges the MoD to provide more information to bereaved families. The MoD’s lawyers are now considering an appeal to the House of Lords, although the judges said yesterday that the ministry would have to foot the bill whether it won or lost.
