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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Smith & Ors v Ministry of Defence [2011] EWHC 1676 (QB) (30 June 2011) URL: http://www.bailii.org/ew/cases/EWHC/QB/2011/1676.html Cite as: [2011] HRLR 35, [2011] EWHC 1676 (QB) |
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HQ08X00326 HQ09X00819 |
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| SMITH & Others |
Claimants |
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| - and - |
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| M.O.D. |
Defendant |
____________________
for Smith, Ellis and Redpath Claimants
Richard Hermer QC, Phillipa Kaufman QC, Ben Silverstone
(instructed by Leigh Day & Co) for Allbutt, Twiddy and Julien Claimants
James Eadie QC, Robert Jay QC, Sarah Moore, Karen Steyn,
(instructed by Treasury Solicitors) for the Defendant
Hearing dates: 9 11 May 2011
____________________
Crown Copyright ©
The Honourable Mr Justice Owen:
The claims before the court concern the violent death or injury of British troops whilst on active military service in Iraq. They fall into two categories, the Snatch Land Rover claims and the Challenger claims. The Snatch Land Rover claims arise out of the deaths of three soldiers, Private Phillip Dale Rivers Hewitt on 16 July 2005, Private Lee Ellis on 28 February 2006 and Lance Corporal Kirk James Redpath on 9 August 2007. Each died when an improvised explosive device ('IED') was detonated beside the Snatch Land Rover in which they were travelling. It is alleged that they died as a result of breach of Article 2 of the European Convention on Human Rights (the 'ECHR'), namely that the defendant was in breach of a positive obligation under Article 2 to take reasonable steps to protect the lives of soldiers from the foreseeable risk presented by IEDs, both in relation to the procurement and to the deployment of appropriately armoured vehicles. One of the Snatch Land Rover claims, the case of Ellis, also alleges that the failures on the part of the defendant amounted to a breach of the common duty of care.
The defendant seeks to strike out the statements of case pursuant to CPR r.3.4(2)(a), on the grounds that they disclose no reasonable grounds for bringing the claims, or in the alternative seeks summary judgment pursuant to CPR r.24.2(a)(i) on the grounds that the claims have no real prospect of success.
i) the conduct, command and control of particular military operations;
ii) the development, procurement, availability or use in military operations of military equipment; and
iii) the adequacy of training given to UK Armed Forces personnel prior to or during military deployment;
raise issues of a political and military nature which are not capable of constituting a breach of Article 2 nor of founding a claim in negligence.
CPR r.3.4(2)(a) provides that:
"The court may strike out a statement of case if it appears to the court:
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim."
"The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if
(a) it considers that -
(i) that claimant has no real prospect of succeeding on the claim or issue;
... and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial."
"However, the power of the court under Pt 24, the grounds are set out in r.24.2, are wider than those contained in r3.4. The reason for the contrast in language between r3.4 and r24.2 is because under r3.4, unlike r24.2, the court generally is only concerned with a statement of case which it is alleged displays no reasonable grounds for bringing or defending the claim".
That said, and as Lord Hope noted in Three Rivers DC, there may in reality be little difference in the tests to be applied in relation to the exercise of the powers to strike out and to give summary judgment.
"It seems to me that the following principles are well established, at least as articulated in relation to summary disposal under Part 24 of the CPR. (1) The purpose of resolving issues on a summary basis and at an early stage is to save time and costs and courts are encouraged to consider an issue or issues at an early stage which will either resolve or help to resolve the litigation as an important aspect of active case management: see Kent v- Griffiths [2001] QB 36 at 51B-C. This is particularly so where a decision will put an end to an action. (2) In deciding whether to exercise powers of summary disposal, the court must have regard to the overriding objective. (3) The court should be slow to deal with single issues in cases where there will need to be a full trial on liability involving evidence and cross examination in any event and/or where summary disposal of the single issue may well delay, because of appeals, the ultimate trial of the action. (4) The court should always consider whether the objective of dealing with cases justly is better served by summary disposal of the particular issue or by letting all matters go to trial so that they can be fully investigated and a properly informed decision reached. The authority for principles (2)-(4) is to be found in: Three Rivers District Council v Bank of England (No.3) [2001] UKHL 16; [2001] 2 All ER 513 per Lord Hope at paras 92-93 (pp.541-542), considering Swain v Hillman [2001] 1 All ER 91 at 94-95; Green v Hancocks [2001] Lloyds Rep. PN212, per Chadwick L.J. at para 53 page 219, Col. 1; and Killick v Price Waterhouse Coopers [2001] Lloyds Rep. PN17 per Neuberger J. at p.23 Col.2, 2-27.
28. (5) Summary disposal will frequently be inappropriate in complex cases. If an application involves prolonged serious argument, the court should, as a rule, decline to proceed to the argument unless it harbours doubt about the soundness of the statement of case and is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of the trial itself: see the Three Rivers case per Lord Hope at 94-98 (pp.542-544), considering the Williams & Humbert case. (6) It is inappropriate to deal with cases at an interim stage where there are issues of fact involved, unless the court is satisfied that all the relevant facts can be identified and clearly established: see Killick v Price Waterhouse at 20, Col.2 and 21 Col.1. (7) It is inappropriate to strike-out a claim in an area of developing jurisprudence. In such areas, decisions should be based upon actual findings of fact: see Farah v British Airways (unreported) 6th December 1999 (CA) per Lord Woolf M.R. at para 35 and per Chadwick L.J. at para 42, applying Barratt v London Borough of Islington [1999] 3 WLR 83 and X (Minors) v Bedfordshire CC [1995] 2 AC 633 at 694 and 741."
"Where ... the court is satisfied that additional facts will not change the framework of the claim and that the opposing arguments have been fully deployed the court should not shrink from deciding whether the application to strike out is well-founded in law. At the same time the Court must take account of Lord Browne-Wilkinson's admonition that it is normally inappropriate to decide novel questions on hypothetical facts. But the novelty of the question of law is not an absolute barrier. It is to be remembered that the resolution of a question of law at an early stage in proceedings may result in a very substantial saving of costs." 738H 739A.
The Smith claim
The first of the Snatch Land Rover claims is brought by Susan Smith, the mother of Pte Hewett. Pte Hewett was serving in the 1st Battalion, The Staffordshire Regiment. On the evening of 15 July 2005 he was part of a unit sent to patrol around the town of Al Amarah in the Maysan Province of Iraq. The patrol was part of a military operation to counter a significant threat posed by enemy forces to the lives of British troops based in Camp Abu Naji. Shortly after about 1.15am, and whilst en route to investigate an explosion in the vicinity of the stadium in Al Amarah, an IED was detonated beside the vehicle in which he was travelling. Two other occupants of the vehicle were also killed in the explosion and a further two occupants were seriously injured.
"4.1. The Defendant was in breach of its systems duty to take appropriate steps to protect life by providing suitable armoured equipment for use by soldiers (including PH) on active service in Iraq.
4.2. Further or alternatively, the defendant was in breach of its operational duty to do all that could reasonably have been expected of it to avoid the real and immediate risk to the life of soldiers in Iraq, in particular PH, of which the defendant had or ought to have had knowledge.
4.3. PH's death was caused by the defendant's breach of Article 2. Further or alternatively, had the defendant not breached Article 2, PH would have had a real prospect of avoiding death."
"26.1. Failing to provide better/medium armoured vehicles for use by PH's commander.
Had such vehicles been provided, they would or should have been used for PH's patrol.
26.2. Failing to ensure that any patrol inside Al Amarah was led by a warrior.
Following PH's death, such a policy was adopted and the incidence of deaths by IEDs ceased.
26.3 Causing or permitting a patrol of 3 Snatch Land Rovers to proceed inside Al Amarah, especially when there was no ECM on the lead Snatch Land Rover and the defendant knew or should have known that passive infra-red triggers were in use and that ECMs were ineffective against such triggers and no suitable counter measures to EFPs had been provided.
26.4. Permitting the patrol of Snatch Land Rovers to investigate the bomb blast, especially when there was only one road to the decoy bomb site.
26.5. Failing to provide other vehicles for route clearing and route planning ahead of the Snatch Land Rovers.
26.6. Failing to provide suitable counter measures to EFPs at all or in the light of the death of Lance Corporal Brackenbury.
26.7. Failing to use means other than patrols to combat the threat posed by the insurgents."
Pte Ellis was serving with the Second Battalion, the Parachute Regiment, attached to the Royal Scots Dragoon Guards. On 28 February 2006 he was driving a Snatch Land Rover in the vicinity of Al Amarah, as part of a patrol. Enemy forces remotely detonated an IED beside Pte Ellis's vehicle, killing him and another occupant of the vehicle, and injuring one other soldier.
"26.1. Failing to limit the patrol to better/medium/heavily armoured vehicles. Snatch Land Rovers had been taken out of front line use in Al Amarah following the death of soldiers in a Snatch Land Rover hit by an IED on 16 July 2005 and should not have been put back into such use.
26.2. Failing to provide any or any sufficient better or medium armoured vehicles for use by LE's commander.
Had such vehicles been provided, they would or should have been used for LE's patrol in place of the Snatch Land Rovers.
26.3. Failing to ensure that Element A had been fitted to the ECM on LE's Snatch Land Rover. LE should not have been permitted to leave the Camp without this equipment."
Lance Corporal Redpath was serving with the 1st Battalion Irish Guards. He was killed in the early hours of 9 August 2007, whilst participating in Operation Inala, when an IED was detonated by enemy forces level with the vehicle in which he was travelling northwards through Iraq. The explosion also killed one, and seriously injured two other occupants of the vehicle.
"26.1. Failing to provide better/medium armoured vehicles for use by KR's commander.
Had such vehicles been provided, they would or should have been used for KR's patrol.
26.2. Failing to ensure that the convoy was led by a Mastiff vehicle. The importance of taking this step was all the more obvious given the defendant knew or should have known that the route and timing of the convoy was predictable to the insurgents."
"was left in no doubt however:
a. as to the presence of the two tanks at the dam;
b. that his men clearly did not know of their presence;
c. that this state of affairs presented as an immediate risk to the lives of the men in the tanks at the dam and also to his own men (who might re-enter the tanks' arcs of fire)"
and that
(Allbutt PoC §16-17).
"Major McDuff failed to communicate this information to anyone."
"...the deaths and injuries were caused by the Defendant's negligence:
PARTICULARS
a. The failure to ensure that the Claimants' tank/battle group that fired upon it were properly equipped with technology and equipment that would, on the balance of probabilities, have prevented the incident;
b. The failure to ensure adequate vehicle recognition training was in place for British troops, including pre-deployment and in-theatre training."
It is submitted on behalf of the defendant that the Article 2 claims should be struck out and/or summary judgment given in favour of the defendant on two grounds namely:
i) That the deceased were not within the Convention jurisdiction of the United Kingdom within the meaning of Article 1 at the relevant time (the jurisdiction issue) and/or
ii) That the allegations advanced in the particulars of claim cannot amount to a breach of a substantive or operational obligation of the State of the kind for which the claimants contend (the substantive duty issue).
Article 1 imposes an obligation on the United Kingdom to secure to everyone within the jurisdiction the rights and freedoms set out in Section 1 of the Convention. Thus to bring their claims that the defendant was in breach of Article 2, the Snatch Land Rover claimants must first establish that the deceased were within the Convention jurisdiction of the United Kingdom within the meaning of Article 1 at the relevant time.
"(3)At all material times the Human Rights Act 1998 ('HRA') applied as between PH and the defendant. The claimant will aver that:
3.1.PH was serving within the scope of his military duties under the command of his superiors and under the legislative, judicial and executive authority of the United Kingdom at all material times.
3.2.PH was within the UK and/or the military base of Camp Abu Naji at all material times, that is when the relevant acts/omissions of the defendant said to constitute breaches of article 2 of the European Convention on Human Rights ('the ECHR') occurred.
3.3.In accordance and/or analogy with the line of authority emanating from Soering v United Kingdom (1989) 11 EHRR 439, PH was within the territory of the UK (to include the military base) at all material times and so within the jurisdiction of the UK for the purposes of article 1 of the ECHR. The fact that his death occurred outside of the military base is incidental.
3.4.The claimant recognises that R (Smith) v Secretary of State for Defence [2010] UKSC 29 is persuasive authority (but not strictly binding) for the proposition that members of the armed forces are not, by virtue of their being subject to the jurisdiction of the UK as a matter of both domestic and international law for all purposes other than the ECHR, also within the jurisdiction of article 1 ECHR. At the same time, the decision in Smith may require revisiting in the light of the awaited ECtHR decision in Al-Skeini v UK and any other relevant ECtHR decisions. The claimant wishes to reserve her position and puts the defendant on notice that she may seek to contend that soldiers are, by virtue of their being under the legislative, judicial and executive authority of the UK under domestic law and in accordance with public international law, within the jurisdiction of the ECHR regardless of their location on the globe and regardless of where the act/omission of which complaint is made occurred."
"288. Jurisdiction on the basis of 'authority and control' (especially outside the Convention states) as a separate head was firmly rejected by the House of Lords in Al-Skeini; see especially Lord Brown at paras 116-127, and Lord Rodger at paras 73-77; and see also Rix LJ speaking for the Administrative Court at para 216 and Brook LJ in the Court of Appeal at para 103."
and see also paragraph 307 in which he said in terms that "jurisdiction cannot be established simply on the basis that the United Kingdom's armed forces abroad are under the 'authority and control' of the United Kingdom, or that there is a 'jurisdictional link' between the United Kingdom and those armed forces". An application to the ECtHR in Al-Skeini has been argued before the Grand Chamber, and judgment is awaited. But in the meantime Al-Skeini must be assumed correctly to state the law.
"67. In keeping with the essentially territorial notion of jurisdiction, the court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Art. 1 of the convention.
68. Reference has been made in the court's case law, as an example of jurisdiction 'not restricted to the national territory' of the respondent state (Loizidou v Turkey) (preliminary objections (1995) 20 EHRR 99 at para. 62), to situations where the extradition or expulsion of a person by a contracting state may give rise to an issue under Arts 2 and/or 3 and hence engage the responsibility of that state under the convention (Soering v UK [1989] ECHR 14038/88 at para. 91, Cruz Varas v Sweden [1991] ECHR 15576/89 at para. 69 and 70, Vilvarajah v UK [1991] ECHR 13163/87 at para. 103).
However the court notes that liability is incurred in such cases by an action of the respondent state concerning a person while he or she is on its territory, clearly within its jurisdiction, and that such cases do not concern the actual exercise of a state's competence or jurisdiction abroad (see also Al-Adsani v UK [2001] ECHR 35763 at para. 39).
71. In sum, the case law demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a contracting state is exceptional; it has done so when the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, importation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government."
" the Convention operated in a regional context within the legal space of the contracting states and Article 1 reflected a territorial concept of jurisdiction; that other bases of jurisdiction were exceptional and required special justification in the particular circumstances of individual cases; that, although one such exception was recognised where a state through effective control of another territory exercised powers normally exercised by the government of that territory, the obligation to secure the Convention rights would arise only where a contracting state had such effective control over an area as to enable it to provide the full package of rights and freedoms guaranteed by section 1 of the Convention to everyone within that area; that the United Kingdom's presence in Iraq fell far short of such control; but that the narrow exception recognised in respect of embassies and consular agents could by analogy apply to the military base where the deceased in the sixth case had been detained; and that, accordingly, the sixth claimant's case fell within the jurisdiction of the United Kingdom in terms of Article 1 and the cases of the other five claimants failed to do so."
and see in particular the speeches of Lord Rodger at paragraphs 64 and 81, and Lord Brown at paragraphs 105109 with whose analysis Baroness Hale and Lord Carswell agreed.
"At the inquest into his death the Coroner held that the procedural requirements implicit in Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, scheduled to the Human Rights Act 1998, did not apply to the inquest and that he had no power to provide disclosure of certain information. The coroner's narrative verdict stated that the deceased's death had been "caused by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate". The deceased's mother sought judicial review of the coroner's decision that Article 2 did not apply and that he had no power to provide disclosure of documentation. The coroner subsequently consented to the quashing of the inquisition and ordered a fresh inquest on the ground that he had erred on the disclosure point. The Secretary of State for Defence, as an Interested Party on the claim, conceded that since the deceased had died on a British army base he was within the jurisdiction of the United Kingdom. However he and the claimant requested the court to deal with the remaining grounds of the claims and to provide guidance for the fresh inquest. The judge held, inter alia, that a member of the armed forces was within the jurisdiction of the United Kingdom for the purposes of Article 1 of the Convention where ever he might be, that the Convention and the 1998 Act accordingly applied and that, since the circumstances of the deceased's death raised concerns that there might have been a failure by the state to provide an adequate system to protect life, the procedural requirements implicit in Article 2 of the Convention would apply to the fresh inquest. On the Secretary of State's appeal the Court of Appeal affirmed the judge's decision.
On the Secretary of State's appeal, and on the issues whether (i) a soldier on military service abroad was subject to the protection of the 1998 Act when outside his base; and (ii) the death of a soldier who was subject to such protection had to be the subject of an inquest which satisfied the procedures which Article 2 of the Convention implicitly required where there was reason to believe that a death might be attributable to default on the part of a public authority
Held (i) allowing the appeal on the first issue (Baroness Hale of Richmond, Lord Mance and Lord Kerr of Tonaghmonre JJSC dissenting), that, having regard to the jurisprudence of the European Court of Human Rights and to the historical context in which the Convention had been formulated, the contracting states, in concluding its provisions, would not have intended it to apply to their armed forces when operating outside their territories; that Article 1, unlike the other articles, was not to be interpreted as a living documents subject to changing conditions; that jurisdiction under Article 1 was essentially territorial in nature and other bases were exceptional, requiring special justification in the particular circumstances of the case; that such exceptions consisted either of territorial jurisdiction by a state over the territory of another contracting state, extensions of territorial jurisdiction by analogy, such as to a military base or hospital, or extensions of jurisdiction to accommodate circumstances which were plainly within the scope of the conventions; but that, to the extent that jurisdiction was based solely on authority and control by state agents over individuals abroad, it was inconsistent with the established jurisprudence; that jurisdiction for the purposes of Article 1 could not therefore be established on the ground that the United Kingdom's armed forces abroad were under its authority and control or because they had a jurisdiction link with the United Kingdom; and that, accordingly the deceased had not been within the jurisdiction of the United Kingdom within the meaning of Article 1 when he was outside his army base."
"Bankovic as applied in Al-Skeini confirms that Article 1 reflects the territorial notion of jurisdiction, and that other bases of jurisdiction are exceptional and require special justification. In practice the exceptions recognised by the court have either consisted of (i) territorial jurisdiction by a state over the territory of another contracting state; (ii) extensions of territorial jurisdiction by analogy; and (iii) commonsense extensions of the notion of jurisdiction to fit cases which plainly should be within the scope of the convention."
"It follows that, leaving aside the position that when they are on a United Kingdom base, soldiers on active service overseas are not within the jurisdiction of the United Kingdom for the purposes of Article 1 of the Convention."
and see also Lord Hope at paras. 92 and 93 and Lord Brown at paras. 145-147.
" that the implied procedural duty under Article 2 to investigate whether a death which had occurred involved a breach of the substantive duty to protect life imposed by Article 2, was parasitic upon the substantive duty and did not exist independently of it; that, consequently the claimants had to show at least an arguable case that the substantive duty arose on the facts of the case; that Article 2 was not a generalised provision protective of life, irrespective of any specific death or threat, or an absolute guarantee that nobody would be exposed by the state to situations where his life was in danger, whatever the circumstances; that Article 2 was not violated simply by deploying service personnel on active service overseas as part of an organised military force, even though there was an inherent risk of their being killed "
"Here, the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the defendants they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted: R (Al-Skeini) v Secretary of State for Defence The claimants seek to overcome that problem, in reliance on authorities such as Soering v United Kingdom , by stressing that their complaint relates to the decision-making process (or lack of it) which occurred here, even though the ill-effects were felt abroad. There is, I think, an obvious distinction between the present case and the Soering case, and such later cases as Chahal v United Kingdom (1996) 23 EHRR 413 and D v United Kingdom (1997) 24 EHRR 423, in each of which action relating to an individual in the UK was likely to have an immediate and direct impact on that individual elsewhere. But I think there is a more fundamental objection; that the claimants' argument, necessary to meet the object to meet the extra-territorial reality, highlights the remoteness of their complaints from the true purview of Article 2."
"19. The jurisprudence which has developed from the decision in Soering v United Kingdom about decisions taken in this country to send people abroad to places where they face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment does not apply. The guarantee in the first sentence of Article 2(i) is not violated simply by deploying service men and women on active service overseas as part of an organised military force which is properly equipped and capable of defending itself, even though the risk of their being killed is inherent in what they are being asked to do."
See also Lord Hoffman at paragraph 16, Lord Carswell at paragraph 66 and Lord Mance at paragraph 74.
It follows that in my judgment the proposition that the deceased were within the Convention jurisdiction of the United Kingdom within the meaning of Article 1 at the relevant time is unsustainable, and the Article 2 claims are therefore bound to fail. In this regard the case is no different from Smith v Oxfordshire in which Lord Collins said:
"307. This case comes within none of the exceptions recognised by the Strasbourg court, and there is no basis in its case law, or in principle, for the proposition that the jurisdiction which States undoubtedly have over their armed forces abroad both in national and international law means that they are within the jurisdiction for the purposes of article 1. For the reasons given in the preceding section of this judgment, jurisdiction cannot be established simply on the basis that the United Kingdom's armed forces abroad are under the 'authority and control' of the United Kingdom, or that there is a 'jurisdictional link' between the United Kingdom and those armed forces
308. Nor are there policy grounds for extending the scope of the Convention to armed forces abroad. On the contrary, to extend the Convention in this way would ultimately involve the courts in issues relating to the conduct of armed hostilities which are essentially non-justiciable."
Whilst my conclusion on the issue of jurisdiction is dispositive of the defendant's application with regard to the Article 2 claims, I nevertheless propose shortly to address the second issue that arises in relation to such claims, not least as the possibility that the application to the ECtHR in Al-Skeini may succeed cannot be excluded, a result which, as Lord Brown observed in Smith at paragraph 141, " is likely to transform our understanding of the scope of article 1 in cases of this sort." The issue is whether, if the deceased were within the Convention jurisdiction at the material time, the defendant was under a substantive duty of the kind for which the claimants contend.
i) a " systems duty to take appropriate steps to protect life by providing suitable armoured equipment for use by soldiers on active service in Iraq."
ii) further or alternatively an " operational duty to do all that could reasonably be have expected of it to avoid the real and immediate risk to the life of soldiers in Iraq of which the defendant had or ought to have had knowledge.
"81. Article 2 may imply in certain well-defined circumstances a positive obligation on the authorities to take preventative operational measures to protect an individual from another individual or, in particular circumstances, from himself
82. However, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising
83. The court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them
84. Lastly, the court reiterates that, in the case of mentally ill persons, regard must be had to their particular vulnerability..."
"It is sufficient for an applicant to show that the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk of life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case. "
"The wider questions raised by the case are within the public domain and any doubts which may consequently arise as to policies adopted in the field of public health, are, in the Commission's opinion, matters for public and political debate which fall outside the scope of Article 2 and the other provisions of the Convention." p 137.
Similarly in Jordan v United Kingdom (1994) 79-A DR at para. 128 the European commission held that Article 2 did not require the investigation into the death caused by a shooting by a police officer in Northern Ireland to enquire into whether there was a policy of "shoot to kill" within the security forces in Northern Ireland.
"82. There is, however, a distinction to be drawn between legal and political questions. In A v Secretary of State for the Home Department ([2005] 2 AC 68) at [29], Lord Bingham also held:
The more purely political (in a broad or narrow sense) the question is, the more appropriate it would be for political resolution, the less likely it is to be an appropriate matter for judicial decision. The smaller therefore would be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal context of any issue, the greater the potential role of the court because under our constitution and subject to the sovereign power of parliament it is the function of the courts and not of political bodies to resolve legal questions.
83. Likewise, in this case, as it seems to me, Mrs Scholes, is in part seeking, by way of individual rights under Art. 2 of the Convention, to intervene in the political process which determines the allocation of resources to institutions such as secure children's homes. In my judgment, in so far as she seeks to do so or to establish a right for members of the public to be consulted on these matters, she seeks to carry Convention rights further than authority or Convention jurisprudence would require ".
He relied in particular on a passage in the judgment of Lord Rodger at paragraph 127, with which Lords Walker, Brown and Kerr associated themselves, in which he expressed the view that questions regarding the equipment provided by a state to its armed forces "raise issues which are essentially political rather than legal" and "raise questions of policy, not of legality and so would fall outside the scope of any article 2 investigation which a coroner might be obliged to carry out".
A further explanation of his reasoning is at paragraph 125:
"Of course, it will often perhaps even usually be possible to say that the death might well not have occurred if the soldier had not been ordered to carry out the particular patrol, or if he had been in a vehicle with thicker armour-plating, or if the observation post had been better protected. But, even if that is correct, by itself, it does not point to any failure by the relevant authorities to do their best to protect the soldiers' lives. It would only do so if contrary to the very essence of active military service the authorities could normally be expected to ensure that our troops would not be killed or injured by opposing forces. On the contrary, in order to achieve a legitimate peacekeeping objective, a commander may have to order his men to carry out an operation when he knows that they are exhausted or that their equipment is not in the best condition. Indeed the European Convention on Human Rights owes its very existence to countless individuals who carried out operations in just such circumstances."
Further, Lord Kerr observed at paragraph 339:
"As Lord Rodger has said, deaths and injuries of soldiers in a combat situation are inevitable. There is no reason, in my view, to anticipate that a similar level of scrutiny to that suitable to the death of a civilian will be required or appropriate where a soldier has been killed in the course of military operations. ... The duty to protect soldiers in a war setting is of an entirely different nature from the obligation to take proper steps to ensure that civilians are not exposed to unnecessary risks from military operations."
"79. If armed forces on active service abroad are within a state's jurisdiction for purposes of Article 1, the question arises of the scope of the substantive obligations imposed by Article 2. Would the Strasbourg court hold that they extend to the adequacy of the equipment with which the forces are provided; to the planning and execution of military manoeuvres? These questions are not easy to address, but an affirmative answer certainly cannot be excluded.
80. McCann involved the shooting by an SAS unit of three members of the provisional IRA who were suspected of being about to detonate a bomb in Gibraltar. The court held that Article 2 imposed substantive duties in relation to the planning, execution and control of the operation, and a procedural obligation to investigate these matters in the light of the casualties. The court adopted a similar approach to deaths that resulted from the operations of the Russian military when conducting substantial military operations against insurgents, see Isayeva, Yusupova and Bazayeva v Russia (applications Nos. 57947/00, 57948/00 and 57949/00) and Isayeva v Russia (application No. 57950/00), unreported decisions given on 24 February 2005. There would seem no reason why the court might not adopt a similar approach to operations resulting in the death of a state's own soldiers. The facts of this case do not require the court to define the positive duties that Article 2 imposes on the state in relation to its armed forces."
" one must not overlook the fact that there have been many cases where the death of service personnel indicates a systemic or operational failing on the part of the state. These may range from a failure to provide them with the equipment which is needed to protect life to mistakes made in the way they were deployed due to bad planning or inadequate appreciation of the risks that had to be faced."
"The guarantee in the first sentence of Article 2(i) is not violated simply by deploying service men and women on active service overseas as part of an organised military force which is properly equipped and capable of defending itself, even though the risk of their being killed is inherent in what they are being asked to do."
"The fact that the soldier was killed in these circumstances raises no prima facia case for saying that the United Kingdom army authorities have failed in their obligation to protect him and that there has, in consequence, been a breach of his Article 2 Convention rights."
At paragraphs 121-125 he set out his reasoning, concluding at paragraph 126 that:
"126. For these reasons, I am satisfied that, where a service man or woman has been killed by opposing forces in the course of military operations, the coroner will usually have no basis for considering, at the outset, that there has been a violation of any substantive obligation under Article 2."
But he added that in the course of his investigation a coroner might uncover new information pointing to a possible violation of Article 2. The example that he gave is of death as a result of friendly fire; and he accepted that there may then be reason to believe that the military authorities had failed in their Article 2 duty to protect the soldier's life.
"127. Once it is established, say, that a solider died because the blast from a roadside bomb penetrated the armour-plating on his vehicle, it may well be inferred that he would not have died if the plating had been stronger. And that simple fact may be worth pointing out as a possible guide for the future. But questions, say, as to whether it would have been feasible to fit stronger protection, or as to why the particular vehicles were used in the operation or campaign, or as to why those vehicles, as opposed to vehicles with stronger protection were originally purchased by the Ministry of Defence, or as to whether it would have been better to have more helicopters available etc., all raise issues which are essentially political rather than legal. That being so, a curious aspect of counsel's submissions before this court was the complete absence of any reference to parliament as the forum in which such matters should be raised and debated and in which ministers should be held responsible. Of course, in consequence of pressure brought to bear by Parliament, the government might set up an independent inquiry with wide terms of reference to look into all aspects of a situation, including the political aspects. But we are concerned with the scope of a coroner's inquest whose function is different. Many of the issues about the deaths of soldiers which are, understandably, of the greatest concern to their relatives are indeed of this much broader nature. In short, they raise questions of policy, not of legality, and so would fall outside the scope of any Article 2 investigation which a coroner might be obliged to carry out."
" there is nothing that makes the Convention impossible or inappropriate of application to the relationship between the state and its armed forces as it exists in relation to overseas operations, in matters such as, for example the adequacy of equipment, planning or training."
"The prospect of the state owing Article 2 obligations to its soldiers serving overseas is not the daunting one that the appellant in this case has portrayed."
But at paragraph 339 he went on to say that:
"In this context, I should say that I agree entirely with Lord Rodger JSC's observations in paragraph 126 of his judgment. It will often be possible to suggest, after an event, matters that could have been taken that might have reduced the risk to a particular soldier but that type of retrospective analysis is surely inapposite (and would be recognised by courts as such) to address the question whether the state's obligations to its soldiers under Article 2 have been discharged. The duty to protect soldiers in a war setting is of an entirely different nature from the obligation to take proper steps to ensure that civilians are not exposed to unnecessary risks from military operations. I do not believe that the fear of tactical decisions taken in the field by military commanders being subject to painstaking dissection by the courts is justified or that it should deter this court from declaring that when our government commits our armed forces to wars in foreign territories, it cannot deny them the protection that the Convention affords."
The Challenger claimants contend that the defendant was in breach of its duty of care to the deceased in two respects, namely:
i) in failing to ensure that their tank and/or the battle group that fired upon it were properly equipped with technology and equipment that on the balance of probabilities would have prevented the friendly fire incident and/or
ii) in failing to ensure that adequate vehicle recognition training was in place for British troops, including pre-deployment and in-theatre training.
26.1 Failing to limit the patrol to better/medium/heavily armoured vehicles. Snatch Land Rovers had been taken out of front line use in Al Amarah following the death of soldiers in a Snatch Land Rover hit by an IED on 16 July 2005 and should not have been put back into such use.
26.2 Failing to provide any or any sufficient better or medium armoured vehicles for use by LE commander. Had such vehicles been provided, they would or should have been used for LE's patrol in place of the Snatch Land Rovers.
26.3 Failing to ensure that Element A had been fitted to the ECM on LE's Snatch Land Rover. LE should not have been permitted to leave the camp without this equipment."
The first question that arises is whether the matters relied upon as giving rise to the alleged causes of action in negligence, fall within what has come to be known as the combat immunity.
"Exceptionally a defence to the government and indeed individuals who take action in the course of actual or imminent armed conflict and cause damage to property and injury (including possibly death) to fellow soldiers or civilians."
i) The decisions of the High Court of Australia in Shaw Savill & Albion Co. Ltd., v Commonwealth (1940) 66 CLR 344 and Groves v Commonwealth of Australia (1982) 150 CLR 113;
ii) The decision of the House of Lords in Burmah Oil Co. Ltd. v Lord Advocates [1965] AC 75 and
iii) Marc Rich & Co. A.G v Bishop Rock Marine Co. Ltd [1996] 1AC 211 and negligence cases involving injuries to police officers while engaged on operational duty, in particular Hughes v National Union of Mineworkers [1991] ICR 966.
"In my judgment the circumstances in which the plaintiff was injured clearly constituted "battle conditions" in the sense contemplated by Lord Reid, Lord Pearce and Lord Upjohn in the Burmah Oil case [1965] AC 75. Furthermore, I consider that an English court should approach this claim in the same way as the High Court of Australia in the Shaw Savill case, 66 C.L.R. 344. ... As I said earlier, I do not find it necessary to explore the territorial limits of this immunity. It is sufficient to say that in my view it covers the present situation where in the course of hostilities against an enemy a howitzer of the plaintiff's battalion was engaging the enemy and the plaintiff was a member of the gun team."
"In addition it may be helpful if I state what my conclusion would be even in the absence of the Australian decisions and the Burmah Oil case [1965] AC 75. ...
The issue to be determined is whether it is fair, just and reasonable that a duty of care should be imposed on one soldier in his conduct towards another when engaging the enemy during hostilities. In the light of the recent amendment to the plaintiff's pleading the same question has to be asked in relation to the alleged duty to maintain a safe system of work. ...
I am satisfied that in a hypothetical case a court would require proof that the injury was sustained in battle conditions. But here, as it seems to me, the plaintiff's pleaded case makes the position clear. The question then becomes: "Is a duty of care to be imposed in such conditions so as to make one serviceman liable for his negligent act towards another?" In my opinion, despite the careful arguments addressed to us on behalf of the plaintiff, there is no basis for extending the scope of the duty of care so far. I would echo the words of Gibbs C.J. in the Groves case, 150 C.L.R. 113, 117: "To hold that there is no civil liability for injury caused by the negligence of persons in the course of an actual engagement with the enemy seems to me to accord with common sense and sound policy." I reach the same conclusion on the plaintiff's alternative claim. In my opinion there was no duty on the defendants in these battle conditions to maintain a safe system of work."
"Like Neill L.J., it is in my judgment clear that public policy does require that, when two or more members of the armed forces of the Crown are engaged in the course of hostilities, one is under no duty of care in tort to another. Indeed, it could be highly detrimental to the conduct of military operations if each soldier had to be conscious that, even in the heat of battle, he owed such a duty to his comrade. My reasons are thus in essence those expressed by Dixon J. in the passage from his judgment in Shaw Savill and Albion Co. Ltd v The Commonwealth, 66 C.L.R. 344 which Neill L.J. has quoted. If during the course of hostilities no duty of care is owed by a member of the armed forces to civilians or their property, it must be even more apparent that no such duty is owed to another member of the armed forces. This conclusion is wholly consistent with, and supported by, the decision of the House of Lords in Burmah Oil Co. Ltd v Lord Advocate [1965] AC 75, and depends upon similar reasoning to that adopted by May J. in relation to police officers in Hughes v National Union of Mineworkers [1991] I.C.R. 669. In my judgment, therefore, at common law, one soldier does not owe to another a duty of care when engaging the enemy in the course of hostilities."
"Mr Hawkesworth, for the plaintiff, sought to amend his pleading to allege that the defendants were ... also directly liable for failure to maintain a safe system of work. I agree with Neil L.J. however that such an amendment makes no difference. The reasons which result in the first question being answered "No" result in the same answer to the second issue."
"1. A soldier does not owe a fellow soldier a duty of care in tort when either (one or other or both) are engaged with an enemy in the course of combat.
2. The MoD is not under a duty to maintain a safe system of work for service personnel engaged with an enemy in the course of combat.
3. In relation to both (1) and (2) the term combat has an extended meaning in that
a. the immunity is not limited to the presence of the enemy or the occasions when contact with the enemy has been established. It extends to all active operations against the enemy in which service personnel are exposed to attack or the threat of attack. It covers attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement.
b. the immunity extends to the planning of and preparation for operations in which the armed forces may come under attack or meet armed resistance.
c. the immunity will apply to peace-keeping/police operations in which service personnel are exposed to attack or the threat of attack."
"In my judgment that submission (that no cause of action can arise in relation to injuries sustained in combat irrespective of whether the acts or omissions to which such injuries are attributable fall within the combat immunity) is misconceived, and confuses the issue of the existence of the duty of care with the causation of injury. The issue is whether the MoD is under a duty of care in a particular set of circumstances. If the restriction of the duty of care does not arise on the facts, and a claimant is able to demonstrate breach of duty resulting in injury and consequential loss and damage, it is immaterial that the injury was sustained in the course of combat."
" with respect to the argument of state necessity, or a distinction that has been aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions. "
adding that:
"This is a ringing endorsement of the rule of law and of the system of democratic government. The executive cannot simply assert interests of state or the public interest and rely upon that as a justification for the commission of wrongs "
"It is closely and imprecisely related to (and in some cases perhaps identical with) a separate concept of necessity. This is exceptionally a defence to the government and indeed individuals, who take action in the course of actual or imminent armed conflict and cause damage to property or injury (including possibly death) to fellow soldiers or civilians. Unlike Act of State, the doctrine has nothing to do with a concern about undermining the acts of the executive in relation to foreign affairs. It is essentially an exception to the Entick v Carrington principle and as such should be narrowly construed "
Does the combat immunity operate as a complete defence to the claims as pleaded? In other words is the effect of the combat immunity such that the duties of care for which the Challenger claimants and the Ellis claimant contend, cannot arise on the facts?
"..questions, say, as to whether it would have been feasible to fit stronger protection, or as to why the particular vehicles were used in the operation or campaign, or as to why those vehicles, as opposed to vehicles with stronger protection, were originally purchased by the Ministry of Defence, or as to whether it would have been better to have more helicopters available etc, all raise issues which are essentially political rather than legal"
"The solution adopted is to have regard to the circumstances of the individual. He must act as would a reasonable person in his position. The standard of reasonableness is to be measured by what may reasonably be expected of the defendant in his individual circumstances. Where action calls for expenditure, the court if necessary will have regard to the financial resources of the defendant. The law does not always shrink away from such an investigation and regards itself as unable ever to make an assessment of competing demands for money."
And see also 939B-C.
The same applies to the training claims in so far as they address pre-deployment training. I do not consider that the defendant has advanced any argument that compels the conclusion that such claims should fail.