HRA 1998: who benefits?
Date: 16 July 2010
Authors: Richard Scorer
Issue: Vol 160, Issue 7426
Categories: Features, Personal injury
The issue of whether British soldiers serving overseas should have the benefit of the Human Rights Act 1998 (HRA 1998) was considered by the Supreme Court in a judgment delivered on 30 June 2010 (R (on the application of Smith) v Secretary of State for Defence [2010] UKSC 29, [2010] All ER (D) 261 (Jun)). The issue has provoked much media debate, including some ill informed comment in the tabloid press.
The case before the Supreme Court arose from the death in Iraq in 2003 of Private Jason Smith. Private Smith joined the Territorial Army in 1992, at age 21, and was mobilised for service in Iraq in June 2003. On 26 June 2003, after an acclimatisation spell in Kuwait, he arrived at Camp Abu Naji, his base in Iraq. From there he was moved to an old athletics stadium some 12 kilometres away, where a number of British soldiers were billeted.
Temperatures in Iraq in summer regularly exceed 55 degrees centigrade and on 9 August 2003 Private Smith reported sick, saying he could not cope with the heat. Over the next few days he was employed on various duties off the base. On the evening of 13 August he was found collapsed outside the door of a room at the stadium. He was rushed by ambulance to the medical centre at Camp Abu Naji but died almost immediately of heat stroke.
Private Smith’s body was brought back to this country and an inquest was initiated. The coroner delivered a narrative verdict, concluding that: “Private Smith’s 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.”
Systemic failings?
However, the coroner also concluded that this “serious failure” arose from a failure by the army to follow its own procedures. In essence however, the coroner did not consider that the army’s procedures for dealing with difficulties of adjustment to climate were themselves defective. Private Smith’s mother, who maintained that her son was the victim of systemic failings, considered that the inquest suffered from procedural shortcomings, and sought an order quashing the inquisition. In so doing, she relied upon HRA 1998.
She contended that throughout the time that her son was in Iraq the UK owed him a duty to respect his right to life under Art 2 of the European Convention on Human Rights (the Convention) and that the inquest also had to satisfy the procedural requirements of Art 2; these procedural requirements implicitly arise where there is reason to believe that a death may be attributable to failings on the part of a public authority, and include such requirements as a sufficient element of public scrutiny of the investigation, that the tribunal must be independent of the state agents allegedly responsible for the death, that there must be an appropriate role for relatives of the deceased and that the investigation must be prompt and effective.
Two issues of public importance arose from the Smith case:
l “The jurisdiction issue”: Article 1 of the Convention provides that the rights and freedoms of the Convention should be available to all those within the state’s jurisdiction. Therefore, is a soldier on military service abroad in Iraq within the State’s jurisdiction?
l “The inquest issue” (Art 2 of the Convention): Must the death of such a soldier be subject to an inquest that satisfies the procedural requirements of Art 2?
Academic questions?
Before the case came before the appellate courts, the Secretary of State for Defence had already conceded (1) that Mrs Smith was entitled to a new inquest, and (2) that the circumstances leading to Private Smith’s death took place within the geographical area of British army camp and a British army hospital, and that a soldier who dies on a UK base dies within the jurisdiction of the UK for the purposes of Art 1. The two issues raised by the case were of significant public importance, but were academic so far as Mrs Smith was concerned, a point which troubled the nine Supreme Court justices. As Lord Walker commented: “In common with other members of this court I feel some disquiet about our engaging in protracted deliberation and the preparation of lengthy judgements on two issues which (as all parties agree) do not actually affect what is to happen in consequence of the tragic death of Pte Smith. It is not the function of this court to deliver advisory opinions, and in this case we may be going some way beyond what would be regarded as a proper exercise of judicial power in a country with a written constitution providing for the separation of powers ….”
The “jurisdiction issue”: geographical or personal?
There are two different ways of analysing the jurisdiction issue. One is based on territory, ie that the jurisdictional competence of a state is primarily territorial, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case. The alternative approach, put forward by counsel for Mrs Smith, was that jurisdiction arose not from Private Smith having been on territory under the control of the UK, but on the fact that Private Smith was subject to the jurisdiction of the UK as a matter of both domestic and international law, by reason of his status as a member of the army.
On this argument, soldiers are in the same position as other state agents, such as diplomats, consular agents and judges: when exercising state powers outside the territory of the state they themselves remain subject to the jurisdiction of the state. The Court of Appeal in Smith held that Art 1 required the existence of a jurisdictional link and that this requirement was satisfied in his case. This is on the basis that members of the armed forces are: “Subject to UK military law without territorial limits and may be tried by courts marshal whether the offences committed in England or elsewhere. They are also subject to the general criminal and civil law. Soldiers serve abroad as a result or and pursuant to the exercise of the UK jurisdiction over them. Thus the legality of their presence and of their actions depends on their being subject to UK jurisdiction and complying with the UK law. As a matter of international law, no infringement of the sovereignty of the whole state is involved in the UK exercising jurisdiction of its soldiers serving abroad.”
Illogicality
The Court of Appeal was also influenced by what it considered was the illogicality of holding that Private Smith was within the jurisdiction when on military premises, but not when outside them: “...It is accepted that a British soldier is protected by the 1998 Act and the Convention when he is at a military base...It makes no sense to hold that he is not so protected when in an ambulance or in a truck or in the street or in the desert. There is no sensible reason for not holding that there is sufficient link between the soldier as victim and the UK whether he is at a base or not.”
However, the majority of justices of the Supreme Court approached the matter on the territorial principle, leading to a narrower interpretation of jurisdiction. Lord Hope said: “It is one thing...to recognise a member state’s jurisdiction over persons within an area beyond the frontiers of the member states over which their armed forces have established total and exclusive de facto control such as a military base, a military hospital or a detention centre...It is quite another to extend that jurisdiction to areas outside premises of that kind over which the armed forces may be operating but over which they do not have exclusive control, where the safeguarding of Convention rights cannot be guaranteed and where reliable evidence about the circumstances of alleged violations could be hard to come by because the state over whose territory these operations are being conducted is not a party to the Convention”.
A majority of justices were anxious that Art 1 should not be construed as “reaching any further than the existing Strasbourg jurisprudence shows it to reach”. As Lord Hope explained: “A decision that the extra-territorial jurisdiction should extend that far in this case would be likely to have profound consequences for other member states and...for the court itself. A decision of that kind is best left to Strasbourg.”
The inquest issue
The inquest issue arose on the basis that Private Smith was within the jurisdiction of the UK within the meaning of Art 1 at the time of the events that led to his death, so that he was entitled to the protection of Art 2 of the Convention, which provides that: “Everyone’s right to life should be protected by law. No one shall be deprived of his life intentionally, save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”
The European Court of Human Rights has interpreted Art 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the above substantive obligations has been, or may have been, violated and it appears that agents of the state may be implicated.
The issue then was whether the inquest into Private Smith’s death had to conform to this procedural obligation. The Court of Appeal held that an Art 2 investigation must be held whenever a member of the armed services dies on active service. The Supreme Court agreed that there was sufficient evidence to suggest that the army may have failed to take reasonable steps to protect Smith’s life and that his inquest had to comply with Art 2.
Comment
Where does this judgment leave us on the vexed and sometimes emotive question of whether soldiers should have the benefit of HRA 1998? It is difficult to believe that the issue is closed. The lower courts found in Smith’s favour on the jurisdiction issue and although a majority of the nine Supreme Court justices upheld the MOD’s appeal on this point, they were clearly troubled by the “advisory” nature of their decision.
The key point, however, is that the justices were reluctant to go beyond Strasbourg jurisprudence on the jurisdiction point—but the Convention is a living document and that jurisprudence on many issues is capable of evolving. The scene is set, therefore, for this issue to come back before the courts in due course.
Richard Scorer is head of personal injury at Pannone LLP in Manchester.
E-mail: Richard.Scorer@pannone.co.uk
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