HRA 1998 extends to battlefield

Armed forces personnel serving overseas are within the scope of the European Convention on Human Rights.

In a major setback for the Ministry of Defence (MoD), the Court of Appeal this week delivered a landmark judgment that Art 2 (right to life) applied to British forces overseas, whether or not they are physically on an armed forces base.

Secretary of State for Defence v Smith (R, on the application of) [2009] EWCA Civ 441 is the first time the courts have looked at whether the Human Rights Act 1998 (HRA 1998) applies to armed forces overseas.

Private Jason Smith, who was deployed to Iraq in June 2003, died of a cardiac arrest after repeatedly telling army medical staff that he felt seriously unwell due to the temperature, before reporting sick in August  2003. His mother, Catherine Smith, sought a judicial review after the family were initially denied access to crucial documents relating to the circumstances of her son’s death at the coroner’s inquest.

The High Court ruled that HRA 1998 applied to armed forces personnel outside the UK whether or not they were on an army base. The MoD accepted the Act applied to Smith’s case, but argued it did not apply off base, and that inquests into soldiers deaths should not be enhanced “Art 2” inquiries which would require the coroner to investigate systemic failures.

The Court of Appeal found no compelling reasons for drawing a distinction between a soldier at their base and the soldier while he steps outside it “at any rate so long as he is acting as a soldier and not…on a frolic of his own”. The court found that the inquest into Private Smith’s death would be expected to consider whether there were any systematic failures in the army which led to his death, 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.

John Wadham, group legal director at the Equality and Human Rights Commission, says: “Where there has been a tragic loss of life, families are entitled to know what happened to their loved ones and what measures could be taken as a result to stop other families suffering the same fate. They should not be locked out of the process.”