Human rights victory for families of British soldiers

The families of British soldiers who died when their Snatch Land Rovers hit roadside bombs in Iraq have won the right to bring a claim under the Human Rights Act 1998 (HRA 1998).

The Supreme Court unanimously held that HRA 1998 applies to British soldiers abroad, in Smith & Ors v Ministry of Defence [2013] UKSC 41. The extent of the duty, and whether it was breached, will now be decided at trial.

The families claim the soldiers’ deaths would have been avoided if they had been given proper equipment when carrying out high-risk activities, such as medium-armoured vehicles.

The court overturned its decision in R (Smith) v Oxfordshire Coroner [2010] UKSC 29 (the Catherine Smith case), in which it held that HRA 1998 did not apply to British soldiers off base in Iraq.

It refused, by majority, the Ministry of Defence’s application to strike out the claims for breach of Art 2 on the basis of combat immunity and scope of Art 2 and jurisdiction, and dismissed its appeal on negligence.

Giving the lead judgment, Lord Hope said the courts should not impose an “impossible” or “disproportionate” burden on the authorities when deciding the scope of Art 2. Equally, “the widest measure of appreciation” must be given to commanders for decisions taken on the ground.

He said the doctrine of combat immunity should be “narrowly construed” and not “extended from actual or imminent armed conflict” to earlier failures.

Jocelyn Cockburn, partner at Hodge Jones & Allen, who acted for the four claimants and also represented Catherine Smith in the earlier Supreme Court case, said: “Safety will not be the only consideration or even perhaps the primary consideration, but it is right that our soldiers should expect to be properly equipped.”

Cockburn said Snatch Land Rovers were known to be unsafe for many years and were nicknamed “mobile coffins”.

She added that the families would not have been able to bring the claims if the legal aid cuts currently being proposed by Justice Secretary Chris Grayling had been in place.

Andrea Coomber, director of Justice, which intervened in the case, said: “The human rights of UK troops should be protected wherever they serve.”

Defence Secretary Philip Hammond said: “I welcome the fact that the court has upheld the principle of the doctrine of combat immunity, albeit suggesting that it should be interpreted narrowly. However, I am very concerned at the wider implications of this judgment, which could ultimately make it more difficult for our troops to carry out operations and potentially throws open a wide range of military decisions to the uncertainty of litigation.

“We will continue to make this point in future legal proceedings as it can't be right that troops on operations have to put the European Convention on Human Rights ahead of what is operationally vital to protect our national security.”