Civil rights lawyers have reacted with dismay to the Supreme Court ruling that the Human Rights Act 1998 (HRA 1998) does not apply to soldiers serving abroad.
In a majority decision on jurisdiction last week, six Justices ruled HRA 1998 does not apply to soldiers abroad unless they are on a UK military base. However, they held that the second inquest into the death of Private Jason Smith, who died of heatstroke at an army base in Iraq in 2003, must comply with the requirements of Art 2 of the Act.
Hodge Jones & Allen partner Jocelyn Cockburn, who acted for Smith’s mother, says: “It had already been decided that there must be a second inquest because of the shortcomings in the first inquest but the justices found unanimously that the inquest had to comply with the requirements of HRA 1998, Art 2. In finding for her on this they felt that there was sufficient evidence to suggest that the army may have failed to take reasonable steps to protect Jason Smith’s life.”
Courts below ruled in favour of Smith up until the Supreme Court decision, R (on the application of Smith) v Secretary of State for Defence and another [2010] UKSC 29.
Pannone LLP partner, Richard Scorer, says: “The Supreme Court’s decision to overturn the Court of Appeal judgment and to artificially restrict the human rights of British soldiers in this way, implying that the moment they step out of their base their human rights ‘end’, seems partly at least to be due to a misconception that human rights would get in the way in the heat of battle and affect ‘life and death’ decision making.
“This is a mistaken way of looking at the issue.”
