Smith, R (on the application of) v Assistant Deputy Coroner for Oxfordshire & Anor

Article 2 of the ECHR may protect members of the armed forces serving abroad where they remain within the United Kingdom’s jurisdiction. Its procedural obligation arises where state agents may have failed to protect life, without requiring proof of a substantive breach or gross negligence. An inquest must then investigate fully the circumstances of the death and enable the next of kin to participate effectively.

Other possible civil or disciplinary proceedings do not limit that obligation. Disclosure to the coroner must include all relevant material. A verdict may record robust factual findings about acts or omissions, provided that it does not appear to determine civil or criminal liability.

Two claims sought judicial review and the quashing of an inquisition concerning the death of a Territorial Army soldier from hyperthermia while serving in Iraq. The coroner conceded that the inquisition should be quashed and that a fresh inquest should take place before a different coroner.

The court nevertheless gave guidance on the territorial application of the Human Rights Act 1998, the Article 2 procedural obligation, disclosure, the need for a jury, and the limits imposed by Rule 42(b) of the Coroners Rules 1984. The Secretary of State also challenged the wording of the narrative verdict.

1. Disposition. The inquisition was quashed by consent and a fresh inquest was to be held before a different coroner. The court would have rejected the Secretary of State’s challenge to the narrative verdict.
2. Article 2 jurisdiction. A British soldier remains subject to United Kingdom jurisdiction while serving abroad. The Human Rights Act 1998 therefore applies, subject to the circumstances of the particular case. Article 2 can protect life during dangerous military operations, although it cannot provide absolute protection against the ordinary risks of fighting or maintaining order.
3. Procedural obligation. The obligation to investigate arises where it appears that a substantive Article 2 obligation may have been violated and state agents may be implicated. The threshold is low; gross negligence is unnecessary. The obligation can arise from an alleged systemic failure to protect life. An inquest must investigate the circumstances in which the deceased met his death and enable the next of kin to participate effectively.
4. Disclosure. The MOD had to disclose all relevant material to the coroner, including Board of Inquiry statements and reports and relevant medical records. There was a presumption in favour of as full disclosure as possible to interested parties, particularly the next of kin. Specific claims based on witness safety, confidentiality or national security had to be considered by the coroner.
5. Jury and verdict. Whether a jury was required under section 8(3)(d) of the Coroners Act 1988 was for the fresh inquest. Rule 42(b) of the Coroners Rules 1984 prohibited a verdict appearing to determine civil liability, but did not prevent factual findings about acts or omissions, even when robustly expressed.

These were first-instance judicial review proceedings. The coroner consented to quashing the inquisition and to a fresh inquest before a different coroner.