Secretary of State for Defence v Smith, R (on the application of)

For Article 1 purposes, a British soldier on active service abroad may remain within the United Kingdom’s Convention jurisdiction outside a British base or hospital. The decisive consideration is a sufficient link between the victim and the state, assessed broadly and commonsensically.

Where a soldier dies in those circumstances, the Article 2 procedural duty applies. The inquest should ordinarily enable factual conclusions on systemic failures, any real and immediate risk, and reasonable preventive steps. It must not determine criminal or civil liability. The appeal was dismissed.

The appeal arose from the inquest into the death of Private Jason Smith, a Territorial Army soldier who died of heatstroke while serving in Iraq. The coroner conceded that the inquisition should be quashed because the Ministry of Defence had withheld an earlier Board of Inquiry report and redacted documents. A fresh inquest before a different coroner was therefore required.

Collins J held, despite the questions being academic, that a soldier was within United Kingdom Convention jurisdiction throughout Iraq and that the inquest had to comply with Article 2. The Secretary of State appealed. The central issues were whether jurisdiction was confined to British bases or hospitals and whether an Article 2-compliant inquest was required.

1. Disposition. The appeal was dismissed on both questions. The fresh inquest was to proceed on the basis that it should satisfy the United Kingdom’s procedural obligation under Article 2.
2. Article 1 jurisdiction. The scope of the Human Rights Act 1998 was materially identical to the Convention’s jurisdictional scope. Applying the principles in Bankovic v Belgium (2001) 11 BHRC 435 and R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, the relevant question was whether there was a sufficient link between the victim and the United Kingdom. A British soldier on active service in Iraq had that link through military control, discipline and subjection to United Kingdom law. It made no principled sense to distinguish between a soldier at a base and one in an ambulance, vehicle, street or desert, provided he was acting as a soldier and not on a frolic of his own.
3. R (Gentle) v Prime Minister. The House of Lords decision [2008] UKHL 20 concerned whether an Article 2 investigative duty arose in relation to the legality of deciding to go to war. Lord Bingham’s observation that the soldiers were outside United Kingdom jurisdiction was not part of the ratio, and the other speeches did not establish a majority decision on that issue. The Court of Appeal was therefore not bound to reach the contrary conclusion.
4. Article 2 investigation. The procedural obligation arose where circumstances indicated that the substantive duty to protect life might have been violated and state agents might be implicated. The custody principles applied to active-service soldiers, including regular soldiers and Territorial Army members, because they were subject to army orders, discipline and control and could be vulnerable in stressful service conditions. The inquest should consider possible systemic failures, whether there was a real and immediate risk of death from heatstroke, and whether reasonable steps were taken to prevent it.
5. Form and scope of the inquest. Following R (Middleton) v West Somerset Coroner [2004] UKHL 10, “how” could include by what means and in what circumstances the death occurred. The coroner could invite an expanded or narrative verdict, or answers to factual questions. The jury could make factual findings but could not determine criminal or civil liability. The precise limits remained for the coroner, subject to intervention only on strong grounds.

1. Court of Appeal (Civil Division) — The appeal from Collins J was dismissed. The Court answered both academic questions in the respondent’s favour: [2009] EWCA Civ 441 .
2. High Court of Justice, Queen’s Bench Division (Administrative Court) — Collins J quashed the inquisition and verdict, ordered a fresh inquest before a different coroner, and held that the soldier was within United Kingdom jurisdiction throughout Iraq and that the inquest should comply with Article 2: [2008] EWHC 694 (Admin) .