R (Smith) v Oxfordshire Assistant Deputy Coroner (Catherine Smith)

This appeal raised two principal questions about the extra-territorial reach of the European Convention on Human Rights under the Human Rights Act 1998 and the procedural obligations arising under article 2 of the Convention.

First, the Court considered whether a soldier serving abroad falls "within the jurisdiction" of the United Kingdom for the purposes of article 1 of the Convention by virtue of his status as a member of the armed forces when he is operating outside premises under British control. Applying the Strasbourg jurisprudence, particularly Banković and the House of Lords’ analysis in Al‑Skeini, the Court held that article 1 is primarily territorial and that extra‑territorial jurisdiction is exceptional; the Court did not accept a general rule that membership of the armed forces alone places a soldier within UK article 1 jurisdiction when he is outside territory or premises under UK effective control.

Second, on the procedural limb of article 2 the Court summarised the established requirements of an article 2 investigation (public scrutiny, independence, participation by relatives, promptness and effectiveness). The Court held that the duty to hold an article 2 investigation is triggered where there are grounds for suspecting that a substantive article 2 obligation may have been breached, and that an inquest must adopt the article 2 (Middleton) approach in such circumstances. On the facts before it the Court concluded that the coroner should hold a fresh inquest that, so far as possible, satisfies the procedural requirements of article 2 because the evidence disclosed an arguable systemic failing.

Background and facts

Private Jason Smith, a Territorial Army soldier, was mobilised for service in Iraq in 2003. After duties off base he collapsed at the stadium where he was billeted and died of hyperthermia on 13 August 2003. The first inquest produced a narrative verdict. The deceased’s mother, Mrs Smith, challenged procedural shortcomings and relied on the Human Rights Act 1998, asserting that the United Kingdom owed her son article 2 protection and that the inquest had to satisfy article 2 procedural requirements. The Secretary of State conceded that a fresh inquest was required but the parties sought the court’s guidance on two wider issues.

Procedural posture

• Proceedings reached the Supreme Court on appeal from the Court of Appeal: [2009] EWCA Civ 441.
• Both issues were heard although the Secretary of State had conceded relief in relation to a fresh inquest; the courts below had considered the questions because of their public importance.

Nature of the application / relief sought

• Mrs Smith sought quashing of the coroner’s inquisition and a fresh inquest on Article 2 grounds under the Human Rights Act 1998.

Issues framed by the Court

1. (The jurisdiction issue) Whether soldiers serving abroad are "within the jurisdiction" of the United Kingdom for article 1 of the Convention, in particular when they are outside premises under UK effective control.
2. (The inquest issue) If a person is within article 1 jurisdiction, whether a death in such circumstances requires an inquest that satisfies the procedural investigative obligation implicit in article 2 (the features of an "article 2 investigation").

Court’s reasoning — jurisdiction

The Court reviewed Strasbourg and domestic authorities (notably Banković, Őcalan, Issa, Drozd and Janousek, Medvedyev and the House of Lords’ analysis in Al‑Skeini and Gentle). It reiterated Banković’s central proposition that article 1 is essentially territorial and that extra‑territorial jurisdiction is exceptional and requires special justification. The Court rejected a general principle that a person’s status as a member of the armed forces alone brings him within article 1 jurisdiction whenever he is subject to the authority of his state while abroad. The recognized exceptions (effective control of territory, consent/invitation/acquiescence, detention or exclusive control of premises, or control of persons in clearly analogous factual settings) remain the proper bases for extra‑territorial jurisdiction. On that basis the Court concluded that soldiers generally are not within UK article 1 jurisdiction simply by virtue of being subject to UK military authority when outside UK‑controlled premises.

Court’s reasoning — inquest (article 2 procedural obligation)

The Court set out the content of the procedural limb of article 2 (public scrutiny, independence, family participation, promptness and effectiveness). It emphasised that the procedural obligation is parasitic on a possible substantive article 2 obligation and therefore arises where there are grounds to suspect a substantive breach by the state. The Court rejected the proposition that every death of a serviceman on active service automatically triggers a full article 2 investigation; instead a staged investigation is required, and a coroner must adopt the fuller Middleton approach only where the circumstances disclose a real possibility of state responsibility. On the facts the evidence gave rise to an arguable systemic failing sufficient to require a fresh inquest conducted so as to satisfy article 2 procedural requirements.

Outcome

The appeal was allowed in relation to the jurisdiction issue (soldiers are not prima facie within UK article 1 jurisdiction simply by virtue of their military status when outside UK‑controlled premises) but dismissed in respect of the inquest issue (the fresh inquest should conform so far as possible with article 2 procedural requirements because the facts disclosed an arguable breach).

Appeal allowed in part. The Court held that article 1 jurisdiction is primarily territorial and that membership of the armed forces alone does not place soldiers within the United Kingdom’s article 1 jurisdiction when they are outside premises under UK effective control; however, where the circumstances surrounding a death disclose an arguable breach of the substantive article 2 duty, the procedural obligation under article 2 is engaged and the coroner must, so far as possible, hold an inquest satisfying article 2 procedures (a Middleton inquest). Rationale: (i) Banković and Al‑Skeini establish that extra‑territorial application of article 1 is exceptional and relies on effective control/consent or comparable fact‑specific bases; (ii) the article 2 procedural duty is triggered where there are grounds to suspect state responsibility and is discharged by an effective, independent investigation with family participation.

Appeal to the Supreme Court from the Court of Appeal [2009] EWCA Civ 441 (following judgment at first instance by Collins J). The matter concerned issues previously examined in R (Al‑Skeini) v Secretary of State for Defence [2008] AC 153 and related Strasbourg authority; the Secretary of State had conceded that a fresh inquest should be held, but the courts below and this Court considered the broader jurisdictional and article 2 issues because of their public importance.