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

Jurisdiction under article 1 of the European Convention on Human Rights is essentially territorial. Extra-territorial jurisdiction is exceptional. A member of the armed forces serving abroad does not fall within United Kingdom jurisdiction merely because military law and discipline apply to that person. Jurisdiction may exist within premises under the United Kingdom’s total and exclusive control.

The death of a volunteer service member on active service does not automatically require an article 2 investigation. The duty arises where the circumstances disclose a possible breach of a substantive obligation to protect life and possible state involvement. Evidence of a systemic failure to protect personnel from a known lethal environmental risk can satisfy that threshold.

Private Jason Smith, a Territorial Army soldier, died from heatstroke while serving in Iraq. He collapsed at a British-controlled stadium and died at a British military medical centre. His mother challenged the first inquest because of procedural shortcomings and non-disclosure of a military board of inquiry report.

Collins J quashed the inquisition and ordered a fresh inquest complying with article 2. The Court of Appeal dismissed the Secretary of State’s appeal in [2009] EWCA Civ 441. It held that a British soldier serving in Iraq remained within United Kingdom jurisdiction under article 1 and that the fresh inquest had to satisfy article 2.

Although the Secretary of State conceded that Private Smith died within United Kingdom jurisdiction and that a suitably broad fresh inquest should be held, the Supreme Court considered two questions of public importance: whether soldiers serving abroad remained within article 1 jurisdiction while off base, and when a military death triggered the article 2 investigative obligation.

Disposition. By a majority of six to three, the Supreme Court allowed the appeal on the article 1 jurisdiction issue. The Court unanimously dismissed the appeal on the article 2 inquest issue.

1. Extra-territorial jurisdiction. Lord Phillips and Lord Collins gave the principal majority reasoning. Lord Hope, Lord Rodger, Lord Walker and Lord Brown agreed in the result and substantially with that approach. Article 1 jurisdiction is essentially territorial. Other bases are exceptional and require special justification. Following Bankovic v Belgium (2001) 11 BHRC 435 and R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, domestic courts should not extend the Convention beyond the reach clearly established by Strasbourg jurisprudence.
2. A soldier’s continuing subjection to United Kingdom military, criminal and civil law did not itself create article 1 jurisdiction. The Strasbourg authorities had not recognised personal military status as an exception to territoriality. Private Smith was therefore outside United Kingdom jurisdiction when away from premises under the Army’s effective control, although the accepted position was different while he was on the military base.
3. Article 2 investigation. The procedural obligation is triggered where circumstances give grounds to suspect that a substantive article 2 obligation has been or may have been violated and that state agents or bodies may be implicated. A death on active service does not, without more, create that inference. Volunteer service personnel are not analogous as a class to prisoners, compulsory detainees or conscripts. The risks inherent in military service may cause death despite proper precautions.
4. The evidence concerning Private Smith nevertheless indicated a possible systemic failure in the arrangements for protecting soldiers from extreme heat. That disclosed an arguable breach of the substantive duty to protect life and was sufficient to trigger an effective investigation. The fresh inquest was therefore required to follow the approach in R (Middleton) v West Somerset Coroner [2004] UKHL 10, including a verdict capable of addressing both the means and the circumstances of death.
5. The scope of substantive article 2 duties concerning military equipment, operational planning and field decisions was left unresolved. An inquest is not necessarily the appropriate means of examining every possible state responsibility. Broad questions of political or strategic policy fall outside a coroner’s fact-finding function.
6. Dissent on jurisdiction. Lord Mance and Lord Kerr, with Lady Hale taking the same ultimate position, considered that the United Kingdom’s exclusive lawful authority and control over its armed forces created personal jurisdiction wherever they served in Iraq. They would have dismissed the appeal on both issues. Lady Hale also considered that the conceded and academic character of the issues meant that the Court’s wider observations were not essential grounds of decision.

• United Kingdom Supreme Court: By a majority of six to three, allowed the Secretary of State’s appeal on article 1 jurisdiction. Unanimously dismissed the appeal concerning the article 2 inquest. [2010] UKSC 29 .
• Court of Appeal: Dismissed the Secretary of State’s appeal. It held that a British soldier serving in Iraq remained within United Kingdom jurisdiction and that the fresh inquest had to comply with article 2. [2009] EWCA Civ 441 ; [2009] 3 WLR 1099 .
• High Court, Administrative Court: Collins J quashed the first inquisition and ordered a fresh inquest complying with article 2. The decision is reported at [2008] 3 WLR 1284 .