Smith & Ors v Ministry of Defence

Article 1 jurisdiction is essentially territorial. Extra-territorial jurisdiction is exceptional and requires recognised special justification. A soldier serving abroad cannot establish jurisdiction merely because he remains under United Kingdom authority and control. The Soering principle is confined to cases involving removal from the jurisdiction to a place where the person faces a real risk.

If jurisdiction had existed, an Article 2 systems duty concerning the provision of protective equipment could not be excluded at the pleading stage. The court nevertheless rejected an implied operational duty concerning decisions made during military operations. Combat immunity is narrow. It does not create a blanket exclusion for anterior procurement or training decisions, whose liability depends on the facts and the ordinary duty-of-care test.

The claims arose from the deaths and injuries of British service personnel during military operations in Iraq. The Snatch Land Rover claims alleged breaches of Article 2 of the Convention, based on failures concerning armoured vehicles and operational decisions. One of those claims also alleged negligence. The Challenger claims alleged negligence arising from a friendly-fire incident, including failures concerning equipment and vehicle-recognition training.

The Ministry of Defence applied to strike out the claims under CPR r.3.4(2)(a), or alternatively for summary judgment under CPR r.24.2(a)(i). The principal issues were whether the soldiers were within the United Kingdom’s Article 1 jurisdiction, whether Article 2 imposed the pleaded substantive duties, and whether the alleged negligence claims fell within combat immunity.

1. The court struck out the Snatch Land Rover claims founded on Article 2. Article 1 jurisdiction is primarily territorial. The recognised exceptions did not apply. Jurisdiction could not be established merely because soldiers serving abroad were subject to United Kingdom authority and control, or because a jurisdictional link existed. The pending Strasbourg decision in Al-Skeini did not alter the law which the court was required to apply.

2. The Soering line of authority did not assist the claimants. It concerned action taken against a person within the jurisdiction which exposed that person to a real risk abroad, particularly forcible removal. It did not establish a general principle covering decisions made in the United Kingdom which created foreseeable risks later realised during overseas military service.

3. The court addressed the substantive Article 2 issue as an alternative. The authorities showed that the positive operational obligation had been imposed only where the state had a particular responsibility for the person and a particular threat arose from the authorities, a known third party or the individual. The court could not conclude that a systems duty concerning the supply of protective equipment was legally impossible. Had the jurisdiction issue been decided otherwise, those allegations would not have been struck out or summarily determined against the claimants.

4. There was no sound basis for extending the positive Article 2 obligation to operational decisions made by commanders in the course of military operations. Those allegations were therefore unsustainable.

5. Combat immunity was narrowly construed. It applied where the interests of an individual service member had of necessity to be subordinated to the attainment of the military objective. It did not render all claims arising from injuries sustained in combat non-justiciable, nor did it automatically protect anterior procurement or preparation decisions.

6. The Challenger equipment claims and the allegations concerning pre-deployment training had a real prospect of success. Procurement and resource allocation issues did not create a blanket exclusion from negligence; the question whether a duty was fair, just and reasonable was fact-sensitive and included matters such as the equipment’s nature, expense, availability and the risk-benefit analysis. The allegations concerning in-theatre training were better left to the trial judge. The Ellis allegation that the patrol should have been limited to more heavily armoured vehicles fell within combat immunity and was struck out.