Smith & Ors v The Ministry of Defence

Convention jurisdiction under Article 1 remains primarily territorial. Extra-territorial jurisdiction based on state-agent authority and control arises where state agents exercise physical power and control over an individual, ordinarily in circumstances analogous to custody. It does not arise merely because armed forces are under the state’s authority. The Grand Chamber’s decision in Al-Skeini, [2011] 53 EHRR 18, therefore did not displace the conclusion that soldiers serving abroad were outside United Kingdom Convention jurisdiction.

An existing employer’s duty to armed forces includes safe systems of work, equipment and training. Policy choices and scarce resources bear on breach and the standard of care, not the existence of the duty. Combat immunity is confined to decisions made during active operations or the heat of battle. Whether it applies is ordinarily factual and cannot justify striking out claims pleaded as pre-conflict failures.

These conjoined appeals arose from claims concerning deaths and injuries in Iraq involving Snatch Land Rovers and a Challenger II tank. The claimants alleged breaches of Article 2 and, in some cases, negligence in procuring or providing equipment, training and vehicle protection.

Owen J struck out the Article 2 claims under rule 3.4(2)(a) of the Civil Procedure Rules 1998, holding that the soldiers were outside Convention jurisdiction. He also struck out one equipment allegation as barred by combat immunity, but allowed the remaining negligence claims to proceed: [2011] EWHC 1676 (QB). The central issues were the effect of R (Smith) and Al-Skeini on Convention jurisdiction, and whether duty of care or combat immunity justified striking out the negligence claims.

Disposition. Moses LJ gave the substantive judgment, with Rimer LJ and Neuberger MR agreeing. The claimants’ Article 2 appeals were dismissed. The Ministry of Defence’s negligence appeals were dismissed, and the Ellis claimants’ cross-appeal was allowed in relation to allegation 26.1.

1. Convention jurisdiction. Article 1 is primarily territorial. Extra-territorial jurisdiction requires exceptional circumstances. The Court of Appeal declined to decide conclusively whether the Supreme Court’s ruling in R (Smith) was binding, but held that the Grand Chamber’s decision in Al-Skeini did not compel a different result.
2. State-agent authority and control. In Al-Skeini, authority and control referred to physical power and control exercised by state agents over individuals, in circumstances analogous to detention or custody. The effective control over territory identified in that case was an additional feature. It did not follow that the United Kingdom’s armed forces themselves fell within Convention jurisdiction merely because they acted under state authority and control. The Article 2 claims therefore failed at the jurisdictional threshold. The Court did not decide the extent of any substantive Article 2 obligations.
3. Negligence duty. The MOD’s recognised common-law employer’s duty to service personnel included safe systems of work and safe equipment. The claimants did not need to establish a novel duty relating to procurement. Policy questions and resource allocation did not negate the existing duty. They were relevant to breach and the standard of care. The statutory treatment of Crown liability also disclosed no general bar to negligence claims.
4. Combat immunity. The immunity protects decisions made during actual engagement, the heat of battle or active operations. Whether an alleged act or omission occurred during active operations is a fact-sensitive question that varies between conflicts and cases. At the strike-out stage, pleaded allegations of earlier procurement, equipment or training failures had to be assumed correct. Findings about battlefield causation would not necessarily require adjudication of operational decisions.
5. The equipment and training allegations were therefore arguably outside combat immunity. It was premature to strike them out. Allegation 26.1 concerned alleged failures away from the theatre of war and was reinstated, subject to any factual immunity argument at trial.

• Court of Appeal (Civil Division) — The Article 2 appeals were dismissed. The MOD’s negligence appeal was dismissed, and the Ellis claimants’ cross-appeal was allowed in relation to allegation 26.1.
• High Court of Justice, Queen’s Bench Division — Owen J struck out the Article 2 claims under rule 3.4(2)(a) of the Civil Procedure Rules 1998 and struck out allegation 26.1 on combat-immunity grounds, but declined to strike out the remaining negligence claims: [2011] EWHC 1676 (QB).