Smith v Ministry of Defence

This appeal concerned deaths and serious injuries to British service personnel in Iraq and raised three principal legal questions: (1) whether soldiers serving abroad are within the United Kingdom's jurisdiction for the purposes of article 1 ECHR so as to attract the substantive protection of article 2; (2) the scope of the positive obligations under article 2 to protect life in the context of military operations (distinguishing systemic/framework duties from operational preventive duties); and (3) whether common law negligence claims by or for servicemen are barred by the doctrine of combat immunity or otherwise unsustainable as not fair, just or reasonable.

The court (majority) held that, applying the Grand Chamber’s guidance in Al‑Skeini, the United Kingdom’s article 1 jurisdiction can extend extra‑territorially where the State exercises authority and control through its agents and that members of the armed forces serving abroad were within that jurisdiction. The court explained that the Convention rights applicable to a person brought under State authority may be "divided and tailored" to those rights relevant to the individual. The court emphasised the distinction between (a) the systemic/framework duty to establish laws, procedures and procurement regimes to protect life and (b) an operational duty to take preventive measures where there is a real and immediate risk to life, and said that both obligations must be applied with a wide margin of appreciation in the military context.

The majority refused to strike out the article 2 (Snatch Land Rover) claims and the Challenger and Ellis negligence claims: they held (i) soldiers Hewett and Ellis were within the United Kingdom’s jurisdiction for article 1 at the time of their deaths; (ii) it was not appropriate on the pleadings to remove the article 2 claims as non‑justiciable without evidence; and (iii) the alleged pre‑deployment failures in equipment and training fell outside any extension of combat immunity so as to be amenable to common law negligence claims, at least at the strike‑out stage.

Background and facts. The appeals arise from deaths and serious injuries of British Army personnel deployed to Iraq (Operation TELIC). The factual matrix included: an incident of friendly fire involving Challenger II tanks on 25 March 2003; an IED attack on a Snatch Land Rover on 16 July 2005 killing Private Phillip Hewett; and an IED attack on 28 February 2006 killing Private Lee Ellis. Claimants advanced both common law negligence claims (training and procurement failures) and Convention claims under article 2 ECHR (positive obligations to protect life) in respect of the Snatch Land Rover deaths.

Procedural history. The claims were the subject of strike‑out applications heard by Owen J ([2011] EWHC 1676 (QB)). The Court of Appeal dismissed some of the MOD’s strike‑out challenges but allowed one cross‑appeal; the appeals then proceeded to the Supreme Court ([2012] EWCA Civ 1365 at Court of Appeal level).

Relief sought. The claimants sought to proceed with article 2 claims and negligence claims; the Ministry sought to strike out those claims principally relying on combat immunity, lack of Convention jurisdiction extra‑territorially, and that it would not be fair, just or reasonable to impose a duty of care.

Issues framed.

• Whether service personnel serving abroad are within the United Kingdom’s jurisdiction for article 1 ECHR;
• Whether article 2 imposes positive obligations in relation to the prevention of deaths of soldiers in active operations and, if so, what the scope of those obligations is (framework/procurement/training versus operational decisions in the field);
• Whether common law negligence claims are barred by combat immunity or fail the fair, just and reasonable test.

Court’s reasoning and disposition (majority view). The court followed the Grand Chamber in Al‑Skeini in recognising that jurisdiction under article 1 may extend extra‑territorially where state agents exercise authority and control over individuals, and that the package of Convention rights may be tailored to the circumstances of the person under that control. Applying this, the majority held soldiers Hewett and Ellis were within the United Kingdom’s jurisdiction when they died. On article 2 substantive obligations the court reiterated the twofold duty (framework and operational) and stressed that in the military context courts must give a wide margin of appreciation and be cautious about imposing unrealistic or disproportionate obligations. Nevertheless, pleading allegations of systemic procurement or training failures or operational preventive failures could not be struck out at the preliminary stage; trial was required to establish the facts and the appropriate balancing. On common law the majority favoured a narrow construction of combat immunity and refused to extend it to pre‑deployment procurement and training claims; accordingly the negligence claims were not struck out at this stage.

The court therefore allowed the Snatch Land Rover claimants’ appeal on jurisdiction and dismissed the MOD’s strike‑out applications in relation to the article 2 claims and the Challenger and Ellis negligence claims; those matters remain for trial, subject to the guidance provided in the judgment about the wide margin to be given to military decision‑makers.

Appeal allowed in part. The Supreme Court (majority) held that members of the armed forces serving abroad can fall within the United Kingdom’s article 1 ECHR jurisdiction where the State exercises authority and control through its agents, and that soldiers Hewett and Ellis were within that jurisdiction when they died. The court held that article 2 positive obligations (framework and operational) may apply in the military context but must be applied with a wide margin of appreciation; on the pleadings it would be premature to strike out the article 2 claims. The court also held that the doctrine of combat immunity should be narrowly construed and that the Challenger and Ellis negligence claims based on pre‑deployment procurement and training failures were not properly struck out at this stage; factual inquiries at trial were required to determine whether duties existed and whether they were breached.

First instance: Owen J struck out parts of the claims, [2011] EWHC 1676 (QB). Court of Appeal: [2012] EWCA Civ 1365 (Lord Neuberger MR, Moses and Rimer LJJ) – dismissed some appeals, allowed a cross‑appeal in part. Appeal to the Supreme Court by claimants and cross‑appeal by the MOD led to this judgment ([2013] UKSC 41).