Smith and others v The Ministry of Defence

British armed forces serving abroad remain within the United Kingdom’s article 1 jurisdiction because the state exercises authority and control over them. Under article 2, deployment on inherently dangerous active service does not itself breach the right to life. The state’s systemic and operational duties may extend to training, equipment and procurement. Courts must nevertheless avoid unrealistic or disproportionate burdens and accord a very wide discretion to battlefield commanders and policy-makers.

Combat immunity is narrowly confined to actual or imminent armed conflict and active operations against the enemy. It does not automatically cover earlier decisions about training and equipment. Where the relevant circumstances and decision-makers cannot be identified without evidence, negligence and article 2 claims should not be struck out before trial.

These conjoined proceedings concerned soldiers killed or injured in Iraq. The Challenger claims arose from a friendly-fire incident and alleged negligent failures in training and equipment. The Snatch Land Rover claims alleged that inadequate vehicles, protective equipment and operational decisions breached article 2 of the European Convention on Human Rights. One claimant also brought a negligence claim.

Owen J, in [2011] EWHC 1676 (QB), struck out the article 2 claims for want of jurisdiction and struck out part of the negligence claim, while permitting the remaining negligence claims to proceed. The Court of Appeal, in [2012] EWCA Civ 1365, upheld the jurisdiction ruling but permitted all the negligence claims to continue.

The central questions were whether soldiers serving overseas were within United Kingdom jurisdiction under article 1, how article 2 applied to military operations, and whether combat immunity or the absence of a fair, just and reasonable duty required the common-law claims to be struck out.

1. Disposition. The Snatch Land Rover claimants’ appeal on jurisdiction was allowed. The Ministry’s applications to strike out the article 2 claims and the Challenger negligence claims were dismissed, as was its cross-appeal concerning the Ellis negligence claim. The claims were permitted to proceed to trial; liability was not determined.

2. Convention jurisdiction. The Court was unanimous on this issue. Lord Hope, with whom Lord Walker, Lady Hale and Lord Kerr agreed, held that the United Kingdom exercises authority and control over its armed forces wherever they serve. Soldiers abroad are therefore within its jurisdiction for article 1 purposes. Later Strasbourg guidance established that Convention rights may be divided and tailored to the individual’s situation. The contrary majority decision in R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29 was departed from.

3. Article 2. Article 2 of the European Convention on Human Rights contains a systemic duty to establish an effective protective framework and, in defined circumstances, an operational duty to take practicable preventive measures against a real and immediate risk to life. Those duties can extend to training, equipment and procurement. Deployment on properly equipped active service does not itself violate article 2. In armed conflict, however, courts must avoid imposing unrealistic or disproportionate obligations. Commanders on the ground require a very wide measure of discretion, while high-level decisions closely connected with political judgment and resource allocation will readily fall outside judicial scrutiny.

4. Strike-out of the article 2 claims. The pleaded allegations included both systemic failures and operational decisions. Their proper classification depended on where, when and by whom the decisions were made, the available choices and the applicable instructions. Those facts required evidence. By a majority, the Court held that it was premature to strike out the claims, while warning that establishing a substantive breach at trial might be difficult.

5. Combat immunity and negligence. Lord Hope’s majority held that combat immunity must be narrowly construed. It protects acts and omissions occurring during actual or imminent armed conflict and active operations against the enemy. It does not automatically extend to earlier training and equipment decisions made sufficiently far from battlefield pressures. The Challenger claims therefore remained arguable. Whether the Ellis allegations involved protected decisions by local commanders could be determined only after evidence. The related fair, just and reasonable inquiry was equally sensitive to the time, place, level of command, operational constraints and public interest.

6. Separate opinions. Lord Mance and Lord Wilson would have struck out all substantive claims because procurement, training and battlefield causation were inseparable and non-justiciable. Lord Carnwath agreed that the Challenger claims should be struck out, but considered that the later Snatch claims might concern peacekeeping operations and known, preventable risks, so should proceed.

• United Kingdom Supreme Court: Allowed the claimants’ appeal against the article 1 jurisdiction ruling. It dismissed the Ministry’s strike-out applications and cross-appeal, permitting the article 2 and negligence claims to proceed: [2013] UKSC 41 .
• Court of Appeal: Dismissed the claimants’ jurisdiction appeals and the Ministry’s appeal concerning the negligence claims, but allowed the Ellis cross-appeal so that the whole negligence claim could proceed: [2012] EWCA Civ 1365 .
• High Court, Queen’s Bench Division: Owen J struck out the article 2 claims for want of article 1 jurisdiction and struck out one part of the Ellis negligence claim. He declined to strike out the Challenger claims and the remaining Ellis negligence allegations: [2011] EWHC 1676 (QB) .