Long, R (On the Application Of) v Secretary of State for Defence

Article 2 does not generally require the state to protect soldiers on active service from human error, including negligent error, in the military chain of command. Such an error may increase the risk to life without constituting an arguable breach of the state’s substantive positive obligation under article 2. The scope of any investigative duty depends on the nature of the alleged substantive breach and the circumstances as a whole. An inquest, together with other available criminal, disciplinary and civil mechanisms, may discharge that duty without identifying individual culpability. Where no continuing investigative duty exists, substantial unexplained delay may justify refusing relief under the judicial review time-limit provisions.

The claimant, the mother of a British soldier killed by an armed mob in Iraq in June 2003, sought judicial review requiring an independent article 2 investigation. Extensive investigations had included a Board of Inquiry, an inquest, military reviews and consideration of possible disciplinary action. The claimant focused on the failure of the military chain of command to ensure that the soldiers carried an iridium satellite telephone, contrary to an operational order. Permission had initially been refused for delay, but the substantive issues were considered at a rolled-up hearing. The central questions were whether the failure disclosed an arguable breach of article 2, whether any investigative duty had been discharged or remained continuing, and whether delay barred relief.

1. Claim dismissed. The court granted permission but dismissed the claim on the merits and refused the relief sought.
2. The positive obligation under article 2 does not give soldiers on active service a civil right to be protected against human error, including negligent error, in carrying out operational orders. The state may reasonably be expected to reduce the likelihood of error through training and remedial measures, but it cannot realistically be required to prevent every error that increases a risk to life. This conclusion applied with particular force in the unpredictable conditions of active service.
3. The guidance in Smith v Ministry of Defence [2014] AC 52 required a fact-sensitive assessment and did not make every case in the middle ground arguable. The facts here had been extensively investigated, and the alleged failure was sufficiently identified for the court to decide that it could not amount to an arguable breach. Stoyanovi v Bulgaria [2010] ECHR 1782 supported the conclusion that death caused by the negligent conduct of an individual did not, without more, breach the state’s positive article 2 obligation.
4. Even if an investigative duty had arisen, it had been discharged when the investigations were viewed in their totality. The Board of Inquiry identified the communications failure and made recommendations. The inquest provided public scrutiny and family involvement. Accountability was also addressed through the potential for criminal prosecution, disciplinary action and civil proceedings. Article 2 did not require one unified procedure or an inquest to determine individual criminal or civil culpability.
5. Any further duty would not be continuing. More than a decade had passed, the principal investigations had been prompt and detailed, relevant lessons had already been acted upon, and a further inquiry would have little prospect of producing useful information. A renewed investigation into negligent failures would also be unfair to individuals concerned.
6. Under sections 31(6) and (7) of the Senior Courts Act 1981 and CPR 54.5(1), the claim was brought substantially out of time. Since there was no current investigative duty, the importance of article 2 could not by itself justify extending time or granting other relief.

First-instance judicial review proceedings. Permission had initially been refused on grounds of delay, but the matter was directed to a rolled-up hearing. The claim was dismissed by the High Court (Administrative Court).