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

In military Article 2 cases falling within the middle ground, the court must distinguish an isolated failure by an individual, including a supervisor, from a systemic failure to implement the state’s rules, guidance or controls. A routine practice of disregarding an operational order may be systemic, even if it arose from human error. Article 2 is engaged where such a failure arguably caused the death, subject to avoiding unrealistic or disproportionate obligations. It is sufficient that reasonable measures had a real prospect of avoiding the death. The investigative duty is flexible and may be discharged by the combined effect of separate inquiries where they sufficiently reveal what went wrong and the lessons to be learnt.

Mrs Pat Long, mother of Corporal Paul Long, challenged the Secretary of State’s compliance with section 6 of the Human Rights Act 1998. She alleged that the deaths of six Royal Military Police soldiers in Iraq had not been investigated sufficiently to satisfy Article 2.

The Divisional Court, in [2014] EWHC 2391 (Admin), held that there was no arguable substantive breach of Article 2. It alternatively held that the Army Board of Inquiry and the Oxfordshire Coroner’s inquest had discharged the investigative duty, and that a further investigation would not be reasonable. The appeal concerned whether Article 2 was engaged, whether the investigations were sufficient, and whether any further duty remained.

1. Appeal dismissed. Although the Court of Appeal disagreed with the Divisional Court on the first issue, it held that the investigations already undertaken substantially discharged the Article 2 investigative obligation.
2. Substantive obligation. In the military “middle ground”, the distinction is between a systemic failure to provide or implement an effective system of rules, guidance and control, and an isolated failure by an individual to operate within that system. The routine disregard of the Communications Order requiring patrols to carry iridium phones was not an isolated lapse. It had become normal practice and therefore amounted to a systemic failure of control. Article 2 was engaged. The guidance in Susan Smith v Ministry of Defence [2013] UKSC 41 required recognition of the military authorities’ wide margin of appreciation and avoidance of unrealistic or disproportionate positive obligations.
3. It was unnecessary to show that the deaths would probably have been avoided but for the state’s failure. It was sufficient that reasonable measures could have had a real prospect of avoiding them.
4. Investigation. The nature and scope of the Article 2 investigation depend on the circumstances. The obligation is assessed by considering the totality of the procedures and does not require one unified inquiry to provide every relevant component. The Board of Inquiry conducted an extensive investigation, identified confusion and lack of control in the chain of command, and made recommendations. The independent inquest considered that material, involved the families through legal representation, and produced further findings and a Rule 43 report. Together, the investigations sufficiently revealed why the phones were not provided, what went wrong and what lessons were to be learnt. Article 2 did not require a further inquiry to identify the precise individual or link in the chain of command responsible.
5. Further investigation. The third issue did not arise because the duty had been discharged. In any event, after the substantial investigations and the passage of more than a decade, there was no reasonable prospect of obtaining materially more useful information or lessons. A further investigation was therefore unnecessary.

• Court of Appeal (Civil Division) — dismissed the appeal, holding that Article 2 was engaged but that the existing investigations substantially discharged the investigative duty: [2015] EWCA Civ 770.
• High Court of Justice, Queen’s Bench Division (Administrative Court) — held that there was no arguable substantive breach of Article 2 and, alternatively, that the existing investigations were sufficient and no further investigation was reasonable: [2014] EWHC 2391 (Admin).