Human rights

Administration of justice – armed forces – inquests – jurisdiction

R (on the application of Smith) (respondent) v Secretary of State for Defence (appellant): SC (Lords Phillips (president), Hope (deputy president), Rodger, Walker, Brown, Mance, Collins, Kerr, Lady Hale): 30 June 2010

The appellant secretary of state appealed against a decision ([2009] EWCA Civ 441, (2009) 3 WLR 1099) that a British soldier on military service abroad was subject to the jurisdiction of the UK within the meaning of article 1 of the European Convention on Human Rights 1950, so as to benefit from the rights guaranteed by the Human Rights Act 1998, and that the inquest into the death of the son of the respondent (S) had to be an inquest satisfying the requirements of article 2 of the convention.

S’s son had died of hyperthermia while serving in Iraq. S brought proceedings seeking an order quashing a coroner’s inquisition into the death, arguing that the inquest had to satisfy the procedural requirements of article 2. The secretary of state conceded that S was entitled to such an inquest, but the court was required to determine the jurisdiction issue and inquest issue as matters of general importance. The secretary of state argued that jurisdiction under article 1 was primarily territorial, and soldiers were only within the jurisdiction of the UK when they were within territory under the effective control of the UK; article 2 applied to S’s son’s death because it had occurred at his base. S submitted that her son was subject to the jurisdiction of the UK as a matter of domestic and international law because of his status as a member of the armed forces. She argued that soldiers were in the same position as other state agents, such as diplomats and consular agents, and that when exercising state powers outside the territory of the state they remained subject to the jurisdiction of the state. In relation to the inquest issue, S submitted that an article 2 investigation must be held whenever a member of the armed forces died on active service overseas.

Held: (Lady Hale, Lord Mance and Lord Kerr dissenting on the jurisdiction issue) (1) Unless they were on a UK military base, British troops on active service overseas were not within the jurisdiction of the UK for the purposes of article 1. Bankovic v Belgium (Admissibility) (52207/99) 11 BHRC 435 ECHR held that jurisdiction in article 1 was essentially territorial in nature, but it extended in exceptional circumstances requiring special justification to other bases of jurisdiction, for example when a state had taken effective control of part of the territory of another state. The instant case did not fall within any of the exceptions recognised by the Strasbourg court, and article 1 should not be construed as reaching any further than the existing Strasbourg jurisprudence showed it to reach, Bankovic and R (on the application of Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153 applied, R (on the application of Gentle) v Prime Minister [2008] UKHL 20, [2008] 1 AC 1356 and Al-Saadoon v UK (Admissibility) (61498/08) [2009] 49 EHRR SE11 ECHR considered. There was no basis in principle or in the Strasbourg case law for the proposition that the jurisdiction which states had over their armed forces abroad both in national law and international law meant that they were within their jurisdiction for article 1 purposes. S’s proposed analogy between diplomatic and consular officials and members of the armed forces was not compelling. Jurisdiction could not be established simply on the basis that the UK armed forces abroad were under the ‘authority and control’ of the UK, or that there was a ‘jurisdictional link’ between the UK and those armed forces. Nor were there policy grounds for extending the scope of the convention to armed forces abroad.

(2) (Per Lord Mance) The categories of exceptional circumstances contemplated in Bankovic depended upon the exercise by State A abroad of state power and authority over individuals, particularly nationals of State A, by consent, invitation or acquiescence of the foreign State B. In Iraq, the UK was the only power exercising and having, under international law, authority over its soldiers. Insofar as there was any civil administration in Iraq, it consented to this. In such circumstances, where the UK was an occupying power recognised as such under international law, there was an irresistible case for treating its jurisdiction over its armed forces as extending to soldiers serving in Iraq for the purposes of article 1. To distinguish fundamentally between the existence of protective duties on the part of the UK to its soldiers at home and abroad appeared as unrealistic under the convention as it was at common law.

(3) The death of a serviceman on active service, assuming it took place within the article 1 jurisdiction of a state, did not automatically give rise to an obligation to hold an article 2 investigation. Soldiers were exposed to the risk of death or injury as part of their job. The death of a soldier in combat did not raise a prima facie case for saying that the UK army authorities had failed in their obligation to protect him and that there had, in consequence, been a breach of his article 2 rights. However, the secretary of state had been correct to concede that an article 2 investigation was necessary in the case of S’s son’s death. It was at least possible that there had been a failure in the system that should have been in place to protect soldiers from the risk posed by the extreme temperatures in Iraq, so it was arguable that there was a breach of the state’s substantive obligations under article 2, R (on the application of Middleton) v HM Coroner for Western Somerset [2004] UKHL 10, [2004] 2 AC 182 applied.

Appeal allowed in part.

James Eadie QC, Pushpinder Saini QC, Sarah Moore, David Barr (instructed by Treasury Solicitor) for the appellant; Dinah Rose QC, Jessica Simor (instructed by Hodge Jones & Allen) for the respondent; Michael Beloff QC, Rasa Husain QC, Elizabeth Prochaska (instructed by Equality and Human Rights Commission) for the intervener.