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Landmark human rights ruling protects all soldiers serving abroad
Paul Cheston18 May 2009
Soldiers serving abroad are protected by Human Rights laws, the Court of Appeal ruled today in a controversial landmark judgment.
Three judges, headed by the Master of the Rolls, Sir Anthony Clark, dismissed challenges by the Government to High Court rulings over the death of Private Jason Smith, who died in Iraq while serving with the Territorial Army.
Permission to take the case to the House of Lords was granted on condition that the Secretary of State for Defence pays the legal costs whether they win or lose.
Solicitor Jocelyn Cockburn, who represents the family of Pte Smith, said: “We are absolutely delighted by the outcome which has the logical conclusion that, like all other citizens of the UK, soldiers have the protection set out under the Human Rights Act.
“The proposition of the Ministry of Defence that these rights should be removed from them when they are deployed abroad on active service doesn't reflect well on our Government.”
Lawyers for Defence Secretary John Hutton had urged the judges to overturn a ruling by Mr Justice Collins in April last year that sending soldiers out on patrol or into battle with defective equipment could amount to a breach of their human rights.
The case was originally brought by the Ministry of Defence over comments made by a coroner after an inquest on Pte Smith, 32, who died of heatstroke in Iraq in 2003.
Andrew Walker, the assistant deputy coroner of Oxfordshire, recorded at his inquest in November 2006 that Pte Smith's death was caused “by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate”.
The MoD conceded that Pte Smith was within the jurisdiction of Europe for human rights purposes because he died while in hospital at a UK base in Iraq.
But government lawyers challenged Mr Justice Collins's ruling on an issue of general principle - that members of the armed forces always remained within the jurisdiction of the UK for the purposes of the European Convention on Human Rights when operating abroad.
They argued that the judge made a mistake in assuming that a state might be in breach of its human rights obligations if it could have taken steps to avoid or minimise a known risk to life but did not do so.
While it was not disputed that a state had a general responsibility for the well-being of its armed forces, to suggest that it might be in breach of human rights obligations on each occasion that it did not provide a soldier with optimal equipment would impose a “wholly unreasonable and disproportionate obligation”, it was contended.
The Equality and Human Rights Commission, which intervened in the case, said the MoD would now have to provide proper protection, including adequate equipment and medical facilities, for soldiers serving overseas - whether on or away from an Armed Forces base - and more information to bereaved families.
Future investigations into the deaths of service personnel would have to be independent, open to scrutiny and involve the family.
The Commission's group legal director, John Wadham, said: “Our service personnel are sometimes required to lay down their lives for this country. In return, we should afford them the same human rights protection as every other citizen.”
He accepted that the lives of troops in combat situations could not be protected at all costs, “but we can do our best to ensure they remain as safe as possible”.
Pte Smith was deployed to Iraq in June 2003. He repeatedly told medical staff he was feeling seriously unwell due to the temperature, which was over 50C, before reporting sick in August 2003.
Four days later he was found lying face down, short of breath, confused and behaving erratically.
He was taken the A&E, but sustained a cardiac arrest and was pronounced dead from hyperthermia within an hour.
Following a coroner's inquest into her son's death, during which the family were initially denied access to crucial documents, Catherine Smith sought judicial review.
The High Court ruled that the Human Rights Act applied to all armed forces personnel serving outside the UK, whether or not the death took place on a military base.
Reader views (3)
IT CAN ONLY HAPPEN IN THE UK ,ASK SOLDIERS TO PUT THEIR LIVES ON THE LINE TO KEEP THEM IN POWER AND HAVE THE GAUL TO TRY AND TAKE AWAY THEIR HUMAN RIGHTS YOU COULD NOT MAKE THIS UP IF YOU TRIED NU LABOUR ARE A TOTAL DISGRACE THE USUAL JUST CANNON FODDER,
- Jim Fennessey, london, 18/05/2009 22:44
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It shouldn't take a man in a wig and a gown to tell the government that they shouldn't send soldiers into battle with inadequate equipment or be otherwise reckless with their lives. A soldier's life is always at risk, he doesn't need being pushed at the enemy when he is ill or ill-equiped.
- Bloke, London, 18/05/2009 13:18
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We have got to get rid of that NuLabour "Human Rights" act. Look what it is doing!
- Dave Davies, Basingstoke, 18/05/2009 13:01
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