Smith and others v Ministry of Defence  UKSC 41
This case involved a series of claims brought by the families of troops killed while on duty in Iraq. The Smith claim arose from the death of UK soldiers on duty in Iraq in Snatch Land Rovers subject to the impact of an improvised explosive device. Mrs Smith alleged that the Ministry of Defence was in breach of an obligation under Article 2 ECHR, to safeguard her son’s life, by failing to provide suitably armoured vehicles. Other soldiers’ families alleged that the Ministry was negligent in failing to provide suitable equipment.
They asked the Supreme Court to overturn the conclusion of the Court of Appeal that the European Convention on Human Rights did not apply to the relationship between the UK and its forces off-base overseas and to uphold the judgment of the Court of Appeal that they can continue their claim for negligence against the Ministry of Defence.
The Supreme Court considered whether:
- British soldiers killed during military operations abroad were, at the time of their deaths, within the jurisdiction of the UK for the purposes of Article 2 of the ECHR;
- The Ministry of Justice owed a duty to the deceased soldiers at the time of their deaths pursuant to Article 2 ECHR; and
- The complaints of negligence are covered by the doctrine of combat immunity and/or it would otherwise not be fair, just and reasonable to impose a duty of care on the MOD in the circumstances of this case.
The Ministry of Defence argued first that the Convention ceases to apply when troops step off-base as they are no longer the jurisdiction of the United Kingdom. In the alternative, they argued that no Article 2 ECHR duty to protect arose at the time of their death. The MOD argued that the negligence claim should be struck out on the basis of combat immunity and that it would not be fair, just or reasonable to impose a duty on the MOD in the circumstances of those cases .
A unanimous seven judge panel at the Supreme Court held that the deceased soldiers were under the UK’s jurisdiction for the purposes of Article 2 ECHR at the time of their deaths. The Court further held, by a majority, that the question of whether a positive obligation to protect life under Article 2 ECHR (or in negligence) had been breached required examination of the facts. Since these issues must be determined at trial, the case should not be struck out [77-80].
JUSTICE intervened in this case to urge the Supreme Court to find that the relationship between the UK and its forces means that they carry the protection of UK law with them overseas, including the human rights protections in the Human Rights Act 1998. The anomalies created by any other conclusion would have, in our view, been extraordinary.
All judges agreed unanimously on the jurisdiction issue. The Court reasoned that, following the decision of the European Court of Human Rights in Al-Skeini v United Kingdom (2011) 53 EHRR 589, jurisdiction must extend to the troops. In that case, Iraqi citizens who had died as a result of the actions of UK Armed Forces in Iraq were deemed to be within the jurisdiction of the UK for the purposes of the ECHR.
The Supreme Court stressed that there must be exceptional circumstances for jurisdiction under the Convention to apply extra-territorially . However, the Supreme Court overturned its earlier judgment on the issue in R (Catherine Smith) v MoD  1 AC 1, holding unanimously that soldiers were under the personal jurisdiction of the UK at all times when serving out of the United Kingdom by virtue of the fact that the UK exercised full authority and control over them. Yet, the Court accepted that in its extra-territorial application, the package of rights in the ECHR can be “divided and tailored” to the particular circumstances of the extra-territorial act in question , .
The Court held that troops carry the protection of UK law with them while they are on duty by virtue of the fact that they remain under the authority and control of the UK throughout their service. As explained by Lord Hope, it would be illogical for actions of troops to be considered state agents for the purposes of conferring jurisdiction on others through their acts without themselves being within the scope of our law:
“Servicemen and women relinquish almost total control over their lives to the state. It does not seem possible to separate them, in their capacity as state agents, from those whom they affect when they are exercising authority and control on the state’s behalf.”
Had the MOD’s case succeeded, UK Armed Forces could spread the reach of the UK courts for human rights purposes wherever they might go; but would remain outside their protection themselves.
JUSTICE intervened in this case, represented by Alex Bailin QC and Edward Craven, Matrix Chambers, Iain Steele, Blackstone Chambers and Herbert Smith Freehills LLP.
Read the Supreme Court judgment.