Smith & Others v Ministry of Defence

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, in our view, be extraordinary.

In this case, the families of troops killed in Iraq during operations ask the Supreme Court to uphold the judgment of the Court of Appeal that they can continue their claim for negligence against the Ministry of Defence.  However, they will also ask seven justices 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.

Civilians killed are covered by the Convention by virtue of the activities of the UK and its troops overseas; the troops enjoy the protection of Convention based fair trial standards during courts martial; and the Convention applies on-base.   The Ministry of Defence is defending this case on the basis that the Convention ceases to apply when troops step off base.

On 19 June 2013, 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.

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Read JUSTICE’s submission in Smith
Read JUSTICE’s press release for Smith