Smith & Ors v Ministry of Defence

Introduction

The claims based on the ECHR raise an issue of jurisdiction under article 1, namely whether a claim under Article 2 can be brought in respect of a death occurring outside the UK’s Convention jurisdiction on the basis that an alleged anterior failing occurred within the jurisdiction, and secondly if that question be answered in the affirmative, an issue as to the scope of the substantive obligation under Article 2.

The Challenger claims arise out of a ‘friendly fire’ incident between two UK Challenger II tanks in Iraq on 25 March 2003, in which one Challenger II tank fired on another, believing it was firing at enemy forces. Corporal Stephen Allbutt died in the incident and Deborah Allbutt’s claim is brought in respect of his death. The claims of Trooper Daniel Twiddy and Trooper Andrew Julien are brought in respect of personal injuries suffered in the same incident. The claims allege breach of the common law duty of care on the part of the defendant, namely the failure to ensure that the Challenger tanks were properly equipped with devices that on the balance of probability would have prevented the incident, and secondly the failure to ensure that adequate vehicle recognition training was in place for British troops. The claims do not allege negligence in relation to any acts or omissions in the field of battle.

The central issue raised by the common law claims is the scope of the principle of combat immunity.

The applications

In short, the defendant submits that any alleged shortcomings in respect of:

It is further asserted that no claim can be brought against the defendant on the basis that it has failed to protect an individual’s life contrary to Article 2 where the death of the individual has occurred outside the UK’s Convention jurisdiction.

The tests for strike out and summary judgment

CPR r.24.2 provides that:

“The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

(a)

it considers that -

(i)

that claimant has no real prospect of succeeding on the claim or issue;

... and

(b)

there is no other compelling reason why the case or issue should be disposed of at a trial.”

As Lord Woolf MR observed in Swain v Hillman [2001] 1 All ER 91 at 92h, in a judgment subsequently approved in Three Rivers District Council v Bank of England No 3 [2001] UKHL 16, there is a relationship between r.3.4 and r.24.2. He continued –

“However, the power of the court under Pt 24, the grounds are set out in r.24.2, are wider than those contained in r3.4. The reason for the contrast in language between r3.4 and r24.2 is because under r3.4, unlike r24.2, the court generally is only concerned with a statement of case which it is alleged displays no reasonable grounds for bringing or defending the claim”.

That said, and as Lord Hope noted in Three Rivers DC, there may in reality be little difference in the tests to be applied in relation to the exercise of the powers to strike out and to give summary judgment.

The principles upon which such powers should be exercised were conveniently summarised by Potter LJ in (1) Partco Group Ltd (2) UGC Ltd v (1) James Philip Wragg (2) Christopher George Scott [2002] EWCA Civ 594 at paragraphs 28 to 29 of his judgment:

“It seems to me that the following principles are well established, at least as articulated in relation to summary disposal under Part 24 of the CPR. (1) The purpose of resolving issues on a summary basis and at an early stage is to save time and costs and courts are encouraged to consider an issue or issues at an early stage which will either resolve or help to resolve the litigation as an important aspect of active case management: see Kent – v- Griffiths [2001] QB 36 at 51B-C. This is particularly so where a decision will put an end to an action. (2) In deciding whether to exercise powers of summary disposal, the court must have regard to the overriding objective. (3) The court should be slow to deal with single issues in cases where there will need to be a full trial on liability involving evidence and cross examination in any event and/or where summary disposal of the single issue may well delay, because of appeals, the ultimate trial of the action. (4) The court should always consider whether the objective of dealing with cases justly is better served by summary disposal of the particular issue or by letting all matters go to trial so that they can be fully investigated and a properly informed decision reached. The authority for principles (2)-(4) is to be found in: Three Rivers District Council v Bank of England (No.3) [2001] UKHL 16; [2001] 2 All ER 513 per Lord Hope at paras 92-93 (pp.541-542), considering Swain v Hillman [2001] 1 All ER 91 at 94-95; Green v Hancocks [2001] Lloyds Rep. PN212, per Chadwick L.J. at para 53 page 219, Col. 1; and Killick v Price Waterhouse Coopers [2001] Lloyds Rep. PN17 per Neuberger J. at p.23 Col.2, 2-27.

28.

(5) Summary disposal will frequently be inappropriate in complex cases. If an application involves prolonged serious argument, the court should, as a rule, decline to proceed to the argument unless it harbours doubt about the soundness of the statement of case and is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of the trial itself: see the Three Rivers case per Lord Hope at 94-98 (pp.542-544), considering the Williams & Humbert case. (6) It is inappropriate to deal with cases at an interim stage where there are issues of fact involved, unless the court is satisfied that all the relevant facts can be identified and clearly established: see Killick v Price Waterhouse at 20, Col.2 and 21 Col.1. (7) It is inappropriate to strike-out a claim in an area of developing jurisprudence. In such areas, decisions should be based upon actual findings of fact: see Farah v British Airways (unreported) 6th December 1999 (CA) per Lord Woolf M.R. at para 35 and per Chadwick L.J. at para 42, applying Barratt v London Borough of Islington [1999] 3 WLR 83 and X (Minors) v Bedfordshire CC [1995] 2 AC 633 at 694 and 741.”

No evidence has been filed in support of the applications and accordingly I must proceed on the premise that the claimants will prove the facts relied upon in their pleaded cases. Furthermore the core facts are not in dispute, and as Neil LJ said in Mulcahy v Ministry of Defence [1996] QB 732 (CA), in which the Court of Appeal struck out the claim by application of the principles that have come to be known as the combat immunity:

“Where ... the court is satisfied that additional facts will not change the framework of the claim and that the opposing arguments have been fully deployed the court should not shrink from deciding whether the application to strike out is well-founded in law. At the same time the Court must take account of Lord Browne-Wilkinson’s admonition that it is normally inappropriate to decide novel questions on hypothetical facts. But the novelty of the question of law is not an absolute barrier. It is to be remembered that the resolution of a question of law at an early stage in proceedings may result in a very substantial saving of costs.” 738H – 739A.

The claims.

The claim alleges breach of Article 2, namely that:

“4.1.

The Defendant was in breach of its systems duty to take appropriate steps to protect life by providing suitable armoured equipment for use by soldiers (including PH) on active service in Iraq.

4.2.

Further or alternatively, the defendant was in breach of its operational duty to do all that could reasonably have been expected of it to avoid the real and immediate risk to the life of soldiers in Iraq, in particular PH, of which the defendant had or ought to have had knowledge.

4.3.

PH’s death was caused by the defendant’s breach of Article 2. Further or alternatively, had the defendant not breached Article 2, PH would have had a real prospect of avoiding death.”

The alleged breaches of Article 2 are particularised at paragraph 26 of the Particulars of Claim.

“26.1.

Failing to provide better/medium armoured vehicles for use by PH’s commander.

Had such vehicles been provided, they would or should have been used for PH’s patrol.

26.2.

Failing to ensure that any patrol inside Al Amarah was led by a warrior.

Following PH’s death, such a policy was adopted and the incidence of deaths by IEDs ceased.

26.3

Causing or permitting a patrol of 3 Snatch Land Rovers to proceed inside Al Amarah, especially when there was no ECM on the lead Snatch Land Rover and the defendant knew or should have known that passive infra-red triggers were in use and that ECMs were ineffective against such triggers and no suitable counter measures to EFPs had been provided.

26.4.

Permitting the patrol of Snatch Land Rovers to investigate the bomb blast, especially when there was only one road to the decoy bomb site.

26.5.

Failing to provide other vehicles for route clearing and route planning ahead of the Snatch Land Rovers.

26.6.

Failing to provide suitable counter measures to EFPs at all or in the light of the death of Lance Corporal Brackenbury.

26.7.

Failing to use means other than patrols to combat the threat posed by the insurgents.”

The Ellis claim

The Ellis claim alleges both negligence and breach of Article 2. The basis of the alleged breach of Article 2 is set out at paragraph 5 of the Ellis Particulars of Claim in materially the same terms as in paragraph 4 of the Smith Particulars of Claim. The allegations of negligence/ breach of Article 2 are particularised at paragraph 26.

“26.1.

Failing to limit the patrol to better/medium/heavily armoured vehicles. Snatch Land Rovers had been taken out of front line use in Al Amarah following the death of soldiers in a Snatch Land Rover hit by an IED on 16 July 2005 and should not have been put back into such use.

26.2.

Failing to provide any or any sufficient better or medium armoured vehicles for use by LE’s commander.

Had such vehicles been provided, they would or should have been used for LE’s patrol in place of the Snatch Land Rovers.

26.3.

Failing to ensure that Element A had been fitted to the ECM on LE’s Snatch Land Rover. LE should not have been permitted to leave the Camp without this equipment.”

The Redpath claim

The Redpath claim, like the Smith claim, does not include an allegation of common law negligence. It alleges that the Defendant was in breach of Article 2, and is pleaded in materially the same terms as in paragraph 4 of the Smith Particulars of Claim. The alleged breach is particularised at paragraph 26 of the Redpath Particulars of Claim in the following terms:

“26.1.

Failing to provide better/medium armoured vehicles for use by KR’s commander.

Had such vehicles been provided, they would or should have been used for KR’s patrol.

26.2.

Failing to ensure that the convoy was led by a Mastiff vehicle. The importance of taking this step was all the more obvious given the defendant knew or should have known that the route and timing of the convoy was predictable to the insurgents.”

The Challenger claims

On 25 March 2003, the fourth day of the offensive on Basra, Corporal Allbutt, and Troopers Twiddy and Julien were members of a tank squadron assigned to the Royal Regiment of Fusiliers serving in a Challenger II tank. At about 1.20am soldiers assigned to 1^st Battalion Black Watch, also serving in a Challenger II tank, fired three rounds of a high explosive shell on the claimants’ tank. A soldier in the firing Challenger II tank mistakenly thought he had identified “thermal hotspots” in the direction of the local university compound, the most likely location for an enemy attack, and believed them to be enemy forces. In fact he had become disoriented by 180 degrees; the hotspots identified were in the opposite direction to the university compound, outside his permitted arc of fire, and were friendly, not enemy, forces.

The Claimants criticise Major McDuff, of the 1^st Battalion Black Watch, alleging at paragraphs 16-17 of the Allbutt Particulars of Claims that he:

“was left in no doubt however:

a.

as to the presence of the two tanks at the dam;

b.

that his men clearly did not know of their presence;

c.

that this state of affairs presented as an immediate risk to the lives of the men in the tanks at the dam and also to his own men (who might re-enter the tanks’ arcs of fire)”

and that

(Allbutt PoC §16-17).

“Major McDuff failed to communicate this information to anyone.”

But no allegations of negligence are made in respect of the alleged actions or omissions of Major McDuff, or any other soldier of the 1^st Battalion Black Watch, it being accepted that any acts or omissions on their parts would fall within the combat immunity.

The Challenger claimants allege at paragraph 31 of their Particulars of Claim that:

“...the deaths and injuries were caused by the Defendant’s negligence:

PARTICULARS

a.

The failure to ensure that the Claimants’ tank/battle group that fired upon it were properly equipped with technology and equipment that would, on the balance of probabilities, have prevented the incident;

b.

The failure to ensure adequate vehicle recognition training was in place for British troops, including pre-deployment and in-theatre training.”

They assert that technology, namely Target Identity Devices and Situational Awareness equipment, was available (i.e. existed for purchase from other countries) or could have been available had the Defendant adequately appreciated the need to expedite the development and procurement of such equipment, see paragraphs 25-28 of the Particulars of Claim, and further allege at paragraph 29 that training on the visual identification of friendly forces in night time desert conditions was inadequate.

The Snatch Land Rover Claims

The Jurisdiction Issue

The issue of jurisdiction is addressed in each of the Snatch Land Rover particulars of claim in identical terms, namely, per paragraph 3 of the Smith claim:

“(3)At all material times the Human Rights Act 1998 (‘HRA’) applied as between PH and the defendant. The claimant will aver that:

3.1.PH was serving within the scope of his military duties under the command of his superiors and under the legislative, judicial and executive authority of the United Kingdom at all material times.

3.2.PH was within the UK and/or the military base of Camp Abu Naji at all material times, that is when the relevant acts/omissions of the defendant said to constitute breaches of article 2 of the European Convention on Human Rights (‘the ECHR’) occurred.

3.3.In accordance and/or analogy with the line of authority emanating from Soering v United Kingdom (1989) 11 EHRR 439, PH was within the territory of the UK (to include the military base) at all material times and so within the jurisdiction of the UK for the purposes of article 1 of the ECHR. The fact that his death occurred outside of the military base is incidental.

3.4.The claimant recognises that R (Smith) v Secretary of State for Defence [2010] UKSC 29 is persuasive authority (but not strictly binding) for the proposition that members of the armed forces are not, by virtue of their being subject to the jurisdiction of the UK as a matter of both domestic and international law for all purposes other than the ECHR, also within the jurisdiction of article 1 ECHR. At the same time, the decision in Smith may require revisiting in the light of the awaited ECtHR decision in Al-Skeini v UK and any other relevant ECtHR decisions. The claimant wishes to reserve her position and puts the defendant on notice that she may seek to contend that soldiers are, by virtue of their being under the legislative, judicial and executive authority of the UK under domestic law and in accordance with public international law, within the jurisdiction of the ECHR regardless of their location on the globe and regardless of where the act/omission of which complaint is made occurred.”

As the law now stands, and as is acknowledged on behalf of the claimants, the basis for jurisdiction advanced in paragraphs 3.1 and 3.4 above is untenable. The claim that members of the armed forces, serving abroad, can establish a jurisdictional link merely by reference to the fact that they are deployed under the authority and control of the United Kingdom was rejected by the House of Lords in R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153 and by the Supreme Court in R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29. The position was succinctly summarised in Smith v Oxfordshire by Lord Collins at paragraph 288:

“288.

Jurisdiction on the basis of ‘authority and control’ (especially outside the Convention states) as a separate head was firmly rejected by the House of Lords in Al-Skeini; see especially Lord Brown at paras 116-127, and Lord Rodger at paras 73-77; and see also Rix LJ speaking for the Administrative Court at para 216 and Brook LJ in the Court of Appeal at para 103.”

and see also paragraph 307 in which he said in terms that “jurisdiction cannot be established simply on the basis that the United Kingdom’s armed forces abroad are under the ‘authority and control’ of the United Kingdom, or that there is a ‘jurisdictional link’ between the United Kingdom and those armed forces”. An application to the ECtHR in Al-Skeini has been argued before the Grand Chamber, and judgment is awaited. But in the meantime Al-Skeini must be assumed correctly to state the law.

The second and alternative basis upon which the claimants assert that the deceased were within the UK’s Convention jurisdiction for the purposes of Article 1, is that they were within the UK or within a military base controlled by the UK when the acts or omissions of the defendants said to constitute breaches of Article 2 occurred (see paragraphs 3.2 and 3.3 above). It is submitted on their behalf that the fact that they were neither within the UK, nor within the confines of Camp Abu Naji when they died, is irrelevant.

The defendant contends that far from irrelevant, the fact that the deaths occurred when the deceased were neither within the UK nor on a military base controlled by the UK, is determinative of the jurisdiction issue. It is submitted that the Article 1 jurisdiction is essentially territorial, and that where, as in these cases, the Article 2 claim is based upon the assertion that the state has failed to put in place adequate systems to prevent the death (or life-threatening injury) or has otherwise failed in a specific duty placed upon it by particular circumstances to take all reasonable measures to prevent death, there can be no breach of Article 2 unless and until the death or life-threatening injury occurs. As the deaths did not occur within the UK nor on a military base controlled by the UK, there can not have been any breach of Article 2.

The scope of the Convention jurisdiction within the meaning of Article 1 has been addressed by the Grand Chamber of the ECtHR in Bankovic, and by the House of Lords and the Supreme Court respectively in Al-Skeini and Smith v Oxfordshire.

As Lord Phillips, Lord Hope and Lord Brown observed in Smith v Oxfordshire, the courts should not construe Article 1 as reaching further than the existing jurisprudence of the ECtHR shows it to reach, and the proper tribunal to resolve the issue of whether a state’s armed forces fall within the jurisdiction of the state for the purposes of Article 1 is the ECtHR (see paras. 60, 93 and 147), and see also the judgment of Lord Bingham in R (Ullah) v Special Adjudicator [2004] 2AC323 para. 20 at 350, and per Lord Bingham, Lord Rodger and Lord Brown in Al-Skeini at paras. 28, 68 and 105). As Lord Bingham said in Ullah “the Convention is an international instrument, the correct interpretation of which can be authoritatively founded by the Strasbourg courts.”

Accordingly it is appropriate first to consider the decision of the ECtHR in Bankovic. The applicants were citizens of the Federal Republic of Yugoslavia who had sustained injury or lost close family members as a result of NATO air strikes during the Kosovan conflict. They complained to the ECtHR of violations of their Convention rights by the respondent NATO states. The issue before the Grand Chamber was whether the applicants and their deceased relatives were within the Convention jurisdiction of the respondent states at the relevant times.

The Grand Chamber was not persuaded that there was any jurisdiction link between the persons who were the victims of the acts complained of and the respondent states, and was not therefore satisfied that the applicants and their deceased relatives were capable of coming within the jurisdiction of the respondent states by virtue of the extra-territorial acts in question (see para. 82). It considered that from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial. But at paragraphs 67–73 it addressed extra-territorial acts recognised as constituting an exercise of jurisdiction:

“67.

In keeping with the essentially territorial notion of jurisdiction, the court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Art. 1 of the convention.

68.

Reference has been made in the court’s case law, as an example of jurisdiction ‘not restricted to the national territory’ of the respondent state (Loizidou v Turkey) (preliminary objections (1995) 20 EHRR 99 at para. 62), to situations where the extradition or expulsion of a person by a contracting state may give rise to an issue under Arts 2 and/or 3 … and hence engage the responsibility of that state under the convention (Soering v UK [1989] ECHR 14038/88 at para. 91, Cruz Varas v Sweden [1991] ECHR 15576/89 at para. 69 and 70, Vilvarajah v UK [1991] ECHR 13163/87 at para. 103).

However the court notes that liability is incurred in such cases by an action of the respondent state concerning a person while he or she is on its territory, clearly within its jurisdiction, and that such cases do not concern the actual exercise of a state’s competence or jurisdiction abroad (see also Al-Adsani v UK [2001] ECHR 35763 at para. 39). …

71.

In sum, the case law demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a contracting state is exceptional; it has done so when the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, importation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government.”

The implications of the decision in Bankovic received detailed analysis in Al-Skeini. In Al-Skeini the claimants were relatives of six deceased Iraqi civilians who had been killed by or in the course of action taken by British soldiers in the period following the completion of major combat operations in Iraq, and prior to the assumption of authority by the Iraqi interim government. The claimants sought judicial review of the Secretary of State’s failure to conduct independent enquiries into or to accept liability for the deaths, and in the case of one of the deceased, allegations of torture. The majority in the House of Lords held (per the headnote) that having regard to the jurisprudence of the ECtHR and in particular to Bankovic,

“… the Convention operated in a regional context within the legal space of the contracting states and Article 1 reflected a territorial concept of jurisdiction; that other bases of jurisdiction were exceptional and required special justification in the particular circumstances of individual cases; that, although one such exception was recognised where a state through effective control of another territory exercised powers normally exercised by the government of that territory, the obligation to secure the Convention rights would arise only where a contracting state had such effective control over an area as to enable it to provide the full package of rights and freedoms guaranteed by section 1 of the Convention to everyone within that area; that the United Kingdom’s presence in Iraq fell far short of such control; but that the narrow exception recognised in respect of embassies and consular agents could by analogy apply to the military base where the deceased in the sixth case had been detained; and that, accordingly, the sixth claimant’s case fell within the jurisdiction of the United Kingdom in terms of Article 1 and the cases of the other five claimants failed to do so.”

and see in particular the speeches of Lord Rodger at paragraphs 64 and 81, and Lord Brown at paragraphs 105–109 with whose analysis Baroness Hale and Lord Carswell agreed.

The subject matter of Smith v Oxfordshire was the death of a soldier serving in Iraq. He had been on military service in Iraq for less than two months when he died of hyperthermia sustained whilst carrying out duties off his army base. The nature of the proceedings is succinctly summarised in the head note:

“At the inquest into his death the Coroner held that the procedural requirements implicit in Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, scheduled to the Human Rights Act 1998, did not apply to the inquest and that he had no power to provide disclosure of certain information. The coroner’s narrative verdict stated that the deceased’s death had been “caused by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate”. The deceased’s mother sought judicial review of the coroner’s decision that Article 2 did not apply and that he had no power to provide disclosure of documentation. The coroner subsequently consented to the quashing of the inquisition and ordered a fresh inquest on the ground that he had erred on the disclosure point. The Secretary of State for Defence, as an Interested Party on the claim, conceded that since the deceased had died on a British army base he was within the jurisdiction of the United Kingdom. However he and the claimant requested the court to deal with the remaining grounds of the claims and to provide guidance for the fresh inquest. The judge held, inter alia, that a member of the armed forces was within the jurisdiction of the United Kingdom for the purposes of Article 1 of the Convention where ever he might be, that the Convention and the 1998 Act accordingly applied and that, since the circumstances of the deceased’s death raised concerns that there might have been a failure by the state to provide an adequate system to protect life, the procedural requirements implicit in Article 2 of the Convention would apply to the fresh inquest. On the Secretary of State’s appeal the Court of Appeal affirmed the judge’s decision.

On the Secretary of State’s appeal, and on the issues whether (i) a soldier on military service abroad was subject to the protection of the 1998 Act when outside his base; and (ii) the death of a soldier who was subject to such protection had to be the subject of an inquest which satisfied the procedures which Article 2 of the Convention implicitly required where there was reason to believe that a death might be attributable to default on the part of a public authority –

Held (i) allowing the appeal on the first issue (Baroness Hale of Richmond, Lord Mance and Lord Kerr of Tonaghmonre JJSC dissenting), that, having regard to the jurisprudence of the European Court of Human Rights and to the historical context in which the Convention had been formulated, the contracting states, in concluding its provisions, would not have intended it to apply to their armed forces when operating outside their territories; that Article 1, unlike the other articles, was not to be interpreted as a living documents subject to changing conditions; that jurisdiction under Article 1 was essentially territorial in nature and other bases were exceptional, requiring special justification in the particular circumstances of the case; that such exceptions consisted either of territorial jurisdiction by a state over the territory of another contracting state, extensions of territorial jurisdiction by analogy, such as to a military base or hospital, or extensions of jurisdiction to accommodate circumstances which were plainly within the scope of the conventions; but that, to the extent that jurisdiction was based solely on authority and control by state agents over individuals abroad, it was inconsistent with the established jurisprudence; that jurisdiction for the purposes of Article 1 could not therefore be established on the ground that the United Kingdom’s armed forces abroad were under its authority and control or because they had a jurisdiction link with the United Kingdom; and that, accordingly the deceased had not been within the jurisdiction of the United Kingdom within the meaning of Article 1 when he was outside his army base.”

The Strasbourg jurisprudence was subjected to close analysis by Lord Collins who concluded at paragraph 305:

“Bankovic as applied in Al-Skeini confirms that Article 1 reflects the territorial notion of jurisdiction, and that other bases of jurisdiction are exceptional and require special justification. In practice the exceptions recognised by the court have either consisted of (i) territorial jurisdiction by a state over the territory of another contracting state; (ii) extensions of territorial jurisdiction by analogy; and (iii) commonsense extensions of the notion of jurisdiction to fit cases which plainly should be within the scope of the convention.”

His analysis was endorsed by Lord Phillips at para. 60, and by Lord Rodger at para. 111 adding at para. 112 that:

“It follows that, leaving aside the position that when they are on a United Kingdom base, soldiers on active service overseas are not within the jurisdiction of the United Kingdom for the purposes of Article 1 of the Convention.”

and see also Lord Hope at paras. 92 and 93 and Lord Brown at paras. 145-147.

It is therefore submitted that on the clear authority of Bankovic as considered and applied in Al-Skeini and Smith v Oxfordshire, the deceased in the Snatch Land Rover claims were not within the UK’s Convention jurisdiction at the material time, and that accordingly the claims cannot succeed.

As indicated in their pleaded cases, the claimants’ response is to argue that by analogy with the line of authority emanating from Soering v United Kingdom (1989) 11 EHRR 439, the deceased were within the territory of the UK at all material times, and accordingly within the jurisdiction of the UK for the purposes of Article 1. In Soering the applicant, a West German national, alleged that the decision by the Secretary of State for the Home Department to extradite him to the United State of America to face trial in Virginia on a charge of capital murder would, if implemented, give rise to a breach by the UK of Article 3. The ECtHR held that in the event of the Secretary of State’s decision to extradite the applicant to the USA being implemented, there would be a violation of Article 3.

It is submitted on behalf of the claimants that the deceased were in an analogous position in that the acts and omissions upon which the Article 2 claim is based occurred within the jurisdiction, albeit that they gave rise to foreseeable risks that materialised when the deceased were on active service outside the jurisdiction. It is submitted that if the argument advanced on behalf of the defendant is valid, then soldiers can be sent anywhere, irrespective of risk, without the state owing them any obligation under Article 2, and that such a position is untenable.

The Soering line of authority was considered by the House of Lords in R (Gentle & Another) v Prime Minister & Others [2008] 1AC 1356 in which the claimants were the mothers of two servicemen who were killed whilst serving in Iraq. They sought judicial review of the defendants’ refusal to hold an independent inquiry to examine the question of whether the UK government had taken reasonable steps to be satisfied that the invasion of Iraq was lawful under the principles of international law, a question that would not be considered at the inquests into the death of the deceased. The House of Lords held (per the headnote) –

“…that the implied procedural duty under Article 2 to investigate whether a death which had occurred involved a breach of the substantive duty to protect life imposed by Article 2, was parasitic upon the substantive duty and did not exist independently of it; that, consequently the claimants had to show at least an arguable case that the substantive duty arose on the facts of the case; that Article 2 was not a generalised provision protective of life, irrespective of any specific death or threat, or an absolute guarantee that nobody would be exposed by the state to situations where his life was in danger, whatever the circumstances; that Article 2 was not violated simply by deploying service personnel on active service overseas as part of an organised military force, even though there was an inherent risk of their being killed …”

Lord Bingham addressed the Soering argument at paragraph 8 (3):

“Here, the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the defendants they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted: R (Al-Skeini) v Secretary of State for Defence … The claimants seek to overcome that problem, in reliance on authorities such as Soering v United Kingdom …, by stressing that their complaint relates to the decision-making process (or lack of it) which occurred here, even though the ill-effects were felt abroad. There is, I think, an obvious distinction between the present case and the Soering case, and such later cases as Chahal v United Kingdom (1996) 23 EHRR 413 and D v United Kingdom (1997) 24 EHRR 423, in each of which action relating to an individual in the UK was likely to have an immediate and direct impact on that individual elsewhere. But I think there is a more fundamental objection; that the claimants’ argument, necessary to meet the object to meet the extra-territorial reality, highlights the remoteness of their complaints from the true purview of Article 2.”

Similarly at paragraph 19 Lord Hope said:

“19.

The jurisprudence which has developed from the decision in Soering v United Kingdom … about decisions taken in this country to send people abroad to places where they face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment does not apply. The guarantee in the first sentence of Article 2(i) is not violated simply by deploying service men and women on active service overseas as part of an organised military force which is properly equipped and capable of defending itself, even though the risk of their being killed is inherent in what they are being asked to do.”

See also Lord Hoffman at paragraph 16, Lord Carswell at paragraph 66 and Lord Mance at paragraph 74.

The Soering principle has been applied in a very limited context, namely where the person concerned is within the jurisdiction but is forcibly to be removed from the jurisdiction to a place where he or she will be at risk, see e.g. Chahal v United Kingdom, HLR v France (1997) 26 EHRR 29), D v UK (1997) 24 EHRR 423 and RB (Algeria) and OO (Jordan) v Secretary of State for the Home Department [2009] UKHL10. There is nothing in the ECtHR jurisprudence since Soering to suggest that it is a principle of general application outside forcible removal cases. I can find no principled basis upon which to extend it in the manner for which the claimants contend.

Conclusion

The Snatch Land Rover claims based on breach of Article 2 will therefore be struck out under CPR r.3.4(2)(a).

The Substantive Duty Under Article 2

The claimants’ pleaded case is that Article 2 imposed a positive obligation on the defendant expressed in the following terms:

The particulars of breach are not in identical terms. That is because the deaths occurred on different dates, Phillip Hewitt on 16 July 2005, Lee Ellis on 28 February 2006, and Kirk Redpath on 9 August 2007. But the allegations of breach fall into two categories; first, and common to all three claims, the failure to provide better/medium armoured vehicles for use by the deceaseds’ commanders, see Smith (Hewitt) paragraph 26.1, Ellis 26.2, and Redpath 26.1; and secondly allegations that relate to operational decisions made by commanders, see Smith (Hewitt) paragraphs 26.2-26.7, Ellis 26.1 and 26.3, and Redpath 26.2. Some of the allegations relating to operational decisions may also involve procurement issues, for example in Smith (Hewitt) 26.3 and 26.6, and Ellis 26.3.

It is submitted on behalf of the defendant that Article 2 cannot and should not be interpreted so broadly as to give rise to the duties for which the claimants contend. There are two limbs to the argument advanced by Mr Eadie. First he submitted that it is clear from the case-law that an implied operational obligation has only been imposed upon the State in certain well-defined circumstances.

Secondly he submitted that the circumstances of the present cases are not analogous to any of the situations in which the implied operational obligation has been held to have arisen, and further that there are compelling reasons for not imposing a positive obligation on the state to take measures to protect members of the armed forces whose lives are at risk in the course of military operations.

As to the case law, Mr Eadie took as his starting point the decision of the ECtHR in Renolde v France (App. No. 5608/05, judgment of 16 October 2008), a case which concerned the suicide of a mentally ill prisoner placed in a punishment cell for 45 days, who shortly beforehand had attempted to commit suicide, and in particular paragraphs 81-84:

“81.

Article 2 may imply in certain well-defined circumstances a positive obligation on the authorities to take preventative operational measures to protect an individual from another individual or, in particular circumstances, from himself …

82.

However, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising …

83.

The court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them …

84.

Lastly, the court reiterates that, in the case of mentally ill persons, regard must be had to their particular vulnerability...”

He argued that the judgment in Renolde reflects that of the court in Osman v United Kingdom (1998) 29 EHRR 245, EHRR 212, to the effect that the implied positive obligation under Article 2 will only arise in certain well-defined circumstances.

In Osman the ECtHR held that the State may be in breach of the substantive obligation where an individual is killed by the criminal acts of a third party, and the police authorities knew, or should have known, that there was a real and immediate risk to the life of that particular individual from the criminal acts of that third party, but did not take steps which it could reasonably have been expected to take to protect him: Osman at paragraph 116. Osman has subsequently been applied in other such situations: Kontrova v Slovakia, ECtHR, judgment of 31 May 2005, at [49]-[50]; In re Officer L [2007] 1 WLR 2135, HL, [19]-[20]); Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225, HL at [66]-[70] and Mitchell v Glasgow Council [2009] 1 AC 874 at [30]-[34].

The ECtHR has also held that the same implied operational obligation may be owed to those detained by the State, by those responsible for their detention, as regards protection from the risk of murder by other detainees or, more commonly, from the risk of suicide. This principle was first applied in the context of prisoners or those held in custody: Keenan v UK (2001) 33 EHRR 913 at [88]-[89]; Ucar v Turkey, ECtHR, judgment of 11 April 2006 at [83]-[86]; Younger v UK, ECtHR, decision of 7 January 2003; and Trubnikov v Russia, judgment of 5 July 2005, at [85]-[87]. The rationale for implying into article 2 an enhanced level of protection by the State was that prisoners are in a particularly vulnerable position, particularly as regards the threat of suicide. See, for example, Keenan at [91], Tanribilir v Turkey (application no 21422/93) of 16 November 2000 at [74] and, in the domestic authorities, Savage, per Lord Scott at [12] and per Lord Rodger at [29].

The same principle has subsequently been applied by the ECtHR to the suicide of individuals in some other form of detention, such as those compulsorily detained under the mental health acts: Slimani v France 43 EHRR 1068; and also conscripts: Kilinc v Turkey, ECtHR judgment of 7 June 2005; Ataman v Turkey, ECtHR, judgment of 27 April 2007.

I accept that an analysis of the cases in which the Osman principle has been applied supports the proposition that the implied operational obligation has only been imposed upon a state in circumstances in which the state authorities are already charged with a particular responsibility to protect those in the position of the deceased, and a particular threat to the deceased’s life arises out of some action by the authorities, a known third party, or by the individual himself.

As to the second limb of the argument Mr Eadie submitted first that the circumstances of the present cases are not analogous to any of the situations in which the implied operational obligations have been held to have arisen. Mr Robert Weir QC, who appeared for the Snatch Land Rover claimants, responded by inviting my attention to decisions both of the ECtHR and of the domestic courts, demonstrating that the Article 2 obligation may apply to soldiers on active service. In Ataman v Turkey App. No. 46252/99 judgment 27 April 2007 the obligation was found to apply to a soldier on active service whom the authorities should have known was at risk of suicide. Similarly in Kilinic v Turkey App No. 40145/98 judgment 7 June 2005, the ECtHR held that medical services within the military were under such an obligation, being aware of the suicide risk of a soldier.

As to the domestic courts he relied upon the speeches of Lord Rodger and Baroness Hale in Savage v South Essex Partnership NHS Foundation [2009] 1 AC 681 to the effect that the state is under an obligation to protect soldiers from harm, per Lord Rodger at paragraphs 34-38 and Baroness Hale at paragraphs 82-84. At paragraph 76 Baroness Hale identified the three different duties upon the state imposed by Article 2(i), the first being the negative duty to refrain from taking life, save in the exceptional circumstances catered for by Article 2(ii), the second the positive duty properly and openly to investigate deaths for which the state might bear some responsibility, and the third being a duty to take positive steps to protect the lives of those within its jurisdiction. In Savage the court was concerned with the scope of the third obligation, addressing the question of when it extends beyond the primary duty to have systems in place for protecting life, into an operational duty to protect a particular life.

Mr Weir further argued, per Osman that:

“It is sufficient for an applicant to show that the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk of life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case. ”

He submitted that the threshold of “real and immediate risk of death” is likely to be met in conflict zones, and that that fact establishes the existence of an obligation under Article 2 to take all reasonable and proportionate preventative measures, having regard to the circumstances of the case.

I accept that the circumstances of the Snatch Land Rover cases are not precisely analogous to any of the situations in which the implied positive obligation under Article 2 has been imposed. But the counter-argument advanced by Mr Weir cannot be dismissed as lacking any substance.

The question is therefore whether, as Mr Eadie submitted, there are reasons for not imposing a positive obligation on the state to take measures to protect members of the armed forces whose lives are at risk in the course of military operations that compel the conclusion that the ECtHR would reject the claim that the defendant did not owe the deceased soldiers the obligations for which the claimants contend.

The principal argument advanced by Mr Eadie is that the ‘protective’ obligations that have been implied into Article 2 do not extend to the imposition of obligations on a state in respect of the formulation or conduct of its political policies and/or military objectives and/or the funding and/or prioritisation of its military capabilities. He submitted that these matters are essentially political, not legal and therefore fall outside the scope of Article 2. He contended that that approach is exemplified in the jurisprudence relating to the investigative obligation in Article 2, but that the same reasoning applies, and applies with greater force, in the present context. He relied in particular on Taylor v United Kingdom (App. No. 23412/94), in which the ECmmHR held that Article 2 did not require the investigation into the killing by Beverley Allitt, a hospital nurse, of child patients, to enquire into the responsibility in the NHS for alleged inadequate systems, resource shortages and weak leadership. The commission held that:

“The wider questions raised by the case are within the public domain and any doubts which may consequently arise as to policies adopted in the field of public health, are, in the Commission’s opinion, matters for public and political debate which fall outside the scope of Article 2 and the other provisions of the Convention.” p 137.

Similarly in Jordan v United Kingdom (1994) 79-A DR at para. 128 the European commission held that Article 2 did not require the investigation into the death caused by a shooting by a police officer in Northern Ireland to enquire into whether there was a policy of “shoot to kill” within the security forces in Northern Ireland.

In Scholes v Secretary of State for the Home Department (2006) HRLR 44 the Court of Appeal rejected a claim that Article 2 required the Secretary of State to hold a public inquiry into the suicide of a young offender in order to investigate sentencing policy and available facilities and resources. Arden LJ in a passage approved by Lord Bingham in Gentle as reflecting the correct approach, said at paragraphs 82 – 83:

“82.

There is, however, a distinction to be drawn between legal and political questions. In A v Secretary of State for the Home Department ([2005] 2 AC 68) at [29], Lord Bingham also held:

The more purely political (in a broad or narrow sense) the question is, the more appropriate it would be for political resolution, the less likely it is to be an appropriate matter for judicial decision. The smaller therefore would be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal context of any issue, the greater the potential role of the court because under our constitution and subject to the sovereign power of parliament it is the function of the courts and not of political bodies to resolve legal questions.

83.

Likewise, in this case, as it seems to me, Mrs Scholes, is in part seeking, by way of individual rights under Art. 2 of the Convention, to intervene in the political process which determines the allocation of resources to institutions such as secure children’s homes. In my judgment, in so far as she seeks to do so or to establish a right for members of the public to be consulted on these matters, she seeks to carry Convention rights further than authority or Convention jurisprudence would require …”.

Mr Eadie also sought to place reliance in this context on the judgments of the Supreme Court in Smith v Oxfordshire. He acknowledged that the Justices expressed divergent views, but argued that it is readily apparent that they considered it implausible that the ECtHR would seek, as Lord Brown put it at [146], to “scrutinise a contracting state’s planning, control and execution of military operations to decide whether the state’s own forces have been subjected to excessive risk (risk, that is, which is disproportionate to the objective sought)”.

Mr Eadie submitted that in the light of those observations by the Justices of the Supreme Court, the court can be confident that the ECtHR would not apply the Osman principle to found the operational duty for which the claimants contend.

But Mr Weir also found support for the counter-argument in the judgments of the Supreme Court in Smith v Oxfordshire. At paragraphs 79-80 Lord Phillips said:

“79.

If armed forces on active service abroad are within a state’s jurisdiction for purposes of Article 1, the question arises of the scope of the substantive obligations imposed by Article 2. Would the Strasbourg court hold that they extend to the adequacy of the equipment with which the forces are provided; to the planning and execution of military manoeuvres? These questions are not easy to address, but an affirmative answer certainly cannot be excluded.

80.

McCann involved the shooting by an SAS unit of three members of the provisional IRA who were suspected of being about to detonate a bomb in Gibraltar. The court held that Article 2 imposed substantive duties in relation to the planning, execution and control of the operation, and a procedural obligation to investigate these matters in the light of the casualties. The court adopted a similar approach to deaths that resulted from the operations of the Russian military when conducting substantial military operations against insurgents, see Isayeva, Yusupova and Bazayeva v Russia (applications Nos. 57947/00, 57948/00 and 57949/00) and Isayeva v Russia (application No. 57950/00), unreported decisions given on 24 February 2005. There would seem no reason why the court might not adopt a similar approach to operations resulting in the death of a state’s own soldiers. The facts of this case do not require the court to define the positive duties that Article 2 imposes on the state in relation to its armed forces.”

At paragraph 105 Lord Hope expressed the opinion that the substantive obligation under Article 2 does not extend automatically to all service personnel in a volunteer army while they are on active service at home or within the Article 1 jurisdiction overseas. But he continued:

“…one must not overlook the fact that there have been many cases where the death of service personnel indicates a systemic or operational failing on the part of the state. These may range from a failure to provide them with the equipment which is needed to protect life to mistakes made in the way they were deployed due to bad planning or inadequate appreciation of the risks that had to be faced.”

He went on at paragraph 106 to conclude that on the facts “there is a sufficient indication of a systemic breach in an area that was within the jurisdiction for the purposes of Article 1 to engage responsibility of the state to carry out an effective investigation into the circumstances.” He was addressing the implied investigative duty, but as Lord Bingham observed in Gentle at paragraph 6 “…the procedural obligation under Article 2 is parasitic upon the existence of the substantive right and cannot exist independently”.

It is to be noted that Lord Hope had addressed the point in his speech in Gentle, in which at paragraph 19, and after observing that the jurisprudence which had developed from the decision in Soering did not apply, he added that:

“The guarantee in the first sentence of Article 2(i) is not violated simply by deploying service men and women on active service overseas as part of an organised military force which is properly equipped and capable of defending itself, even though the risk of their being killed is inherent in what they are being asked to do.”

Lord Rodger at paragraph 119 of Smith v Oxfordshire accepted that given the likelihood of extreme heat and its possible effects on soldiers, there was an obvious need to take appropriate precautions, and that it was at least possible that the army authorities had failed in some aspect of their Article 2 obligation to protect the deceased, and for that reason was satisfied that the Secretary of State was correct to concede the need for a Middleton inquest into his death. But he went on at paragraphs 120-127 to state that he would take an entirely different view of the death of a trained soldier in action, giving as an example a soldier killed by a roadside bomb blowing up the vehicle in which he was patrolling. As he put it at paragraph 120:

“The fact that the soldier was killed in these circumstances raises no prima facia case for saying that the United Kingdom army authorities have failed in their obligation to protect him and that there has, in consequence, been a breach of his Article 2 Convention rights.”

At paragraphs 121-125 he set out his reasoning, concluding at paragraph 126 that:

“126.

For these reasons, I am satisfied that, where a service man or woman has been killed by opposing forces in the course of military operations, the coroner will usually have no basis for considering, at the outset, that there has been a violation of any substantive obligation under Article 2.”

But he added that in the course of his investigation a coroner might uncover new information pointing to a possible violation of Article 2. The example that he gave is of death as a result of friendly fire; and he accepted that there may then be reason to believe that the military authorities had failed in their Article 2 duty to protect the soldier’s life.

At paragraph 127, in a passage of obvious relevance to the Snatch Land Rover cases, he said:

“127.

Once it is established, say, that a solider died because the blast from a roadside bomb penetrated the armour-plating on his vehicle, it may well be inferred that he would not have died if the plating had been stronger. And that simple fact may be worth pointing out as a possible guide for the future. But questions, say, as to whether it would have been feasible to fit stronger protection, or as to why the particular vehicles were used in the operation or campaign, or as to why those vehicles, as opposed to vehicles with stronger protection were originally purchased by the Ministry of Defence, or as to whether it would have been better to have more helicopters available etc., all raise issues which are essentially political rather than legal. That being so, a curious aspect of counsel’s submissions before this court was the complete absence of any reference to parliament as the forum in which such matters should be raised and debated and in which ministers should be held responsible. Of course, in consequence of pressure brought to bear by Parliament, the government might set up an independent inquiry with wide terms of reference to look into all aspects of a situation, including the political aspects. But we are concerned with the scope of a coroner’s inquest whose function is different. Many of the issues about the deaths of soldiers which are, understandably, of the greatest concern to their relatives are indeed of this much broader nature. In short, they raise questions of policy, not of legality, and so would fall outside the scope of any Article 2 investigation which a coroner might be obliged to carry out.”

At paragraph 137 Baroness Hale expressed agreement with Lord Phillips and Lord Rodger, saying that “we already know enough to raise a serious possibility that the United Kingdom may in some way have been in breach of its obligations under Article 2.” So too did Lord Brown at paragraph 150. Lord Mance, at paragraph 195, held that:

“… there is nothing that makes the Convention impossible or inappropriate of application to the relationship between the state and its armed forces as it exists in relation to overseas operations, in matters such as, for example the adequacy of equipment, planning or training.”

Lord Kerr expressed the view at paragraph 334 that:

“The prospect of the state owing Article 2 obligations to its soldiers serving overseas is not the daunting one that the appellant in this case has portrayed.”

But at paragraph 339 he went on to say that:

“In this context, I should say that I agree entirely with Lord Rodger JSC’s observations in paragraph 126 of his judgment. It will often be possible to suggest, after an event, matters that could have been taken that might have reduced the risk to a particular soldier but that type of retrospective analysis is surely inapposite (and would be recognised by courts as such) to address the question whether the state’s obligations to its soldiers under Article 2 have been discharged. The duty to protect soldiers in a war setting is of an entirely different nature from the obligation to take proper steps to ensure that civilians are not exposed to unnecessary risks from military operations. I do not believe that the fear of tactical decisions taken in the field by military commanders being subject to painstaking dissection by the courts is justified or that it should deter this court from declaring that when our government commits our armed forces to wars in foreign territories, it cannot deny them the protection that the Convention affords.”

Mr Weir therefore submits that clear support for the proposition that the defendant owed an Article 2 duty, both a systems duty and an operational duty, to the deceased, is to be found in the judgments in Smith v Oxfordshire, and that the question of whether there was a substantive breach of Article 2 will be for the court to determine at trial.

As I have already noted (paragraph 51 above), the allegations of breach of Article 2 fall into two categories, the failure to provide better/medium armoured vehicles for use by the deceaseds’ commanders, and secondly the allegations that relate to operational decisions made by commanders. In my judgment different considerations apply to each. As to the first, the procurement issues, I recognise that they may give rise to questions that are essentially political in nature which could have the effect of imposing obligations on the state in respect of the formulation or conduct of its political policies and/or military objectives and/or the funding and/or prioritisation of its military capabilities. But in the light of the observations made by the Justices of the Supreme Court in Smith v Oxfordshire, I do not consider that I can properly conclude that a positive systems duty could not arise on the pleaded facts with regard to the supply of equipment. It is alleged in each of the particulars of claim that medium weight fighting vehicles had been manufactured and were readily available on the open market at the time of the deaths of the deceased and for some years prior to their deaths. It is implicit from the passage from the judgment of Lord Hope in Gentle cited above (see para 73) that Article 2(i) could be violated by deploying servicemen or women on active service overseas as part of an organised military force which was not properly equipped. Similarly Lord Phillips in Smith v Oxfordshire could not exclude an affirmative answer to the question of whether the Strasbourg court would hold that the substantive obligations imposed by Article 2 extend to the adequacy of the equipment with which forces are provided (see paragraph79). Lord Hope at paragraph 105 observed, albeit in the context of the investigative duty, that Article 2 may be engaged in cases where the death of service personnel indicates a systemic or operational failing on the part of the state, including a failure to provide them with the equipment needed to protect life. Lord Rodger at paragraph 126, again in the context of the investigative duty, was satisfied that “… where serviceman or woman has been killed by opposing forces in the course of military operation, the coroner will usually have no basis for considering … that there has been a violation of any substantive obligation under Article 2.” But it is important to note the use of the qualifying adverb “usually”; and he went on to give the ‘friendly fire’ example of a situation in which death in the course of military operations might involve a breach of Article 2 obligations. See also in this context Baroness Hale at paragraph 137, and Lord Mance at 195 where he observed that “… there is nothing that makes the Convention impossible or inappropriate of application to the relationship between the state and its armed forces as it exists in relation to overseas operations in matters such as, for example, the adequacy of equipment …”.

Had I decided the jurisdiction issue otherwise, I would not therefore have struck out the claims or entered summary judgment on the basis that no substantive obligation arose under Article 2 in relation to the supply of equipment, or that the failures upon which the claimants rely in that regard did not amount to a breach of a substantive Article 2 obligation.

But I take a different view of the allegations that relate to operational decisions made by commanders. In my judgment there is no sound basis for extending the scope of the implied positive obligations under Article 2 so as to cover decisions made in the course of military operations. In that regard I find the reasoning of Lord Rodger in Smith v Oxfordshire (see paragraph 68 above) compelling.

The Causes of Action in Negligence

One of the Snatch Land Rover claimants, the claimant in the Ellis case, also alleges breach of duty of care to the deceased, namely:

It is submitted on behalf of the defendant that on the pleaded facts no such duties of care arose, and that in consequence the causes of action in negligence should be struck out; alternatively that judgment should be entered for the defendant in relation to such claims.

The Combat Immunity

The principle of combat immunity has developed to delineate the parameters of tortious liability to members of the armed forces in the context of armed conflict. The term is a convenient shorthand encapsulating the circumstances in which a duty of care does not arise on traditional Caparo principles. As Elias J observed in Bici v Ministry of Defence [2004] EWHC 786 (QB) the combat immunity is:

“Exceptionally a defence to the government and indeed individuals who take action in the course of actual or imminent armed conflict and cause damage to property and injury (including possibly death) to fellow soldiers or civilians.”

The principle first emerged in this jurisdiction in Mulcahy v Ministry of Defence [1996] QB 732 in which the Court of Appeal relied on three strands of authority in arriving at the conclusion that a soldier did not owe a fellow soldier a duty of care in tort when engaging the enemy in the course of hostilities, nor was there any duty on the MoD in such a situation to maintain a safe system of work. The three strands of authority were:

In Mulcahy the plaintiff was part of a team manning an M110 8 inch howitzer gun deployed in Saudi Arabia, firing into Iraq, during the first “Gulf War”. His case was that he had been injured when the gun commander negligently caused the gun to fire whilst the plaintiff was at the front of the gun carriage. He also put his claim in terms of a breach by the Ministry of Defence of the duty to adopt and maintain a safe system of work. The Ministry of Defence sought to have the claim struck out on the ground that it disclosed no cause of action. The County Court refused the application, but the Court of Appeal allowed the appeal and struck out the claim.

Neill LJ explained his primary conclusion at 748G-749A in the following terms:

“In my judgment the circumstances in which the plaintiff was injured clearly constituted “battle conditions” in the sense contemplated by Lord Reid, Lord Pearce and Lord Upjohn in the Burmah Oil case [1965] A.C. 75. Furthermore, I consider that an English court should approach this claim in the same way as the High Court of Australia in the Shaw Savill case, 66 C.L.R. 344. ... As I said earlier, I do not find it necessary to explore the territorial limits of this immunity. It is sufficient to say that in my view it covers the present situation where in the course of hostilities against an enemy a howitzer of the plaintiff’s battalion was engaging the enemy and the plaintiff was a member of the gun team.”

He continued at 749B-H:

“In addition it may be helpful if I state what my conclusion would be even in the absence of the Australian decisions and the Burmah Oil case [1965] A.C. 75. ...

The issue to be determined is whether it is fair, just and reasonable that a duty of care should be imposed on one soldier in his conduct towards another when engaging the enemy during hostilities. In the light of the recent amendment to the plaintiff’s pleading the same question has to be asked in relation to the alleged duty to maintain a safe system of work. ...

I am satisfied that in a hypothetical case a court would require proof that the injury was sustained in battle conditions. But here, as it seems to me, the plaintiff’s pleaded case makes the position clear. The question then becomes: “Is a duty of care to be imposed in such conditions so as to make one serviceman liable for his negligent act towards another?” In my opinion, despite the careful arguments addressed to us on behalf of the plaintiff, there is no basis for extending the scope of the duty of care so far. I would echo the words of Gibbs C.J. in the Groves case, 150 C.L.R. 113, 117: “To hold that there is no civil liability for injury caused by the negligence of persons in the course of an actual engagement with the enemy seems to me to accord with common sense and sound policy.” I reach the same conclusion on the plaintiff’s alternative claim. In my opinion there was no duty on the defendants in these battle conditions to maintain a safe system of work.”

McCowan LJ and Sir Iain Glidewell agreed with Neill LJ. Sir Iain Glidewell added at 750G:

“Like Neill L.J., it is in my judgment clear that public policy does require that, when two or more members of the armed forces of the Crown are engaged in the course of hostilities, one is under no duty of care in tort to another. Indeed, it could be highly detrimental to the conduct of military operations if each soldier had to be conscious that, even in the heat of battle, he owed such a duty to his comrade. My reasons are thus in essence those expressed by Dixon J. in the passage from his judgment in Shaw Savill and Albion Co. Ltd v The Commonwealth, 66 C.L.R. 344 which Neill L.J. has quoted. If during the course of hostilities no duty of care is owed by a member of the armed forces to civilians or their property, it must be even more apparent that no such duty is owed to another member of the armed forces. This conclusion is wholly consistent with, and supported by, the decision of the House of Lords in Burmah Oil Co. Ltd v Lord Advocate [1965] A.C. 75, and depends upon similar reasoning to that adopted by May J. in relation to police officers in Hughes v National Union of Mineworkers [1991] I.C.R. 669. In my judgment, therefore, at common law, one soldier does not owe to another a duty of care when engaging the enemy in the course of hostilities.”

Sir Iain Glidewell further observed at 751B-C:

“Mr Hawkesworth, for the plaintiff, sought to amend his pleading to allege that the defendants were ... also directly liable for failure to maintain a safe system of work. I agree with Neil L.J. however that such an amendment makes no difference. The reasons which result in the first question being answered “No” result in the same answer to the second issue.”

In Multiple Claimants v The Ministry of Defence [2003] EWHC 1134 QB, the PTSD case, I sought to draw from Mulcahy and from the three strands of authority relied upon by the Court of Appeal, propositions by reference to which the application of combat immunity could be resolved, namely:

“1.

A soldier does not owe a fellow soldier a duty of care in tort when either (one or other or both) are engaged with an enemy in the course of combat.

2.

The MoD is not under a duty to maintain a safe system of work for service personnel engaged with an enemy in the course of combat.

3.

In relation to both (1) and (2) the term combat has an extended meaning in that –

a.

the immunity is not limited to the presence of the enemy or the occasions when contact with the enemy has been established. It extends to all active operations against the enemy in which service personnel are exposed to attack or the threat of attack. It covers attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement.

b.

the immunity extends to the planning of and preparation for operations in which the armed forces may come under attack or meet armed resistance.

c.

the immunity will apply to peace-keeping/police operations in which service personnel are exposed to attack or the threat of attack.”

Three points arise. First as to proposition 3(b), and as is apparent from its application to the factual situations to which the PTSD case gave rise, the extension of the immunity to the planning of and preparation for military operations applied to the planning of and preparations for the operations in which injury was sustained, and not the planning and preparation made by the defendant in general for possible unidentified further military operations.

Secondly it was common ground in the PTSD case that the defendant owed a duty of care to their service personnel to provide a safe system of work so far as was reasonable and practicable in all the material circumstances. It was not asserted on behalf of the Ministry of Defence that it did not have the resources to take any of the steps for which the claimants contended. Accordingly, and as I observed at paragraph 2D(i), the complex issues as to the allocation of limited resources addressed by the Court of Appeal in R v Cambridge Health Authority Ex Parte B [1995] 1WLR898 did not arise.

Thirdly I rejected the submission made on behalf of the MoD that claims of personal injury would be rendered non-justiciable solely because the damage was incurred in combat; see paragraph 2C 18-19. I remain of the view that there is no basis for holding that in principle claims for personal injury or death of members of the armed forces in combat are not justiciable. My reasoning was set out in paragraph 2C 18:

“In my judgment that submission (that no cause of action can arise in relation to injuries sustained in combat irrespective of whether the acts or omissions to which such injuries are attributable fall within the combat immunity) is misconceived, and confuses the issue of the existence of the duty of care with the causation of injury. The issue is whether the MoD is under a duty of care in a particular set of circumstances. If the restriction of the duty of care does not arise on the facts, and a claimant is able to demonstrate breach of duty resulting in injury and consequential loss and damage, it is immaterial that the injury was sustained in the course of combat.”

In Bici Elias J provided further guidance as to the principles and rationale underlying the concept of combat immunity. He located it within the wider principle of state necessity, itself characterised as a component of the defence of necessity. He noted that where “the doctrine applies the court has been deprived of its historic and jealously guarded role of determining a dispute where a citizen claims that his rights have been unlawfully infringed by an act of the executive.” He cited the general rule articulated in Entick v Carrington (1765) 19 ST.TR 1030:

“… with respect to the argument of state necessity, or a distinction that has been aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions. ”

adding that:

“This is a ringing endorsement of the rule of law and of the system of democratic government. The executive cannot simply assert interests of state or the public interest and rely upon that as a justification for the commission of wrongs …”

In addressing the rationale for the immunity he propounded a restrictive test:

“It is closely and imprecisely related to (and in some cases perhaps identical with) a separate concept of necessity. This is exceptionally a defence to the government and indeed individuals, who take action in the course of actual or imminent armed conflict and cause damage to property or injury (including possibly death) to fellow soldiers or civilians. Unlike Act of State, the doctrine has nothing to do with a concern about undermining the acts of the executive in relation to foreign affairs. It is essentially an exception to the Entick v Carrington principle and as such should be narrowly construed … ”

I respectfully agree that the principle should be narrowly construed, and its application limited to situations in which the interests of the individual member of the armed services must of necessity be subordinated to the attainment of the military objective.

The application of the Principle of Combat Immunity

In answering those questions it is necessary to give separate consideration to the equipment and to the training allegations. As to the equipment allegations, the factual basis upon which the Challenger claims are mounted is set out at paragraph 24 of the particulars of claim. It identifies a number of devices that it is alleged could and should have been fitted to the defendant’s tanks, namely automatic target identity devices and/or what is described as situational awareness equipment, namely a secure tactical digital radio network with GPS. The Ellis claimant contends that the defendant was in breach of duty of care in failing to provide any or any sufficient better or medium armoured vehicles for use by Pte Ellis’ commander, and secondly in failing to ensure that Element A had been fitted to the ECM on the Snatch Land Rover in which he was travelling at the material time. It is not necessary for present purposes to go into detail as to the functions served by Element A. Suffice it to say that it is the claimants’ case that had it been fitted to the Snatch Land Rover in question, his death would have been prevented, presumably by detection of the IED before its explosion.

It is submitted on behalf of the defendant that there are a number of factors that compel the conclusion that the equipment claims have no real prospect of success. The first, and arguably the most compelling, is that the claims inevitably give rise to issues of procurement and allocation of resources that are essentially political in nature, and accordingly are not justiciable.

Mr Eadie placed reliance in this context on the judgment of Lord Rodger in Smith v Oxfordshire in which he said at paragraph 127 that:

“..questions, say, as to whether it would have been feasible to fit stronger protection, or as to why the particular vehicles were used in the operation or campaign, or as to why those vehicles, as opposed to vehicles with stronger protection, were originally purchased by the Ministry of Defence, or as to whether it would have been better to have more helicopters available etc, all raise issues which are essentially political rather than legal”

The closely related argument is that the respective positions and roles of the alleged tortfeasor and the beneficiaries of the alleged duty of care point firmly against its imposition, Mr Eadie arguing that decisions made by the MoD as regards the procurement and deployment of resources are made within the scope of its responsibility to defend the UK and its interests, and to strengthen international peace and security.

I recognise that issues of procurement and the allocation of finite resources may give rise to complex and difficult questions of an essentially political nature, or to decisions in relation to which a wide discretion must be accorded to the decision maker when addressing the third limb of the Caparo test, see also in this context the judgment of Sir Thomas Bingham MR in R v Cambridge Health Authority at 906E-F. But I am not persuaded that the fact that such issues may arise affords a blanket exclusion of liability. The point was addressed in general terms by Lord Nicholls in Stovin v Wise & Norfolk County Council [1996] AC 923 at 933D-E, where under the heading “A duty to act, and finite resources”, he said:

“The solution adopted is to have regard to the circumstances of the individual. He must act as would a reasonable person in his position. The standard of reasonableness is to be measured by what may reasonably be expected of the defendant in his individual circumstances. Where action calls for expenditure, the court if necessary will have regard to the financial resources of the defendant. The law does not always shrink away from such an investigation and regards itself as unable ever to make an assessment of competing demands for money.”

And see also 939B-C.

There can be no doubt that the defendant is under a general duty to provide adequate training, suitable equipment and a safe system of work for members of the armed forces. Since the commencement of the Crown Proceedings (Armed Forces) Act 1987, the defendant has been subject to three types of tortious liability, vicarious liability (section 2(1)(a)), employer’s liability (section 2(1)(b)) and occupier’s liability (section 2(1)(c)), and Parliament, through Health and Safety Regulations (Personal Protective Equipment at Work Regulations 1992, the Provision of Use of Work Equipment Regulations 1998 and the Management of Health and Safety at Work Regulations 1999) made the defendant subject to duties to provide equipment, adequate training and safe systems of work for service personnel. The discharge of the common law duty of care and/or the statutory duties imposed under the regulations will commonly involve decisions as to procurement of equipment or deployment of resources. The fact that it does so does not of itself exclude liability. In relation to causes of action in negligence, the question in any particular case will be whether the circumstances are such that it would not be fair, just and reasonable to impose a duty of care. The answer to that question will be fact sensitive. It will depend upon inter alia, the nature of the equipment in issue, its expense, availability and a risk/benefit analysis.

I am not therefore persuaded that the fact that the ‘equipment’ claims are likely to give rise to issues of procurement and allocation of resources, of itself demonstrates conclusively that it would not be fair, just and reasonable to impose the duties of care for which the claimants contend.

Secondly it is submitted that the imposition of the duty of care alleged is not in the wider interests of the community since it would mean that the armed forces would “go into action accompanied by the law of civil negligence”. The claimants do not seek to rely on acts or omissions of service personnel when engaged with the enemy in the course of combat. It is asserted on their behalf that the claims are directed at acts or omission in the course of planning and preparation for future and as yet unidentified, and therefore hypothetical operations. But it is submitted on behalf of the defendant that the pursuit of the pleaded claims will inevitably involve an analysis of events in combat, not least with regard to issues of causation. That is likely to be the case, but it does not follow that the imposition of a duty of care in relation to anterior events is against the wider interests of the community. I hold to the view that there is no basis for holding as a matter of principle that claims for personal injury or death of members of the armed forces are not justiciable simply because the damage was incurred in combat, see paragraph 96 above. Establishing the necessary causal relationship between the facts alleged to amount to a breach of a duty of care, and the deaths of the deceased will not involve an analysis or apportionment of blame; and it is in any event unlikely that there will be a live issue as to the circumstances of the ‘friendly fire’ incident that has given rise to the Challenger claims. Different considerations apply to the Ellis claim in negligence, a point to which I shall return.

Finally it is submitted that “… it would be very difficult, if not impossible, to set a standard of care that service personnel or the defendant could fairly be required to meet in the heat of battle, or when required to prepare troops and equipment speedily for deployment.” That is unquestionably the case, and is one of the arguments that provides the rationale for the combat immunity. But it is not in issue, and does not advance the argument as to whether the equipment claims as pleaded are bound to fail.

It follows that I am not persuaded that the equipment claims have no real prospect of success.

The Training Claims

But different considerations may apply to the allegations as to deficiency in the in-theatre training. On the face of it the allegations, which are contained in paragraph 29.D. (vii-ix) of the particulars of claim fall within the combat immunity, but I consider that that issue would be better resolved by the trial judge on the evidence.

Finally there remains paragraph 26.1 of the particulars of negligence/breach of Article 2 in the Ellis claim. It alleges a failure to limit the patrol upon which Mr Ellis was engaged to better/medium/heavily armoured vehicles, such vehicles having been taken out of front line use in Al Amarah following the deaths of soldiers in a Snatch Land Rover on 16 July 2005, and asserts that they ought not to have been put back into such use.

In my judgment that allegation falls squarely within the combat immunity, and accordingly will be struck out.