Queen’s Bench Division
Published May 30, 2008
Regina (Smith) v Assistant Deputy Coroner for Oxfordshire
Secretary of State for Defence v Same
Before Mr Justice Collins
Judgment April 11, 2008

The right to life, protected by article 2 of the European Convention on Human Rights, could extend to members of the Armed Forces, wherever they might be; whether it did so would depend on the circumstances of the particular case.

Mr Justice Collins so held in the Queen’s Bench Division, in a reserved judgment when allowing claims by: (i) Mrs Catherine Smith, mother of Jason George Smith, who died of hyperthermia in Iraq, and (ii) the Secretary of State for Defence for the quashing of an inquisition by the Assistant Deputy Coroner for Oxfordshire, given on January 5, 2007, and for a fresh inquest to be held before a different coroner.

Having delivered the judgment, his Lordship said he had considered the judgment of the House of Lords in R (Gentle) v Prime Minister (The Times April 10, 2008) concerning two soldiers who had died in Iraq.

Lord Bingham had there referred to the principle of territoriality and said that, although the soldiers had been subject to the authority of the Crown, they were clearly not within the jurisdiction of the UK as that expression in the Human Rights Convention had been interpreted.

His Lordship observed that in Gentle the question whether a soldier would be able to take advantage of the Convention, subject obviously to the circumstances of any individual case, was not at the centre of the argument, but was very much a peripheral point.

His Lordship was satisfied that the observations of Lord Bingam were not part of the ratio of the decision. Other in the House had stated that they agreed with Lord Bingham’s reasoning, but to agree with the reasoning was not necessarily to constitute a firm agreement with every single part of that reasoning, particularly if a part was not necessary for the final decision that was reached.

In those circumstances, his Lordship was satisfied that what he had said, having heard full argument on the point, which the House had not heard, should stand. Despite the observations of Lord Bingham, to which of course his Lordship paid the greatest respect, he was not persuaded that he should change the judgment which he had handed down.

Ms Jessica Simor for Mrs Smith; Ms Sarah Moore for the Secretary of State for Defence; the coroner took no part in the hearing.

MR JUSTICE COLLINS said that the parties had agreed that the claims should be allowed, but wanted a decision on various grounds in order to give guidance for the fresh inquest.

The claimant’s son, a private soldier, was mobilised for service in Iraq in June 2003. In August 2003, shade temperatures exceeded 50? centigrade, and on August 9, 2003 he reported sick, complaining that he could not stand the heat. Over the next few days he carried out duties off the base.

On August 13, he was found lying down, short of breath and in a confused and erratic state. He was taken to the medical facilities, but sustained a cardiac arrest and died of hyperthermia.

An investigation was made by the Royal Military Police. A Board of Inquiry reported in May 2004, and, following further investigations, made a supplementary report in August 2004.

The existence of the first report was not made known until the last day of the hearing before the coroner, who decided it was not necessary to consider it.

Further, the coroner had declined to disclose anything in respect of which the Ministry of Defence objected. It was those matters which led to the agreement to the quashing of the inquisition.

The first point raised by Mrs Smith was whether the coroner had erred in holding that the procedural obligations in article 2 of the Human Rights Convention did not apply to the inquest.

Bankovic v Belgium ((2001) 11 BHRC 435) established that jurisdiction was based on the territorial notion in article 1, but in exceptional circumstances might extend to other cases.

Such circumstances included those where a State had as a result of military action exercised effective control of an area outside its national territory, as illustrated by R (Al-Skeini) v Secretary of State for Defence (The Times June 14, 2007; [2007] 3 WLR 33).

The situation in Iraq at the material time was such that the UK’s jurisdiction over its nationals was clearly maintained: moreover, members of the Armed Forces remain at all times subject to the jurisdiction of the UK: see also Lawson v Serco Ltd (The Times January 27, 2006; [2006] 1 ICR 250).

There were pointers to jurisdiction in Stras-bourg case law: see Martin v UK (Application 40426/98) (The Times November 27, 2006; (2006) 44 EHRR 31); but in any event absence of cases could not determine the correct answer.

As illustrated by Mulcahy v Ministry of Defence (The Times February 27, 1996; [1996] QB 732), there were limitations on the application of the Human Rights Act 1998, but a soldier did not lose all protection simply because he was in hostile territory carrying out dangerous operations.

The protection of article 2 was capable of extending to a member of the Armed Forces wherever he or she might be, but whether it did would depend on the circumstances of the particular case.

The procedural obligation arising under article 2, that there should be some form of official investigation, applied: see Jordan v UK (Application No 24746/94) (The Times May 18, 2001; (2001) 37 EHRR 52) and R (Middle-ton) v West Somerset Coroner ( The Times March 12, 2004; [2004] 2 AC 182). The investigation had to be full. The fresh inquest had to accord with the procedural obligation under article 2.

As to disclosure, the claimant’s second point, the Ministry of Defence had to disclose all relevant material to the coroner. Nondisclosure of witnesses’ names and claims for nondisclosure on national security grounds were matters for the coroner.

The presumption favoured as full disclosure as possible. But the recipient had to undertake not to use disclosed material other than for the purposes of the inquest.

The Ministry of Defence’s contention, that the finding that the deceased’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 was in breach of rule 42(b) of the Coroners Rules (SI 1984 No 552) that no verdict should be framed in such a way as to appear to determine any question of civil liability was not accepted, because it did not determine civil liability; findings of fact, however robustly stated, should not be forbidden.

Solicitors: Hodge Jones & Allen; Treasury Solicitor.

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