Supreme court quashes troops' human rights ruling

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Andrew Feinberg

White House Correspondent

The country's highest court today quashed rulings that British soldiers are protected even on the battlefield by human rights laws.

Six of nine justices at the Supreme Court overturned the finding by the High Court and Court of Appeal when they ruled over the death of Private Jason Smith while serving with the Territorial Army in Iraq.

But the Supreme Court unanimously dismissed an appeal by the Ministry of Defence against findings that a fresh inquest into Pte Smith's death must satisfy requirements under the right to life provision of the Human Rights Act.

Lord Rodger, one of the justices who allowed the appeal over jurisdiction, said: "Any suggestion that the death of a soldier in combat conditions points to some breach by the United Kingdom of his Article 2 right to life is not only to mistake but - much worse - to devalue what our soldiers do."

He said they were not only exposed to the risk of death or injury, similar to other jobs, they were deployed in situations where opposing forces were trying to kill them.

"While steps can be taken, by training and by providing suitable armour, to give our troops some measure of protection against these hostile attacks, that protection can never be complete. Deaths and injuries are inevitable," he said.

Pte Smith, who lived in Hawick, Roxburghshire, was deployed in Iraq in June 2003.

He repeatedly told medical staff he was feeling unwell due to high temperatures - sometimes over 50C (122F) - before reporting sick in August the same year.

He was found lying face down and taken to hospital but had suffered a cardiac arrest and was pronounced dead.

The Government conceded at the High Court hearing that soldiers on UK military bases or hospitals come within the Human Rights Act but Mr Justice Collins ruled that a state might be in breach of its human rights obligations if it could have taken steps to avoid or minimise a known risk to life but did not do so.

Court action was begun by Pte Smith's mother, Catherine, after she was initially denied access to crucial documents at an inquest into her son's death.

Speaking outside the court, Mrs Smith said: "I would like to have gone further but, because of the situation, I am having to accept I have got my verdict, I have to have another inquest.

"This time we might have full disclosure - that was one of the main points. We never had full disclosure, we have never seen his medical notes.

"I always thought that when you have an inquest that is one of the things they really need to give you, is the medical notes if this person has died on medical grounds.

"We hope that might come right this time."

Andrew Walker, the assistant deputy coroner for Oxfordshire, recorded at the inquest in November 2006 that Pte Smith's death was caused "by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate".

Jocelyn Cockburn, who represented Mrs Smith in her case at the Supreme Court, said the decision on jurisdiction was "shocking".

"If you asked British soldiers whose jurisdiction they are under, they would say the United Kingdom. They are bound by and can rely on its laws, wherever they serve in the world. They are sent abroad by the Queen (under the Royal Prerogative) to serve the people of the United Kingdom.

"It can only be hoped that the morale of soldiers who are risking their lives for us will not be severely damaged by this astonishing finding."

She said that ultimately the issue would have to be tested in the European Court of Human Rights in Strasbourg.

The Supreme Court heard from lawyers representing the Ministry of Defence, Mrs Smith, the Equality and Human Rights Commission and the Oxfordshire Coroner during the three-day hearing in March.

John Wadham, group legal director at the Equality and Human Rights Commission, said: "Soldiers are often required to lay down their life for their country and in return, should be afforded human rights protection.

"Extending human rights protection is not about individual decisions in the heat of battle, but ensuring that when we send soldiers off to war they are properly prepared; kitted out correctly and with equipment fit for combat.

"However, we welcome the fact that Private Smith's death will now be investigated fully and that open, independent investigations will have to be held into deaths which take place in similar circumstances in the future. These investigations can help prevent future deaths, which is something for which we all wish."

Defence Secretary Liam Fox, commenting on the ruling, said: "Providing our forces on operations with the very best support and equipment is a fundamental responsibility of Government, not an obligation that must be created by any law.

"That is why we have promised to repair the military covenant and I am committed to ensuring we do all we can for our brave personnel who put their lives on the line for our national security.

"Common sense has prevailed and it is of course right that commanders' orders given in the heat of battle should not be questioned by lawyers at a later date.

"It would have been absurd to try to apply the same legal considerations on the battlefield that exist in non-combat situations."

Chief of the Defence Staff Air Chief Marshal Sir Jock Stirrup said: "This outcome is not about denying rights to our people, it is about ensuring that we have a clear and workable set of rules under which they can carry out their demanding and dangerous work.

"Within that context, commanders at all levels are committed to the safety of the men and women they lead. We will continue to do everything we can to keep our people from harm by providing the best possible equipment and training.

"My sympathies remain with Mrs Smith and her family, whose son - Private Jason Smith - sadly died from heat stroke inside a base in Iraq."