Smith & Ors v Ministry of Defence  EWHC 1676 (QB)
14 July 2011, June 2011
Smith & Ors v Ministry of Defence  EWHC 1676 (QB) – Read judgment
The Human Rights Act applies in the UK. That much is clear. Whether it applies outside of UK territory is a whole other question, and one for which we may have a new answer when the Grand Chamber of the European Court of Human Rights gives judgment in the case of Al-Skeini and others v. the United Kingdom & Al-Jedda v. the United Kingdom next week.
The court is to give its long-awaited ruling at 10am (Strasbourg time) on Thursday 7 July. In short, the 7 applicants in the case were killed, allegedly killed or detained (Al-Jedda) by British forces in Iraq between 2003 and 2007. Both of the claims reached the House of Lords in the UK (now the Supreme Court), and in all but one case, which involved a death in a military detention centre, the court found that the Human Rights Act did not apply in Basra at the time, and therefore the UK military had no obligation to observe the requirements under the European Convention on Human Rights, and in particulararticle 2 (the right to life) and article 5 (right to liberty).
For a summary of the cases, see this excellent EJIL:Talk! post (and this one too), which emphasises the “wide-ranging implications” of the judgment, including:
the extraterritorial application of the ECHR and the use of force generally… occupation and targeted killings… the responsibility of international organizations, the relationship between the ECHR regime and the UN Security Council under Article 103 of the Charter
The timing is uncanny, given that judgment was given only yesterday in Smith & Ors v Ministry of Defence  EWHC 1676 (QB). This is a case involving 7 British soldiers, 4 of whom were killed and 3 injured as a result of what they allege was poor equipment and/or training provided to troops in Iraq.
Mr Justice Owen in the High Court struck out the soldiers’ claims under the Human Rights Act. He said that his hand were tied as
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.
In fact, Smith v Oxfordshire involved the same “Smith” as in this particular case. His family had taken the territorial point to the Supreme Court, in relation to the family’s rights to have a full investigation into Mr Smith’s death under article 2, the right to life. The court turned them down last year (see my post) on the basis that
The contracting States might well not have contemplated that the application of article 2 to troop operations abroad would have involved obligations such as those I have discussed above, but whatever the implications might have seemed, it is unlikely that they would have appeared a desirable consequence of the Convention.
The Supreme Court declined the offer of extending the terrotorial scope of the Human Rights Act, instead leaving the question for the European Court of Human Rights in Strasbourg:
We are here dealing with the scope of the Convention and exploring principles that apply to all contracting States. The contention that a State’s armed forces, by reason of their personal status, fall within the jurisdiction of the State for the purposes of article 1 is novel. I do not believe that the principles to be derived from the Strasbourg jurisprudence, conflicting as some of them are, clearly demonstrate that the contention is correct.
The proper tribunal to resolve this issue is the Strasbourg Court itself, and it will have the opportunity to do so when it considers Al-Skeini.
So, when the matter came back in front of Mr Justice Owen, he had little choice but to strike out the human rights aspects of the claims, although he commented:
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.
Interestingly, he declined to strike out the common law negligence claims (that is, damages for personal injury), and said that despite the standard protection the military has against such claims – so called “combat immunity”, see e.g. this ruling at para 47 - that this immunity should be “narrowly construed” (para 99) and that in this case the claims as a result of allegedly faulty equipment should be allowed to proceed.
That being said, since this was only a preliminary hearing in which the Defendant was attempting to have the claim struck out, the claimants only had to show they had a “real prospect of success” as opposed to proving their case in full. So they may still lose in the case itself.
The claimants in Smith now have 14 days to appeal, and it seems highly likely that they will do so if the judgment in Al-Skeini & Al-Jedda changes the landscape as to where in the world the Human Rights Act applies. If the European Court does choose to expand the act’s jurisdiction, this could have enormous implications not just for those soldiers and their families, but many other people too. In short, the state’s responsibilities under the Human Rights Act may look very different come Thursday 7 July.