Soldiers' Iraq damages claims can go ahead, Supreme Court rules

Damages claims brought by British soldiers and their families against the Ministry of Defence for failures in Iraq can go ahead, the Supreme Court ruled this morning.

The MoD applied to strike out the claims for reasons including combat immunity, the scope of Article 2 of the ECHR (right to life) and jurisdiction.

Giving the leading judgment, Lord Hope said the doctrine of combat immunity should be "narrowly construed" and not "extended from actual or imminent armed conflict" to failures at an earlier stage.

"At the stage when men are being trained, whether pre-deployment or in theatre, or decisions are being made about the fitting of equipment to tanks or other fighting vehicles, there is time to think things through, to plan and to exercise judgment.
"These activities are sufficiently far removed from the pressures and risks of active operations against the enemy for it to not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that is imposed has regard to the nature of these activities and to their circumstances."

On the scope of Article 2, Lord Hope said that while the court must avoid putting "unrealistic or disproportionate" obligations on the state in connection with planning and conduct of military operations, it must give effect to obligations "where it would be reasonable for the individual to be afforded the protection of the article".

He warned that a "wide margin of appreciation" must be given to the authorities, without depriving the article of content.

"No hard and fast rules can be laid down. It will require the exercise of judgement. This can only be done in the light of the facts of each case."

On jurisdiction, the deputy president of the Supreme Court said that following the principles set out in the Grand Chamber of the ECtHR's ruling in Al-Skeini, Article 2 did apply to members of the armed services serving outside the UK.

"To do so would not be inconsistent with the general principles of international law, as no other state is claiming jurisdiction over them."

The Supreme Court was ruling in Smith and others v MoD, Ellis v MoD and Allbutt and others v MoD [2013] UKSC 41.

Smith and Ellis concerned the deaths of two soldiers travelling in Snatch Land Rovers destroyed by improvised explosive devices.

Allbutt centred on a 'friendly fire' incident in which one Challenger tank fired on another one, thinking it was the enemy.

The court unanimously held that the Snatch Land Rover claims were within the UK's jurisdiction.

Lords Hope, Kerr, Walker and Lady Hale ruled that these claims should not be struck out on the grounds of being outside the scope of Article 2, and the Challenger claims should not be struck out on the grounds of combat immunity. Lords Mance, Wilson and Carnwath dissented.

Wendy Hewitt, deputy director of the Equality and Human Rights Commission, which intervened in the case, said: "The Supreme Court's ruling means that human rights protections have been levelled up so that we are no longer expecting our armed forces to fully respect the rights of civilians abroad while not being properly protected themselves.

"From this basic principle it is now up to the courts to decide how this should apply in practice. This is not about interfering with the way military decisions are made in the field but how everyone serving in the armed forces is given the protections they deserve."

Andrea Coomber, director of JUSTICE, which also intervened, welcomed the "clear and sensible" ruling.

"A step left or right over a boundary fence cannot be the ultimate arbiter of whether we owe a duty to our troops or not."