Armed forces related inquests, legal representation and human rights
Iinquests have raised a number of important issues affecting bereaved families, and sometimes also affecting serving personnel who might be subject to criticism or blame for their actions.
BAFF continues to argue for the availability of some form of legal aid to enable bereaved service families to be legally represented and advised at inquests, or fatal accident inquiries (FAI) in Scotland. We think that all bereaved families should have access to legal representation and advice, but service-related inquests can raise specialised issues, and often - unlike many "civilian" families - without any prospect of eventually recovering the costs as part of a compensation settlement.
The families of people who have died in police custody or in prison are in several respects treated better than bereaved service families.
There is also growing concern at the position of individual service personnel who may feature prominently in inquests as a result of their service duties - but may not receive any assistance from the Ministry of Defence in regard to the cost of legal representation or advice.
Lawyers instructed by the MOD naturally attend the inquest to represent the Ministry, not the serving individuals involved. Their line of questioning and argument is often designed to show that standing instructions were in place but not properly followed - without much regard to the interests of serving individuals.
Inquests have also raised important questions relating to the applicability of human rights to armed forces personnel while deployed on combat missions.
From Mr Justice Collins' judgement in the Jason Smith inquest case (see links opposite):
But the soldier does not lose all protection simply because he is in hostile territory carrying out dangerous operations. Thus, for example, to send a soldier out on patrol or, indeed, into battle with defective equipment could constitute a breach of Article 2*.
If I may take a historical illustration, the failures of the commissariat and the failures to provide any adequate medical attention in the Crimean War would whereas the Charge of the Light Brigade would not be regarded as a possible breach of Article 2.
So the protection of Article 2 is capable of extending to a member of the armed forces wherever he or she may be; whether it does will depend on the circumstances of the particular case.
* Article 2 of the European Convention of Human Rights - the "right to life"
In any debate about the applicability of the right to life and the duty of care in operational theatres, it should be noted that certain "military activities" are excluded from the scope of the criminal offence created by the Corporate Manslaughter and Corporate Homicide Act 2007. Furthermore, a wide range of operational military activities will be exclusively public functions within the terms of section 3(2) of the Act and so exempt from the offence.
The "military activities" exemption is contained in section 4 of the Act:
4. Military activities
(1) Any duty of care owed by the Ministry of Defence in respect of—
(a) operations within subsection (2),
(b) activities carried on in preparation for, or directly in support of, such operations, or
(c) training of a hazardous nature, or training carried out in a hazardous way, which it is considered needs to be carried out, or carried out in that way, in order to improve or maintain the effectiveness of the armed forces with respect to such operations,
is not a “relevant duty of care”.
(2) The operations within this subsection are operations, including peacekeeping operations and operations for dealing with terrorism, civil unrest or serious public disorder, in the course of which members of the armed forces come under attack or face the threat of attack or violent resistance.
(3) Any duty of care owed by the Ministry of Defence in respect of activities carried on by members of the special forces is not a “relevant duty of care”.
(4) In this section “the special forces” means those units of the armed forces the maintenance of whose capabilities is the responsibility of the Director of Special Forces or which are for the time being subject to the operational command of that Director.
- Corporate Manslaughter and Corporate Homicide Act 2007
- Explanatory Notes to Corporate Manslaughter And Corporate Homicide Act 2007
- Herald, 19/07/08, Killed soldiers ‘wearing wrong armour’ An inquest heard that two soldiers who were killed by enemy action in Afghanistan while manning a defensive position were wearing "incorrect" equipment which was not authorised by unit standing orders for use while in contact with the enemy. While there was evidence that the men would have died anyway even if they had been using the correct equipment, which had been issued to them, the coroner said "What concerns me is the standing order was not followed. Those soldiers should not have been in the position they were without the appropriate equipment. If they are issued with the correct equipment, but are later found not to be wearing it, that represents a failure in the chain of command."
- Telegraph, 21/06/08: Families of troops killed in Snatch Land Rovers to sue MoD
- Telegraph, 11/07/08: MOD in £3m abuse pay-out to Baha Mousa and nine other Iraqi 'torture' victims: "The settlement follows a statement by Des Browne, the Secretary of State for Defence in March when he admitted the Army had breached Article 2, the right to life, and Article 3, the prohibition of torture, in the European Convention on Human Rights."
Conservative Party's Military Covenant Commission
In their interim report issued on 17 June 2008, the Conservative Party's " Military Covenant Commission" chaired by author Frederick Forsyth deplored the backlog of military inquests said to be currently standing at 90 cases. The Commission also recommended that the Ministry of Defence should be banned from hiring barristers to defend it at military inquests.
Pte Jason Smith inquest
- BBC 11/4/08 - Human rights 'apply to UK troops' Includes link to video clip of Des Browne rejecting 'defective equipment' claims, and explaining decision to appeal against the court's judgment.
- Guardian 11/4/08 - Faulty army gear may breach human rights, court rules (Guardian)
- Times, 16/4/08 - The Law Explored: human rights on the battlefield
- Judgement of Collins J in Smith v Assistant Deputy Coroner for Oxfordshire & Secretary of State for Defence NB - the Secretary of State for Defence is appealing against the judgment.
- Times Law Reports 30/05/08 - Convention applies to Armed Forces on service outside the jurisdiction
- Short report from Weekly Law Reports
- Article by solicitor representing Jason Smith's family
- Ministry of Justice 18/06/08 - Coroner reform - draft charter for the bereaved.
- ePolitix.com 26/06/08 - Ministers defend plans for coroners' system
- Ministry of Justice - draft Coroners Bill index
Boards of Inquiry and Service Inquiries
Board of Inquiry were replaced on 1 Oct 2008 by a new harmonised system of "service inquiry" introduced under section 343 of the Armed Forces Act 2006.
- Ministry of Defence - Boards of Inquiry index (HMS Tireless 20th March 2007 BOI report published 11/06/08)
- MOD booklet - Board of Inquiry and Coroners' Inquests (published 08/02/08)
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