Thursday, June 13, 2024

This is an ARCHIVED article at Information and links may well be out of date.

Below is a Press Release issued by Mrs Catherine Smith's solicitors following the Supreme Court's decision issued on 30 Jun 2010 about whether soldiers on service abroad are entitled to any of the protections of the Human Rights Act and the European Convention of Human Rights:

Government wins appeal for soldiers' human rights


30th June 2010

by Jocelyn Cockburn, Hodge Jones & Allen LLP

Leading civil liberties law firm, Hodge Jones & Allen LLP, today responded to the Supreme Court’s Judgment concerning whether soldiers on service abroad are subject to the protections of the Human Rights Act.  In a majority decision on jurisdiction, the Supreme Court ruled that the Human Rights Act does not apply to soldiers abroad unless they are on a UK military base and thereby allowed the Ministry of Defence appeal. Ultimately this issue will now have to be tested in the higher European Court of Human Rights in Strasbourg.

On the second issue in the case the Supreme Court ruled in favour of Hodge Jones & Allen client Mrs Catherine Smith. The Supreme Court ruled that the second inquest into the death of her son Private Jason Smith, who died of heatstroke at an Army base in Iraq in 2003, must comply with the requirements of article 2 of the Human Rights Act.

Commenting on the Supreme Court’s decision, Jocelyn Cockburn of Hodge Jones & Allen, who is Catherine Smith’s solicitor said:

“Catherine Smith has succeeded in the specific circumstances of her case.  It had already been decided that there must be a second inquest because of the shortcomings in the first inquest but the Justices found unanimously that, contrary to the arguments put forward by the Ministry of Defence the inquest had to comply with the requirements of article 2 of the Human Rights Act. In finding for her on this they felt that there was sufficient evidence to suggest that the army may have failed to take reasonable steps to protect Jason Smith’s life.

Despite Mrs Smith’s success the wider implications of the decision are 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. Despite this, the Supreme Court has held that soldiers leave the UK jurisdiction, insofar as the Human Rights Act is concerned when they leave a UK army base. 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.

It is artificial to assert that rights can be protected on base but not off base.  It is impossible to see how the physicality of a base (whether that be a camp in the desert or other military installation) makes any difference to the question of whether a UK soldier is subject to UK jurisdiction. Is the Court saying that the moment a soldier steps over the line in the sand and is ‘off-base’ he has no ‘rights’? Whose jurisdiction are our soldiers under when they are off base in Afghanistan; Afghan jurisdiction or some sort of legal ‘no-man’s land’? Either must be a matter of serious concern to our servicemen and women.

Politicians frequently complain about judges being too political. Some would say that this is a case where that has worked in the Government’s favour. I have heard some irrational arguments put forward by the Ministry of Defence and the military elite – including the assertion that human rights protections will actually make soldiers less safe! Lord Rodger implies that it would be insulting to our soldiers to provide them with human rights protections.  A further, much repeated assertion by the military elite, is that law has no place on the battle field, even though law is already well established on the battlefield, for instance, our soldiers are well versed in the Rules of Engagement and restrictions on the use of lethal force.

The judiciary is divided in terms of this case. Up until the Supreme Court the judgments were unanimously in favour of Catherine Smith. Overall seven judges have found that soldiers are within UK jurisdiction wherever they serve: Collins J., Keene LJ, Lord Clarke and Lord Dyson (now both Supreme Court justices), Lord Mance, Baroness Hale and Lord Kerr all held that soldiers were protected by the Human Rights Act at all times. The six Justices in the Supreme Court who held the contrary were overall in a minority. It is disappointing that those Justices who found that soldiers off base are outside the jurisdiction of the UK relied on an erroneous interpretation of the law by Lord Collins who confused justiciability and jurisdiction, the former being about whether something can be litigated and the latter being about whose law and control one falls under.

To find that soldiers remain within the jurisdiction of the UK when sent abroad to serve would have accorded with five explicit statements to that effect by Strasbourg. It would have accorded with a Council of Ministers recommendation implementing the Convention to which the UK signed up just a few days prior to the hearing. It is well established that rights are modified in the military context and moreover, that States can derogate from the Convention in times of ‘war’. For the last two years soldiers have been entitled to human rights protection following the judgments of the High Court and Court of Appeal. There is no evidence to suggest that it has in any way hampered military operations and to have upheld that position would not have resulted in any change.   To reverse the position and hold that soldiers do not have rights at all off-base is a major and significant change; one that is likely to cause distress to our servicemen and women.  Moreover, it sets a dangerous precedent for certain countries in the Council of Europe that treat their soldiers very badly indeed. 

I fear that our brave servicemen and women will continue to be treated as second class citizens until this injustice is rectified by Strasbourg.  We may make a fuss about how much we admire our armed forces, provide a Military Covenant which has no basis in law (and then breach it) even create an Armed Forces Day when we can pat them on the back and tell them how much we admire them, but until we are willing to give our good intentions some legal basis our soldiers will continue to die from inadequate equipment and in other circumstances which are entirely avoidable.”