NOTA BENE legal consulting: MoD LOSES THE ABILITY TO HIDE ITS NEGLECT

‘Where-ever law ends, tyranny begins’

John Locke

Last month the lawyers representing a number of soldiers killed or injured during active service won a remarkable victory for the rule of law. The claims arose out of three separate incidents spanning the initial Iraq conflict and its subsequent occupation. In the first, a Challenger tank fired on another by mistake in the dark during the initial combat operations. The other two claims featured military patrol vehicles, known as 'Snatch Land Rovers’ that were hit by improvised explosive devices during what has become known as 'The Insurgency'.

The Challenger claims are founded on common law negligence, on the basis that the Ministry of Defence failed to provide suitable identification and recognition equipment and that it failed to provide adequate pre-deployment training. All but one of the Snatch Land Rover claims were based on the contention that the Ministry of Defence had failed to take suitable measures to protect the lives of its servicemen, in circumstances where it ought reasonably to have done so, in the light of the real and immediate risk to life of soldiers required to undertake patrols in these lightly armoured vehicles, in breach of article 2 European Convention on Human Rights. One of these claims also included similar allegations founded in negligence.

In Smith & Ors v Ministry of Defence [2013] UKSC 41 the claimants successfully resisted a preliminary strike out application by the Ministry of Defence. The Defence was based on a number of technical and public policy grounds including: (i) that the article 2 of the ECHR right to life did not apply to members of the armed forces serving abroad, (ii) that all the claims were barred by combat immunity and (iii) that in all the circumstances it was neither fair just nor reasonable for the MoD to owe a common law duty of care.

On the jurisdictional issue: the Supreme Court considered a line of rulings from the European Court of Human Rights in Strasbourg to the effect that although the application of the ECHR is indeed generally restricted to the territory of member states, it can in exceptional circumstances be extended beyond its normal geographical constraint. It can even encompass foreign territory that is under the military control of a contracting state. This was held to apply in Öcalan v Turkey (2005) 41 EHRR 985 where a number of Turkish soldiers captured and then killed some Iraqi shepherds.

The Supreme Court were unanimous in ruling, for the first time, that the jurisdiction of the ECHR is capable of extending to cover a contracting state’s treatment of its own armed forces serving abroad. This ruling is subject to the caveat that the article 2 right to life must take into account the relevant context of the complaint and it cannot impose an impossible or disproportionate burden on the contracting state.

However, the Supreme Court was divided on whether to strike out the claims on the basis of combat immunity or whether, given the operational circumstances, it was fair just or reasonable to impose a duty of care on the MoD.

The public policy imperative behind combat immunity is self evident: no state can conduct dangerous military operations effectively if in the exigency of battle its soldiers believe that every operational and tactical decision will expose them to the risk of civil litigation. However, as Mulcahy v Ministry of Defence [1996] QB 732 and many earlier authorities confirm, combat immunity is an exception to the basic rule of law and as such it is something that should be applied sparingly and kept within narrow confines.

The Defence also relied on the line of authorities emanating from Hill v Chief Constable of West Yorkshire [1989] AC 53, to contend that just as there are strong public policy grounds for holding that the Police do not owe members of the public a duty of care in the execution of their duties, the same precept should apply to servicemen in active operations of this kind.

A majority took the view that all these matters were highly fact specific issues which could not be disposed of at a preliminary hearing without consideration of the evidence. Consequently, the Defendant’s strike out application was dismissed.

The claimants are not complaining about being exposed to combat risks and other unavoidably dangerous operations. Instead they allege that the Ministry of Defence exposed its servicemen to a range of unnecessary and preventable risks: caused by lack of suitable training and / or the provision of inadequate equipment as well as from the inappropriate assignment of ‘Snatch Land Rovers’ in situations where improvised explosive devices were known to be deployed. Although these claims can now proceed, the final outcome is far from certain.

It seems that much will turn on the chronology of events and when, precisely, each act of negligence or breach of duty is alleged to have occurred. Lord Hope put it this way: ‘It will be easier to find that the duty of care has been breached where the failure can be attributed to decisions about training or equipment that were taken before deployment, when there was time to assess the risks to life that had to be planned for, than it will be where they are attributable to what was taking place in theatre.’ [99]. In his dissenting judgment, Lord Mance identified significant problems with this approach [122 to 127]. These issues will no doubt be considered at length if and when the claims proceed to the main trial on liability.

However there is one permanent legacy from this ruling. The Ministry of Defence can no longer complaisantly rely on public policy to dismiss, out of hand, accusations of grave and culpable neglect of its servicemen. These claims must now be subjected to proper judicial scrutiny and I think that there will be many who welcome this.

Meanwhile, the Ministry of Defence appears destined to continue to squander gargantuan sums in its procurement of excruciatingly expensive white elephants, seemingly with impunity. Such profligacy must have had a part to play in the Ministry’s failure to equip its Challenger tanks with vehicle identification equipment or its Snatch Land Rovers with electronic IED countermeasures in Iraq. It will be recalled that other easily preventable tragedies have resulted from the absence of some very basic items of kit: such as air conditioning or body armour. Whilst it is clearly not in the national interest to impede our armed forces with the threat of civil liability if things should go wrong in the preparation for or conduct of active operations against the enemy, it must nevertheless be in the public interest to expose systemic failings in procurement as well as failings on the ground to properly train and equip our servicemen, especially where these blunders are responsible for lost lives and grievous injury.