The Smith case

Supreme Court decision in Jason Smith Human Rights case

30 June 2010

Private Jason Smith was deployed to Iraq in June 2003.  He repeatedly told army medical staff that he was feeling seriously unwell due to the temperature, which was in excess of 50 degrees Celsius, before reporting sick in August 2003.  Four days later he was found lying face down, short of breath, confused and behaving erratically.  He suffered a cardiac arrest and was pronounced dead from hyperthermia within an hour.

Following a Coroner’s Inquest into her son’s death, during which the family were initially denied access to crucial documents relating to the circumstances of the death, Catherine Smith sought a judicial review. At the review, the High Court ruled that future investigations into deaths similar to Private Smith's will have to be independent, open to scrutiny, and involve the family (who should be entitled to public funding).

The High Court also decided that the Human Rights Act applied to all armed forces personnel serving outside the UK whether or not the death took place on an army base. This meant that the lives of troops had to be properly safeguarded, for example by ensuring they have adequate equipment and medical facilities.

The MoD challenged this decision at the Court of Appeal, which upheld the High Court’s ruling. The MoD subsequently appealed to the Supreme Court. The EHRC intervened in the proceedings before both the High Court and the Supreme Court.
The Supreme Court decided that a full inquest which complies with Article 2 of the European Convention on Human Rights will now be held into Private Smith’s death. It will investigate whether the MoD had sufficient systems in place to protect soldiers from the risks imposed by high temperatures and whether there were systemic failures which contributed to Private Smith's death.

The Supreme Court did, however, overturn the decision that the Human Rights Act applies to British troops serving abroad when they step off a British base. This means that, while the MoD has a legal obligation to ensure the lives of troops are properly safeguarded when they are on a British base, that obligation does not apply when they step off the base for example when they are in transit.

The Court said it was for the European Court of Human Rights to determine whether the law should be extended to cover military personnel when they are off an armed forces base.

John Wadham, Group Legal Director at the Equality and Human Rights Commission, said:

'We are disappointed with the Court’s finding that British nationals serving in the British army do not enjoy the same human rights safeguards as other individuals. Soldiers are often required to lay down their life for their country and in return, should be afforded human rights protection.

'Extending human rights protection is not about individual decisions in the heat of battle, but ensuring that when we send soldiers off to war they are properly prepared; kitted out correctly and with equipment fit for combat.

'However, we welcome the fact that Private Smith's death will now be investigated fully and that open, independent investigations will have to be held into deaths which take place in similar circumstances in the future. These investigations can help prevent future deaths, which is something for which we all wish.'

Notes

R(on the application of Smith) (FC) (Respondent) v Secretary of State for Defence (Appellant) and another [2010] UKSC 29

Article 1 of the European Convention on Human Rights provides that rights and freedoms should be available to all those within the State’s jurisdiction.

Article 2 deals with the right to life and provides that the State should safeguard life and take measures to investigate following a death. If forces serving abroad are not within the State’s jurisdiction under Article 1 then the duties under Article 2 do not apply.
 

 

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