Smith and others v Ministry of Defence

The Supreme Court has given judgment in this important case concerning the reach of the Human Rights Act 1998 and common law negligence in relation to British soldiers abroad.

The claims were brought by the families of a number of British soldiers who were killed while on duty in Iraq. The claimants contended that the MOD had breached the positive obligation under Article 2 ECHR to take preventative measure to protect life and further had breached a common law duty of care. The MOD sought to strike out all of the claims.

The Supreme Court held unanimously that the deceased soldiers were within the UK’s jurisdiction for the purposes of Article 2 of the ECHR at the time of their deaths. A previous decision of the Supreme Court that reached the contrary conclusion was inconsistent with the subsequent decision of the European Court of Human Rights in Al-Skeini v United Kingdom.

The Supreme Court further held by a majority that the Article 2 claims should not be struck out on the facts and that the negligence claims should not be struck out on the ground of combat immunity or that it would not be fair, just and reasonable to impose a duty of care.

The judgment is available at:
http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0249_Judgment.pdf

James Eadie QC and David Pievsky acted for the MOD.
Iain Steele acted for JUSTICE, intervening.