Extraterritoriality and the Right to Life

Secretary of State for Defence v Smith, R (on the application of) [2009] EWCA Civ 441 (18 May 2009) The Court of Appeal of England and Wales held that a soldier in the British Army serving in Iraq was within the jurisdiction of the United Kingdom for the purposes of the Human Rights Act 1998 (UK).  The United Kingdom is therefore obliged to extend protection under the Act to its soldiers serving overseas even when they are not on military bases.

The Court also held that where a soldier on active service dies in circumstances that suggest a possible infringement of the right to life under the Act, the authorities must conduct an inquest that investigates not only the immediate circumstances of the death, but also the possibility of systemic failure on the part of the authorities to protect life.

Facts

Private Jason Smith was a soldier in the British Territorial Army.  He was mobilised for service in Iraq in 2003, spending a few days in Kuwait to acclimatise.  He then moved to a base in Iraq, which was not air-conditioned.  In August 2003 temperatures were over 50ºC in the shade.  Private Smith reported sick on 9 August 2003, but carried out various duties over the next few days.  On 13 August 2003 at around 7pm he was found at the base lying face down, confused and short of breath.  He was taken to hospital but died of cardiac arrest at 8.10pm.

These circumstances raised questions as to whether Private Smith's right to life under the Act had been adequately protected.  In particular, there were questions as to whether the Army provided him with proper training and equipment, and whether the particular circumstances of his death by heatstroke could have been prevented.

The initial coronial inquest into the death of Private Smith was quashed by the English High Court due to legal errors made during the course of the inquest.  The Court ordered a new inquest, and in doing so decided that:

• Private Smith was entitled to the protection of the Act at all times while serving in Iraq, and not only when located on a British military base; and
• any inquest into the death of Private Smith would need to investigate the broader circumstances of his death, including whether any Army policies played a part in it.

The Secretary of State for Defence appealed to the Court of Appeal.  The Equality and Human Rights Commission was granted permission to intervene in the appeal.

Decision

The Court of Appeal (Sir Anthony Clarke MR, Keene and Dyson LJJ) dismissed the appeal.

Application of Act to armed forces in Iraq

Article 1 of the European Convention on Human Rights obliges the United Kingdom to secure human rights 'to everyone within [its] jurisdiction'.  The Court observed that 'jurisdiction' had an established meaning in public international law - the exercise of legal authority over persons owing allegiance to a nation or under that nation's control.

Nations generally exercise jurisdiction within their own territories, so the 'jurisdiction' referred to in the Act is 'essentially territorial' in all but exceptional cases.  It was conceded that British military bases in foreign countries were one such exceptional case; the question was whether the United Kingdom's obligations extended outside military bases.

The Court of Appeal found that human rights under the Act extended to all soldiers on active service in foreign countries for two reasons.  First, British soldiers are subject to United Kingdom military and civil law while on active service, and may be tried and punished for breaching that law.  Secondly, it would be arbitrary to extend the full complement of human rights to British soldiers while inside their bases, only to withdraw them at the moment the same soldiers stepped outside those bases.

The Court therefore held that British soldiers serving in Iraq, both on and off their bases, were within 'the jurisdiction' of the United Kingdom for the purposes of the Act.

Scope of inquest

Observance of the right to life requires a full and effective investigation into deaths where it appears the right to life may have been infringed.  The Court of Appeal referred to 'article 2 inquests', these being inquests designed to comply with art 2 of the European Convention (which sets out the right to life) and to overcome some of the limitations of 'traditional' inquests.  In particular, art 2 inquests are intended to investigate and address whether there has been systemic failure on the part of the authorities to protect the right to life, through, for example, the failure to adopt or implement policies which adequately protect human life.  In the United Kingdom, these so-called art 2 inquests are the primary means by which the State discharges its procedural obligation to investigate deaths which may engage the right to life.

An issue in this case concerned the standard of investigation required for the death of a soldier on active service: whether the United Kingdom was obliged to conduct its own investigation into the death of Private Smith (which would take the form of a full art 2 inquest) or whether it was only obliged to facilitate an investigation, which might include a 'traditional' inquest together with other means of redress such as civil proceedings.

The Court of Appeal held that a full art 2 investigation was required in this case.  It drew on European cases which held that a government investigation was required into the deaths of army conscripts.  Private Smith was a regular soldier, but he was under the control of army discipline, and could not disobey a lawful order.  Although he was not as vulnerable as a conscript, his rights should be afforded the same protection.

Relevance to the Victorian Charter

This case confirms that a narrow view should not be taken of the concept of 'jurisdiction' in human rights legislation.  The Court of Appeal's approach seems consistent with the intention expressed in s 1(2)(c) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to impose on all public authorities an obligation to act in a way compatible with human rights.  It is likely similar arguments will be raised if an issue arises as to the activities of Victorian public authorities outside the State.

This case also reinforces the importance of a full and adequate investigation into deaths where a violation of the right to life may have occurred.  Similarly to the United Kingdom, the primary means by which deaths are investigated in Victoria is by way of a coronial inquest.  A question remains as to whether there may need to be changes to the way inquests are conducted in Victoria in order to comply with the procedural obligation on the State to investigate deaths which may engage the right to life.

The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2009/441.html.

Bryn Dodson is a lawyer with Allens Arthur Robinson