The case of Smith V Secretary of State for Defence is a case which has the Human Rights of British Armed Forces serving oversees at the heart of it.
The case was brought by the mother of Private Jason Smith (deceased) whose son was mobilised to Iraq in June 2003. By August time daytime temperatures were exceeding 50°C. Pte Smith made numerous complaints about feeling the heat, before reporting sick in August 2003. He was then subsequently deployed on various duties off the base. On the evening of 13th August 2003 he collapsed and died of heat stroke.
Following the death of Pte Smith, an inquest was convened; however, it did not comply with the procedural requirements under Article 2 of the European Convention on Human Rights. The initial standard inquest only looked into to the identity of the deceased and to "how, when and where" he came by his death, and as result the family were initially denied access to crucial documents relating to the circumstances of Pte Smith's death. An Article 2 complaint inquest must not only determine the identity of the deceased but also when, where and how the death occurred, but also in what circumstances.
The mother argued that her son was protected by Article 2 Right to Life, under the Human Rights Act 1998, and that a fresh inquest should be ordered to conform with the procedural requirements implied under Article 2.
When the case was initially heard in the High Court it was decided that Pte Smith had been protected by the Human Rights Act at all times in Iraq and a fresh inquest was ordered so that it be compliant with Article 2 of the HRA as it had not been so previously.
The Ministry of Defence appealed this decision in the Court of Appeal.
On 30th June 2010 in the Supreme Court, a panel of nine judges, ruled by a majority of 6 votes to 3 that it was not necessary in every case of a death of a serviceman abroad to carry out an investigation which examined whether there was fault on the part of the state because a) the Human Rights Act 1998 did not apply to Armed Forces on foreign soil and b) in any event, there was no such automatic right. The type of investigation would depend on the circumstances of the case.
The majority of judges believed that any conclusion as to the effect that Armed Forces bases abroad were within the jurisdiction of the UK, should be a question to be determined by the European Court of Human Rights in Strasbourg.
In essence the Supreme Court has ruled that a member of the Armed Forces serving oversees, is not entitled to the protection of the Human Rights Act when serving abroad, except when on a UK base. Meaning that as soon as they step of base, they lose this fundamental right.
Sadly, many soldiers and other members of the Armed Forces may not realise this present position in law. Whilst they make the ultimate sacrifice to their country, they do not have the fundamental Right to Life when serving off base overseas.
Written by Amy Wilmott of Hilary Meredith Solicitors
Author Resource:
Written for Hilary Meredith Solicitors by Olwyn Kinsey expert in Battlefield Accidents .
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