Armed Forces in UK Law

But, although for acts or omissions amounting to civil wrongs an officer of the Crown can derive no protection from the fact that he was acting in the King's service or even under express command, it is recognised that, where what is alleged against him is failure to fulfil an obligation of care, the character in which he acted, together, no doubt, with the nature of the duties he was in the course of performing, may determine the extent of the duty of care … It could hardly be maintained that during an actual engagement with the enemy or a pursuit of any of his ships the navigating officer of a King's ship of war was under a common law duty of care to avoid harm to such non-combatant ships as might appear in the theatre of operations.

Indeed, it could be highly detrimental to the conduct of military operations if each soldier had to be conscious that, even in the heat of battle, he owed such a duty to his comrade. If during the course of hostilities no duty of care is owed by a member of the armed forces to civilians or their property, it must be even more apparent that no such duty is owed to another member of the armed forces.

I would respectfully suggest that last sentence could as well have ended: "no less, but certainly no more." There seems to me, indeed, a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly.

Turning to the position in Afghanistan, it is true that – as Mr Hermer QC emphasised – UK along with US armed forces were already present in Afghanistan as part of Operation Enduring Freedom before the UN talks took place which led to a request to the United Nations to provide an international security force. However, ISAF was established pursuant to UNSCR 1386 as a newly created force.

I have accepted the evidence of Mr Devine that NATO was informed of the UK's decision to apply a "national policy caveat" to the ISAF 96 hour limit and did not object to this. But that is a very long way from showing that either UK detention operations generally or individual detentions by UK armed forces were under the command and control of ISAF.

I return to UNSCR 1546 (2004) against this background. It is a resolution of the Security Council under Article 42 of the UN Charter. That article (see para 59 above) empowers the Council to take such action by land forces as might be necessary to restore international peace and security. This letter included, among the broad range of tasks the MNF stood ready to undertake, "internment where this is necessary for imperative reasons of security in Iraq".

The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations.