Bici and Another v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Elias |
| Judgment Date | 07 April 2004 |
| Neutral Citation | [2004] EWHC 786 (QB) |
| Docket Number | Case No: LS 290157 |
| Court | Queen's Bench Division |
| Date | 07 April 2004 |
[2004] EWHC 786 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Elias
Case No: LS 290157
Mr. Stephen Miller Q.C. and Mr David Evans (instructed by Treasury Solicitors for the Defendants)
Mr. Paul Rose Q.C. (instructed by Irwin Mitchell for the Claimants)
Mr Justice Elias
Introduction.
At about midnight on July 2 nd 1999, three British soldiers involved in a United Nations peacekeeping operation in Kosovo shot and killed two men, Fahri Bici and Avni Dundi, and injured another two. The men, all Kosovar Albanians, were travelling together in a car in the city of Pristina. The shooting took place near a building known as Building 42. The first claimant in this action, Mohamet Bici, was injured by a bullet which struck him in the face. It entered his mouth and exited the lower left side of his jaw. Apart from the not inconsiderable pain, it has also caused longer term problems with eating and speaking. The second claimant, his cousin Skender Bici, did not suffer any direct physical injury but alleges that he has suffered psychiatric illness as a consequence of being in the car, both as a result of being put in personal fear, and from witnessing the incident. Both claimants sue for damages both in negligence and trespass. The soldiers say that they were acting in self-defence being in fear of their own lives.
It was ordered by the District Judge, in accordance with agreement between the parties, that the defendant's liability should be determined according to English law pursuant to section 12 of the Private International Law (Miscellaneous Provisions) Act 1995, and that there should be a separate trial on the issue of liability. The defendant has conceded that it is vicariously liable for any wrongs committed by any of the soldiers. The Crown retained command of the British forces notwithstanding that they were acting under the auspices of the U.N.
The background.
In June 1999 Kosovo was liberated from Serb occupation by international forces acting under the authority of the United Nations. The 1 st Battalion Parachute Regiment was part of that UN mandated multinational force. The battalion had entered Kosovo from Macedonia on 12th June 1999 and it reached the provincial capital of Pristina on the following day. Its objective was to ensure that Pristina was a secure environment. This involved controlling the withdrawal of the Yugoslav National Army, the Interior Military Police and other forces from Pristina. That withdrawal was to take effect in accordance with the military technical agreement that had been entered into between NATO and the Serbian Government in Belgrade. Prior to that agreement being reached, there was a real risk that the forces would have had to take the province by force.
I heard evidence about the general situation in Kosovo when the troops entered both from General Sir Mike Jackson, who in 1999 was the Commander of the Allied Command Europe Rapid Reaction Corps and was in command of the NATO troops that made up KFOR, and from the commander of the Parachute Battalion, Colonel (now Brigadier) Paul Gibson. They were in the best position to assess the problems facing the troops. They both confirmed that when the Serb authorities left, there was practically a complete breakdown of law and order in Pristina. The city was in a state of anarchy with no police force, criminal justice system or effective public administration. There is no doubt that the situation improved rapidly, but I accept their evidence that even by the date of the incident on the 2 July there remained a fear of attack by Serb forces from Serbia and occasional ethnic killings, sometimes barbaric, continued in Kosovo itself. There were also occasions when KFOR troops came under fire, particularly when they were caught in the cross fire when seeking to prevent atrocities being committed against Serbs. However, whilst the troops had to be on their guard, and incidents could arise at any time, for the most part, the British troops who made up the UN deployment force were welcomed by the inhabitants of Kosovo and treated as liberators. Colonel Gibson accepted that there had in fact been no casualties among the troops arising from contact with either the Serbs or the Kosovo Liberation Army ("UCK").
The purpose of the UN presence was to try to facilitate the transfer of power from the Serbs to the Kosovar Albanians. The leaders of the Kosovo Liberation Army ("UCK") had entered into an undertaking entitled the "Undertaking of Demilitarisation and Transformation". Two central features of this undertakings were first, that no weapons of a particular kind would be carried by UCK members within 2 kilometres of certain towns, including Pristina; and second, that there would be an orderly handing over of all weapons by the UCK. In addition there were to be no hostile or provocative acts, which included firing guns. If necessary, it was recognised that those that were not authorised to carry weapons would have to be disarmed.
The rules of engagement.
Each of the British soldiers stationed in Kosovo was issued with a document setting out individual guidance on the use of force. It permits the minimum force necessary to be used in self-defence. It provides that if the situation permits a challenge should be issued, such as "NATO! STOP OR I WILL FIRE", and that if there is a failure to stop a warning shot may be fired. Paragraph 11 provides, so far as is material:
"You may use necessary minimum force, including opening fire, against any individual whom you believe is about to commit or is committing an act which endangers life, and there is no other way to prevent such an act. For example, you may open fire against an individual who:
a. Fires or aims a weapon at you or any person in your presence.
Paragraph 13 states that "if you have to open fire, you must fire only aimed shots, and fire no more rounds than are necessary, and stop firing as soon as the situation permits."
The facts.
I now turn to consider the evidence. Much of the background is uncontroversial. I have heard evidence from a number of witnesses about the incident itself. As is inevitably the case in a fast moving and dramatic incident, there are a number of discrepancies in the evidence, and it is not possible to reconstruct in detail the exact sequence of events.
There are three areas where the proper inference to be drawn from the evidence is strongly contested. The first and crucial issue is whether the soldiers reasonably believed that Fahri Bici, who was on the roof of the car, was aiming a Kalashnikov at them, it being common ground that he did have such a weapon. This goes to the heart of their contention that they were acting in self-defence. The second issue is to what extent there was a hostile and potentially dangerous crowd gathering outside building 42, a building close to where the incident occurred, and which housed the remnants of the Serbian administration. For reasons I give below, I consider that in fact this is of limited relevance in this case. The third area of dispute is whether the shooting by the soldiers was deliberately and recklessly directed to disabling the vehicle rather than, as the soldiers claim, aimed solely to kill Fahri Bici. This turns very largely on the assessment of the two experts concerned with ballistics and such matters, and I shall deal with that separately after considering the first two issues.
The witnesses.
Surprisingly only one of the three soldiers has appeared to give evidence, namely Corporal Madden. The other two, for no very good reason as it appears to the court, have failed to do so, although Corporal Dolman did produce a witness statement. In the case of each of these soldiers, however, there was an earlier investigation by the Special Investigation Branch of the Royal Military Police. Corporal Dolman and Corporal Madden were twice interviewed in the course of that investigation, and the third soldier, Corporal Eacott was also interviewed. Mr. Rose Q.C., counsel for the claimants, accepted that I could have regard to that material, and indeed in part he relied upon it, whilst of course emphasising that it should be viewed with considerable caution in the case of Dolman and Eacott since he had not been able to cross-examine them upon it. Moreover, Corporal Madden said more than once when giving evidence that to the extent that there were conflicts between his evidence in the witness box and what he had said in those earlier interviews, the latter should be preferred because they were nearer the time of the incident. I did not find him a convincing witness.
Mr Rose also adduced in evidence certain statements from various witnesses, which was principally directed towards the prevailing atmosphere in Pristina on the night in question. Civil Evidence Act notices were issued on the grounds that the witnesses could say no more than was in their statements and that the cost of securing their presence was disproportionate to the benefit of their attendance. I do, however, bear in mind the concerns of Mr Miller QC, counsel for the Ministry of Defence, who observed not only that their evidence had not been tested by cross examination, but also that these were but a small group of people giving their own impressions of the atmosphere, that they were far from being universally shared.
Each of the claimants gave evidence. I found them to be essentially honest witnesses save that I do not think they were frank about the extent to which they were aware of Fahri Bici's use of guns, nor do I accept that they could have been in doubt, as they appear to have suggested, about whether Fahri was entitled to have a weapon....
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