R (Smith) v Oxfordshire Assistant Deputy Coroner

Hearing dates: 9 and 10 March 2009

Sir Anthony Clarke MR:

This is the judgment of the court.

Introduction

This appeal arises out of the inquest into the death of Private Jason Smith which took place before the Assistant Deputy Coroner for Oxfordshire ('the coroner') and led to an inquisition dated 5 January 2007. Private Smith died on 13 August 2003 while serving in Iraq as a private soldier with the Territorial Army ('the TA'). The cause of death was hyperthermia or, in layman's terms, heatstroke. This appeal raises two independent questions. The first ('the jurisdiction question') is to what extent British soldiers serving in Iraq are protected by the European Convention on Human Rights ('the Convention'). The second ('the article 2 question') is whether the inquest should comply with article 2 of the Convention.

The facts

For present purposes the facts can be shortly stated and can be taken from the judge's judgment. Private Smith joined the TA on 2 October 199In June 2003 he was mobilised for service in Iraq. He arrived in Basra on 18 June 2003 but spent until 26 June 2003 in a tented camp in the desert in Kuwait for the purpose of acclimatisation. He then moved to his base in Iraq, which was an old athletic stadium with a concrete structure comprising terraces, office and accommodation space. It is said that the room which he was assigned was large and airy but without air conditioning. By August 2003 temperatures in the shade reached in excess of 50 º C, which was the maximum that available thermometers could measure.

On 9 August 2003, he reported sick, complaining that he could not stand the heat. Over the next few days, he carried out various duties off the base. On 13 August at about 7 pm he was found lying face down outside the door of a room in which two of his colleagues were present. He was short of breath and in a confused and erratic state. An ambulance was called and he was taken to the accident and emergency department of the medical facilities, but he sustained a cardiac arrest and was pronounced dead at 8.10 pm.

In these circumstances there were a number of matters which naturally called for investigation. They included the question whether Private Smith's death was caused by a defective system operated by the state to afford adequate protection to human life by ensuring, so far as reasonably practicable, that he was an appropriate person, with proper training and equipment, to expose to the extreme heat of Iraq. They also included the question whether there was a real and immediate risk of his dying of heatstroke and, if so, whether all reasonable steps were taken to prevent it.

The decision of Collins J

The appeal arises out of a decision of Collins J ('the judge') which was handed down on 11 April 2008. Although the coroner did not appear before the judge, he conceded that the inquisition must be quashed on two grounds. Those grounds arose out of the approach of the Ministry of Defence ('the MOD') to two reports of a Board of Inquiry ('BOI') which the Special Investigations Branch of the Royal Military Police had set up to inquire into Private Smith's death. The BOI made a report dated 24 May 2004. However, as the judge observed at [4], it was considered that the investigation had not dealt sufficiently with the standards used in judging the fitness of personnel for particular roles, with the result that the BOI reconvened and produced a supplementary report on 23 August 2004. Only the supplementary report was made available to the coroner. Moreover, it was not until the last day of the hearing that the existence of the first report was made known when the president of the BOI gave evidence confirming its existence.

When the existence of the first report was disclosed, the coroner decided that it was not necessary to consider it since he was persuaded by the evidence of the president that it would contain nothing which was likely to take matters further. This was most unfortunate from the point of view of the family of Private Smith. So too was the MOD's insistence that there be redaction of a number of documents which, as we understand it, had been supplied to the coroner. The coroner held that he had no power himself to disclose documents when the MOD objected. He further held that rule 37 of the Coroners Rules precluded him from exercising a discretionary power to order their disclosure. Before the judge the coroner conceded that those decisions were wrong in principle and consented to the quashing of the inquisition and verdict and to an order that a fresh inquest be convened before a different coroner. It follows that there will be a fresh inquest.

Not with standing the fact that there was to be a fresh inquest and even though both the questions identified above were academic, they were argued before the judge and he decided them. He decided both questions in favour of Catherine Smith (the claimant) but gave the Secretary of State for Defence permission to appeal because they raise questions of some general importance and, no doubt for that reason, both parties invite the court to consider them. The Secretary of State has described the judge's ruling on the jurisdiction question as being of great general significance. The importance of the questions is also stressed by the Equality and Human Rights Commission ('the Commission'), which has intervened in this appeal with our permission and has produced both evidence and written submissions which we have found of great assistance. In the circumstances we decided to hear full argument upon both questions and to determine them, especially since, now that the judge has decided them and given permission to appeal, it is desirable that they should be considered by this court. We consider them in turn.

The jurisdiction question

The question is whether a British soldier in the TA who, like Private Smith, is on military service in Iraq, is subject to the jurisdiction of the United Kingdom ('the UK') within the meaning of article 1 of the Convention, so as to benefit from the rights guaranteed by the Human Rights Act 1998 ('the HRA') while operating in Iraq or whether he is only subject to the jurisdiction for those purposes when he is on a British military base or in a British hospital. The reason why this question is academic is that Private Smith died in medical facilities on a UK base in Iraq and the Secretary of State has conceded that a soldier who dies on a UK base dies within the jurisdiction of the UK within the meaning of article 1 of the Convention. That concession is based on a concession made in the House of Lords in R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153.

The proceedings before the judge in this respect took an unusual turn. He heard full argument and concluded that such a soldier is subject to the UK jurisdiction throughout Iraq and not only when he is on a UK base or in a UK hospital. He prepared a judgment on that basis which is contained in [1] to [47]. However before he delivered his judgment in a final form, on 9 April 2008 the House of Lords handed down its judgments in R (Gentle) v Prime Minister [2008] UKHL 20, [2008] 1 AC 1356. At [8] Lord Bingham expressed (or was said to have expressed) an opinion which was different from that which the judge had formed. The judge accordingly entertained further argument on the jurisdiction question. Having done so, he issued an addendum to his judgment, in which he concluded that that opinion of Lord Bingham was not part of the ratio decidendi of Gentle, that he was not therefore bound by it and that, having heard full argument, which he said that the House of Lords had not, he was not persuaded that the view he had expressed in his judgment was wrong. He therefore adhered to it. The Secretary of State now submits that the judge was bound by the decision of the House of Lords in Gentle to reach the conclusion opposite to that which he in fact reached, alternatively that he was wrong as a matter of principle.

It is convenient to consider the jurisdiction question first without regard to the decision in Gentle, partly because it makes it easier to follow the argument arising out of Gentle, and partly because, even if the judge was bound by Gentle to reach a different conclusion, the point was not in our view fully reasoned out in Gentle and it is desirable that it should be.

Article 1 of the Convention provides:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”

Section I is entitled “RIGHTS AND FREEDOMS” and in article 2, which is entitled...