R (Smith) v Oxon Asst Deputy Coroner [England, High Court, Queen's Bench Division (Administrative Court)]
| Jurisdiction | England & Wales |
| Judge | Collins J,Sir Anthony Clarke MR,Keene,Dyson LJJ,Lord Phillips,Lord Hope,Lords Rodger,Walker,Lady Hale,Lords Brown,Mance,Collins,Kerr |
| Judgment Date | 30 June 2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 June 2010 |
England, High Court, Queen's Bench Division (Administrative Court)
Court of Appeal.
United Kingdom, Supreme Court.
(Collins J)
(Sir Anthony Clarke MR; Keene and Dyson LJJ)
(Lord Phillips, President; Lord Hope, Deputy President; Lords Rodger and Walker, Lady Hale, Lords Brown, Mance, Collins and Kerr)
Human rights Nature and scope of human rights treaties European Convention on Human Rights, 1950 Article 1 Duty of parties to secure the rights and freedoms under the Convention to persons within their jurisdiction Extent of jurisdiction Persons outside the territory of a Contracting State Whether within its jurisdiction Jurisdiction essentially territorial and extraterritorial applications requiring special justification Whether British soldiers on military service in Iraq within jurisdiction of United Kingdom Whether Human Rights Act 1998 applicable Whether British soldiers entitled to rely on Article 2 of European Convention Whether inquest into death of British soldier having to satisfy procedural requirements of Article 2 of European Convention
Jurisdiction Concept of jurisdiction in international law Jurisdiction primarily territorial Circumstances in which jurisdiction of State extending beyond its borders Effective control over area Jurisdiction on basis of exercisable authority over individual European Convention on Human Rights, 1950 Article 1 British soldiers on military service in Iraq Whether within jurisdiction of United Kingdom for purposes of Article 1 of European Convention Domestic jurisprudence Strasbourg jurisprudence
Treaties Interpretation Vienna Convention on the Law of Treaties, 1969 Applicability to interpretation of European Convention on Human Rights, 1950 Scope of European Convention Meaning of phrase within their jurisdiction in Article 1 of European Convention Travaux prparatoires Whether Article 1 of European Convention to be interpreted as living instrument Ratification of European Convention by United Kingdom United Kingdom's obligations towards armed forces abroad Whether British soldiers operating in Iraq entitled to rely on Article 2 of European Convention
Relationship of international law and municipal law Treaties European Convention on Human Rights, 1950 Human Rights Act 1998 giving domestic effect to European Convention Section 6(1) of Act Whether Act applicable Article 2 of European Convention scheduled to Act Whether British soldiers operating in Iraq entitled to rely on Article 2 of European Convention Purpose of Act Jurisdictional scope of Act
Jurisdictional scope of European Convention Whether inquest having to satisfy procedural requirements of alleged breach of Article 2 of European Convention
War and armed conflict Invasion of Iraq United Kingdom forces in Iraq Legal position Consent of territorial sovereign Coalition Provisional Authority Occupation Belligerent occupation Effective control of territory Relationship between United Kingdom and its armed forces Territorial jurisdiction Personal jurisdiction Whether British soldiers serving in Iraq within jurisdiction of United Kingdom at all times for purposes of Article 1 of European Convention on Human Rights, 1950 Whether United Kingdom owing Article 2 obligations to its soldiers serving overseas
Human rights Right to life European Convention on Human Rights, 1950 Article 2 Whether inquest having to satisfy procedural requirements of Article 2 Whether systemic failure on part of State Scope of investigation Whether State having responsibility to carry out effective investigation into death of British soldier Whether death of every British soldier on active service requiring Article 2 investigation The law of England
Summary: 2The facts:The claimant was the mother of a British private soldier who had died of heatstroke while on military service in Iraq in August 2003.3 The inquest had found that Private Smith's death had been caused by a serious failure to address his difficulty in acclimatization.4 The claimant commenced proceedings to quash the defendant coroner's verdict and sought a fresh, enhanced inquest.
The claimant argued that, since British soldiers were subject to the jurisdiction of the United Kingdom while operating in Iraq, the Human Rights Act 1998 (the Act) was applicable (the jurisdiction issue).5 As such they were entitled to rely on Article 2 of the European Convention on Human Rights, 1950 (the Convention),6 which was scheduled to the Act. The claimant maintained that, since the United Kingdom had a duty to respect her son's right to life, the inquest had to satisfy the procedural requirements of an investigation into an alleged breach of Article 2 (the inquest issue).7
Judgment of the High Court (11 April 2008)
Held:The claim was allowed. The verdict was quashed and a new inquest was ordered.
(1) The Act applied to the deceased. Amember of the armed forces remained within the jurisdiction of the United Kingdom for the purposes of the Act at all times while serving in Iraq.
(a) Jurisdiction was based on the territorial notion set out in Article 1 of the Convention.8 Any other basis was exceptional and required special justification.9 Such exceptional circumstances included those where, as a result of military action, a State exercised effective control of an area outside its national territory or on board craft and vessels registered in or flying the flag of the State (paras. 1011).
(b) A State's competence to exercise jurisdiction abroad was subordinate to the foreign State's territorial competence. A non-occupying State could not exercise jurisdiction on the territory of another State without that State's consent, invitation or acquiescence (para. 11).
(c) At the material time, the order issued by the Coalition Provisional Authority in Iraq had stated that the multinational force, of which British troops formed a part, was immune from Iraqi legal process and that all personnel were subject to the exclusive jurisdiction of their sending States. The United Kingdom's jurisdiction over its nationals was clearly maintained. In any event, members of the armed forces remained at all times subject to the jurisdiction of the United Kingdom. It was wholly artificial to regard a soldier sent to fight in the territory of another State as subject to the jurisdiction of that State (para. 12).
(d) That the Act applied to the deceased was confirmed by the majority reasoning in Al-SkeiniINTL.10 The Act's purpose was to provide remedies in domestic law to those whose human rights had been violated by a United Kingdom public body, such as the army. Since the deceased was within the jurisdiction of the United Kingdom, the Act neither had extravagant effects nor interfered with the sovereignty of another State (paras. 1317).
(e) The judgment was not to be changed in light of GentleINTL.11 Since Lord Bingham's opinion was not part of the ratio decidendi, it was not binding (paras. 112 of the judgment's addendum).
(2) The fresh inquest had to accord with the procedural obligation arising under Article 2 of the Convention.
(a) The protection of Article 2 could extend to soldiers wherever they might be. Article 2 imposed a positive obligation to protect life as well as covering the taking of life by State agents. While soldiers sent to fight abroad could not receive absolute protection, they did not lose all protection. Article 2 might be
breached, for example, if a soldier was sent to battle with defective equipment (paras. 1820)(b) There was a procedural obligation under Article 2 for some form of official investigation. There were concerns that the army might have failed to provide an adequate system to protect Private Smith's life. The inquest had to decide by what means and in what circumstances the deceased met his death; it was not the means whereby a substantive breach was established. One of its purposes was to enable the next of kin to understand why the deceased died. A State's system of death investigation had to be full, involving a practical and effective investigation of the facts (paras. 2147).
The Secretary of State for Defence, an interested party, appealed.12 He argued that the judge was bound by Gentle and, alternatively, that he was wrong in principle.
Judgment of the Court of Appeal (18 May 2009)
Held:The appeal was dismissed on the jurisdiction issue and on the inquest issue.
(1) Private Smith was within the jurisdiction of the United Kingdom for the purposes of Article 1 of the Convention. As such he benefited from the rights guaranteed by the Act while operating in Iraq irrespective of whether he was on a British military base or in a British hospital.
(a) Although Article 1 of the Convention was not scheduled to the Act, the jurisdictional scope of the Act was identical to that of the Convention. It thus depended on the true construction of the phrase everyone within the jurisdiction of the United Kingdom (paras. 1015).
(b) The European Court of Human Rights had held that jurisdiction was essentially territorial but recognized that there were exceptions (Bankovi). The court was bound by the analysis of that decision in Al-Skeini, in which the majority had held the Act, in appropriate circumstances, to extend to acts of United Kingdom authorities, such as the armed forces, undertaken abroad as well as in the United Kingdom. It was necessary for the victim to have a sufficient link with the United Kingdom when he died (paras. 1626).
(c) Assuming that the death occurred outside a United Kingdom base or hospital, there was a sufficient link between Private Smith and the United Kingdom. It was artificial to say that a soldier ceased to be protected as soon as he left those confines. Members of the British armed forces were subject to United Kingdom jurisdiction wherever they were. They remained subject to United...
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