Susan Smith (on her own behalf and as administrator of the Estate of Philip Hewett, Deceased) (1st Appellant) Colin Redpath (on his own behalf and as Executor of the Will of Kirk James Redpath, Deceased) (2nd Appellant) Courtney Ellis (A Child) by her Litigation Friend Karla Ellis and Karla Ellis (3rd and 4th Appellants) v The Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Lord Justice Rimer,Lord Neuberger, Master of the Rolls |
| Judgment Date | 19 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1365 |
| Docket Number | Case No: B3/2011/2019 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 October 2012 |
[2012] EWCA Civ 1365
Lord Neuberger, Master of the Rolls
Lord Justice Moses
and
Lord Justice Rimer
Lord Neuberger, Master of the Rolls
Lord Justice Moses
and
Lord Justice Rimer
Lord Neuberger, Master of the Rolls
Lord Justice Moses
and
Lord Justice Rimer
Case No: B3/2011/2019
Case No: B3/2011/1927
Case No: B3/2011/1928
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
The Hon Mr Justice Owen
Royal Courts of Justice
Strand, London, WC2A 2LL
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
The Hon Mr Justice Owen
Royal Courts of Justice
Strand, London, WC2A 2LL
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
The Hon Mr Justice Owen
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Robert Weir QC and Ms Jessica Simor (instructed by Hodge Jones&Allen Solicitors) for the 1 st 2 nd, 3 rd and 4 th Appellants,
Mr James Eadie QC, Ms Sarah MooreandMs Karen Steyn (instructed by The Treasury Solicitors) for the Respondent
Mr James Eadie QC, Ms Sarah MooreandMs Karen Steyn (instructed by The Treasury Solicitors) for the Appellant and Mr Robert Weir QC and Ms Jessica Simor (instructed by Hodge Jones&Allen Solicitors) for the Respondent
Mr James Eadie QC, Ms Sarah MooreandMs Karen Steyn (instructed by The Treasury Solicitors) for the Appellant and Mr Richard Hermer QC and Mr Ben Silverstone (instructed by Leigh Day & Co Solicitors) for the Respondents
Hearing dates: 25 th–27 th June, 2012
Shortly after 1.15 a.m. on 16 July 2005, Private Hewett of the 1 st Battalion, The Staffordshire Regiment, was on patrol in a Snatch Land Rover in Al Amarah in Iraq, when he was killed by an IED detonated beside that vehicle. His mother claims that his death was the consequence of the failure of the Ministry of Defence to provide suitably armoured equipment for soldiers on active service in Iraq, in breach of their obligation to safeguard his right to life, enshrined in Article 2 of the European Convention on Human Rights.
On 28 February 2006, Private Ellis of the Second Battalion, the Parachute Regiment, attached to the Royal Scots Dragoon Guards, was driving a Snatch Land Rover in the vicinity of Al Amarah when he, too, was killed by an IED detonated beside his vehicle. His daughter and sister, the Ellis claimants, make a similar claim under Article 2. They also allege negligence in failing to provide suitable equipment, and in particular, in re-introducing Snatch Land Rovers, despite having withdrawn them from use, following the death of Private Hewett and other soldiers seven months previously.
On 9 August 2007, Lance Corporal Redpath of the 1 st Battalion, Irish Guards was killed when travelling north in a Snatch Land Rover, by an IED detonated beside the vehicle. His father brings a similar claim under Article 2.
These claims are known as the "Snatch Land Rover Claims". In his judgment, dated 30 June 2011, [2011] EWHC 1676 (QB), Owen J struck out the Article 2 claims under CPR r.3.4(2)(a) on the grounds that the deceased were outwith the jurisdiction of the Convention under Article 1 at the time they were killed. The claimants appeal. Owen J refused to strike out the claims made by the Ellis claimants in relation to a failure to provide suitable equipment, but struck out part of their claim relating to the re-introduction of the Snatch Land Rovers because it fell within the scope of "combat immunity". The MOD appeals, asserting that all negligence claims should be struck out; Courtney and Karla Ellis cross-appeal.
On 25 March 2003, Corporal Allbutt, Trooper Twiddy and Trooper Julien, serving with the Royal Regiment of Fusiliers, in the course of the fourth day of the offensive on Basra, were in a Challenger II tank, hull down, at 1.15 a.m., when Corporal Allbutt was killed, and Troopers Twiddy and Julien injured by shells from a similar tank fired by soldiers of the 1 st Battalion Black Watch. Corporal Allbutt's wife and Troopers Twiddy and Julien bring claims in negligence alleging a failure to provide available technology to protect against the risk of "friendly fire", and a failure to provide adequate vehicle recognition training.
These claims are known as the "Challenger Claims". Owen J declined to strike them out. The MOD appeals.
Convention Jurisdiction
Owen J founded his decision that the Snatch Land Rover claims did not relate to matters within the United Kingdom's Convention jurisdiction on R (Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1 and the authorities which it followed: R (Al- Skeini) v Secretary of State for Defence [2008] AC 153 and Bankovic v Belgium (2011) 11 BHRC 435.
Since his judgment, the Grand Chamber has delivered its judgment in Al-Skeini v United Kingdom [2011] 53 EHRR 18 (7 July 2011). It concluded that in South East Iraq the United Kingdom had, through its soldiers, exercised such authority and control over civilians killed by United Kingdom soldiers as to bring those civilians within the United Kingdom's Convention jurisdiction. This appeal, accordingly, raises the question whether this court is bound to follow the decision of the Supreme Court in Smith, even if the decision of the Grand Chamber is authority for the claimants' assertion of United Kingdom Convention jurisdiction over its armed forces when fighting abroad. If this court is bound by Smith, then the Article 2 claims must fail. If a binding precedent is inconsistent with Strasbourg authority, this court must follow the binding precedent ( Kay v Lambeth LBC [2006] 2 AC 465, [43]).
But is Smith binding on this court? In Smith six out of nine of the Justices concluded that the Convention did not apply to the armed forces of the High Contracting Parties when operating outside their territories. The Snatch Land Rover claimants contend that the ruling of the Supreme Court was obiter. This gives rise to the interesting, if technical, question as to whether that ruling was part of the ratio decidendi in Smith and is, accordingly, binding on this court.
The decision in Smith was that a soldier who died on his army base was within the United Kingdom Convention jurisdiction and, accordingly, was entitled, during the course of an inquest, to the procedural protection implicit in Article 2. The Secretary of State conceded that a fresh inquest should be held which satisfied the procedural requirements of Article 2, particularly in relation to disclosure. Nevertheless, the Supreme Court chose to give its ruling on the question whether a soldier on military service in Iraq outside his base was subject to the protection of the Human Rights Act 1998 (Lord Phillips [2]).
Three of the Justices suggested that the exercise on which the Court had embarked was inappropriate. (Lord Walker referred to his disquiet that the court "may be going some way beyond its proper exercise of judicial power" [129], Lady Hale doubted whether "the interesting things said" were binding [135], and Lord Collins said that the question was academic and recognised the "obvious danger in giving what are in substance advisory opinions on hypothetical facts" [223].) Lord Phillips thought the issue was "largely academic, though the Secretary of State's concessions did not bind the coroner [2]; Lord Mance said the issue was "of potential relevance" to the fresh inquest [159].
I do not accept, as Mr. Weir QC, on behalf of the Snatch Land Rover claimants, suggested, that the Supreme Court had merely embarked on an exercise designed to engage in a dialogue with Strasbourg (as Lord Brown had it in Rabone v Pennine Care Trust [2012] 2 WLR 381 [114]) and to communicate its views on the question of jurisdiction, in the hope that they would subsequently be adopted by the ECtHR. The jurisdiction issue was regarded as of public importance. It would be odd if the Supreme Court believed that it could satisfy the importance of the issue by a decision, after full argument, which was merely advisory and had no value as a precedent.
It is somewhat difficult to understand the point of hearing full argument and of giving full and reasoned judgments on the jurisdiction issue unless the Supreme Court expected the lower domestic courts to follow their decision. It must have appreciated that Strasbourg might take a different view and Lord Phillips recognised that Al-Skeini presented...
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