R (on the application of Smith) (FC) (Respondent) v Secretary of State for Defence (Appellant) and another

Cite as:[2010] UKSC 29
Hand-down Date:June 30, 2010
 
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Trinity Term [2010] UKSC 29 On appeal from: [2009] EWCA Civ 441

JUDGMENT

R (on the application of Smith) (FC) (Respondent) v Secretary of State for Defence (Appellant) and another

before

Lord Phillips, President Lord Hope, Deputy President Lord Rodger

Lord Walker

Lady Hale Lord Brown Lord Mance Lord Collins Lord Kerr

JUDGMENT GIVEN ON

30 June 2010

Heard on 15, 16 and 17 March 2010

Appellant Respondent James Eadie QC

Pushpinder Saini QC

Dinah Rose QC

Jessica Simor

Sarah Moore David Barr

(Instructed by Treasury Solicitor)

(Instructed by Hodge Jones & Allen)

Intervener Michael Beloff QC Raza Husain QC

Elizabeth Prochaska

(Instructed by Equality and Human Rights Commission)

LORD PHILLIPS

Introduction

  1. Private Jason Smith joined the Territorial Army in 1992, when he was 21 years old. In June 2003 he was mobilised for service in Iraq. On 26 June 2003, after a brief spell in Kuwait for purposes of acclimatisation, he arrived at Camp Abu Naji, which was to be his base in Iraq. From there he was moved to an old athletics stadium some 12 kilometres away, where about 120 men were billeted. By August temperatures in the shade were exceeding 50 degrees centigrade. On 9 August he reported sick, saying that he could not stand the heat. Over the next few days he was employed on various duties off the base. On the evening of 13 August he was found collapsed outside the door of a room at the stadium. He was rushed by ambulance to the medical centre at Camp Abu Naji but died almost immediately of hyperthermia, or heat stroke.

  2. Private Smith's body was brought back to this country and an inquest was held. The inquest suffered from procedural shortcomings. His mother commenced judicial proceedings in which she sought an order quashing the coroner's inquisition. In bringing her claim Mrs Smith relied upon the Human Rights Act 1998. She contended that throughout the time that her son was in Iraq the United Kingdom owed him a duty to respect his right to life under article 2 of the European Convention on Human Rights and that the inquest also had to satisfy the procedural requirements of article 2. On more narrow grounds than these the Secretary of State conceded that Mrs Smith was entitled to the relief that she sought, and a new inquest is to be held. Two issues of public importance have been raised by her claim. Is a soldier on military service abroad in Iraq subject to the protection of the Human Rights Act 1998 ("the HRA") when outside his base? I shall call this "the jurisdiction issue". If so, must the death of such a soldier be the subject of an inquest that satisfies the procedures that article 2 of the European Convention on Human Rights ("the Convention") implicitly requires where there is reason to believe that a death may be attributable to default on the part of a public authority? I shall call this "the inquest issue". These issues are largely academic inasmuch as the Secretary of State has conceded that a fresh inquest must be held in relation to Private Smith's death that satisfies those Convention requirements - a concession which does not, of course, bind the Coroner. The courts below have nonetheless been prepared to entertain them because of their importance and this court has done the same.

    The jurisdiction issue

  3. Mrs Smith succeeded on this issue, both at first instance and before the Court of Appeal.

  4. Section 6(1) of the HRA provides:

    "It is unlawful for a public authority to act in a way which is incompatible with a Convention right."

    Section 1 defines the Convention rights as including articles 2 to 12 and 14 of the Convention.

  5. It is common ground that the HRA is capable of applying outside the territorial jurisdiction of the United Kingdom, but that section 6(1) will only be infringed by conduct that the Strasbourg Court would hold to have violated a Convention right. This was determined by the House of Lords in R (Al-Skeini) v Secretary of State for Defence [2008] AC 153. It follows that, in order to decide whether conduct has infringed section 6(1) of the HRA it is necessary to consider the ambit of application of the Convention. More particularly, no claim can succeed under the HRA unless there has been a breach of a Convention right of a person within the jurisdiction of the United Kingdom that should have been secured pursuant to article 1.

  6. Article 1 of the Convention provides:

    "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention."

    The jurisdiction issue is whether, on the true interpretation of article 1, British troops operating on foreign soil fall within the jurisdiction of the United Kingdom. There has recently grown a small body of authority, both in this country and at Strasbourg, dealing with the application of the Convention to the activities of armed forces on foreign soil. The Grand Chamber sat to consider this question in Bankovic v United Kingdom (2001) 11 BHRC 435, which has been recognised both in this country and at Strasbourg as a leading case on the scope of jurisdiction under article 1. I propose to start by considering that case.

    Bankovic

  7. Five of the applicants in Bankovic were close relatives of civilians killed by air strikes carried out on a radio and television centre in Belgrade by members of NATO, when intervening in the Kosovo conflict in 1999. The sixth applicant had himself been injured in the raids. The critical issue in relation to admissibility was whether the applicants and their deceased relatives came within the jurisdiction of the respondent States within the meaning of article 1 of the Convention.

  8. The applicants founded their case on the reasoning of the Court in Loizidou v Turkey (1995) 20 EHRR 99. The Court held in that case that a Greek Cypriot, who claimed in relation to the dispossession of her property in Northern Cyprus, was potentially within the jurisdiction of Turkey for the purposes of article 1 by reason of the fact that Turkey exercised "effective control" of Northern Cyprus. The applicants in Bankovic accepted that they could not contend that the action of the member States in bombing Belgrade put them under an obligation in relation to the observance of all of the Convention rights in the area bombed, but argued that they should be held accountable for those rights that did fall within their control, and in particular the right to life of those whom they bombed.

  9. The Court applied the principles agreed in the Vienna Convention on the Law of Treaties 1969 ("the Vienna Convention") to the task of interpreting article

  10. Thus it paid primary regard to the natural meaning of the words used, but also took into consideration the travaux préparatoires (the "travaux") and State practice. This approach contrasted with the approach that the Strasbourg Court has adopted of treating the Convention as a "living instrument" when considering the manner in which it operates. The Court recognised this at paras 64 and 65 but commented that the scope of article 1 was determinative of "the scope and reach of the entire Convention system of human rights' protection". The Court was indicating that the meaning of article 1, and thus the scope of application of the Convention, could not change over time, and this seems plainly correct as a matter of principle. I shall describe this as "the original meaning principle".

  11. The Court approached the natural meaning of "jurisdiction" on the premise that this had to be consonant with the meaning of that word under principles of public international law. Under these principles the jurisdictional competence of a State was primarily territorial. Thus:

    "...article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case...In keeping with the essentially territorial notion of jurisdiction, the court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the Convention." (paras 61 and 67)

  12. Thus the Court held that "jurisdiction" in article 1 was not limited to the territory over which a State exercises lawful authority. It extended in exceptional circumstances requiring special justification to other bases of jurisdiction. The difficulty in delineating article 1 jurisdiction arises in identifying and defining the exceptions to territorial jurisdiction.

  13. The Court recognised that one such exception arose where a member State had taken effective control of part of the territory of another member State. I shall call this the principle of "effective territorial control". Loizidou v Turkey exemplified this jurisdiction. The Court justified this exception by remarking at para 80 that the inhabitants of Northern Cyprus would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed by Turkey's "effective control" of the territory and by the accompanying inability of the Cypriot Government, as a contracting State, to fulfil the obligations that it had undertaken under the Convention. Thus the Court appeared to restrict the principle of effective territorial control to the territories of the contracting States.

  14. The Court made the following comments about this head of jurisdiction:

    "71. In sum, the case law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a contracting state is exceptional: it has done so when the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the...

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