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R (Smith) v Secretary of State for Defence [2010] UKSC 29

The ECHR does not apply to soldiers serving abroad.

Related judgments

R (Smith) v Secretary of State for Defence [2010] UKSC 29


The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  


HUMAN RIGHTS — Right to life — State’s duty to investigate death — Jurisdiction — Soldier dying of heatstroke while carrying out duties off base in Iraq — Whether soldier’s death within scope of Human Rights Convention or of legislation giving domestic effect to Convention — Whether procedural requirements implicit in Convention right to life applying to inquest into soldier’s death — Human Rights Act 1998, Sch 1, Pt I, art 2 — Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (cmd 8969), art 1


British soldiers on active service abroad were not, as such, within the jurisdiction of the United Kingdom within the meaning of art 1 of the Human Rights Convention and were accordingly not protected by the Convention rights scheduled to the Human Rights Act 1998. Assuming, however, that the Convention did protect servicemen abroad, a inquest that complied with the procedural obligation in art 2 was not automatically required whenever a member of the armed forces died on active service.

The Supreme Court so stated (Baroness Hale, Lord Mance and Lord Kerr dissenting in part) on the Secretary of State’s appeal from the Court of Appeal (Sir Anthony Clarke MR, Keene and Dyson LJJ) on 18 May 2009, [2009] 3 WLR 1099B, [2009] WLR(D) 158Not on Bailii!, dismissing his appeal from Collins J who on 11 April 2008 [2008] 3 WLR 1284B, inter alia, granted Catherine Smith’s claim for judicial review of the inquest by the Oxfordshire assistant deputy coroner into the death of her son, Private Jason Smith, from heatstroke sustained while on duty off a military base in Iraq. The judge had concluded that (1) a British soldier was, throughout Iraq, within the jurisdiction of the UK for the purposes of the Convention, and (2) the new inquest was to conform with the procedural requirements of art 2 of the Convention.

The Supreme Court allowed the Secretary of State’s appeal (by a majority) on issue (1) and dismissed it unanimously on issue (2).

LORD PHILLIPS OF WORTH MATRAVERS PSC referred to Bankovic v Belgium (2001) 11 BHRC 435, which was applied by the majority of the House of Lords in R (Al-Skeini) v Secretary of State for Defence (The Redress Trust intervening) [2008] AC 153B, for the principles that art 1 reflected the territorial concept of jurisdiction, other bases being exceptional and requiring special justification. Those included effective territorial control taken by one state over the territory of another, and activities of the state’s diplomatic or consular agents abroad or on board craft and vessels registered, or flying the flag, of that state. He said that a different basis, state agent authority, where there was de facto control by state agents of persons as opposed to territory, had been rejected in Bankovic but subsequently advanced as an alternative basis of art 1 jurisdiction. The Secretary of State submitted that the deceased was only within UK jurisdiction when he was within territory under its effective control and he conceded that, because the deceased was at the base when he died, art 2 applied. Ms Rose, supported by Mr Beloff, argued that the deceased was subject to the UK’s jurisdiction as a matter of domestic and international law by reason of his special status as a serviceman; that soldiers were in the same position as other state agents and when exercising state powers extraterritorially they remained subject to the jurisdiction of the state. That argument should be rejected. The proposition was novel: it was not reflected by state practice and was almost wholly unsupported by Strasbourg jurisprudence. There were compelling reasons for following the essentially territorial approach approved in the Bankovic case.

The investigative obligation only arose where there was ground for suspicion that the state might have breached a substantive obligation under art 2. The death of a soldier on active service did not, of itself, raise a presumption of such a breach and therefore did not give rise automatically to an obligation to hold an investigation which complied with art 2. But in the deceased’s case, evidence before the coroner in the first inquest raised the possibility of systemic failure by the military authorities to protect soldiers from the risk posed by the extreme temperatures in which they had to serve. There was therefore an arguable breach of a substantive obligation under art 2 which was sufficient to trigger the need for a verdict which complied with the requirements of that article.


R (Smith) v Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) [2010] UKSC 29B; [2010] WLR (D) 165

SC(E): Lord Phillips of Worth Matravers PSC, Lord Hope of Craighead DPSC, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Mance, Lord Collins of Mapesbury, Lord Kerr of Tonaghmore JJSC: 30 June 2010

Appearances: James Eadie QC, Pushpinder Saini QC, Sarah Moore and David Barr (instructed by Treasury Solicitor) for the Secretary of State; Dinah Rose QC and Jessica Simor (instructed by Hodge Jones & Allen) for the claimant; Michael Beloff QC, Raza Husain QC and Elizabeth Prochaska (instructed by Legal Director, Equality and Human Rights Commission) for the intervener.

Reported by: Diana Procter, barrister


[2011] AC 1Not on Bailii!

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