THERE has been much public and political debate about the quality of military equipment, and the question has now shifted to the judicial arena. The issue reached the Supreme Court in the joined appeals of Smith v Ministry of Defence [2013] UKSC 41.
A number of separate incidents had occurred where inappropriate equipment or inadequate training was alleged to have led to British military personnel being killed or injured in Iraq. One case arose from a friendly fire incident involving a Challenger tank; another set of cases concerned fatalities caused by roadside bombs involving soldiers patrolling in lightly armoured Snatch Land Rovers. The claimants argued that in failing to provide suitable equipment and training, the MoD had breached duties of care in negligence and/or Article 2 ECHR obligations in respect of the soldiers as employees.
Underlying this case were fundamental issues about the appropriate judicial scrutiny of sensitive governmental decisions, resource allocation, notions of justiciability, and the applicability of policy concerns to military activities. This potent cocktail might perhaps explain why the Supreme Court was so sharply split, dividing along 4–3 lines. The majority in the court rejected the strike-out applications and held that the claims based on both negligence and breach of Article 2 ECHR should be allowed to proceed to trial.
A degree of consensus was, however, achieved within the court on the preliminary issue of the state's jurisdictional competence, namely whether the British armed forces undertaking military operations abroad were within the jurisdiction of the UK under Article 1 ECHR. The Supreme Court overturned previous authority, relying upon the Strasbourg Court's Grand Chamber judgment in Al Skeini v UK (2011) 53 E.H.R.R. 18, and in particular the general principle of jurisdiction with respect to state agent authority and control. Lord Hope considered that authority and control are exercised by the state from the top of the chain of command right down to personnel operating in the front line. An occupying state cannot have jurisdiction over local inhabitants without already having jurisdiction over its own armed forces (including in respect of combat situations outside base). Both categories of persons were therefore brought within the state's Article 1 jurisdiction by virtue of the same aforementioned principle.
As concerns the substance of the claims, similar issues underpinned the majority judgment in respect of both the common law and human rights approaches. On the central issue of justiciability Lord Mance considered, in a vigorous dissent, that this was an area in which “the common law should not tread”. To illustrate this point, he asked rhetorically whether the courts would have reviewed whether casualties in the First World War could have been avoided by the development of a tank. The majority took a different view. Whilst certain defence procurement decisions might be linked to the exercise of political judgment, many such decisions could not be so characterised, and moreover did not relate directly to active operations. There was thus a middle ground of potentially justiciable decisions, and in order to identify these, the courts needed to exercise judgment based upon the facts of the individual cases.
Similar issues arose within the context of claims based upon negligence, in respect of which the MoD argued that combat immunity should be interpreted broadly so as to cover all acts or omissions in the course of combat operations. Lord Hope declined to accept that interpretation. He instead opined that such an immunity should be narrowly construed, given that it was an exception to the principle that the interests of the state should not serve as a justification for the commission of wrongs. It was thus held that combat immunity should not automatically encompass failures during pre-deployment or in-theatre training, or decisions about equipment.
Doubt was however cast in the dissenting judgments upon the distinction between active operations and the planning stage. Whilst there is perhaps truth in the concern expressed by Lord Mance that procurement and training decisions are in practice inherently linked to the operations in the theatre of combat, delimitation issues would probably plague any attempt to apply combat immunity to an early stage. Would the protection apply only to military planning in respect of operations during which injury was sustained? Or more generally to planning and procurement? It would be incongruous if it was the latter, given the legislative drive to open up judicial scrutiny of military procurement, notably via remedies in the defence procurement sphere (see e.g. implementation of Defence and Security Directive 2009/81/EC).
The court examined also whether it would be fair, just or reasonable to impose a duty of care on the MoD to protect the soldiers against death or injury. Commentators have doubted, from a standpoint of policy, the wisdom of scrutinising careless planning of military operations (e.g., Booth and Squires, The Negligence Liability of Public Authorities, (2006), para 17.26). But in Smith, attempts by the MoD to draw analogies with the police cases (where duties of care have been denied for alleged negligence in the course of investigating crime) were given short shrift by the majority, albeit in a somewhat lightly reasoned portion of the majority judgment. Indeed, this aspect attracted the disapproval of Lord Carnwath who, in an additional dissent, expressed surprise at the reticence of the majority to determine these issues at a preliminary stage. He himself saw the police cases as the most useful analogy.
And yet, is it so surprising that in this emerging area of the law, the courts prefer to review concrete rather than hypothetical and untested facts before deciding where the appropriate contours of duties of care (or positive obligations under Article 2) should really be drawn? In a previous note in this journal, Jonathan Morgan has remarked that it is surprising that the ghost of the ECHR case of Osman lives on (Osman v UK (2000) 29 E.H.R.R. 245), but the courts' reluctance to decide broad issues of principle at an early stage of proceedings has outlived earlier cases such as Barrett v Enfield L.B.C. [2001] 2 A.C. 550 and Phelps v Hillingdon L.B.C. [2001] 2 A.C. 616. For instance, in the judgment against the UK Government in the Mau Mau litigation (Mutua v Foreign and Commonwealth Office [2011] EWHC 1913, at [138]), McCombe J. found that the claimant Kenyans did have arguable claims against the British Government, noting that where the law was not clear it was undesirable to strike out claims on the basis of the absence of a duty of care on untested facts.
It is particularly important that decisions on controversial policy issues are not made in an evidential vacuum. A recent Policy Exchange report, jointly co-authored by two former military services personnel has suggested that the recognition of potential liability has contributed to undermining the armed forces' ability to operate effectively on the battlefield (Tugendhat and Croft, The Fog of Law: An introduction to the legal erosion of British Fighting Power (2013)). But much of this seems to be premised on anecdote and assumption. Might it not be just as convincingly argued that the possibility of liability will reinforce rather than undermine standards?
As proposed in the Policy Exchange report, it is always open to the government to revive Crown Immunity in this area by means of an order of the Secretary of State for Defence under section 2 of the Crown Proceedings (Armed Forces) Act 1987 for the purposes inter alia of “any warlike operations…outside the United Kingdom”. In the absence of such an order, should the courts really reach the same result by the deployment of policy or immunities?
The Supreme Court was at pains to show that safeguards were in place. Even if the majority thought the claims were arguable, the claimants will still have many obstacles to surmount in the common law claims to show that there was a negligent breach which caused loss. Over and above the fact that matters of high-level policy or exercise of political judgment would not be subject to review in negligence, it was held that resource issues and the exercise of discretion could be accommodated by modulating the standards of behaviour expected of the MoD in the specific circumstances. Lord Hope emphasised that care would need to be taken that unrealistic or excessively burdensome duties were not imposed on those in active service. Broader constraints and the impact of policy could be taken into account in the standard of breach. This approach is consonant with a perceptible shift in recent times from duty to breach in negligence cases in other areas of public authority liability, though it is true that this does pose challenges for the courts in terms of disposing with weak cases at an early stage.
Public authority liability is a notoriously thorny area of the law, as illustrated by the divided court in the case, and the unusually vigorous dissents. Powerful statements were made by the Justices about the need to avoid the judicialisation of warfare. Whilst it is true that much operational military activity will not be suitable for legal proceedings, warfare is increasingly subject to the disciplines of the law, particularly international law, and this decision illustrates that damages liability may also play a role as an accountability mechanism.
