Smith and Others v. Ministry of Defence; Ellis v. Ministry of Defence; Allbutt and Others v. Ministry of Defence

Abstract

War and armed conflict — British soldiers killed and injured while on active service in Iraq — Claims against Ministry of Defence — Claims in negligence in common law — Whether Ministry of Defence having duty of care to soldiers to equip and train properly — Applicability of combat immunity doctrine — Whether fair, just or reasonable to impose duty of care on Ministry of Defence — Claims under Article 2 of European Convention on Human Rights, 1950 — Whether Ministry of Defence in breach of soldiers’ right to life — Whether, at time of their deaths, British soldiers on active service abroad within jurisdiction of the United Kingdom for purposes of Article 1 of European Convention — Whether Ministry of Defence in breach of duty of care under common law of negligence and under Article 2 of European Convention

Relationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950 — Jurisdiction of United Kingdom under Article 1 of European Convention — Whether extended to securing protection of Article 2 to British soldiers serving outside United Kingdom territory — Strasbourg jurisprudence — Decision of Grand Chamber in Al-Skeini v. United Kingdom — Domestic jurisprudence — Catherine Smith case — Whether majority view in Catherine Smith case could be maintained — Council of Europe recommendations — Whether Ministry of Defence having duty of care to soldiers under Article 2 of European Convention

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 European Convention to persons within their jurisdiction — Extent of jurisdiction — Jurisdiction essentially territorial — Extra-territorial applications requiring special justification — Whether British soldiers on active military service in Iraq within jurisdiction of United Kingdom at time of their deaths — Whether Ministry of Defence having duty of care under Article 2 of European Convention

Jurisdiction — Concept of jurisdiction in international law — Jurisdiction primarily territorial — Extra-territorial jurisdiction — Exceptional circumstances — State agent authority and control — Whether British soldiers on active service abroad within United Kingdom jurisdiction for purposes of Article 1 of European Convention on Human Rights, 1950 at time of their deaths — Whether Ministry of Defence having duty to soldiers under Article 2 of European Convention

Human rights — Right to life — Article 2 of European Convention on Human Rights, 1950 — Substantive obligations — Application of Convention rights — Whether possible or appropriate — Whether courts could question operational decisions made on ground — Whether more appropriate for procurement decisions to be resolved politically — Strasbourg jurisprudence — Policy issues — Allegations of systemic and operational failures on part of Ministry of Defence — Whether Ministry of Defence breaching implied positive obligation under Article 2 of European Convention — Wide margin of appreciation given to authorities — Factual context and evidence — Whether Ministry of Defence in breach of soldiers’ right to life

War and armed conflict — British soldiers killed and injured while on active service in Iraq — Whether claims in negligence against Ministry of Defence could proceed to trial — Doctrine of combat immunity — Whether applicable — Whether just, fair and reasonable to impose duty of care on Ministry of Defence in circumstances of case — The law of England