Herbert Smith Freehills acts for JUSTICE in intervention in Supreme Court case

Herbert Smith Freehills acted for JUSTICE, a UK based law reform and human rights organisation, in relation to its intervention in Susan Smith & Others v Ministry of Defence. The case was heard by the Supreme Court during the week commencing 18 February 2013.

The claims concerned the deaths of two UK soldiers who were on duty in Iraq. Their deaths were caused by the impact of improvised explosive devices (IEDs) which detonated beside the Snatch Land Rovers in which they were travelling. The families of the soldiers alleged, amongst other things, that the Ministry of Defence (MoD) was in breach of its obligation to safeguard the soldiers' lives as protected under Article 2 of the European Convention on Human Rights (ECHR) by failing to provide better armoured vehicles or counter measures to the IEDs.

The issue upon which JUSTICE intervened was whether or not the soldiers were at the time of their deaths within the jurisdiction of the UK under Article 1 ECHR. Specifically, Article 1 provides that "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention" which includes Article 2. It is accepted that jurisdiction under Article 1 is primarily territorial (subject to extensions in exceptional situations).

The Court of Appeal in Smith held that the soldiers were not within the jurisdiction of the ECHR when the IEDs hit their land rovers in Iraq (following an earlier Supreme Court judgment in R (Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1). The judgment was given despite the finding of the Grand Chamber of the European Court of Human Rights (ECtHR) in Al-Skeini v the United Kingdom (2011) 53 EHRR 18 that civilians killed by UK soldiers outside the UK military base in Iraq were protected by the ECHR under the principle of state agent control (i.e. that where the state through its agents exercises control and authority over an individual, and thus jurisdiction, the individual is protected by the ECHR). The Court of Appeal held that this protection did not extend to the soldiers themselves.

The Supreme Court hearing took place before a panel of seven judges over the course of four days. The first two days focussed on the issue of Article 1 ECHR. Robert Weir QC was counsel for the Appellants and James Eadie QC, for the Respondent. Helen Mountfield QC, counsel for the Equality and Human Rights Commission which also intervened, made submissions solely in relation to the UK's public international law obligations and how these coincided with the jurisdiction issue. Alex Bailin QC, counsel for JUSTICE, primarily spoke about the relevance of precedent EU decisions (both at the ECtHR level and the EU Commission level) on the nature and applicability of the extra-territoriality exceptions to Article 1 ECHR.

The hearing closed on 21 February 2013. The Lordships did not indicate when a judgment on the matter would be expected.

For further information, please contact Andrew Lidbetter and Natacha Heffinck.