Extra-territorial Application of the Human Rights Act

Smith, R (on the application of) v Secretary of State for Defence & Anor [2010] UKSC 29 (30 June 2010)

The Supreme Court of the United Kingdom has held by a 6:3 majority that the Human Rights Act 1998 (UK) has no application to members of the armed forces serving overseas when they are outside military bases.  Therefore, deaths occurring on foreign soil need not be subject to full investigation into the possibility of State failure to protect human life under art 2 of the European Convention on Human Rights.  However, deaths of military personnel on active service overseas which do occur within the jurisdiction of the United Kingdom and which appear to result from State failure should be subject to comprehensive investigation.

Facts

Private Jason Smith of the British Territorial Army was mobilised for service in Iraq in 2003.  After spending eight days in Kuwait to acclimatize, he was stationed at Camp Abu Naji in Iraq and billeted to an un-air-conditioned athletics stadium 12km from the base.  By August 2003, temperatures exceeded 50ºC in the shade.  Private Smith reported sick on 9 August, complaining about the heat, but continued to carry out various duties.  On 13 August he was found collapsed and rushed to the Camp Abu Naji hospital but died shortly after of hyperthermia.

The initial coronial inquest into Private Smith’s death was quashed by the High Court due to procedural errors.  Private Smith’s mother argued that her son died within the legal jurisdiction of the United Kingdom and was therefore entitled to protection under the Human Rights Act and the Convention.  Under art 2 of the Convention (the right to life), a death which may implicate a public authority must be subject to an art 2 standard of investigation.  This requires broader inquiry into whether the death was the result of systemic State failure to implement policies protective of human life.

The Secretary of State for Defence conceded that Private Smith’s death on a British army base invoked the jurisdiction of the United Kingdom, and a new Article 2 inquest into his death would be held accordingly.  However, the case continued in order to obtain judgment on the following:

• Is a soldier on military service abroad protected under the Human Rights Act when outside his or her base?
• If so, must the death of such a soldier be the subject of an art 2 inquest?

At first instance, confirmed by the Court of Appeal, both of these questions were answered in the affirmative.  The Secretary of State for Defence appealed to the Supreme Court.

Decision

The Supreme Court allowed the appeal on the jurisdiction issue, but dismissed the appeal on the inquest issue.

Jurisdiction

The majority (Lords Phillips, Walker, Collins, Hope, Rodger and Brown) held that, for the purposes of the Convention, armed servicemen/women posted abroad are not within the jurisdiction of the United Kingdom and therefore are not protected under the Human Rights Act.  The majority observed that, according to the jurisprudence of the Strasbourg Court, ‘jurisdiction’ under the Convention is essentially territorial, but can arise extra-territorially in exceptional circumstances.  The Respondent argued that extra-territorial jurisdiction could arise on the basis of personal status, as members of the armed forces are under the authority and control of the United Kingdom.  However, the majority rejected this submission.  Lord Phillips reasoned that, as the Convention was drafted shortly after the large-scale deployment of troops in World War II, it was unlikely that State Parties intended it to extend to armed operations on foreign soil.  In any case, whether personal status could trigger jurisdiction under the Convention was a question for the Strasbourg Court.  According to Lord Collins, the case of armed servicemen and women serving abroad did not fall within one of the exceptions to territorial jurisdiction recognized by the Strasbourg Court, and there were no policy grounds to justify extending those exceptions in the way the Respondent proposed.  To do so would involve courts in the ultimately non-justiciable issue of how armed conflict is conducted abroad.

The minority (Lady Hale, Lords Mance and Kerr) accepted that jurisdiction under the Convention could be triggered by personal status.  Their Lordships reasoned that the United Kingdom exercises authority and control over British military personnel.  Members of the armed forces reciprocate that authority with allegiance and obedience on the basis that they will receive the support and protection of the country they serve.  Although the United Kingdom could not protect human life in Iraq to the same extent that it did domestically, it should, to the extent possible, put in place facilities to protect against risks to the armed forces.

Inquest

The Court held unanimously that art 2 investigations are not automatically required whenever military personnel die abroad.  However, if an ordinary inquest into a death reveals a possible breach of the right to life by the State, an art 2 investigation is required.  This was the case with respect to Private Smith’s death.

Relevance to the Victorian Charter

This case advocates a narrow understanding of ‘jurisdiction’ for the purposes of human rights legislation.  If matter arises which involves Victorian public authorities acting inter-state or internationally, similar arguments about extra-territorial application may arise.

The decision also underscores the importance of comprehensive investigation into deaths which may involve State failure to protect the right to life under s 9 of the Charter.  This includes the conduct of coronial inquests generally, as well as investigations into deaths associated with police contact.  Presently, no independent body exists to carry out investigations into such deaths in a way which would comply with the Government’s obligations under the Charter.

The decision is at www.bailii.org/uk/cases/UKSC/2010/29.html.

Sarah Lenthall is a volunteer with the Human Rights Law Resource Centre