Secretary of State for Defence v Smith, Regina (on the Application of): CA 18 May 2009

The soldier had died of heatstroke after exercises in Iraq. The Minister appealed against a finding that the circumstances of his death required an investigation compliant with Article 2 human rights, saying that he was not subject to such jurisdiction whilst not on a British base in Iraq. The deceased’s family argued that the jurisdiction was not merely geographical, but was also personal.
Held: Human rights law is focused on the status of the potential victim and his relationship with the state. ‘the right to life of a soldier in combat is different from that of a soldier not in combat, but the question here is whether there should be a distinction between the rights of a soldier at a base and when he leaves the base. The answer to that question is not in our view affected by the existence or application of the principle that his rights cannot be ‘divided or tailored’. The Minister’s appeal failed.

Sir Anthony Clarke MR, Keene LJ, Dyson LJ
[2009] EWCA Civ 441, [2009] 4 All ER 985, [2009] 3 WLR 1099, [2009] UKHRR 1139, 27 BHRC 89, [2009] ACD 54
Bailii, Times
European Convention on Human Rights 2
England and Wales
CitedGentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
CitedSecretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
CitedBankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
CitedDrozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
CitedSoering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
CitedCyprus v Turkey ECHR 26-May-1975
ECHR (Commission) Article 24 of the Convention : Case referred to the Commission by a Contracting Party.
(a) The applicant Government, as constituted at and since the time of lodging the present . .
CitedAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
CitedEngel And Others v The Netherlands (1) ECHR 8-Jun-1976
The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining . .
CitedIssa And Others v Turkey ECHR 16-Nov-2004
Accountability for violation of the Convention rights and freedoms of persons in another state stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the . .
CitedRegina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Appeal fromSmith v The Assistant Deputy Coroner for Oxfordshire Admn 11-Apr-2008
The claimant’s son had died of hyperthermia whilst serving in the army in Iraq. The parties requested a new inquisition after the coroner had rules that human rights law did not apply to servicemen serving outside Europe. Reports had been prepared . .

Cited by:
Appeal FromSmith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Armed Forces, Human Rights, Coroners

Updated: 02 November 2021; Ref: scu.346156