Iraq damages cases: Supreme Court rules families can sue

Susan Smith: "Well, we've won... but to be honest we didn't expect to"

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Families of soldiers killed in Iraq can pursue damages against the government, the Supreme Court has ruled.

Legal action was brought by relatives of three men killed by roadside bombs while in Snatch Land Rovers and another killed while in a Challenger tank.

The judges ruled the families could make damages claims under human rights legislation and sue for negligence.

The defence secretary has said the ruling could make it "more difficult for troops to carry out operations".

The ruling comes after a lengthy legal battle and previous judgements by the High Court and the Court of Appeal.

'Combat immunity'

Analysis

This is the result the MoD did not want. It has fought hard through the courts to limit the extension of human rights and negligence laws to the battlefield, an unpredictable place where the enemy is usually trying to kill or maim UK military personnel: a place which MoD lawyers have long argued is incompatible with the idea of a 'right to life'.

But gradually, the European Convention on Human Rights has been tested in the courts and found to apply to British soldiers while on British military bases abroad. And now thanks to the Supreme Court's judgement, human rights have been found to apply to soldiers on the battlefield, though not without limits.

Exactly what their judgement means for soldiers and their families will still have to be tested in the High Court, as the judgement is not the end of the story. There are likely to be many more legal skirmishes before it's clear what impact will be, whether on procurement decisions, devising training or issuing orders before the UK's soldiers, sailors or air personnel are sent to war.

At least 37 UK soldiers have died in conflicts in Iraq and Afghanistan while travelling in the lightly armoured Snatch Land Rover; its vulnerability has led some soldiers to call it the "mobile coffin".

The families of the three soldiers who died in the vehicles while on duty in Iraq want to make claims for damages under the European Convention on Human Rights, Article Two of which imposes a duty on authorities, in this case the Army, to protect the right to life.

The soldiers were Pte Phillip Hewett, 21, of Tamworth, Staffordshire, who was killed in July 2005; Pte Lee Ellis, 23, of Wythenshawe, Greater Manchester, killed in February 2006; and L/Cpl Kirk Redpath, 22, of Romford, east London, killed in August 2007.

The Ministry of Defence had argued the claims should be struck out because the soldiers were not covered by the legislation once they had left their British base.

But the Supreme Court rejected this, concluding the soldiers were within the UK's jurisdiction at the time of their deaths and so were subject to human rights legislation.

BBC legal affairs correspondent Clive Colman described the ruling as a "major shift", which could now lead to more claims being made against the MoD.

Defence Secretary Phillip Hammond: "We do not believe that the Ministry of Defence was negligent..."

But he added that the court had been careful to say that certain things will still not be challengeable under human rights law, such as high-level policy decisions at the MoD or decisions made in the heat of battle.

The families of Cpl Stephen Allbutt, 35, of Sneyd Green, Stoke-on-Trent - who was killed in a "friendly fire" incident in a tank in Iraq in March 2003 - and of L/Cpl Daniel Twiddy, of Stamford, Lincolnshire, and Trooper Andrew Julien, of Bolton, Greater Manchester, who were both badly injured in the same incident, brought a second case to the court.

'National security'

They argued that the MoD owed a duty of care under the law of negligence. They said the MoD had failed to properly equip the tanks and to give soldiers adequate training.

Snatch-2 Land Rover

A Snatch Land Rover
  • Role: Protection Patrol Vehicle
  • Defences: Armour to protect against explosions and gunfire; electronic sensors to detect roadside bombs
  • Strengths: Quick land transport for up to six troops
  • Weaknesses: Critics argue the thin-skinned vehicles offer insufficient protection against roadside bombs
  • Cost: Approximately £50,000

The MoD had argued that there was "combat immunity" where troops in action were concerned and it was not "fair, just or reasonable" to impose a duty of care on the MoD when soldiers were on the battlefield.

But during Wednesday's hearing, the Supreme Court justices ruled that immunity did not apply in this case.

Defence Secretary Philip Hammond said: "I am very concerned at the wider implications of this judgement, which could ultimately make it more difficult for our troops to carry out operations, and potentially throws open a wide range of military decisions to the uncertainty of litigation.

"We will continue to make this point in future legal proceedings as it can't be right that troops on operations have to put the European Convention on Human Rights ahead of what is operationally vital to protect our national security."

Debi Allbutt, the widow of Cpl Stephen Allbutt, told the BBC she was pleased with the outcome, but that the families' fight would continue.

She said: "We want combat immunity thrown out of the rulebook, so instead of soldiers having to sue the Ministry of Defence, the equipment and the training will be in place to stop things like this happening again."

'Carte blanche'

Susan Smith, mother of Pte Phillip Hewett, described the judgement as "absolutely brilliant".

Pte Phillip Hewett, Pte Lee Ellis and Lance Cpl Kirk Redpath Relatives of Pte Phillip Hewett, Pte Lee Ellis and L/Cpl Kirk Redpath were among those who brought the case

"They can no longer treat soldiers as sub-human with no rights," she said.

"Phillip's dead. Nothing is going to bring him back, but this might help save lives in the future."

Lawyer Jocelyn Cockburn, who is acting for the Snatch Land Rover families, said the MoD "can't be given a carte blanche to fail to equip our troops".

She said: "I think what they have established is what seems to many families is common sense - that soldiers have human rights, and they do remain within the jurisdiction of the UK, and they don't lose those because they are on the battlefield."

The families' claims will now be able to proceed to trial to determine if the MoD owes damages.

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