Helen Grimberg and Mike Brown assess the impact of a recent Supreme Court decision on the right of soldiers to sue for damages when they are injured during foreign combat

In August 2003, British soldier Jason Smith was found collapsed from heatstroke while on tour in Iraq. He died shortly afterwards, and his body was brought home for an inquest. The coroner found that there had been a ‘serious failure’ by the army in not recognising, or dealing with, Smith’s difficulty in adjusting to the Iraqi climate. However, the coroner did not think that the fault lay in the army’s procedures, and therefore ruled out a wider inquest, which would have looked at whether the military was in breach of its obligations under article 2 of the European Convention on Human Rights (ECHR). Smith’s mother objected to this decision. She commenced a judicial review, which was ultimately heard by nine justices of the Supreme Court, the largest panel yet constituted.

The majority of the judges accepted that convention rights do not apply to British soldiers operating on foreign soil, overturning the decisions of the High Court and Court of Appeal. This judgment is clearly of great interest for practitioners of human rights or the law of armed conflict. But we believe it is also of significant importance in the context of personal injury practice, where there had been a widespread belief that the Human Rights Act (HRA) would expand the scope for legal redress to injured soldiers. The Smith decision tests this belief to the utmost.

A limited scope to sueSuits in tort by members of the armed forces against the Ministry of Defence were not possible before section 10 of the Crown Proceedings (Armed Forces) Act 1987 removed the Crown’s total immunity from such actions. Following this development, the courts developed a limited immunity, known as ‘combat immunity’, in cases concerning injuries sustained while actively engaging the enemy. The appeal court decision in Mulcahy v Ministry of Defence [1996] QB 732 was the first to articulate this limited immunity in English law.

Private Mulcahy sued the MoD for hearing damage he sustained while manning a howitzer gun on the Saudi border, firing into Iraq. On appeal by the defendant of the judge’s refusal to strike the claim out, the court found in favour of the MoD, as it was held that ‘there can be no civil liability for injury caused by the negligence of persons in the course of actual engagement with the enemy’. This decision essentially followed the Australian case of Shaw Savill and Albion Co Ltd v The Commonwealth [1940] 66 CLR 344, which gave a very wide meaning to the type of engagement which attracts the immunity: it ‘must cover attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement’.

However, the High Court of Australia in Shaw Savil had recognised a ‘real distinction… between actual operations against the enemy and other activities of the combatant services in time of war’. A limited form of the immunity was also supported by the House of Lords decision in Burmah Oil Co Ltd v Lord Advocate [1965] AC 75, where it was held that acts causing damage by the armed services in war, which were not closely connected with fighting, could attract civil liability.

The issue of the scope of the combat immunity principle received considerable clarification when a group action by soldiers claiming damages for post traumatic stress disorder came before the High Court in Bell & Others v Ministry of Defence [2003] EWHC 1134 (QB). Mr Justice Owen held that the immunity should be no wider than is necessary, but that it applied to ‘all active operations against the enemy in which service personnel are exposed to attack or the threat of attack’, and also extends to ‘the planning of and preparation for operations [in theatre] in which the armed forces may come under attack or meet armed resistance’.

Despite the width of this immunity, Owen suggested a number of relevant duties that might not be covered by it. Failures to properly screen, brief, debrief, or provide psychiatric support following traumatic service might be actionable in civil courts of law. Later cases have shown that training exercises fall completely outside the scope of the immunity, for instance Radclyffe v Ministry of Defence [2009] EWCA Civ 635, where an army captain injured himself jumping from a bridge in Germany on the encouragement of a senior officer. However, the extent to which alleged failures to plan or equip troops would fall within the scope of combat immunity remains unclear.

Combat immunity under attackCombat immunity has been contested on a number of grounds. Some criticism has been motivated by sympathy for soldiers, whom the critics felt were under-compensated by the Armed Forces Compensation Scheme. This criticism may now be less forceful, as the scheme has very recently been reviewed, and a number of improvements are being implemented. From 3 August, there will be an increase in the limitation period for claiming compensation from five to seven years from the time of diagnosis, and an uplift in the amount of compensation.

However, much of the criticism has been principled. In his judgment in Bici v Ministry of Defence [2004] EWHC 786 (QB), Mr Justice Elias subjected the combat immunity principle to a sustained critique. The case concerned an incident where a number of British troops on peacekeeping duties in Kosovo shot and killed two men, and injured another two. The defendant had submitted that the combat immunity principle was a complete answer to the allegation of liability for these acts. The judge, however, began his analysis of the principle by noting that the common law is traditionally hostile to arguments of ‘state necessity’, as these can threaten both the rule of law and the system of democracy. While the decision in Mulcahy was binding, he relied on the decision in Burmah Oil to argue that combat immunity had less application where the injury was inflicted intentionally rather than negligently.

Elias held that the immunity is justifiable by considerations of the public interest, but because in his judgment the soldiers had not acted in self-defence, there was no public interest in applying immunity in the case before him. It is unclear how this approach retains the combat immunity principle at all, as it would require every decision to meet a public interest test, applied retrospectively by the courts. Furthermore, Elias ruled that any exposure to attack or threat of attack must be imminent and serious.

The other criticism of the combat immunity principle is that it is inconsistent with the right to life, as enshrined in article 2 of the ECHR and in the Human Rights Act (HRA). The decision of the High Court and the appeal court in Smith – that the HRA applied to soldiers on service abroad – prepared the ground for future litigation which could erode combat immunity. But has the decision of the Supreme Court effectively killed off these arguments in advance?

The effect of SmithOn the crucial issue in Smith of the application of the HRA, the nine Supreme Court justices each gave separate judgments. Lord Collins’ arguments are distinguished by the express agreement of four of the other judges. He largely concentrates on the meaning of ‘jurisdiction’ under international law, and especially in the jurisprudence of the European Court of Human Rights (ECtHR). But at paragraph 240, he does survey combat immunity, pointing out that Mulcahy demonstrates that members of the armed forces do have rights other than the convention rights that they can enforce against the state, ‘subject to a possible exception for active operations’.

This tentative reference to the combat immunity principle suggests doubt as to its scope or validity (Lord Mance also refers to the immunity, but expressly avoids considering its scope). However, at the conclusion of Collins’ judgment, when he is considering whether there are any policy reasons for extending the ECHR to the armed forces abroad, he states that doing so ‘would ultimately involve the courts in issues relating to the conduct of armed hostilities abroad which are essentially non-justiciable’. This strong statement appears not only to justify the limitation of convention rights, but also to encapsulate the core argument underpinning combat immunity: it is not conducive to the public good for the courts to second-guess the actions of our military when engaging the enemy. The conclusion may be drawn that combat immunity is well entrenched in our law, at least for now.

Before this principle is consigned to the category of unassailable law, it should be noted that the Supreme Court’s decision to restrict the extent of convention rights was relatively tentative. Collins found that jurisdiction under the convention generally refers to a state’s territory, but acknowledged that the ECtHR recognised a limited number of ‘commonsense’ exceptions. Despite Collins’ persuasive arguments that an exception for soldiers serving abroad could not have been envisaged by the convention’s drafters, it remains distinctly possible that Strasbourg will extend states’ jurisdiction to cover its soldiers that are engaged on foreign soil. Mance, dissenting, considered that serving soldiers are a commonsense exception to territorial notions of jurisdiction. Lord Phillips observed that Strasbourg will have an opportunity to address this jurisdiction issue when it considers the recent House of Lords decision in the high-profile case of Al-Skeini v Secretary of State for Defence [2008] AC 153.

Even if soldiers serving abroad are not covered by the HRA, the common law remains applicable, and may be a fertile source of arguments to expand the remedies available to those injured during foreign military operations, as in Bici. It is significant that three of the Supreme Court justices in Smith – Mance, Lord Kerr and Lady Hale – strongly disagreed with the majority decision on the jurisdiction point. They believed that soldiers subject themselves to the absolute control and authority of the state in such a way that it would be proper to consider them within that state’s jurisdiction. While these judges have lost the day, have they planted a kernel that will yet bear fruit?

A future for combat immunity?As the dust settles on the Smith judgment, the status quo on the MoD’s liability to soldiers engaged on operations abroad remains intact. The HRA does not apply to such personnel, and that means a potent threat to the combat immunity principle that limits the scope for injured soldiers to sue the state has been neutralised, at least until the ECtHR decides otherwise. But the legal battleground may be redrawn in a clash of arguments drawing on the resources of the common law.

What is needed at this point is some clear thinking about appropriate remedies for military personnel. The decision of the government to review the Armed Service Compensation Scheme is therefore very welcome. In terms of the combat immunity principle, which is at stake in much of the debate in this area, its critics have a difficult task, in our view, to overcome the arguments in its favour. How can troops acting under extreme pressure, often in danger of their lives, ever be said to be negligent? What good would it do to make them answer allegations of this afterwards? And how can the law courts, with their limited time and expertise, weigh both the strategic and ground level considerations that army personnel have to filter in the course of combat? Ultimately, these issues must be decided with reference to the Military Covenant, the contract with the nation that recognises the ultimate sacrifice that soldiers are prepared to make. The courts may in the future have some role in the enforcement of that covenant, but they must not usurp the role of parliament in setting its terms.

Helen Grimberg and Mike Brown are partners at national firm Berrymans Lace Mawer