21/06/2013 09:33 BST | Updated 21/08/2013 06:12 BST

British Soldiers and Their 'Right to Life'


On Wednesday, 19 June 2013, the Supreme Court handed down a judgment that dismissed the Ministry of Defence's (MoD) applications to strike out claims, from the families of soldiers killed while on active duty, under the Human Rights Act 1998 and in negligence.

Known as the Snatch Land Rover families, Susan Smith, Colin Redpath and Karla and Courtney Ellis brought claims against the Ministry of Defence (MoD) for causing their loved ones, all British soldiers serving in Iraq, to carry out high risk activities in poorly armoured Snatch Land Rovers. In each case the soldiers were killed when their respective vehicles were struck by improvised explosive devices (IEDs), also known as roadside bombs.

In finding that British Troops remain within the UK's jurisdiction when deployed on active service abroad, and so attract the protections of the Human Rights Act, the Supreme Court overturned its own earlier decision in R Smith v Oxfordshire Coroner (the Catherine Smith case) which was handed down in 2010.

It is fantastic that the Supreme Court has at last recognised that our armed forces are within the control and authority of UK authorities at all times, including when deployed abroad, meaning they too have a right to life under the European Convention on Human Rights. It reflects poorly on our Government that they have sought to establish a different rule for soldiers who are sent overseas to fight on our behalf.

If we as a society recognise these human rights as 'universal', how else can we expect them to uphold the fundamental human rights of those they come across in conflict if they themselves are not protected?

The claimants allege that Snatch Land Rovers were known to be inadequate for many years before the Iraq conflict, they were known to be unsafe and were becoming increasingly so as the insurgency grew and were nicknamed "mobile coffins".

There seems to have been no intent to act upon the clear evidence regarding the safety of these vehicles and it took individuals such as Sue Smith to highlight the issue publicly so that, finally, the vehicles were replaced. But still, despite widespread criticism of Snatch Land Rovers the MoD has never recognised that the vehicle was substandard or that it was at fault. It will now have an opportunity to prove that the continued use of this vehicle was a high level military tactic rather than purely incompetence.

The majority of the Justices (five) held that the Snatch Land Rover cases should not be struck out but that the extent of any duty owed, and whether such duty was breached, will be fact specific and have to be explored at trial.

Lord Hope made clear that in deciding whether or not the state had breached its duties, the courts should not impose an 'impossible' or 'disproportionate' burden on the authorities. Equally 'the widest measure of appreciation' must be given to commanders for decisions taken on the ground and actively involved in armed conflict.

While this ruling will never bring back Private Phillip Hewett, Lance Corporal Kirk Redpath or Private Lee Ellis or any of the other brave men and women killed in conflict, it will now allow these families to achieve some closure so they can move forward and come to terms with the loss of their loved ones.

Jocelyn Cockburn is a leading Civil Liberties lawyer and in 2012 was awarded Partner of the Year by The Lawyer magazine. She represented all three claimants in the 'Snatch Land Rover' case.