Defective military equipment 'is a breach of human rights'

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The Independent Online

The Government suffered a landmark legal defeat yesterday when a High Court judge ruled that sending soldiers to war with defective equipment could be a breach of their human rights. Mr Justice Collins dismissed the Ministry of Defence argument that it was "impossible" to extend the tenets of the Human Rights Act to troops on active duty. His decision is likely to have significant implications on operations in Iraq and Af-ghanistan and pave the way for legal action by bereaved families of soldiers.

In a second embarrassing reverse for Des Browne, the Defence Secretary , the judge also turned down his request to restrict critical comments by coroners, such as "serious failures", which had been made in military inquests after hearing evidence of soldiers receiving inadequate protection.

The Government said it would appeal against the ruling on human rights.

As well as refusing to censor coroners, Mr Justice Collins stated that bereaved families should be entitled to legal aid and have as full access as possible to military documents which have been put before inquests. Relations of some soldiers killed in action have complained that they had difficulties in obtaining information with "national security" often being used by the MoD as a reason for refusing to release documents.

In his most significant ruling, the judge rejected the MoD lawyers' argument that it was "impossible to afford to soldiers who were on active service outside their bases the benefits of the Human Rights Act".

Instead, said Mr Justice Collins, "the soldier does not lose all protection simply because he is in hostile territory carrying out dangerous operations. Thus, for example, to send a soldier out on patrol or, ind-eed, into battle with defective equipment could constitute a breach of Article 2 (right to life) under the European Convention on Human Rights."

Sources in the insurance industry and the Army also disclosed last night that large numbers of soldiers serving in Afghanistan and Iraq were taking out private life and accident insurance. They said that many servicemen and women are buying policies to boost Ministry of Defence compensation pay-outs.

The High Court case followed representations made by MoD lawyers after the inquest into Private Jason Smith, a Territorial Army soldier who died of heatstroke in Iraq.

Pte Smith, who joined the TA in October 1992, was sent to Basra in June 2003 and two months later fell ill in temperatures of 60C (140F) while based at the Al Amara stadium, southern Iraq. Andrew Walker, the assistant deputy coroner for Oxfordshire, recorded in a November 2006 verdict that 32-year-old Pte Smith's death was "caused by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate".

The Defence Secretary's legal team argues that the coroner should not have used the words "serious failure" because they could be seen as "determining" civil liability for Pte Smith's death, and that was not allowed under Rule 42 of the 1984 Coroners' Rules.

Lawyers and human rights activists pointed out that yesterday's ruling paves the way in the future for families of soldiers to take legal action against the Government if it was deemed to have breached human rights laws.

Shami Chakrabarti, the director of Liberty, said: "Too often human rights are grossly misrepresented as belonging only to convicted criminals when the truth is that human rights protect us all.

"This decision makes clear that it is not just the military covenant that protects our forces all over the world. Their fundamental right to dignity and fair treatment must be safeguarded as well."

The Liberal Democrat defence spokesman, Nick Harvey, said: "This shattering ruling for Des Browne will hopefully at last wake the Government up to equipment shortages which threaten the lives of our troops. That a judge feels he must even raise the issue of soldiers' human rights is a damning indictment of all the avoidable deaths that have occurred in Iraq and Afghanistan due to faulty or unavailable kit."

The shadow Defence Secretary, Liam Fox, said: "It should not take a court ruling for the Government to realise it has a responsibility and a moral obligation to ensure that when it sends troops into harm's way, they are the best trained and best equipped in the world. It is shameful the Defence Secretary tried to gag coroners who have been critical of his government's abysmal stewardship of our armed forces."

Mr Browne said different rulings on the applicability of Articles 1 and 2 of the Convention on Human Rights were "inconsistent" and the Ministry of Defence was appealing against the ruling to obtain "clarity" on what they mean. The Defence Secretary continued: "We have come a long way recently in response to the changing environments both in Iraq and Afghan-istan in terms of development of equipment and deployment of equipment.

"People should be reassured that our troops are very well equipped.

"So this criticism is a dated criticism from a different time and is not applicable to the troops that are currently deployed."

The coroner authorised to speak out

*Deputy Assistant Coroner Andrew Walker has criticised military authorities, British and American, on a number of occasions.

At an inquest in March he said Captain Daniel Wright, an SAS trainee, would not have died in a parachute jump if he had been equipped with a radio. "Let there be no doubt – this tragedy happened for the want of a simple, inexpensive piece of equipment. Capt Wright, on the balance of probability, would not have died had an operator on the ground at the drop zone been able to communicate with him. At the time Capt Wright took the parachute course, requests for these radios had been refused."

In February, at the inquest on Captain James Philippson, Mr Walker accused the MoD of betraying soldiers' trust by sending them to Afgha-nistan without equipment. "They [the soldiers] were defeated not by terrorists but the lack of basic equipment. To send soldiers into a combat zone without basic equipment is unforgivable, inexcusable and a breach of trust between the soldiers and those who govern them."

In March last year, Mr Walker, at the inquest of Lance Corporal of Horse Matty Hull, said his "friendly fire" death involving two American pilots in Iraq was a "criminal, unlawful act" tantamount to manslaughter. Recording a verdict of unlawful killing, Mr Walker said: "The pilot who opened fire did so with disregard for the rules of engagement and acting outside the protection of the law of armed conflict.

"I find there was no lawful authority to fire on the convoy. The attack on the convoy therefore amounted to an assault. It was unlawful because there was no lawful reason for it and in that respect it was criminal."