Exclusive: Supreme Court to rule on a soldier's right to life

Landmark case could put new obligation on MoD to protect troops

Whether a soldier on the battlefield has the right to life is to be debated by the highest court in the UK in a landmark case that is likely to have major ramifications for the armed forces, The Independent has learned.

Seven years after he perished in a lawless, lethal part of Iraq, the circumstances surrounding the death of a young infantryman, Private Phillip Hewett, will be laid bare before the Supreme Court after it agreed this week to examine whether troops are covered by Article 2 of the European Convention on Human Rights – which protects the right to life – when fighting in war zones such as Iraq or Afghanistan.

The decision to hear the case is a testament to the tenacity of Pte Hewett’s mother Sue Smith, a Midlands community care worker who has battled for justice since the day in July 2005 when her son was blown up in a Snatch armoured Land Rover and killed alongside two fellow members of the Staffordshire Regiment.

A previous attempt to give troops human rights’ protection off bases in operational theatres was rejected as “absurd” by then defence secretary Liam Fox but legal experts argue it is only fair to afford soldiers who risk their lives for their country the same rights as anyone else.

Currently servicemen and women serving on bases in Afghanistan are covered by human rights law but this protection dissipates the moment they walk out the gate. Yet last year the European Court of Human Rights ruled in the case of Al-Skeini that Iraqi citizens killed when the UK was effectively the occupying force in Southern Iraq were protected by the European convention.

“It is anomalous that, as the law currently stands, that soldiers are capable of bringing others within UK jurisdiction but they are not within it themselves. We afford Iraqi citizens rights of protection which we can't even give to our own soldiers,” said Jocelyn Cockburn, Mrs Smith's solicitor.

She added she hoped that the Strasbourg ruling would“enormously strengthen” their argument when it goes before the Supreme Court next year. Seven justices will examine the case at a three-day hearing in February after agreeing to hear an appeal following the Court of Appeal's decision to strike out an Article 2 claim by Mrs Smith and the families of two other soldiers who were also killed while travelling in Snatch vehicles in Iraq.

For Mrs Smith, 51, it is the culmination of a five-year legal battle against the Ministry of Defence: “It actually gives me a little bit of faith back. Sometimes I feel the government is in control of everything that I am fighting a system that everybody works for. It is nice to know that I might have a chance.

“I find it disgusting that we employ soldiers to defend our country and send them out without any human rights yet we criticise other countries for not honouring their human rights.”

In the early hours of 16 July 2005 Pte Hewett, 21, and his fellow soldiers from the 1st Battalion, the Staffordshire Regiment were on patrol through the notoriously volatile town of Al Amarah when they were hit by a roadside bomb. Pte Hewett's friends fought to save the young man known for his “cheerful, lively” nature but he died of his wounds alongside two other soldiers.

Eight months later Private Lee Ellis, 23, of 2nd Battalion, The Parachute Regiment was killed by a roadside bomb in the same area. The following year Lance Corporal Kirk Redpath, 22, of 1st Battalion, Irish Guards, died near Basra. All three were travelling in the Snatch, a vehicle so vulnerable to bombs that it would earn the nickname the mobile coffin and eventually be withdrawn from combat operations.

Three weeks ago Pte Ellis's family, along with victims of a friendly fire attack, won a landmark victory after the Court of Appeal ruled they could pursue damages claims against the Government on the grounds of negligence. But the judges rejected an argument put on behalf of Mrs Smith as well Kirk Redpath's father Colin and the Ellis family that they also had a claim under Article 2 of the ECHR, accepting the Government’s assertion that the battlefield was beyond the reach of litigation.

In 2010 judges at the Supreme Court dismissed claims that British soldiers in the battlefield should be protected by the Human Rights Act. While stating that a territorial army soldier who died of heat stroke on base was within UK jurisdiction, they ruled that protection was lifted the moment service personnel step out the gate.

Then defence secretary Liam Fox described it as a victory for common sense, adding: “It is right that orders given in the heat of battle should not be questioned by lawyers at a later date. It would have been absurd to try to apply the same legal considerations on the battlefield that exist in non-combat situations.”

But John Wadham, General Counsel for the Equality and Human Rights Commission explained that Article 2 does not offer absolute protection but simply places a responsibility on the state to protect life in the context of the situation.

“Extending human rights protection is not about individual decisions in the heat of battle but ensuring that when we send soldiers off to war they are properly prepared, kitted out correctly and with equipment fit for combat. If they get killed by the enemy obviously there is no breach of Article 2 if the army has done its best to protect them,” he said.

He continued: “Soldiers have been required to lay down their lives for their country and in return should be afforded full human rights protections.”

Start your day with The Independent, sign up for daily news emails
News
people
News
John Rees-Evans is standing for Ukip in Cardiff South and Penarth
news
Arts and Entertainment
Bianca Miller and Katie Bulmer-Cooke are scrutinised by Lord Sugar's aide Nick Hewer on The Apprentice final
tvBut Bianca Miller has taken on board his comments over pricing
Life and Style
Approaching sale shopping in a smart way means that you’ll get the most out of your money
life + styleSales shopping tips and tricks from the experts
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA year of political gossip, levity and intrigue from the sharpest pen in Westminster
News
Elton John and David Furnish exchange marriage vows
peopleSinger posts pictures of nuptials throughout the day
News
in picturesWounded and mangy husky puppy rescued from dump
Sport
David Silva, Andy Carroll, Arsene Wenger and Radamel Falcao
football
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

The Jenrick Group: Multi Skilled Maintenance Engineer

£30000 - £40000 per annum + pension + holidays: The Jenrick Group: Multi Skill...

The Jenrick Group: Quality Inspector

£20000 - £21000 per annum: The Jenrick Group: This high quality manufacturer o...

The Jenrick Group: Electrical Maintenance Engineer

£30000 - £35000 per annum + pension + holidays: The Jenrick Group: Electrical ...

Recruitment Genius: Photo Booth Host

Negotiable: Recruitment Genius: This company offers London's best photo booth ...

Day In a Page

Surrounded by high-rise flats is a little house filled with Lebanon’s history - clocks, rifles, frogmen’s uniforms and colonial helmets

Clocks, rifles, swords, frogmen’s uniforms

Surrounded by high-rise flats is a little house filled with Lebanon’s history
Return to Gaza: Four months on, the wounds left by Israel's bombardment have not yet healed

Four months after the bombardment, Gaza’s wounds are yet to heal

Kim Sengupta is reunited with a man whose plight mirrors the suffering of the Palestinian people
Gastric surgery: Is it really the answer to the UK's obesity epidemic?

Is gastric surgery really the answer to the UK's obesity epidemic?

Critics argue that it’s crazy to operate on healthy people just to stop them eating
Homeless Veterans appeal: Christmas charity auction Part 2 - now LIVE

Homeless Veterans appeal: Christmas charity auction

Bid on original art, or trips of a lifetime to Africa or the 'Corrie' set, and help Homeless Veterans
Pantomime rings the changes to welcome autistic theatre-goers

Autism-friendly theatre

Pantomime leads the pack in quest to welcome all
The week Hollywood got scared and had to grow up a bit

The week Hollywood got scared and had to grow up a bit

Sony suffered a chorus of disapproval after it withdrew 'The Interview', but it's not too late for it to take a stand, says Joan Smith
From Widow Twankey to Mother Goose, how do the men who play panto dames get themselves ready for the performance of a lifetime?

Panto dames: before and after

From Widow Twankey to Mother Goose, how do the men who play panto dames get themselves ready for the performance of a lifetime?
Thirties murder mystery novel is surprise runaway Christmas hit

Thirties murder mystery novel is surprise runaway Christmas hit

Booksellers say readers are turning away from dark modern thrillers and back to the golden age of crime writing
Anne-Marie Huby: 'Charities deserve the best,' says founder of JustGiving

Anne-Marie Huby: 'Charities deserve the best'

Ten million of us have used the JustGiving website to donate to good causes. Its co-founder says that being dynamic is as important as being kind
The botanist who hunts for giant trees at Kew Gardens

The man who hunts giants

A Kew Gardens botanist has found 25 new large tree species - and he's sure there are more out there
The 12 ways of Christmas: Spare a thought for those who will be working to keep others safe during the festive season

The 12 ways of Christmas

We speak to a dozen people who will be working to keep others safe, happy and healthy over the holidays
Birdwatching men have a lot in common with their feathered friends, new study shows

The male exhibits strange behaviour

A new study shows that birdwatching men have a lot in common with their feathered friends...
Diaries of Evelyn Waugh, Virginia Woolf and Noël Coward reveal how they coped with the December blues

Famous diaries: Christmas week in history

Noël Coward parties into the night, Alan Clark bemoans the cost of servants, Evelyn Waugh ponders his drinking…
From noble to narky, the fall of the open letter

From noble to narky, the fall of the open letter

The great tradition of St Paul and Zola reached its nadir with a hungry worker's rant to Russell Brand, says DJ Taylor
A Christmas ghost story by Alison Moore: A prodigal daughter has a breakthrough

A Christmas ghost story by Alison Moore

The story was published earlier this month in 'Poor Souls' Light: Seven Curious Tales'