Relatives of soldiers killed in Iraq have their damages bid considered
Monday 25 June 2012
Senior judges were today asked to decide whether relatives of soldiers killed in Iraq could pursue damages claims against the Government.
Three Court of Appeal judges are analysing compensation issues at a hearing in London.
The Master of the Rolls, Lord Neuberger, Lord Justice Moses and Lord Justice Rimer are scheduled to hear argument from lawyers representing relatives and the Ministry of Defence (MoD) over the next three days.
Lawyers say the Court of Appeal's decision could also affect potential claims by injured servicemen and women.
In June 2011, a High Court judge said relatives could pursue claims on negligence grounds. But Mr Justice Owen blocked attempts to seek compensation under human rights legislation.
Lawyers representing relatives and the MoD have lodged appeals against those decisions.
Robert Weir QC, for some relatives, today told the appeal court that arguments would centre on two issues - rights to pursue claims under human rights law and rights to pursue claims under legislation relating to negligence.
"The state is under a positive obligation to take all reasonable measures to protect the lives of its soldiers," Mr Weir argued, in written submissions given to judges.
"In the context of activities that form part of soldiers' ordinary duties, albeit that these may involve dangerous activities, that positive obligation requires the state to adopt and implement regulations and systems to mitigate the relevant risk to life, including adequate equipment and training.
"In addition, the state must exercise sufficient control in relation to the relevant activities so as to mitigate, to the greatest extent possible, the risk to life."
He said part of the argument in the case was about the MoD's decision to use Snatch Land Rovers.
"In this case the (MoD) took a decision not to provide medium armoured vehicles in Iraq but instead to deploy soldiers using Snatch Land Rovers," said Mr Weir.
"It did this in circumstances where it was aware of the inadequacy of those vehicles and the increased risk to life that they involved."
He added: "The specific risk to soldiers in Snatch from attack by IEDs (improvised explosive devices) was foreseeable."
Mr Weir said, in written submissions, that the MoD was arguing that claims made in the case fell outside the scope of any "substantive obligations" the state might have to take reasonable steps to protect its soldiers from foreseeable risks to life.
The MoD argued that the risk of death or serious injury was intrinsic in the very purpose and function of soldiers, said Mr Weir.
Lawyers representing the MoD argued that Article 2 of the European Convention on Human Rights - a legal protection of the right to life - contained nothing to indicate an obligation to take operational measures to protect soldiers whose lives were at risk in military operations, he added.
The MoD argued that imposing such an obligation on states would be unreasonable "having regard to the general interests of the community", said Mr Weir.
And the MoD argued that relevant decision were political and "not apt for judicial resolution", he added.
Legal action was started as a result of the deaths of a number of British soldiers following the American-led invasion of Iraq in 2003, judges heard.
Corporal Stephen Allbutt, 35, of Sneyd Green, Stoke-on-Trent, Staffordshire, was killed in a "friendly fire" incident in March 2003.
He died after a Challenger 2 tank was hit by another Challenger 2 tank.
Soldiers Dan Twiddy, of Stamford, Lincolnshire, and Andy Julien, of Bolton, Greater Manchester, were badly hurt in the incident.
Private Phillip Hewett, 21, of Tamworth, Staffordshire, died in July 2005 after a Snatch Land Rover was blown up.
Similar explosions claimed the lives of Private Lee Ellis, 23, of Wythenshawe, Greater Manchester, in February 2006, and Lance Corporal Kirk Redpath, 22, of Romford, Essex, in August 2007, judges heard.
A solicitor representing some relatives said outside court before the start of today's hearing that appeal judges would also have to consider whether soldiers in Iraq were under UK jurisdiction.
"The Ministry of Defence continues to argue that British soldiers should be in the uniquely unfortunate position of having no human rights when deployed abroad to fight on our behalf," said Jocelyn Cockburn, who works for law firm Hodge Jones & Allen.
"Even though it is clear on the face of the European Convention on Human Rights that it applies to 'everybody', our Government is actually trying to carve out an exception for our soldiers.
"It complains that it would be unreasonable to place such a burden as to be legally obliged to protect the lives of its own soldiers.
"Their argument reaches even lower depths now in recognising that whilst an Iraqi citizen who is killed or injured by a UK soldier can rely on the Human Rights Act, the soldier himself cannot do so if he is given faulty equipment which leads to his own injury or death.
"In fact the MoD is arguing that its own soldiers do not come within the UK jurisdiction when proudly fighting for Queen and country - although it hasn't yet clarified exactly whose jurisdiction they are under."
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