Smith v Ministry of Defence [2013] UKSC 41

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In 2013, the Supreme Court heard the landmark, strikeout case of Smith v Ministry of Defence, which is of great significance; it extends the jurisdiction of the European Convention on Human Rights (ECHR) to military operations outside the UK. The case also exhibits the Court’s adopting of a narrow approach in the interpretation and application of the doctrine of ‘combat immunity’. “In effect, it extends a civilian understanding of duty of care and rights guaranteed by the ECHR to Service personnel in combat”.

Since this judgment was handed, Smith has been subject to a great deal of controversy and scrutiny. Legal scholars and lawyers, judges, the Ministry of Defence (MoD), its Service personnel, and, their families, have joined in on the debate. It is suggested that there is need of reform, sooner rather than later , as the Smith case “will have damaging consequences for military effectiveness” .

Is it safe to say that the Government could propose some sort of reform? Will this reform be satisfactory to all those affected?

This paper seeks to analyse the perspectives and arguments put forward by the Smith case claimants and the Ministry. The focus will then move to studying the implications of what the parties seek. Finally, the paper will consider the suggestions of reform, with regards to relevance, practicality and the aftermath.

The Smith case claimants

The case concerned a number of claims presented by the families of the service men. One group, the ‘Challenger’ claimants, argued that under common law negligence, the MoD failed to provide equipment with the suitable technology to sufficiently protect the Servicemen. The MoD was alleged to have further failed by providing inadequate pre-deployment and in theatre t...

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...roduction to the legal erosion of British fighting power’, (Policy Exchange, London 2013)

• Levin, J. ‘Tort Wars’, (Cambridge University Press: 2008)

Case law and Statute
• Mulcahy v the Ministry of Defence [1996] QB 732
• Multiple Claimants v the Ministry of Defence [2003] EWHC 1134 (QB)
• R (Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1
• Smith and others v Ministry of Defence [2013] UKSC 41
European Convention on Human Rights
• The Crown Proceedings Act 1947
• The Crown Proceedings (Armed Forces) Act 1987
Reports and other sources
• Admiral Lord Boyce, ‘House of Lords Debate of the AF Fact’, 14th of July 2005, c1236.
• Air Chief Marshal Sir Stuart Peach, Vice Chief of the Defence Staff, speaking at the Chief of Air Staff’s Power Conference, 17-18th of July
• Ministry of Defence: Claims Report 2012/2013 (London: Ministry of Defence, 2013)
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