QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1)R(Catherine SMITH)
|- and -
|The Assistant Deputy Coroner for Oxfordshire
Secretary of State for Defence
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms Jessica Simor (instructed by Messrs Hodge, Jones & Allen) for the Interested Party
Hearing date: 17 March 2008
Crown Copyright ©
Mr Justice COLLINS :
"2. Holding that he had no power to provide disclosure of documentation and that Rule 37 of the Coroners Rules precluded him from exercising a discretionary power to do so.
3. Closing the inquest prior to receiving a copy of the BOI report, which dealt with the circumstances in Iraq leading up to Private Smith's death."
I should add that those representing Mrs Smith were placed at a great disadvantage in that they had no advance disclosure of the statements of the witnesses to be called. Furthermore, the LSC had refused funding (it is clear that it was wrong to have done so) so that counsel and solicitors were obliged to appear without any funding being in place. They are to be commended for that and fortunately funding has subsequently been approved, but not until the Minister had been approached.
"1. The relevant circumstances leading to Private Smith's death took place within the geographical area of a British Army camp and a British Army hospital;
2. Private Smith was at all times acting within the scope of his military duties; and
3. No third party national was involved in his death."
Ms Simor contends that, since British soldiers are subject to U.K. jurisdiction while operating in Iraq, the Human Rights Act 1998 applies to them and so they are entitled to rely on the Articles of the ECHR which are set out in the Schedule to the Act. Thus the Act applies wherever they may physically be, provided that they are not indulging in a frolic of their own. Secondly, Ms Simor submits that, despite the consent on Ground 2, it would be desirable for me to indicate what is the scope of any duty of disclosure. This will avoid any problems of disclosure at the fresh inquest. Thirdly, it was asserted in Ground 7 that section 8 of the Coroners Act 1988 required the coroner to sit with a jury. This could and should, Ms Simor submitted, be decided by me.
"If it appears to a Coroner, either before he proceeds to hold an inquest or in the course of an inquest begun without a jury, that there is reason to suspect … (d) that the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public he shall proceed to summon a jury …"
"The High Contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention."
The travaux preparatoires show that the draft recorded an undertaking "to ensure to all persons residing within their territories" the Convention rights. This was regarded as too narrow and the right of protection should exist in favour of individuals of whatever nationality who complained of violation of their human rights on the territory of the relevant States. So the concept of territoriality has been applied. In Bankovic v Belgium (supra) the Court discussed the meaning of the words 'within the jurisdiction'. It noted (Paragraph 60) that 'a State's competence to exercise jurisdiction over its own nationals abroad is subordinate to that State's and other State's territorial competence. In addition, a State may not actually exercise jurisdiction on the territory of another without the latter's consent, invitation or acquiescence, unless the former is an occupying state, in which case it can be found to exercise jurisdiction in that territory, at least in certain respects.
"Subjects of the Crown, British citizens, are in a different boat. International law does not prevent a state from exercising jurisdiction over its nationals travelling or residing abroad since they remain under its personal authority. So there can be no objection in principle to Parliament legislating for British Citizens outside the United Kingdom, provided that the legislation does not offend against the sovereignty of other states."
In Paragraph 47, he said:-
"… (T)he question is whether, on a fair interpretation, the statute in question is intended to apply to them only in the U.K. or also, to some extent at least, beyond the territorial limits of the U.K. Here, there is no doubt that Section 6 [of the 1998 Act] applies to public authorities such as the armed forces within the U.K., the only question is whether, on a fair interpretation, it is confined to the U.K. "
"53. In the first place, the burden of the legislation falls on public authorities, rather than on private individuals or companies. Most of the functions of United Kingdom public authorities relate to this country and will therefore be carried out here. Moreover, exercising their functions abroad would often mean that the public authorities were encroaching on the sovereignty of another state. Nevertheless, where a public authority has power to operate outside the United Kingdom and does so legitimately – for example, with the consent of the other state – in the absence of any indication to the contrary, when construing any relevant legislation, it would only be sensible to treat the public authority, so far as possible, in the same way as when it operates at home.
54. The purpose of the 1998 Act is to provide remedies in our domestic law to those whose human rights are violated by a United Kingdom public authority. Making such remedies available for acts of a United Kingdom authority on the territory of another state would not be offensive to the sovereignty of the other state. There is therefore nothing in the wider context of international law which points to the need to confine sections 6 and 7 of the 1998 Act to the territory of the United Kingdom.
55. One possible reason for confining their application in that way would, however, be if their scope would otherwise be unlimited and they would, potentially at least, confer rights on people all over the world with little or no connexion with the United Kingdom. There is, however, no such danger in this case since the 1998 Act has a built-in limitation. By section 7(1) and (7), only those who would be victims for the purposes of Article 34 of the Convention in proceedings in the Strasbourg court can take proceedings under the 1998 Act. Before they could sue, claimants would therefore have to be "within the jurisdiction" of the United Kingdom in terms of Article 1 of the Convention. Whatever the precise boundaries of that limitation, it blunts the objection that a narrow construction of the territorial application of the Act is the only way to prevent it having extravagant effects which could never have been intended. The requirement for a claimant to be within the jurisdiction of the United Kingdom is a further assurance that, if the Act were interpreted and applied in that way, the courts in this country would not be interfering with the sovereignty or integrity of another state."
"As stated by the Commission in Application 6780/74 and 6950/75, the authorised agents of the State, including diplomatic or consular agents and armed forces, remain under its jurisdiction when abroad …."
In any event, the absence of any case dealing with circumstances such as arise here cannot help to determine the correct answer. Thus such cases and observations as there are are consistent with the existence of jurisdiction in a case such as this.
"1. Everyone's right to life shall be protected by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection."
"It would be highly detrimental to the conduct of military operations if each soldier had to be conscious that, even in the heat of battle, he owed such a duty to his comrade."
This applied too to an allegation that there was a failure to maintain a safe system.
"The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative process. "
This will apply equally to a case where the death may have occurred as a result of a failure by the State or its agents to protect life: see R(Middleton) v West Somerset Coroner  1 A.C. 182, which concerned the suicide of an inmate of a prison. Furthermore, as the Court made clear in Jordan v U.K. at paragraph 109, whatever the degree of public scrutiny required, "in all cases … the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests".
"The second consideration is that while the use of lethal force by agents of the state must always be a matter of the greatest seriousness, a systematic failure to protect human life may call for an investigation which may be no less important and perhaps even more complex … It would not promote the objects of the Convention if domestic law were to distinguish between cases where an agent of the state may have used lethal force without justification and cases in which a defective system operated by the state may have failed to afford adequate protection to human life."
"… where a Contracting State had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life."
Powell was an admissibility decision and so the court was concerned to see whether there had been an arguable breach of Article 2. But it went on to make clear that the procedural obligation extended to "the need for an effective independent system for establishing the cause of death of an individual under the care and responsibility of health professionals and any liability on the part of the latter". As Jordan established, that obligation rested upon the state and it should not be left to a private individual to take the necessary action. However, the application in Powell was ruled inadmissible because a civil claim had been made and settled. As the court said, "Where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim in respect of the circumstances surrounding the treatment administered to the deceased person or with regard to the investigation carried out into his or her death". Powell does not support a contention that the procedural obligation is to be met by the possibility of civil action: it was based on its own facts.
"99. If, as in our opinion is the case, the system must be practical and effective, we are not persuaded that the mere fact that the state has made it possible in law for the family to begin a civil action against those said to be responsible is by itself a sufficient discharge of the state's obligation in every case. For example, it may not be practicable for the family to procure an effective investigation of the facts by the simple expedient of civil proceedings. Their claim may be for a comparatively small sum, as for example where the only claim is that of the estate of the deceased, such that it would not make practical or economic sense for civil proceedings to be begun, especially for a family who is not able to obtain legal aid.
100. Another possibility is that the facts may be such that liability has been admitted, with the result that, at any rate under the adversial system in operation in England, there can be no trial and thus no independent investigation of the facts as part of the civil process."
"106. The question is whether the system in operation in England in this case meets those requirements. In our opinion it does. The system includes both the possibility of civil process and, importantly, the inquest. We can understand the point that the possibility of civil proceedings alone might not be sufficient because they do not make financial sense and may not end in a trial at which the issues are investigated. However, in the context of the other procedures available, an inquest of the traditional kind, without any reading down of the 1988 Act by giving a wider meaning to "how" as envisaged in the Middleton case  a A.C. 182, and provided that it carries out the kind of full and fair investigation which is discussed earlier in this judgment and which (we hope) will now take place, in our opinion satisfies the requirement that there will be a public investigation of the facts which will be both practical and effective. Moreover, the family will be able to take a full part.
107. In these circumstances, while Article 2 is engaged in the sense described above, the present system including the inquest does not fall short of its requirements in any way. On the contrary it complies with it."
"The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard."
"No verdict shall be framed in such a way as to appear to determine any question of … civil liability."
Since there is to be a fresh inquest, it may seem unnecessary to deal with this point. However, it is said that the issue is arising regularly in inquests on those killed in Iraq or in other places where British troops are deployed such as Afghanistan. It seemed to me to be desirable to deal with the point since the arguments were fully presented.
"On the 13th August 2003 Jason George Smith was on active service when found suffering with heatstroke at the Al Amarah stadium where he was stationed. He was taken to a medical centre at Abu Naji Camp where he died. Jason George 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."
There was argument before the coroner that he should not use the words "serious failure". He had made clear in his ruling that his conclusion on the evidence was that the fault lay in the failure by individuals to follow the requisite procedures rather than any systemic failure. That was why there was in his view no substantive breach of Article 2. However, as I have already indicated, that was not for him to decide, but it does seem that the verdicts he gave would have sufficed for a Middleton type inquest with the formal addition of the conclusion that the failure was not systemic but of individuals.
"The prohibition in rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of "how" in section 11(5)(b)(ii) and rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury's factual conclusion is conveyed, rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular "neglect" or "carelessness" and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art. A verdict such as that suggested in para.45 below ("The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so") embodies a judgmental conclusion of a factual nature, directly relating to the circumstances of the death. It does not identify any individual nor does it address any issue of criminal or civil liability. It does not therefore infringe either rule 36(2) or rule 42."
" I also agree with the Northern Irish Courts, and with Mr Blake, that nothing in the 1959 Act or the 1963 Rules prevents a jury finding facts directly relevant to the cause of death which may point very strongly towards a conclusion that criminal liability exists or does not exist."
This is just as applicable to findings which may point to civil liability.
As a consequence of the Opinions of the Lords of Appeal for Judgment in the Causes in the House of Lords case, R(Gentle & another) v The Prime Minster & Others  UKHL 20, given on 10 April 2008, Mr Justice Collins added observations to his judgment and distinguished the Gentle case and therefore his judgment in the above case, Smith, remains as handed down.
These observations are being transcribed by Merrill Legal Solutions and will form part of the subsequent hand down.