One of the first Acts of Parliament I ever had to study was the Crown Proceedings (Armed Forces) Act 1987, which cropped up whilst I was revising my course notes for my Engineering Officer Training (Part 1) exams in the RAF in 1988. Although I’ve given the link, don’t bother looking it up – it merely repeals, subject to conditions, section 10 of the Crown Proceedings Act 1947. At the risk of sounding like an old fart, in the “old days” before internet, I could not look up the 1947 Act, so I skipped over those part of the notes. I wonder how many of my peers, who may by now be in senior ranks in the RAF, did the same?
I did finally get to understand the impact of the repeal of section 10 when I trained to be a health and safety officer. Section 10 of the 1947 Act was essentially understood by serving members of the Armed Forces to exempt the Ministry of Defence from any liability for death or personal injury suffered by someone “while on duty” as a result of the act or omission of another member of the Armed Forces. With this section being repealed, many of us in the health and safety field realised that any lack of “reasonably practicable” working systems, policies or practices would be damning in any negligence claim. Many of us also realised, perhaps cynically, who would be blamed if something did go wrong – in the military, junior officers and SNCOs know very well that “shit rolls downhill”.
So what, you ask? Contrast these cases.
This is the RAF Nimrod MR2 XV230, which was deployed to Afghanistan from 120 Sqn, RAF Kinloss. Tragically, it exploded in mid-air over Kandahar Province on 2 September 2006. The entire crew were killed – RIP Sgt Benjamin Knight (25), Flt Sgt Adrian Davies (49), Flt Sgt Gerard Bell (48), FLt Lt Steve Swarbrick (28), Flt Sgt Gary Andrews (48), Flt Lt Allan Squires (39), Flt Lt Gareth Nicholas (40), Flt Lt Leigh Mitchelmore (28), Flt Lt Steven Johnson (38), Flt Sgt Stephen Beattie (42), Marine Joseph Windall (22), Cpl Oliver Dicketts (27), Sgt Gary Quilliam (42) and Sgt John Langton (29).
Although this loss of life occurred during active service, the Ministry of Defence accepted liability for the crash, which the RAF Board of Inquiry considered was a result of fuel leaks (see here). An independent review of the Nimrod crash under the chair of Charles Haddon-Cave QC was more damning. It’s report noted:
Loss of XV230 avoidable
9. The Nimrod Safety Case was drawn up between 2001 and 2005 by BAE Systems (Phases 1 and 2) and the MOD Nimrod Integrated Project Team (Third Phase), with QinetiQ acting as independent advisor. The Nimrod Safety Case represented the best opportunity to capture the serious design flaws in the Nimrod which had lain dormant for years. If the Nimrod Safety Case had been drawn up with proper skill, care and attention, the catastrophic fire risks to the Nimrod MR2 fleet presented
by the Cross-Feed/SCP duct and the Air-to-Air Refuelling modification would have been identified and dealt with, and the loss of XV230 in September 2006 would have been avoided.
10. Unfortunately, the Nimrod Safety Case was a lamentable job from start to finish. It was riddled with errors. It missed the key dangers. Its production is a story of incompetence, complacency, and cynicism. The best opportunity to prevent the accident to XV230 was, tragically, lost. (Chapters 10A
Undisclosed compensation was paid by the MoD to relatives in settlement of their negligence claims.
This is a “Snatch” Land Rover. These vehicles were deployed to Iraq and Afghanistan, but were subject to extensive criticism as they provided little protection to their users. Various press reports claim that over 37 British servicemen or women have been killed in Afghanistan whilst travelling in them. A number of legal claims have been made in respect of these deaths and others’ injuries, based upon the assertion that as these vehicles were known to provide little protection, particularly against improvised explosive devices or roadside bombs, the Ministry of Defence was negligent. One of the bases of some of the negligence claims concerning Snatch Land Rovers suggests that the Ministry of Defence was negligent in not procuring suitable alternative vehicles to the Snatch Land Rovers, once it was realised that these were extremely poor in theatre. However, these claims have to date been unsuccessful, based upon the defence of “combat immunity”.
In both the Nimrod and Snatch Land Rover cases the use of old, outdated or inappropriate equipment was key, but in the Nimrod case there was no other intervening action; equipment failure led directly to the deaths. In the Land Rover cases, there had to be the intervening action of an IED. It seems inequitable and distasteful that the Ministry of Defence should be able to evade liability in the Land Rover cases on this basis. However, this may be about to change, following the brave decision of Mr Justice Owen, who, on 30 June 2011, rejected an application by the Ministry of Defence to strike out a claim on the basis of combat immunity, at least in respect of this negligent procurement argument (Smith & Others v Ministry of Defence  EWHC 1676 (QB)).
It is my view, perhaps biassed as an ex-serviceman, that the Ministry of Defence should be liable for any negligence, both in peacetime, emergency operations or in conflict. If the nature of any combat is vitally important, so that what would otherwise be considered to be negligence should be disregarded under exceptional national interests, then politicians should “man up” and state that this is the case. The mechanism already exists for the Secretary of State to make an order to revive section 10 of the 1947 Act under such circumstances – see section 2 of the 1987 Act. It should be an accepted part of the military covenant that we only deploy our Armed Forces with the appropriate resources and training so as to minimise risk of death or injury to the ALARP level.