Combat immunity takes a hit

In an earlier post I looked at a number of cases involving actions against the Ministry of Defence (Civil liability in uniform). This had been prompted by the Snatch Land Rover case of Smith & Others v Ministry of Defence [2011] EWHC 1676 (QB).

The Land Rover Snatch-Vixen vehicle on show at the Urgent Operational Requirement (UOR) Equipment Demonstration in Salisbury, Wiltshire.

As a reminder, this is a Snatch Land Rover. The Ministry of Defence sought to have a number of negligence claims struck out on the grounds of “combat immunity”. The claims were based upon the assertion that as these vehicles were known to provide little protection, particularly against improvised explosive devices or roadside bombs, their continued use in Iraq was negligent.

Today the Supreme Court has upheld the original decision of Mr Justice Owen made on 30 June 2011, that the claims should not be struck out on the basis of combat immunity, but should proceed to trial (Smith & Others v Ministry of Defence [2013] UKSC 41). The Supreme Court said:

92. The question which these claims raise is whether the doctrine of combat immunity should be extended from actual or imminent armed conflict to [procurement, training or other] failures at that earlier stage. I would answer it by [saying] that the doctrine should be narrowly construed. To apply the doctrine of combat immunity to these claims would involve an extension of that doctrine beyond the cases to which it has previously been applied. That in itself suggests that it should not be permitted….

95. … At the stage when men are being trained, whether pre-deployment or in theatre, or decisions are being made about the [procurement of equipment], there is time to think things through, to plan and to exercise judgment. These activities are sufficiently far removed from the pressures and risks of active operations against the enemy for it to not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that is imposed has regard to the nature of these activities and to their circumstances…

The point that this duty of care arises outside of actual combat is already being overlooked, with even the Secretary of State for Defence, Philip Hammond, saying in an interview on ITV News that this will hamper decisions of commanders in the field. Perhaps he, and others who consider this judgement will affect military operations, should actually read the judgement.

I continue to believe that the Ministry of Defence should be liable for any negligence, subject to a narrowly construed combat immunity. Politicians should not have sought to extend combat immunity to negligent acts and omissions concerning training and procurement. It should be a basic part of the military covenant that our Armed Forces are only deployed with the appropriate resources and training for the task at hand, so as to minimise risk of death or injury. If exceptions are needed, then, as my previous post sets out, the politicians already have the legal mechanism to provide for them. They need only be explicit about, and accountable for, the risks of death or injury they expect our servicemen and women to run in our name.

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