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Judicial Review Appeal

Volume 496: debated on Wednesday 15 July 2009

This important case arose from the tragic death of Private Jason Smith from heatstroke in Iraq in 2003 and was brought by Private Smith’s mother. The Court of Appeal gave its judgment for the respondent on 18 May this year, while granting the Secretary of State permission to appeal to the House of Lords.

There is no longer any dispute over the question which initiated the case. The MOD has previously accepted that there are limited circumstances when armed forces personnel come within the UK’s jurisdiction for the purposes of the European convention on human rights when they are deployed overseas. These include the circumstances of Private Jason Smith’s death, where Private Smith was at all times within a British Army camp and British Army hospital and no third party nationals were involved in his death. It has already been agreed that a new inquest should be held into the cause of Private Smith’s death which will be fully compliant with article 2 of the European convention on human rights. Jason Smith’s death remains the source of great regret, and the MOD will continue to offer its wholehearted support to the coronial process, and every possible sympathy and attention to Mrs. Smith.

But the case as it has developed has raised issues of potentially very wide legal significance. These concern the extent to which actions under the Human Rights Act 1998 (which gave further effect to rights drawn from the European convention on human rights) can be brought in cases involving military personnel deployed on operations outside the United Kingdom. Given the importance of the issues raised by the Court of Appeal’s judgment to how we plan and conduct military operations and to the men and women of the armed forces, I have decided that the right course would be to appeal to the House of Lords in order to obtain as much clarity as possible on the legal framework applying to operations overseas. As at all stages of the case, the Government will bear the costs of both sides in the litigation, whatever the outcome.