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)
Books
• 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)
Case, Adeels Palace v Moubarak (2009) 239 CLR 420 entails a defendant, Adeels Palace Pty Ltd and two plaintiffs, Anthony Moubarak and Antoin Fayez Bou Najem. On New Year’s Eve 2002, a function, hosted by Adeels was open to members of the public, with a charged admission fee. A dispute broke out in the restaurant. One man left the premises and later returned with a firearm. He seriously injured both respondents. One was shot in the leg and other in the stomach. The plaintiffs separately brought proceedings against the defendant in the District Court of New South Wales (NSW), claiming damages for negligence. The trial judge issued Bou Najem $170,000 and Moubarak $1,026,682.98. It was held that the duty of care was breached by the defendant as they ‘negligently’ failed to employ security for their function. The breach of duty and resulted in the plaintiff’s serious injuries.
Wilson, T. W. (n.d.). "Fourteen Points" Avalon Project - Documents in Law, History and Diplomacy. Retrieved April 14, 2011, from http://avalon.law.yale.edu/20th_century/wilson14.asp
The Avalon Project at Yale Law School. 18 May 2006. The Avalon Project. 18 MAY 2006. The War Powers Act of 1973.
In order to highlight all aspects of People v. Smith, 470 NW2d 70, Michigan Supreme Court (1991) we must first discuss the initial findings of the Michigan Court of Appeals. The Court of Appeals decision was based on the precedence of two similar court cases that created discussion concerning the admission of juvenile records into adult trials. Following the Court of Appeals, the Michigan Supreme Court entered the final decision on Ricky Smith’s motion for resentencing. The Michigan Supreme Court also conducted a thorough examination of People v. Jones, People v. McFarlin, and People v. Price to determine the outcome of Smith’s motion to be resentenced.
„h I lieutenant Harry Breaker Morant, state to you all today, as god as my witness, in the fight for justice, that my actions and behavior did not at any time breach those of orders given to me by the British High Command during periods of combat. However it was ironically clear that the corrupt jury did not listen, appreciate, or respect Handcock, Whitten or myself in the one eyed courtroom. It was as if we Australians where playing a tails, on a double headed penny, there was no possibility of victory.
Rostow, Eugene V., "Great Cases Make Bad Law: The War Powers Act" (1972). Faculty Scholarship Series. Paper 2143.
...e results. I believe that this reform would be rational and helpful to the masses especially if a brand new platform were to be built upon research conducted from the previous policies.
Larkin, ‘Debunking the idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2008) OJLS 709 2, p 61.
Rule, James B., On evils abroad and America’s new world order. Dissent v. 46, no3 (1999): p. 50 – 57
Using physical force towards an attacker of sexually abusing a boy in afghan, the U.S. soldiers used. They claimed that they wanted him to understand he needed to leave the boy and his mother alone, otherwise it would be worse. The two men, Quinn and Marland was relieved of their duties. Quinn left military and Marland was forced to separate.
The military is tasked with the duty and responsibility of protecting the nation from external attacks and managing any attacks that may happen. Over the years, countries across the world have engaged in conflicts originating from differences in policies and invasion of privacy and unfair treatment of citizens in foreign countries. In...
Just War and Human Rights. Philosophy and Public Affairs 9 (2):160-81. Mill, J. S., Bentham, J., & Ryan, A. (1987) The 'Standard' of the 'Standard'. Utilitarianism and other essays.
Department of the Army. (2002) AR 21-10 Military Justice. Washington D.C.: United States Army Publishing Authority.
Straw, J, ‘Abolish the royal prerogative’, in A. Barnett Ed., Power and the throne; the monarch Debate (1994) London: Vintage, p. 129.