| HUMAN RIGHTS – Right to life – State’s duty to investigate death – Inquest – Death of soldier on active service – Medical effect of hot conditions – Whether procedural obligations arising from Convention right to life applicable – Scope of disclosure of documents – Whether verdict defective as determining question of civil liability – Human Rights Act 1998, Sch 1, Pt I, art 2
Regina (Smith) v Assistant Deputy Coroner for Oxfordshire [2006] EWHC 694 (Admin); [2008] WLR (D) 108
QBD: Collins J.: 11 April 2008
The procedural obligations arising under art 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms applied to an inquest on an United Kingdom soldier who had died of hyperthermia while on active service in Iraq.
Collins J so held in the Queen’s Bench Division when allowing a claim by the deceased’s mother, Catherine Smith, for judicial review by way of orders to quash an inquisition verdict given on 5 January 2007 and for a fresh inquest to be held before a different coroner. The claimant’s son, a private soldier, had been on service in Iraq when, in August 2003, following a collapse, he had sustained a cardiac arrest and died of hyperthermia. A Board of Inquiry had reported in May 2004, and, following further investigations, made a supplementary report in August 2004. The existence of the first report had not been made known until the last day of the hearing before the coroner, who had decided that it was not necessary to consider it and declined to disclose anything in respect of which the Ministry of Defence objected. Two grounds of claim related to those matters and had led to an agreement by the parties, and by the Secretary of State as interested party, that the inquisition ought to be quashed and a fresh inquest ordered. The court had, however, been requested to give a decision on various grounds in order to provide guidance for the fresh inquest.
COLLINS J said that the coroner had erred in holding that the procedural obligations under art 2 of the Convention did not apply to the inquest. In the light of Bankovic v Belgium (2001) 11 BHRC 435, R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153, Lawson v Serco Ltd [2006] 1 ICR 250, Martin v United Kingdom (Application 40426/98) and W v Ireland (No 9360/81), jurisdiction was not precluded in respect of extra-territorial acts. As illustrated by Mulcahy v Ministry of Defence [1996] QB 732, there were limitations on the application of the Human Rights Act 1998, but a serving soldier did not necessarily lose all protection. Art 2 was capable of extending to a member of the armed forces wherever he or she may be, but whether it did would depend on the circumstances of the particular case. The procedural obligation arising under art 2, that there should be some form of official investigation, applied: see Jordan v UK (2001) 37 EHRR 52 and R (Middleton) v West Somerset Coroner [2004] 2 AC 182. The investigation must be full. The fresh inquest had to accord with the procedural obligation under art 2. As to disclosure, the presumption favoured as full disclosure as possible. The Ministry of Defence’s contention, that the finding that the deceased'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" was in breach of the rule that "no verdict shall be framed in such a way as to appear to determine any question of ... civil liability" (rule 42(b) of the Coroners Rules 1984), was not accepted, because the finding did not determine civil liability, and findings of fact, however robustly stated, should not be forbidden.
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