BRITAIN:DEPLOYING TROOPS on military operations without adequate equipment could breach their human rights, the high court in London ruled yesterday in a groundbreaking judgment which has widespread implications for defence chiefs and opens the door to potentially huge claims for compensation.
Dismissing arguments by the UK ministry of defence (MoD), Judge Andrew Collins said that "to send a soldier out on patrol or, indeed, into battle with defective equipment could constitute a breach" of Article 2 of the European Convention on Human Rights, which enshrines the right to life.
The lives of members of the British armed forces when sent to fight or keep order abroad could not receive "absolute protection", the judge agreed. However, he added: "The soldier does not lose all protection simply because he is in hostile territory carrying out dangerous operations." The protection of the human rights convention depended on the circumstances of a particular case. Yesterday's case was brought by the mother of Pte Jason Smith, who died of hyperthermia in the heat of Basra in August 2003.
Up to now, the courts have ruled only that human rights laws apply to British troops in their treatment of Iraqi detainees in British-controlled camps. Judge Collins yesterday went much further, saying that British troops themselves enjoy the human right to be protected by effective equipment, even on the battlefield.
The ruling, which Des Browne, the UK defence secretary, said he would appeal, was welcomed by families of soldiers wounded or killed in Iraq and Afghanistan. The case follows inquests where the court - and notably Andrew Walker, assistant deputy coroner for Oxfordshire (the county that receives many of the bodies of British military killed overseas) - have sharply attacked the MoD.
Just two months ago, Mr Walker said British soldiers in Afghanistan were defeated not by the terrorists, but by the lack of basic equipment. "To send soldiers into a combat zone without basic equipment is unforgivable, inexcusable, and a breach of trust between the soldiers and those who govern them."
The MoD wanted the high court to tell coroners to avoid strong criticism such as "serious failure", the phrase used by Mr Walker in the Smith case. The judge rejected the MoD's complaint that such criticism affected any civil liability claim that might be lodged against it. Judge Collins also declared that soldiers' families should be entitled to legal aid in inquests which raised Article 2 human rights issues. He accused the MoD of going to "absurd lengths" to remove the names of anyone identified in official statements and documents. Coroners and families should have full access to military documents at inquests, he added.
Jocelyn Cockburn, the solicitor representing the Smith family, said: "The judgment means British soldiers sent abroad have the same human rights as any other British citizens and must be properly equipped when sent into battle," she said. Rose Gentle, whose son Gordon died in a roadside bomb blast, said the judgment might aid her fight in a test case for damages. "It means that Gordon's case must be heard in full as he was within the jurisdiction of the UK government."