COMBAT IMMUNITY An Update

1. COMBAT IMMUNITYAn Update David Knifton Exchange Chambers Liverpool, Manchester & Leeds

2. INTRODUCTION “To concede that any civil liability can rest upon a member of the Armed Forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy. But the principle cannot be limited to the presence of the enemy or to occasions when contact with the enemy has been established…The principle must extend to all active operations against the enemy.” Shaw Savill & Albion Co v The Commonwealth (1940) 66 CLR 344, per Dickson J

3. BASIS OF THE DOCTRINE? • Rule of policy, based on public interest of the state prevailing over the interests of the individual • Exclusionary immunity, where duty of care would otherwise exist? (cf advocates’ immunity prior to Arthur (JS) Hall v Simons [2002] 1 AC 615) • No duty owed, as not fair, just and reasonable? (Caparo Industries v Dickman [1990] 2 AC 605) • No duty owed, as such issues non-justiciable?

4. HISTORICAL DEVELOPMENT • Pre-1947 – no right of action in tort against the Crown • Crown Proceedings Act 1947 s2 – Crown liable in tort, including as employer • s10 exemption – no liability for death or personal injury to member of armed forces caused by negligence of another member of armed forces, or in consequence of the condition of service property, provided Sec of State certified that entitled to war pension

5. Crown Proceedings (Armed Forces) Act 1987 – s10 immunity abolished from 15.5.87 • s2 – Sec of State permitted to revive s10 by statutory instrument where necessary or expedient by reason of any imminent national danger or great emergency, or for purposes of any warlike operations, or operations in connection with warlike activity, in any part of world outside UK • Never exercised to date

6. IMMUNITIES AND THE HRA 1998 • Hill v Chief Const of W Yorks [1989] AC 53 – on public interests grounds, no duty owed to victim in investigation of crime • Osman v UK (1998) 29 EHRR 245 – blanket policy immunity, without consideration of merits of claim, contravened Art 6 right to fair trial • Z v UK (2001) 34 EHRR 3 – legitimate for UK law to limit liability in tort on considerations of public policy, and for claims to be struck out where no duty existed. Art 6 concerned with procedural obstacles to fair hearing, not situations where substantive law precluded a claim

7. CASES ON COMBAT IMMUNITY Ex parte Marais [1902] AC 109 PC refused leave to appeal alleged wrongful detention by military authorities in S Africa under martial law “where actual war is raging acts done by the military authorities are not justiciable by the ordinary tribunals…The truth is that no doubt has ever existed that where war actually prevails the ordinary Courts have no jurisdiction over the action of the military authorities” per The Lord Chancellor

8. Shaw Savill & Albion Co Ltd v The Commonwealth (1940) 66 CLR 344 Collision between Australian Navy ship and another vessel during WWII, due to negligent navigation by captain, did not fall within combat immunity, as did not involve actual operations against the enemy, as opposed to other activities of combatants in time of war “It may not be easy under conditions of modern warfare to say in a given case upon which side of the line it falls” – per Dickson J

9. Burma Oil Co Ltd v Lord Advocate [1965] AC 75 Destruction of oil installations to prevent capture by advancing Japanese army in WWII would not have been subject to compensation if “battle damage” during course of military operations “Such damage must include both accidental and deliberate damage done in the course of fighting operations” – per Lord Reid “I would define the line as excluding damage done in the battle or for the necessities of the battle” – per Lord Pearce

10. Mulcahy v MOD [1996] 1 QB 732 Claim for injuries suffered by artilleryman as result of negligence of gun commander firing live rounds from Saudi Arabia into Iraq during 1st Gulf War was struck out, as he was in a war zone taking part in warlike operations, and it would not be fair, just and reasonable to impose a duty of care “public policy does require that, where two or more members of the armed forces of the Crown are engaged in the course of hostilities, one is under no duty of care in tort to another” per Sir Iain Glidewell

11. CA declined to consider limits of doctrine • What if firing guided missile 100 miles? • What if arming a bomber? • What if driving vehicle bringing ammunition to front line from rear?

12. Multiple Claimants v MOD [2003] EWHC 1134 Claims for PTSD sustained as consequence of combat exposure in N Ireland, Falklands, 1st Gulf War or peace-keeping in Bosnia Owen J held that: • A soldier does not owe a duty of care to another soldier when engaged with enemy in course of combat • MOD not under duty to maintain safe system or work for personnel engaged with enemy in course of combat

13. As to scope of combat immunity: • Combat immunity extends to all active operations against the enemy in which personnel are exposed to attack or threat of attack (attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement) • Combat immunity extends to planning of and preparation for operations where personnel may come under attack or meet armed resistance (but doubted by majority in Smith v MOD) • Applies to peacekeeping and policing operations where personnel are exposed to attack or threat of attack

14. Bici v MOD [2004] EWHC 786 UK soldiers who shot Albanians during peace-keeping operations in Kosovo were not covered by combat immunity, as they were merely dealing with street disorder, and were not in a combat situation “The courts recognise that very exceptionally the basic liberties of the citizen may have to give way to vital interests of state. When armed clash or attack is imminent [and serious], the citizen may be an unfortunate victim, whether as a result of enemy action or sometimes friendly fire or precautionary actions…It is not the conduct of the victim which justifies immunity from suit but rather a very pressing public interest” – per Elias J

15. Elias J held that: • Doctrine was related to “necessity” – exceptional defence to state to act free from any legal fetters for negligent or intentional acts during actual or imminent armed conflict • Where doctrine applied, its effect was to remove jurisdiction of court - as such, should be narrowly construed (approved by majority in Smith v MOD) • It requires a significant degree of necessity before combat immunity can trump the fundamental protection of recourse to courts

16. Smith v MOD [2014] AC 52 2 groups of claims re UK deployment to Iraq 2003-09: • Snatch Land Rover claims – alleged failure to provide adequate protection from IEDs, in breach of Art 2 (right to life) and negligence • Challenger claims – alleged negligent failure to provide technology or adequate recognition training to prevent injury/death due to friendly fire from 1 tank to another, during active combat phase

18. D applied to strike out claims: • Deaths occurred outside UK jurisdiction under Art 1 ECHR, so Art 2 duty not owed • Alleged failures re military procurement, training etc were non-justiciable under combat immunity, or because not fair, just and reasonable to impose duty

19. Owen J at 1st instance: • Struck out Art 2 claims as outside UK jurisdiction, applying territorial test (R (Smith) v Oxford Coroner) • Refused to strike out negligence claims for failure to provide suitable equipment, available technology and adequate recognition training, as combat immunity should be narrowly construed to planning and preparation of the particular operations in which injury was sustained • Struck out negligence claim re sending Snatch Land Rover on patrol, when previously withdrawn due to earlier deaths, on basis of combat immunity

20. CA: • Upheld strike-out under Art 2, as outside jurisdiction, though conflict between ECtHR and SC authorities (Al Skeiniand Smith) • Allowed all negligence claims to go to trial • MOD owed employer’s duty of care, so cases excluding duty re non-justiciable issues of procurement etc on public policy grounds did not apply – policy issues were relevant to standard of care (ie breach), not to existence of duty • Claims did not allege acts or omissions in heat of battle or during “active operations”, so arguably combat immunity would not apply – factual issue to be determined at trial

21. SC: • Unanimously allowed appeal re Art 1 – extra-territorial jurisdiction under ECHR applied due to authority and control exercised by UK in Iraq • By 4:3 majority, allowed all claims to go to trial • Lord Hope (majority) – combat immunity was a special rule, which should be narrowly construed, as in Bici, but arguably did not apply here, and issue of whether fair, just and reasonable to impose duty should be determined at trial • Lords Mance and Carnwath (minority) – combat immunity should be regarded as application of fair, just and reasonable test, not as separate doctrine, but claims should be struck out on basis that no duty owed re active military operation

22. Lord Hope (Walker, Hale & Kerr JJSC concurring): • Combat immunity best thought of as a special rule, excluding any duty when it applies • Scope of immunity should be construed narrowly to actions in course of actual or imminent armed conflict, and not extend to planning and preparation • Challenger claims concerned failures long before commencement of hostilities, when time to think, plan and exercise judgment, far removed from pressures and risks of active operations • Snatch Land Rover claims may involve failures during active operations, within combat immunity, but factual issues must be left for trial

23. Lord Hope (cont’d): • Question whether no duty owed as not fair, just and reasonable on grounds of policy, could not be determined without evidence at trial • Close attention must be paid to time and circumstances of alleged failures • Easier to find breach re pre-deployment decisions, when time to assess and plan risks, than when attributable to actions in theatre • Great care needs to be taken not to subject military to duties that are unrealistic or excessively burdensome, having regard to public interest, unpredictable nature of armed conflict, and inevitable risks, when striking balance as to what is fair, just and reasonable

24. Lord Mance (Wilson & Carnwath JJSC concurring): • Combat immunity is not so much an entirely separate principle as the result of a conclusion that not fair, just and reasonable as question of public policy to impose duty of care in conduct of active military operations or war • Cannot separate issues re supply of technology and equipment from decisions on ground during active service • Allegations of failures in equipment and training involved policy issues of huge width, essentially political rather than legal, as in Hill v ChConst • Different considerations applied re equipment and training in peacetime • Death or injury unconnected with risks of active combat (eg due to defect in equipment) might give rise to duty

25. Lord Carnwath (minority): • Starting point should be 3-stage Caparotest, rather than separate doctrine of combat immunity • New duties should be developed incrementally and by analogy • Closest analogies were police “immunity” in investigation of crime (Hill) or control of major public disorder (Hughes v NUM), and emergency servicesnot liable for risks inherent in their employees’ work (King v Sussex Ambulance) • Later Snatch Land Rover cases, after combat operations ceased, involved failure to deal with known and preventable risk, so not excluded as matter of policy

26. WHERE NEXT? • Smith – strike-out only. Trial some way off • Factual difficulties in proving alleged failures fall outside non-justiciable political judgments or issues of policy • Difficulties in proving breach, where injury occurred during risks of active operations • Causation issues – did injury result from inadequate equipment/training (duty?), or decisions/acts in battle conditions (immunity)?

27. PINZGAUER CLAIMS

28. Injuries sustained from IEDs in Afghanistan when patrolling in Pinzgauer Vector • Design faults – no V-shaped hull; driver over front axle (“cone of destruction”) • Better-protected vehicles (eg Mastiff) available at comparable cost • Other NATO forces used mine-resistant vehicles • Concerns aired in Parliament pre-deployment

29. David Knifton Exchange Chambers Liverpool, Manchester & Leeds www.exchangechambers.co.uk knifton@exchangechambers.co.uk