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…show more content…
It is argued that this ‘enrichment’ has been the product of Parliament’s removal of the ‘Crown Immunity’ under s10 of the Crown Proceedings Act 1947.
In the Policy Exchange paper, the authors listed and explained the numerous negative impacts resulting from the legal development on the armed forces. In summary of the arguments, the ability to investigate the actions of military officials is said to most significantly affect the ‘ethos’ of the Service personnel. It is bound to shift focus from tactical operations to that on the avoidance of liability. It is also argued that such judicial intervention has reduced the military’s ability to respond to emergencies; personnel must now continuously take into account the need to preserve the necessary evidence to prove that their decisions and actions were authorised and legal.
It is argued that the Smith extension of liability has now forced the armed forces into inevitable floodgates of litigation. According to the Policy Exchange paper, the costs of litigation have “risen out of all proportion” , where the MoD has dealt with 5,827 claims against it in the years 2012-13 alone.
The investigation above highlights the need for reform; it seems forthcoming that the MoD and the Service personnel start to derogate from their operational and tactical duties to the major and dangerous focus on the avoidance of litigation.
Suggestions for reform have taken several forms . In The Fog of Law, for instance, seven