19/06/2013
The MoD can no longer hide behind the defence of "combat immunity", preventing aggrieved relatives from suing the Ministry in the event of deaths of their loved ones in action. That is the effect of a
ruling today in the Supreme Court today, where
Sue Smith and others had sought leave to sue the Ministry over the use of poorly armoured Snatch Land Rovers in Iraq.
This is an issue which we have rehearsed
on this blog and more generally on
Defence of the Realm, to the extent that we have very little further to say. When I spoke to Sue Smith earlier today, though, she was both thrilled and weary, having lived with the death of her only son for nearly eight years, only now to get to the stage where she can challenge the MoD in open court.
As it stands, nothing has been proven â all Sue has managed to do is earn the right to sue. Whether the MoD actually breached their duty of care in requiring Sue's son, Pte Phillip Hewett and others, to patrol in a Snatch through al Amarah in southern Iraq on 16 July 2005, has now to be established, and that is going to take some seriously hard work.
Interestingly, at
the inquest on 30 January 2007, Major General (now General) Sir Peter Wall gave evidence in defence of the decision to use the Snatch,
saying:
...if we ⦠had decided that we were going to put the armour protection of specific vehicles as our highest priority and we had conducted all of our patrolling in Challenger tanks and Warrior fighting vehicles in urban areas where there is quite a lot of support and sympathy for our presence, it was our expectation that this would have generated a wholesale adverse reaction, which would have greatly increased the span of threats to our presence in southern Iraq.
Sir Peter is now Chief of the General Staff, the professional head of the Army, so this case goes right to the very top of the Service, challenging the decision-making at the very centre of power.
Contrary to some rather
superficial comment, therefore, this case does not "open the floodgates" for soldiers or their relatives to second-guess the decisions of field commanders, and especially decisions taken in the heat of the moment. The case goes to the heart of Army decision-making at the very highest level, where the use of Snatches was decided upon for political rather than operational reasons.
The limitations of the case have been made clear by the majority of the Justices (five), who held that the Snatch Land Rover cases should not be struck out but that the extent of any duty owed, and whether such duty was breached, will be fact specific and have to be explored at trial.
Lord Hope made clear that in deciding whether or not the state had breached its duties, the courts should not impose an "impossible" or "disproportionate" burden on the authorities. Equally "the widest measure of appreciation" must be given to commanders for decisions taken on the ground and actively involved in armed conflict.
That this case will ever see the light of day is in some measure due to the generosity of
Sunday Telegraph readers, who responded to an appeal by
Christopher Booker, and to readers of this blog who did likewise, enabling Sue to proceed at a critical juncture when legal aid was being withheld.
The broader background to Snatch incident is set out in my book
Ministry of Defeat, which got as close to the facts as we could. Now we may find ourselves able to add more to the narrative, and get even closer to what went on, which has been Sue's objective all along.
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