R (Long) v Secretary of State for Defence: Article 2 ECHR in a military context

17 Jul 2015 | by Claire Alderman

The Court of Appeal today dismissed an appeal brought by Mrs Pat Long against the judgment of the Divisional Court ([2014] EWHC 2391 (Admin)) refusing her claim seeking a fresh investigation into the death of her son Corporal Paul Long, one of six British soldiers of the Royal Military Police who were murdered at a police station in Iraq on 24 June 2003. The claim was brought on the basis that the United Kingdom had not discharged its investigative obligation under Article 2 ECHR to investigate the soldiers’ deaths. The allegation said to require further investigation was of a lack of care or competence in the Army chain of command by failing to ensure that a standing order on communications equipment was implemented by the Royal Military Police.

Unlike the Divisional Court, the Court of Appeal found that the facts surrounding the soldiers’ deaths were such as to engage the state’s substantive obligations under Article 2 and therefore a duty under Article 2 to hold an investigation. The Court found that the routine failure of the Royal Military Police to comply with the standing order was a failure of system or control and not an isolated failure of an individual to comply, and that requiring an investigation into why a practice developed whereby the order was routinely ignored would not be disproportionate or unreasonable.

The Court of Appeal agreed, however, with the Divisional Court’s conclusion that the investigations that had already taken place, including an Army Board of Inquiry and the Coroner’s inquest, had revealed what went wrong and what lessons were to be learnt and that Article 2 did not therefore require any further investigation into the question of how the communications order came to be disregarded. The Court of Appeal also agreed with the Divisional Court’s view that, even if the Article 2 investigative duty had not been fully discharged: (i) it would be unrealistic to suppose that further significant or useful information could be obtained by a further investigation so many years after the event; and (ii) there was no reasonable prospect that there could be further lessons to be learnt that were of current or future relevance at this distance in time.

The Judgment is available here The Queen on the application of Long v Secretary of State for Defence.

Daniel Beard QC, Gerry Facenna and Brendan McGurk acted for the Secretary of State for Defence.