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

15 Jul 2014 | by Caroline Sweeney

The Divisional Court (Fulford LJ & Leggatt J.) today dismissed a claim brought by Mrs Pat Long seeking a further 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. It raised issues concerning the scope of a state’s duty under Article 2 to investigate the death of a member of its armed forces and, by implication, the scope of a state’s substantive obligations to safeguard the lives of soldiers on active service. The claim also raised issues about the timing of a claim alleging breach of the Article 2 investigative duty and interaction with the judicial review rules on delay.

The Divisional Court found that the case fell within so-called ‘middle ground’ identified by Lord Hope in Smith v Ministry of Defence [2014] AC 52 (‘Susan Smith’), where the courts may entertain claims under Article 2 ECHR brought in relation to the deaths of soldiers on active service. The allegation said to require further investigation was of a lack of care or competence in the chain of command by failing to ensure that a standing order on communications equipment was implemented by the RMP.

However, the Court found that this allegation did not disclose an arguable breach of the state’s substantive obligations under Article 2 and therefore no duty arose under Article 2 to hold an investigation. In the Court’s view, Article 2 does not give a soldier on active duty the right to be safeguarded against the risk of human error, and imposing such a duty would be “wholly unrealistic, excessively burdensome and calculated to impede the work done by the armed services in the national interest”.

The Court also held, that even if such a duty arose: (1) it had been discharged in this case by the detailed investigations which had already taken place, including the Coroner’s inquest; (2) there was no reasonable prospect that there could be further lessons to be learned through a new investigation held ten years later; and (3) there had been considerable delay in bringing the claim, which was not justified by the fact that the law had been clarified by later Strasbourg and domestic case law, meaning that the relief sought would in any event be refused even if the Claimant had been able to show a historic breach of Article 2.

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

Please click to view the judgment in R (Long) v Secretary of State for Defence [2014] EWHC 2391 (Admin)