Soldiers do have human rights in war zones, judge tells ministers

THE Ministry of Defence could face a flood of damages claims from families of soldiers killed in action following a legal ruling that sending troops into battle with defective equipment may breach their human rights.

In a test case over the death of Scottish Territorial Army soldier Private Jason Smith, who suffered heatstroke in temperatures of at least 50C in Iraq, Mr Justice Collins said human-rights laws could apply to troops serving abroad.

He also ruled the families of those killed in conflict should get legal aid and access to military documents. Des Browne, the Defence Secretary, said the government would appeal the court's decision.

Pte Smith's mother, Catherine Smith, from Hawick, welcomed the ruling. "I am delighted with the judgment. It is obvious soldiers should be treated with the same respect and the same rights as everyone else," she said.

"We are asking them to fight for this country and it is shameful that the Defence Secretary thinks that their human rights should be removed in the process."

The MoD had argued that it was "impossible to afford to soldiers who were on active service outside their bases the benefits of the Human Rights Act".

Mr Justice Collins said it had to be recognised that the lives of members of the armed forces "cannot receive absolute protection". But he also added: "The soldier does not lose all protection simply because he is in hostile territory carrying out dangerous operations. Thus, for example, to send a soldier out on patrol or, indeed, into battle with defective equipment could constitute a breach of Article 2 (right to life] under the European Convention on Human Rights."

British servicemen and women were entitled to some measure of legal protection "wherever they may be".

The judge also rejected Mr Browne's bid to ban coroners from using phrases such as "serious failure" – implying criticism of the Ministry of Defence and its agents – in verdicts on soldiers who had died in active service.

Clarification of the law came as the judge laid down guidelines for the future conduct of inquests.

The request for guidelines came in the case of Pte Smith. The 32-year-old was serving with the Territorial Army in Maysan province, Iraq, when, on 13 August, 2003, he collapsed and died in a corridor.

The judge did not specifically address the question whether families will be able to sue for compensation if human rights are breached, or whether Crown immunity will block claims.

The MoD said it did not consider that the judgment reflected legal precedents on the application of Article 1 and Article 2 of the convention.

But John Cooper, a barrister representing two of the ten families involved in the ongoing inquest into an RAF Hercules shot down in Iraq, said the ruling will "quite obviously" increase the chances of relatives suing for damages.

Mr Cooper said the judgment "clarifies beyond all doubt that the government is responsible under human-rights law for soldiers operating in theatres outside of the state jurisdiction.

"This is important not only in terms of the range of inquests which can now occur, but also as to the potential liability of the government for compensation for breaches of Article 2."

The father of a paratrooper killed in a firefight in Afghanistan, amid a lack of night-vision goggles, said he believed the ruling would aid his own legal battle with the MoD.

Anthony Philippson first threatened to sue the MoD last month, demanding that it accept liability for the death of his son, Captain James Philippson, in Helmand Province in 2006.

Mr Browne refused to comment on the judgment, but told The Scotsman he was "very proud of the advances we have made in terms of equipment and equipping our soldiers".

Ruling caps bad week in courts for Brown

THE historic ruling yesterday on the human rights of military personnel caps a dreadful week for Gordon Brown and his government in the courts.

In just four days, the UK government has lost four high-profile cases.

On Tuesday, High Court judge Sir George Newman found that new government rules making it harder for skilled immigrants to remain in Britain were illegal.

The following day, Islamic preacher Abu Qatada, dubbed "Osama bin Laden's right-hand man in Europe", won an appeal against deportation to Jordan as some evidence against him was the result of torture.

On Thursday, the High Court ruled it was illegal for the government to stop a Serious Fraud Office investigation into BAE's £43 billion arms deal with Saudi Arabia because of Saudi threats over ending their co-operation in the war against terror.

A spokesman for the SNP said the rulings showed it was better for powers on defence and human rights to be transferred to Holyrood.

He added: "The irony is that in areas of policy currently reserved to Westminster, Labour's entire case in Scotland is 'London knows best'. The reality is Brown's government is making a hash of things."

However, a spokesman for the UK government said that the significance of the rulings was being overblown.

Coroner not afraid to ask hard questions in pursuit of justice

ANDREW Walker, Oxfordshire's assistant deputy coroner, is a thorn in the side of the government but a hero to many military families.

Mr Walker has unflinchingly exposed the Ministry of Defence's shortcomings in his pursuit of justice for families of soldiers killed in Iraq and Afghanistan.

He is acknowledged by service families as one of the few officials to take their grievances seriously, willing to question the government line if it will lead him to the truth.

He is responsible for the inquests as the bodies of servicemen who die overseas are returned to RAF Brize Norton in Oxfordshire.

He attacked US authorities over the death of Matty Hill in a friendly-fire incident in Iraq in 2003. And

in his verdict on the death of Captain James Philippson in Afghanistan, he placed the blame squarely on the MoD.