MPs have warned that an “unprecedented” number of legal challenges to the Ministry of Defence could result in commanders withholding troops from battle.
Furthermore, the Defence Committee, which examines the expenditure, administration and policy of the MoD, suggests that a ruling last year that military personnel and their families could sue the MoD for negligence in the case of death or injury has undermined the principle of combat immunity and opened an “almost unlimited potential for retrospective claims”.
It is important that we set these concerns in context. Like any employer/employee relationship, the MoD has a duty of care to safeguard its personnel against suffering injury caused by negligence or breach of statutory duty.
However, there is a major exception to this rule where service personnel are injured while fighting in a war zone where the MoD can claim combat immunity.
Mulcahy v MoD
When dealing with issues relating to combat immunity, the modern starting point is the case of Mulcahy v MoD. This case involved an artillery man who served in the Gulf War. He was part of a gun team manning a howitzer deployed in Saudi Arabia and firing into Iraq. Mulcahy’s claim was that the gun commander ordered him to the front of the gun carriage to fetch a jerry can of water and then gave the command for the gun to be fired. The discharge blew Mulcahy off his feet, seriously affecting his hearing. The court held that there is no civil liability for injury caused by negligence in the course of an active engagement with the enemy and in a war zone.
Subsequent cases extended the definition of combat immunity to include all active operations where soldiers are exposed to the threat of attack, including planning and preparation for war, peace-keeping and policing operations. Thus the cloak of combat immunity appeared to cover all operations involving British troops in Afghanistan and Iraq and any other areas where soldiers are involved in peace-keeping operations.
But there are grey areas and successful claims have been brought against the MoD when there was no actual fighting in progress, such as several serious road traffic accidents, soldiers injured by negligent discharges in camp or on rifle ranges, accidents en route from operations and so on.
The Human Rights Act
A number of more recent cases have been founded on the Human Rights Act, proposing that the MoD did not do all that could reasonably be expected of it to avoid risk to life.
One of the more notorious cases was that of Baha Mousa, a civilian in Iraq who was beaten to death while held in a British Military Detention Unit.
The most recent high-profile case – Smith & ors v MoD – involves the Snatch Land Rover and Challenger tank claims, which came to a head last year when the Supreme Court ruled that the families of soldiers killed in Iraq could bring a case. The allegations centre around the failure to equip troops with suitably armoured vehicles to guard against roadside bombs and not equipping the Challenger tanks with appropriate devices and recognition training, which might have prevented a friendly fire incident.
Critics of Smith suggest the case opens the floodgates to more claims in combat situations and that this will seriously undermine the morale and effectiveness of British troops. They also argue that such matters touch on questions of a political nature – such as the allocation of finite resources to the military.
However, the judgment in Smith makes it clear there is a significant difference between ‘heat of battle’ cases such as Mulcahy, where combat immunity would still remain, and cases where decisions are made far away from the battlefield, such as failure to properly equip troops and provide them with adequate training.
One of the judges used examples from the Crimean War, suggesting that a failure of the Army to provide proper medical attention and supplies would today be regarded as a breach of the Human Rights Act, whereas the Charge of the Light Brigade, a notorious tactical mistake costing many lives but made in the heat of the battle, would not.
Richard Gaffney spent ten years as an officer in the Armed Forces and is now a lawyer at Slater & Gordon