Private Smith died of hyperthermia in a UK Base whilst serving for the TA in Iraq. The accommodation space to which he was assigned was described as light and airy but lacking air conditioning. Temperatures reached an excess of 50 degrees Celsius. 

Two issues were raised upon appeal. First, the ‘Jurisdictional question’: to what extent British soldiers serving in Iraq are protected by the European Convention on Human Rights. Second, the ‘Article 2 question’, namely as to whether the inquest in to the death of private Smith should comply with article 2 of the Convention. If the inquest needed to comply with article 2, two questions were raised. First whether Private Smith’s death was caused by a defective system operated by the state to afford adequate protection to human life by ensuring, so far as reasonably practicable, that he was an appropriate person, with proper training and equipment, to expose to the extreme heat of Iraq.  Second, whether there was a real and immediate risk of his dying of heatstroke and, if so, whether all reasonable steps were taken to prevent it.

The Jurisdiction Question

The question was whether a British soldier in the TA who is on military service in Iraq, is subject to the jurisdiction of the United Kingdom (‘the UK’) within the meaning of article 1 of the Convention, so as to benefit from the rights guaranteed by the HRA 1998, while operating in Iraq or whether he is only subject to the jurisdiction for those purposes when he is on a British military base or in a British hospital. The court held in the affirmative that a soldier who dies on a UK base dies within the jurisdiction of the UK within the meaning of article 1 of the Convention and thus can benefit from the rights guaranteed by the HRA 1998.

The Article 2 Question

The question was whether the inquest into Private Smith’s death must conform to article 2 of the Convention in a particular way. The court distinguished between two types of inquest.  First a traditional inquest and second an ‘article 2 inquest’. The essential difference between them is that the permissible verdict or verdicts in a traditional inquest is significantly narrower than in an article 2 inquest. In addition, it is said that the scope of the investigation is or is likely to be narrower at a traditional inquest. The court held that those who volunteer for the TA should be afforded protection under article 2 ECHR. The Court held that the precise limits of the inquest will be a matter for the coroner but expected that the coroner to consider the questions whether there were any systemic failures in the army which led to Private Smith’s death and, indeed, whether there was a real and immediate risk of his dying from heatstroke and, if so whether all reasonable steps were taken to prevent it.