Combat Immunity and The Iraq War

This is the judgment of the court.

1. The case before the court today involves the above facts surrounding the injuries sustained by Mr. Atkins, and whether the MOD owes a duty of care to its soldiers in the circumstances outlined. For many years the MOD has claimed immunity under the Crown Proceedings Act[1]. The intention of this judgement is not to find if there was a breach of duty by the MOD but to find if the Ministry can claim combat immunity and if imposing a duty of care would be fair, just, and reasonable within the context of the Crown Proceedings (Armed Forces) Act[2].

2. We are here to give judgement on the decision upheld by the Court of Appeals regarding how it would not be fair, just, and reasonable to impose a duty of care in a situation involving the theatre of war. The court has already confirmed that the requirements to establish the injury to the claimant were foreseeable and that there was a proximate relationship between the parties and as such no further judgements will be given on those facts.

3. With regards to the decision being fair just and reasonable. A number of factors need to be analysed. Combat immunity is only applicable in the theatre of war[3]. If there was combat immunity than obviously it would be unjust to allow the appeal and allow the defendant to suffer damages when they are protected from actions brought against them. The effects that this decision would have on policy would also need to be taken into consideration. As the U.K. is now part of a larger global community known as the E.U. the human rights argument would also need to be investigated before giving a judgement.

4. In this situation it would be reasonable to first define what a legal duty of care is. Lord Atkins decision in Donoghue[4] where the “neighbour principle” was established helped set the foundations for what was to be considered a duty of care. The definition of neighbour given by Lord Atkins was:

“…persons who are so closely and directly affected by my act that I ought to have them in contemplation…[5]”

5. The ratio in Donoghue[6] was followed until the case of Caparo[7] where it was decided that no longer should a duty exist where “it ought to apply unless there is some justification or valid explanation for its exclusion.[8]” I agree with the more refined reasoning of Caparo where it was decided that for a duty of care to exist three main criteria should be met[9]:

i. The damage must be foreseeable

ii. There must be a sufficient proximate relationship between the parties

iii. It must be fair, just and reasonable for the court to impose a duty of care in the light of policy considerations with which the court is concerned.

Whilst the points above are vague it is in essence the vagueness itself that has led to the courts being able to analyse individual cases on their own merits whilst still staying in a framework of reasoning that can be explained.

6. Before the act of 1947, it was very difficult to win an action against the Crown[10]. The widespread immunity enjoyed by the Crown pre-1947 was brought under control by the Crown Proceedings Act[11], but this act still gave blanket immunity to the Ministry of Defence[12]. This was further rectified by the introduction of the Crown Proceedings (Armed Forces) Act of 1987, which reigned in on the immunities given to the Crown. It should be noted that the section of interest for this case is section 2(2)(b):

"the Secretary of State is empowered to make an order reviving the effect of section 10 of the Act of 1947 for "the purposes of any warlike operations in any part of the world outside the United Kingdom."

Whilst the relevant minister had the authority to do so, no specific order was made in relation to the current operations in both Afghanistan and Iraq by the relevant authorities.

7. “The defence of combat immunity is not strictly a defence at all, in the sense of rendering lawful what is alleged to be unlawful. Rather, where the doctrine applies its effect is to remove the jurisdiction of the court to decide certain kinds of dispute; they are non-justiciable...”[13] I can not help but disagree with this statement given by LJ Elias. The mere assumption that the rights of the citizen were unlawfully infringed upon assumes that the acts by the Crown were impliedly wrong which is not a matter for the court to decide upon in cases such as these.

8. The issue of combat immunity and the duty of care aspect with regards to it being fair, just and reasonable had been raised previously in many cases. One case of particular interest is Mulchany v MOD[14] which raised the question does a soldier of a duty of care to fellow soldiers. In giving judgement Neil LJ stated:

“To hold that there is no civil liability for injury caused by the negligence of persons in the course of an actual engagement with the enemy seems to me to accord with common sense and sound policy.”

Whilst the statement by LJ Neil is not binding on this court, his reasoning is not flawed and I am compelled to agree with the statement that it would be within the bounds of sound policy to not hold that there was a duty of care from one soldier to another. It would be unfair to hold soldiers responsible for decisions made in the heat of battle as it would lead to defensive practices being carried out instead of the specified mission. It must be understood that in that case the claim was being brought against the mistakes made by a fellow soldier. Whilst the facts are different to this case and on that basis it could be distinguished I find that the reasoning is still good law.

9. It has been shown actions taken in the heat of the moment of battle should not be held to have a duty of care. This leads us to enquire about when there have been occasions where decisions were taken much more purposely and with forethought[15], the facts are similar as the decision to use Land Rovers may not have been made during the actual war, but during the preparation for war. This question was answered in the House of Lords case of Burma Oil v Lord Advocate[16]. Where the assets of the company were set ablaze to avoid them coming into control of the enemy. A very calculated decision made with forethought to make sure that the enemy would not be able to benefit from the use of the oil refineries. I find that the decision taken in that case was correct. Which leads me to the assumption that even though the decision to use the specific model of Land Rover’s was not made in the heat of battle, it would still come under the same level of premeditated thinking made by the decision makers in Burma Oil.

10. Let us for a moment consider if actually using the Land Rovers was a negligent decision. An enquiry has led to the belief that the Snatch was an inappropriate vehicle but trade-off’s need to be made with regards to protection and mobility[17]. I agree that the vehicle may not be suitable for the current conditions but it would not be feasible for the soldiers to man tanks when the enemy is sometimes hiding in the urban environment, consideration must also be given to the fact that the speed is a trade-off to the protections provided by the vehicle.

11. Why it would be the wrong policy decision for a duty of care to be allowed in this situation must also be considered. As was seen in Hughes v. National Union of Mineworkers[18] by May, J.:

"…If senior police officers charged with the task of deploying what may or may not be an adequate force of officers to control serious public disorder are to be potentially liable to individual officers under their command if those individuals are injured by attacks from rioters that would, in my judgment, be significantly detrimental to the control of public order …It is not, I consider, in the public interest that those decisions should generally be the potential target of a negligence claim if rioters do injure an individual officer, since the fear of such a claim would be likely to affect the decisions to the prejudice of the very tasks which the decisions are intended to advance."

The material facts in that case differ greatly from those in this one, but the situation could be seen as the same with regards to policy. If it would be detrimental to hold the police negligible whilst quelling a miners riot because of the fact that it would affect the decision being made by the commander we can transfer that same reasoning to this case where if the Ministry had the belief that they would be held liable for every death they would also start making defensive decisions that could effect the lives of all soldiers based overseas. The consequences of a decision allowing a duty of care would also lead to a burden on the state with regards to the economic factors, compensating for the deaths would lead to more costs which would inadvertently lead to less money being spent on the tools and resources needed to better protect our soldiers abroad.

12. Let us now consider what the human rights ramifications would be in this case. In R v Secretary of State for Defence[19] the decision taken was that an article 2 right does exist even for service personal serving abroad. Attention should be paid to the fact that a distinction should be made between heat of the moment situations such as defensive practices whilst the enemy is approaching where there would be no duty, and situations such as this where soldiers were sent into battle with defective equipment there would be a duty of care[20]. I must here disagree with this judgement. I would rather say that if we can still consider both situations to be “battle conditions[21]” why we would grant immunity in one situation whilst not applying it in the other is beyond rationale reasoning. A judgement like this would lead to confusion in the justice system and as such I would not apply it to this case.

13. In giving my final judgement I would agree with the criteria set out by Lord Lowry in Spring v Guardian Assurance[22] “public policy should be invoked only in clear cases in which the potential harm to the public is incontestable, that whether the anticipated harm to the public will be likely to occur must be determined on tangible grounds instead of on mere generalities and that the burden of proof lies on those who assert that the court should not enforce a liability which prima facie exists.” I believe the statement could not be put forward more eloquently by myself and as such agree with it, I believe that in this case the hard that would be done to the public is incontestable, for these reasons and for all that have been given above I dismiss the appeal and find that no duty of care was owed.

[1] S.10 Crown Proceedings Act 1947

[2] Crown Proceedings (Armed Forces) Act 1987

[3] Crown Proceedings Act 1947

[4] Donoghue v Stevenson [1932] AC 562

[5] Donoghue v Stevenson [1932] AC 562

[6] Donoghue v Stevenson [1932] AC 562

[7] Caparo v Dickman [1990] 2 AC 605

[8] Per Lord Reid, Dorset Yacht v Home Office [1970] AC 1004

[9] Caparo v Dickman [1990] 2 AC 605

[10] Lord Canterbury v. The Queen (1843) 12 L.J.Ch.

[11] Crown Proceedings Act 1947

[12] S.10 Crown Proceedings Act 1947