Smith and others v Ministry of Defence [2013] UKSC 41: the fog of war descends on the courtroom

The military theorist von Clausewitz once said that no plan survives contact with the enemy.  Real life confirms it: rare it is that wars ever go to plan. Even in the most successful engagements there have almost always been needless casualties caused by equipment failure, human error or a combination thereof.  In both Gulf Wars, for example, despite the overwhelming superiority of coalition forces, the very high level of technology at their disposal, and the swift conclusion of the initial military operations with extraordinarily low allied casualties, there were still friendly fire incidents where British and American soldiers were killed by their own side due to mistaken identity.

Recognising the inevitable consequences of the “fog of war” and the undesirability of civilian judges trying to sift through the evidence long after the event, the common law has developed the doctrine of “combat immunity”, under which anything that happens during battle is non-justiciable (see for example Shaw Savill & Albion Co Ltd v Commonwealth (1940) 66 CLR 344, Ex p Marais).

In Mulcahy v Ministry of Defence [1996] QB 732 the Court of Appeal preferred to see combat immunity not so much as an entirely separate principle as the result of a general conclusion that it was not fair, just or reasonable to regard the Crown or its martial emanations as under a duty of care to avoid injury or death in their acts or omissions in the conduct of an active military operation or act of war, but we can leave aside such doctrinal niceties for now.

The families of victims of one friendly fire incident in the 2003 Iraq war have brought proceedings against the Ministry of Defence (MOD).  The MOD applied to strike out the claims on the ground of combat immunity.  The Supreme Court by a majority decision has recently ruled against the MOD on that preliminary issue and allowed the claims to proceed to trial (Smith and others v Ministry of Defence [2013] UKSC 41).  There were claims arising out of different incidents, but we will confine ourselves here to what were called the “Challenger claims”.  In my view the dissenting judgment of Lord Mance was compelling.  The decision of the majority to allow the claims to proceed to trial is unsupportable in principle and may have severe practical implications. 

The Challenger claims involved one British Challenger II tank firing on another, with fatal consequences.  The claimants alleged that if the tanks had been properly equipped with existing technology and equipment, the incident would have been prevented.

The majority of the Supreme Court accepted that combat immunity was not limited to the presence of the enemy or the occasions when contact with the enemy had been established. It extended to all active operations against the enemy in which service personnel were exposed to attack, including the planning and preparation for the operations in which the armed forces might come under attack or meet armed resistance. Further, there was no duty, in battle conditions, to maintain a safe system of work.

However, the doctrine should be narrowly construed.  It extended to the planning of and preparation for military operations applied to the planning of and preparation for the operations in which injury had been sustained.  But it did not extend to the planning and preparation, in general, for possible unidentified further operations (see Lord Hope at [88], [92] and [98] of the judgment).

With respect to the Challenger claims, at the stage when men were being trained, whether pre-deployment or in theatre, or decisions were being made about the fitting of equipment to tanks or other fighting vehicles, there was time to think things through, to plan and to exercise judgment. Those activities were sufficiently far removed from the pressures and risks of active operations against the enemy for it not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that was imposed had regard to the nature of those activities and to their circumstances.

Recognising the dangerous implications, Lord Hope cautioned (at [100]) that:

it is of paramount importance that the work that the armed services do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong. The court must be especially careful, in their case, to have regard to the public interest, to the unpredictable nature of armed conflict and to the inevitable risks that it gives rise to when it is striking the balance as to what is fair, just and reasonable.

And yet by allowing the case to proceed to trial, Lord Hope with the greatest of respect has not taken account of that paramount importance. 

The decision of the majority relies on the following argument. A casualty might occur due to an equipment problem foreseeable and entirely within the power of the MOD to remedy before long before the war had started or even looked like starting. If so, why should the MOD hide behind combat immunity for decisions taken thousands of miles away and many months before hostilities?  

The answer is set out in cutting fashion by Lord Mance. The supply of technology and equipment, training for active services, and decisions taken on the ground during an action are all inevitably inter-linked.  The claimants had been careful not to make any criticism of the commanders on the ground.  But the attribution of responsibility could not depend on how the claimant framed his case.  Lord Hope recognised the problem but considered that all such circumstances had to be evaluated with a view to striking a balance between competing considerations.  Lord Mance concluded the opposite – that all such circumstances were inter-related and essentially non-justiciable.

At para [131] he stated:

The claimants’ case is that during or after any war any injured soldier or the relatives or dependants of any soldier killed in combat could sue the state for alleged failures in the preparation or equipping of the armed forces for combat. Logically, if that is so, then a soldier might, even during the war, complain that his or her equipment or training was inadequate and that it would be a breach of the state’s common law duty of care and/or duties under the Human Rights Convention even to order him or her to go into combat with it. If domestic legislation compelled this, then the soldier could seek relief in the Strasbourg court - maybe even interim relief prohibiting the further use or giving of orders to use the allegedly defective equipment. (…) Pointing to defective equipment and seeking to ban its use could have a considerable disruptive effect. Not only would there be a huge potential diversion of time and effort in litigation of such issues in an area of essential national interest (whether before, during or after hostilities). There must be risks that the threat of exhaustive civil litigation following any active military operation would affect decision- making and lead to a defensive approach, both at the general procurement and strategic stages and at the tactical and combat stages when equipment was being deployed.

By way of example he cited a number of well-known incidents – the defeat at Isandlwana, the failure of the War Office to appreciate Lancelot de Mole’s idea for the tank in 1912 and the fall of Singapore.  The defeats against the Zulus and the Japanese involved a number of tactical, planning and equipment blunders, while it is anyone’s guess what might have happened in the trenches had de Mole’s suggestion been taken up immediately upon it being made. (Or, one might add, if Whittle's invention had been acted on in the early 1930s.)  But a courtroom is not the place to try and disentangle all of the competing factors and decide what would or could or should have happened.

The number of further examples that could be added is limited only by one’s imagination. HMS Hood was known to be vulnerable to plunging shellfire due to her inadequate deck armament. That knowledge compelled Admiral Holland to give away his superior position at the start of the Battle of Denmark Strait, and five minutes later the Hood was destroyed. Should he have refused to leave port? 

Should pilots have refused to fly the Fairy Swordfish, which was known to be hopelessly obsolete in 1939 (but which went on to succeed at Taranto and against the Bismark, but was ruthlessly cut down in the Channel Dash)?  

Were casualties incurred during the Falklands because the British boots were unfit for purpose (conceivably, ground could have been covered more quickly otherwise and the troops would have been in better condition when closing with the enemy)?  

Should all the politicians of the past two decades be sued because, despite a defence budget as large as the French, the latter manage to develop their own jet (cf the Eurofighter conglomerate fiasco), build their own nuclear powered aircraft carrier (cf the QE class endless delays and cost overruns) and field many more troops? 

Why was no-one court martialled over the Royal Marine hostage fiasco in Iran a few years ago (the commander of the boarding party, the ship from which they deployed, and the commander of the fleet in the region would have been good places to start)?

As Adam Wagner pointed out here, it calls to mind the old rhyme

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

http://en.wikipedia.org/wiki/For_Want_of_a_Nail

The answer is that issues arising from tactical decisions are for military debriefing sessions and, where appropriate, courts martial.  Procurement issues are for the political process.  Neither is suitable for the civilian courtrooms.