The Supreme Court handed down judgment in the case of R (Smith) v Secretary of State for Defence and Another [2010] UKSC 29 on the 30 June 2010.The case concerned the question of the application of the Human Rights Act 1998 and whether an inquest must satisfy the procedural requirements implied by Article 2 of the European Convention of Human Rights (the Convention).

The deceased, Private Jason Smith of the Territorial Army, was mobilised to serve in Iraq in 2003. Billeted in an old athletics stadium which had a 50 degree centigrade daytime temperature in the shade, the Private reported sick on 9th August. On 13th August the Private collapsed at the stadium and died of heat stroke. An inquest found that the death was as a result of a failure to address the difficulty he had in adjusting to the climate. This inquest suffered procedural shortcomings and judicial review proceedings were commenced by the mother. On narrower grounds than those proposed by the mother the Secretary of State ordered a new inquest which satisfied the Convention.

Article 1 of the Convention provides: "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention". This must be satisfied in order for a party to bring a claim under the Human Rights Act 1998.

The High Court determined that the Human Rights Act 1998 was applicable at all relevant times and a fresh inquest was ordered. Before the Court of Appeal, the Secretary of State agreed to refrain from arguing before a fresh inquest that Article 2 of the Human Rights Act was inapplicable. The Court of Appeal found, interpreting Article 1 of the Convention, that soldiers on foreign soil were within the jurisdiction of the United Kingdom and the inquest must comply with the implied requirements of Article 2. Though the order of a fresh inquest made the issues academic for the purposes of the present case, they were heard on the grounds of general importance.

The Secretary of State appealed to the Supreme Court. Discussing the issue of whether interpreting Article 1 foreign troops fell within United Kingdom jurisdiction, the Supreme Court considered the leading Strasbourg case of Bankovic v United Kingdom (2001) 11 BHRC 435, and the implications of this as heard in R (Al-Skeini) v Secretary of State for Defence [2008] AC 153. Endorsing the finding in Al-Skeini that Article 1 should not be construed further than the Strasbourg jurisprudence, the court determined that the Court of Appeal finding of jurisdiction despite the Private not being on premises under the effective control of the army was novel and could not be upheld. The Strasbourg court was the proper tribunal to consider the issue.

Lord Collins outlined the exceptions to the jurisdictional rule, stating that the case did not fall within any of them, or within policy exceptions. Dissenting, Lord Mance found jurisdiction to be made out on the basis of a reciprocal personal bond, holding that the Strasbourg court would find a bond wherever armed forces were stationed.

On a presumption that the jurisdiction question had been answered in the affirmative, the court considered whether an inquest must meet the implied requirements of Article 2 of the Convention. Referring to the case of R (Middleton) v West Somerset Coroner [2004] UKHL 10 which summarised the Strasbourg jurisprudence on Article 2, the court noted the finding of a procedural obligation to initiate an effective public investigation where a death occurs and agents of the state are or may be implicated. The obligations imposed upon the state involve public scrutiny, independence of state agents who may bear responsibility, promptness and an appropriate role for relatives.

Rejecting the respondent’s submission of an automatic presumption of an Article 2 investigation, the court found however that where in the course of an inquest it becomes apparent that a potential violation of Article has occurred, a coroner should investigate this and the inquest should comply with the procedural requirements of Article 2. In the instant case the inquest should be carried out in compliance with the Article 2 requirements.

Allowing the appeal on the question of jurisdiction, the court unanimously dismissed the appeal on the inquest question.