Armed Services: Claims

Lord Carswell Excerpts

Thursday 24th November 2016 Lords Chamber

[Lord Carswell (CB)]

My Lords, I congratulate my noble and learned friend Lord Brown of Eaton-under-Heywood on bringing this topic before the House in today’s debate. It is one well worthy of your Lordships’ consideration. I must say to the House at the outset that I, too, was a member of the panel of the Appellate Committee of your Lordships’ House which heard the Al-Skeini appeal—the case of Baha Mousa. I say at once that I do not seek in any respect whatever to minimise the iniquity of the treatment that he received, which was perfectly correctly described by the noble Baroness, Lady Kennedy of The Shaws. Indeed, we all expressed our horror at that iniquity in the opinions that we delivered.

I was in agreement with my noble and learned friend Lord Brown then on the grounds on which we decided the legal issue arising in the appeal. But, like him, I have reconsidered the wider ground on which Lord Bingham based his very carefully argued and perceptive opinion. I now see more virtue in that wider ground and in Lord Bingham’s view of the limits on the reach of the Human Rights Act 1998. As my noble and learned friend Lord Brown went into that, I am not going to take time to go into the question further.

In some countries where they are serving, members of Her Majesty’s forces are confronted constantly by dangerous situations requiring instant decisions and reactions. The people who are in the best position to comment authoritatively on the difficulties, dangers and stresses facing such service personnel are those who have themselves served in such places. It has not been my lot in life—nor, I suppose, has it been that of the large majority of your Lordships. For that reason I am particularly glad that some Members of the House who have served in high command in Her Majesty’s forces will speak in this debate. Two of whom we have had the privilege of hearing already, and there are more to whose contributions I actively look forward.

The reason why I presume to speak on this topic today, apart from my judicial experience in the Al-Skeini case, is because, in Northern Ireland, as counsel and as judge, I heard detailed evidence on a number of occasions in court of those very situations and how service personnel dealt with them. The legal position was, of course, very different. Most obviously, we were dealing with events within the United Kingdom, so questions of extraterritoriality could not arise. Secondly, the Army was acting in support of the civil power and its rules of engagement were prescribed by the yellow card. The ordinary common law applied to claims brought against it and the Ministry of Defence. All the cases in which I was concerned, in either capacity, arose before the Human Rights Act was enacted, so the Convention on Human Rights did not come directly into consideration. I appeared for the Government in a number of cases as counsel and subsequently had occasion to hear and decide others as a judge of the High Court.

I shall confine myself to recounting one instance which illustrates vividly the type of situation which can arise. A person wanted for various serious terrorist crimes was known to be living in the Republic, out of reach of arrest by the security forces. It was also known that his girlfriend lived in a house very close to the border but just inside the territory of Northern Ireland. The Army received intelligence that this man would slip across the border to visit her in the near future. A small party of soldiers lay concealed within sight of the house and kept up observation for several days and nights.

One night the wanted man was seen to appear at or near the house and within the territory of Northern Ireland. The soldiers swooped on him and were able to arrest him without a struggle. They escorted him to a nearby field and summoned a helicopter to take the party and their prisoner to their base. The prisoner was in the centre of the field, guarded by the officer in charge, while the other soldiers secured the perimeter. Fairly soon the helicopter appeared and commenced its descent to the field, shining a bright light downwards—I believe it was called a Nightsun light. At that point the prisoner, hoping that the officer might be distracted or blinded by the light, made a lunge to grab his weapon. The officer reacted instinctively, discharged his weapon at the prisoner and wounded him fatally.

His representatives subsequently brought a civil action against the Ministry of Defence, claiming damages for the death of the man concerned. I appeared as counsel for the Ministry at the hearing of the action. The law was quite clear. It was not suggested that the man had been shot by an accidental discharge of the officer’s weapon. It was acknowledged that he had been shot deliberately—on the spur of the moment, of course—and the burden was then on the defence to justify the shooting as necessary in self-defence of the officer or defence of the other soldiers. In the result, the judge found in favour of the defence.

My point in describing this case as a sort of cameo is to illustrate the type of crisis which service personnel can encounter and the difficulties which they may meet in making proper decisions in situations requiring instant reaction. That is just one incident played out against a relatively calm background. How much more difficult could it be for soldiers in the circumstances which they faced in Iraq and other theatres abroad? I put this before your Lordships as a solid, practical reason to reinforce the reasons of principle which Lord Bingham adduced. I support the conclusions and suggestions which the noble and learned Lord, Lord Brown, has put before the House.