Yesterday, the House of Commons Defence Committee released a report claiming that recent court cases by injured service men and women alleging negligence against the Ministry of Defence (MoD) risk the ‘judicialisation of war’.
The Committee expressed a particular concern about a recent Supreme Court judgment Smith, Allbutt and Others v MoD  UKSC 41 in which Leigh Day is acting for some of the claimants.
Apparently, commanders on the battlefield increasingly fear they will be subjected to legal action challenging their operational decisions such that they are becoming unwilling to assume responsibility or take necessary risks.
The Committee’s report follows in the footsteps of a scaremongering report released by the right wing think-tank Policy Exchange last year called “The Fog of Law”.
It was therefore no surprise when Defence Secretary Philip Hammond lauded the Committee’s report and claimed that legal challenges to “legitimate combat decisions” could “make it more difficult for our troops to carry out operations in the future.”
The trouble with this foggy thinking is that it bears no relationship with the actual law. The Smith decision confirmed that neither the MoD nor soldiers can be sued for negligence in relation to combat decisions.
None of the claimants had even tried to claim that they could sue in relation to combat decisions.
As Brigadier (Rtd) Anthony Paphiti confirmed in his submissions to the Committee, “Smith does not make commanders on the ground liable for decisions taken on the battlefield. The commander is thus still free to make his tactical decisions on the basis of his assessment of the task, his troops to task and available equipment and munitions. He fights with what he has to achieve mission success.”
The Committee’s report looks rather like an attempt to let the MoD avoid accountability for its poor decisions.
It was poor decisions by the MoD which, it is claimed, resulted in the friendly fire incident in which Stephen Allbutt and David Clarke were killed and Dan Twiddy and Andy Julien severely injured.
At the beginning of the Iraq War in 2003 during the assault on Basra, those soldiers led by Corporal Allbutt had been ordered to position their tank near a dam over a canal on the outskirts of the city at night.
A tank from a different unit was positioned several hundred metres away on the far side of a bridge over the canal. The soldiers operating that tank were not aware that Allbutt’s tank had been positioned there. Using their thermal sight they wrongly identified Allbutt’s tank as an enemy bunker and fired several High Explosive Squash Head rounds, leading to the friendly fire incident.
Our clients Dan Twiddy, Andy Julien and the family of Stephen Allbutt aren’t claiming for mistakes by soldiers or commanders on the battlefield. Rather, they claim the MoD failed to provide the soldiers with adequate equipment and training which would have prevented such mistakes being made. These failures were made by the MoD over a long period of time and well away from the battlefield.
It is not just out clients and the other claimants in Smith who are seeking to hold the MoD to account for failing to properly equip soldiers.
Only a few weeks ago, Major Richard Streatfeild (Rtd) came out publicly to criticise the MoD’s shoddy equipping of soldiers in Afghanistan, saying he was ashamed that he had toed the MoD’s line in defending kit he knew to be inadequate.
The inadequate equipment had, he said, resulted in the friendly fire death of Lance Corporal Michael Pritchard, for which the MoD should apologise to the family.
It is estimated that friendly fire accounts for between 10-15% of casualties in modern war.
Since at least 1971 and particularly after the first Gulf War in 1990-1 it had been recognised that there was a need to introduce battlefield technology to enable soldiers to identify a friend or foe to reduce fratricide.
This need had been repeatedly stressed by Parliament for many years before the Iraq War in 2003. In 1994 the Commons Defence Committee excoriated the MoD’s failures, stating that “Up to now the attempts to develop an effective Identification Friend or Foe system have been a debacle.
As we understand it, an effective solution is technically feasible but requires allied nations to agree a common approach. … Any further delay will not be tolerated”.
In 2002, the Commons Committee on Public Accounts stated, “In 1992, our predecessors concluded the Department should redouble its efforts to secure an agreed approach to producing what was then known as an Identification Friend or Foe system.
A decade later, the Department has only just approved a policy paper on Combat Identification, and many of the solutions required to implement that policy are years away from fruition. It is unsatisfactory that the Department has made such slow progress in developing Combat Identification solutions to the risk of friendly fire and it needs to increase the tempo of its efforts.”
The 2002 MoD approved Combat Identification policy paper referred to itself warned that “The Department has a duty of care towards its employees, including armed forces personnel, and needs to be able to demonstrate that it has taken appropriate steps to prevent fratricide. Without adequate Combat Identification, the subsequent risk of fratricide could have a negative impact on the morale of the armed forces which could adversely affect combat effectiveness. Morale could also be affected by the growing influence of litigation whereby the Department could be held legally responsible for any injuries or deaths resulting from incidents of fratricide.”
Unfortunately for our clients, the MoD did not provide sufficient combat identification equipment and training that would have prevented the other tank crew firing on them.
Debi Allbutt, Stephen’s widow, rightly said some time ago: “It’s been a real struggle. It’s been fight after fight with the MoD for years and years. It shouldn’t have to be like this. How can they just keep getting away with this? They should have just held their hands up, accepted that they have a duty of care. Eventually we found the truth; now we are fighting for justice.”
It seems that the current Commons Defence Committee would rather obscure debate by exaggerating the risk of “judicialisation” than accept that the MoD should be accountable for failing to equip and train the armed forces properly.
Chris Haan is a lawyer and experienced litigator specialising in international human rights, environmental and product liability.