Soldier's widow loses fight in right to life appeal

Six of nine justices at the Supreme Court overturned last year's finding by the High Court and Court of Appeal when they ruled over the death of Private Jason Smith while serving with the Territorial Army in Iraq.

But the Supreme Court unanimously dismissed an appeal by the Ministry of Defence against findings that a fresh inquest into Pte Smith's death must satisfy requirements under the right to life provision of the Human Rights Act.

Lord Rodger, one of the justices who allowed the appeal over jurisdiction, said: "Any suggestion that the death of a soldier in combat conditions points to some breach by the United Kingdom of his Article 2 right to life is not only to mistake but – much worse – to devalue what our soldiers do."

He said they were not only exposed to the risk of death or injury, similar to other jobs, they were deployed in situations where opposing forces were trying to kill them.

"While steps can be taken, by training and by providing suitable armour, to give our troops some measure of protection against these hostile attacks, that protection can never be complete. Deaths and injuries are inevitable," he said.

Pte Smith, who lived in Hawick, Roxburghshire, was deployed in Iraq in June 2003. He repeatedly told medical staff he was feeling unwell due to high temperatures – sometimes over 50C (122F) – before reporting sick in August the same year.

He was found lying face down and taken to hospital but had suffered a cardiac arrest and was pronounced dead.

The Government conceded in the High Court that soldiers on UK military bases or hospitals come within the Human Rights Act but Mr Justice Collins ruled that a state might be in breach of its human rights obligations if it could have taken steps to avoid or minimise a known risk to life but did not do so.

Court action was launched by Pte Smith's mother, Catherine, after she was initially denied access to crucial documents at an inquest into her son's death.

Speaking yesterday Mrs Smith said: "I would like to have gone further but, because of the situation, I am having to accept I have got my verdict, I have to have another inquest.

"This time we might have full disclosure – that was one of the main points. We never had full disclosure, we have never seen his medical notes.

"I always thought that when you have an inquest that is one of the things they really need to give you, is the medical notes if this person has died on medical grounds. We hope that might come right this time."

Andrew Walker, the assistant deputy coroner for Oxfordshire, recorded at the inquest in 2006 that Pte Smith's death was caused "by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate".

Jocelyn Cockburn, who represented Mrs Smith, said yesterday's decision on jurisdiction was "shocking".

She said: "It can only be hoped that the morale of soldiers who are risking their lives for us will not be severely damaged by this astonishing finding."

She said the issue would have to be tested in the European Court of Human Rights.

Defence Secretary Liam Fox said: "Common sense has prevailed ... it would have been absurd to try to apply the same legal considerations on the battlefield that exist in non-combat situations."