“….there is nothing that makes the Convention impossible or inappropriate of application to the relationship between the state and its armed forces as it exists in relation to overseas operations in matters such as, for example, the adequacy of equipment, planning or training…...there have been many cases where the death of service personnel indicates a systemic or operational failure on the part of the state, ranging from a failure to provide them with the equipment that was needed to protect life on the one hand to mistakes in the way they are deployed due to bad planning or inadequate appreciation of the risks that had to be faced on the other. So failures of that kind ought not to be immune from scrutiny in pursuance of the procedural obligation underarticle 2 of the Convention . ”
“The guidance which I would draw from the Court’s jurisprudence in this area is that the court must avoid imposing positive obligations on the state in connection with the planning for and conduct of military operations in situations of armed conflict which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual to be afforded the protection of the article. It will be easy to find that allegations are beyond the reach of article 2 if the decisions that were or ought to have been taken about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy. So too if they relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy. But finding whether there is room for claims to be brought in the middle ground, so that the wide margin of appreciation which must be given to the authorities or to those actively engaged in armed conflict is fully recognised without depriving the article of content, is much more difficult. No hard and fast rules can be laid down. It will require the exercise of judgment. This can only be done in the light of the facts of each case. ”
“Positive obligations will vary therefore in their application depending on the context. It is primarily the task of the domestic systems to investigate the cause of fatal accidents and to establish facts and responsibility. In the present case, which concerns an accident during a military training exercise, the Court notes that while it may indeed be considered that the armed forces' activities pose a risk to life, this is a situation which differs from those “dangerous” situations of specific threat to life which arise exceptionally from risks posed by violent, unlawful acts of others or man-made or natural hazards. The armed forces, just as doctors in the medical world, routinely engage in activities that potentially could cause harm; it is, in a manner of speaking, part of their essential functioning. Thus, in the present case, parachute training was inherently dangerous but an ordinary part of military duties. Whenever a State undertakes or organises dangerous activities, or authorises them, it must ensure through a system of rules and through sufficient control that the risk is reduced to a reasonable minimum. If nevertheless damage arises, it will only amount to a breach of the State's positive obligations if it was due to insufficient regulations or insufficient control, but not if the damage was caused through the negligent conduct of an individual or the concatenation of unfortunate events (see, for comparison, Kalender v. Turkey, no. 4314/02, §§ 43-47,15 December 2009 ).”
"[the Court] cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations underArticle 2 of the Convention to protect life."
“72. The complaint in this case is not that the MOD failed to provide British forces operating in Iraq with effective communications equipment. As discussed earlier, iridium satellite phones were reasonably effective and were available to the Battle Group. Moreover, the importance of having such a phone when out on patrol had been identified by the Battle Group Commander when he issued the Communications Order. The allegation said to require further investigation is that there was a lack of care or competence on the part of one or more individuals in the chain of command in failing to ensure that the Communications Order was implemented by the RMP. We do not think it arguable that article 2 renders the state responsible for human error of this kind or gives a soldier on active duty the right to be safeguarded against the risk of such error. 73. This is not to condone in any way lack of competence or efficiency in the armed services. As an organisation which depends on discipline, the Army has every incentive to ensure that orders are complied with and that failures to do so are appropriately addressed. But these are matters for the military authorities. We reject the notion thatarticle 2 of the Convention gives a member of the armed forces a civil right to be protected by the state against errors, including negligent errors, in the military chain of command in carrying out an order relating to the conduct of operations in theatre where such an error creates or increases the risk of loss of life. 74. In the first place, the possibility of human error including negligent error is inherent in any institution, including the armed services. The state can be expected to take reasonable steps to reduce the likelihood of such error by providing suitable training for soldiers and by taking appropriate remedial action when errors occur. But it would be wholly unrealistic to expect the state to prevent such errors from occurring at all and correspondingly unjustified to impose an obligation on the state to protect the lives of soldiers which is broken whenever such an error is made by an individual soldier which increases or fails to mitigate a risk to the lives of other soldiers. That is so even in the comparatively predictable and controlled context of military training. It is all the more obviously so in the context of deployment on active service.”
“The Board of Inquiry found that iridium phones, although in relatively short supply, were physically available. However, an erroneous impression appeared to have been formed that the Communications Order did not apply to the RMP and it had become normal practice for RMP patrols to deploy without an iridium phone. The Board also found that the booking out of RMP patrols was poorly controlled and coordinated. RMP patrols often failed to book out with the PARA company desk in whose area of responsibility they were operating and rarely, if ever, had an iridium phone. The Board attributed these failings to the relative inexperience of the officer in command of the RMP platoon and noted that the RMP officers course had very little emphasis on platoon commander’s skills, infantry operations and particularly command of an independent detachment. They considered that the competing demands of police training and garrison policing were precluding the RMP from having the time available to achieve anything more than a basic level of military training and skills.”
“e. The Board has a serious concern over the Command Relationships operating in the B[attle] G[roup] at the time and believes that this led to a degree of confusion and resulted in the RMP element of the BG ‘falling through the cracks’ when it came to Command and Control… ….. h. The Board has concerns over the briefing, booking out and coordination and control of all RMP C/Ss, less A Sect, which was based at the Stadium. Briefings were ad hoc, booking out was poorly controlled and uncoordinated….The relative inexperience of the RMP PlComd resulted in the RMP Sects being able to operate independent of the BG controls. The Sects often failed to book out with the PARA Coy desk in whose A[rea] O[f] R[esponsibility] they were operating in and they rarely, if ever, had an iridium phone. …. k. Due to difficulties of CNR communications the Board is of the opinion that it became accepted practice, within some C/Ss, to depart on patrol without carrying out a radio check. This certainly appeared to be the practice for the RMP C/Ss.”
“The Report is saying that it was not simply this patrol or your brother or his leadership who caused this. This was a failing across the RMP, that all of the three sections who went out routinely went out without an iridium phone. So [the BOI] were not blaming your brother in any way whatsoever. He was simply behaving in the way in which practice in this part of Iraq at this time had developed, and I’m not excusing that practice. As far as I can say, it seems to me to have been wrong. But it is not him that is being blamed. The system—and this is why it is more complicated than any one individual’s responsibility—the system, and Mr Hyde put it very well, was failing to supervise the way in which these patrols were being conducted and that is the key issue… ”
"What [the six RMP soldiers] did not have was an iridium telephone. I am clear that [the Battle Group Commander] had ordered that all patrols were to be equipped with them. Clearly, a person commanding some 1,500 troops cannot personally ensure that his orders are meticulously obeyed. Such an order would be passed down the chain of command, but I think that at some point there is need for one of the links to be pro-active rather that reactive and to ensure there has been compliance with orders. It is not for me to identify the particular link, but it is a matter which I shall cover in the Rule 43 letter."
"Where – (a) a coroner is holding an inquest into a person's death; (b) the evidence gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future; and (c) in the coroner's opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances, the coroner may report the circumstances to a person who the coroner believes may have power to take such action."
"Communication – nearly every witness told me that the Clansman [radio] was almost useless in the Iraq conditions. I was told that its replacement Bowman is much more capable, although it was not issued in 2003, it is now apparently becoming available. The use of an iridium phone might have dealt with some of the Clansman deficiencies and [the Battle Group Commander] had issued a clear order that all patrols should be equipped with it. Although supplies were not abundant, I was told that the Royal Military Police could have had one. Clearly, they did not and there may be some conflict as to how persistent they were in requesting it. It appears to me that, not only should they have had an iridium phone, but that there is a responsibility in the chain of command to check that they have it and, if necessary, prevent them going on patrol without one."
“The state's duty to investigate is secondary to the duties not to take life unlawfully and to protect life, in the sense that it only arises where a death has occurred or life-threatening injuries have occurred: Menson v United Kingdom, page 13. It can fairly be described as procedural. But in any case where a death has occurred in custody it is not a minor or unimportant duty. In this country, as noted in paragraph 16 above, effect has been given to that duty for centuries by requiring such deaths to be publicly investigated before an independent judicial tribunal with an opportunity for relatives of the deceased to participate. The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.”
"The duty to investigate imposed by article 2 covers a very wide spectrum. Different circumstances will trigger the need for different types of investigation with different characteristics. The Strasbourg court has emphasised the need for flexibility and the fact that it is for the individual state to decide how to give effect to the positive obligations imposed by article 2."
“The second point to bear in mind is that article 2 does not require there to be a single unified investigatory procedure which fulfils all the relevant aims of the investigative duty. The adequacy of the state's response is to be judged by viewing the procedures as a whole: see e.g. Pearson v United Kingdom(2012) 54 EHRR SE11 , para 71. Although an inquest is the principal means by which the circumstances of an unnatural death are investigated in the UK, it is not the function of an inquest to consider issues of culpability. Indeed, the coroner is specifically prohibited from framing a determination in such a way as may appear to determine any question of criminal liability (including, in the case of a member of the armed services, liability in respect of a service offence) or civil liability: seesection 10 of the Coroners and Justice Act 2009 . Thus, although an inquest can serve to bring out relevant facts and identify lessons to be learned, it is not a mechanism by which individuals can be held to account. That part of the investigative duty is fulfilled by making appropriate provision for: (1) criminal prosecution; (2) disciplinary action; and (3) a civil claim.”
“there should be an appropriate legal, regulatory and judicial framework such that the cause of the accident should be determined and provision made for establishing any liability and affording appropriate redress”