Recently there has been widespread media coverage concerning claims made against UK soldiers arising from military conflicts abroad. The years since the campaigns in Iraq and Afghanistan have seen a huge number of claims brought under European human rights laws, with allegations ranging from moderate ill-treatment to torture and murder.
However, the Iraq Historic Allegations Team (IHAT) recently decided not to proceed in 57 cases involving allegations of unlawful killing against UK soldiers in Iraq. The Al-Sweady Public Inquiry, set up in 2009 to investigate claims that Iraqi civilians were killed and tortured by British troops in 2004, concluded that the torture and murder claims against the troops were "wholly without foundation" and "entirely the product of deliberate lies". All the soldiers involved were exonerated from the most serious allegations. The Al-Sweady Inquiry cost £31million and the overall cost to the taxpayer of dealing with claims against UK troops is estimated to be around £150million. Costs of this kind are, of course, continuing to mount.
The outlay of public funds involved, coupled with the much-publicised findings that many claims are without foundation, have led recently to the government announcing a crackdown on "spurious" claims against the military. Ministers have criticised "ambulance chasing" law firms for fuelling a compensation culture, alleging that soldiers on the battlefield are almost as worried about being sued as reacting appropriately to high risk and high pressure situations. However, is it fair to pin this level of blame on lawyers? And what does the government propose to do about it?
It has been reported that possible measures include:
- The option for the UK temporarily to pull out of the European Convention on Human Rights before sending troops into action;
- Taking legal action against law firms who are proven to have pursued fabricated claims against the military;
- New laws to allow the government to recover the cost of dealing with bogus or unsuccessful judicial reviews from the lawyers involved in those cases;
- Stricter time limits on compensation claims to prevent claims being brought significantly after the events are alleged to have occurred; and
- Provisions in the planned British Bill of Rights to protect UK soldiers from human rights claims arising from actions abroad.
Evidently, law firms should not pursue claims which they know (or have strong reason to suspect) to be fabricated and it is only reasonable that there should be repercussions for any law firm demonstrated to have acted unethically. However, it is worth highlighting that, to date, the MoD has paid out over £20million to hundreds of claimants who have successfully brought claims against the military. The fact that these payments have been made in a time of budget cuts and intense public scrutiny on the Ministry, are strong indications that by no means all such claims are suspect or fabricated.
As so frequently happens in relation to controversial and newsworthy events, it is very difficult to reconcile competing principles and there is a danger that reasoned analysis can be ousted in favour of pre-judgment and polemic. To suggest that the essential problem is that of "ambulance chasing" lawyers smacks of lazy commentary or an attempt to deflect attention from the underlying facts and recognition that a small (but nevertheless significant) number of human rights breaches have arisen from military operations undertaken by UK troops.
What is needed is a balance to be struck between trying to ensure that genuine victims of (serious) human rights' abuses have access to redress under the rule of law but that serving soldiers can also operate effectively and discharge their duties in frequently dangerous situations without fear of undue or disproportionate repercussions in subsequent legal proceedings.
This balancing act is no easy task. The polarised reaction to the (lengthy) sentence of imprisonment handed down to Marine Sergeant Blackman demonstrates this – and it has to be remembered that his trial and imprisonment was by way of court martial under military law. There is no suggestion that this came about through lawyers chasing ambulances.
Watch this space. It is one thing for the Government, egged on by sections of the media, to castigate the legal profession particularly against the backdrop of other attacks on the so-called "compensation culture". Individual lawyers or particular law firms operating in this area are relatively easy targets. Some can be fairly criticised for taking an overzealous approach and/or for having scant regard for the use of public funds. But the number of successful claims and the size of the resultant pay outs of compensation point to an underlying problem which has to be addressed if this country is to have proper regard for basic human rights and is prepared to pay more than lip service to the rule of law.
Of the potential measures which have been loudly trumpeted it will be interesting to see how many of the proposed changes actually find their way into substantive or procedural law. One possibility is that the Government (encouraged by the military) thought it timely to send out a message likely to deter the minority of lawyers who have abused or, at least "milked" the compensatory regime; the warning being "enough is enough" and "we have you firmly in our sights". It will also be interesting to see how the lawyers involved in pursuing these type of claims react to these warning shots. This localised conflict has yet to run its course.
This article was written by Clive Ince, Partner, Dispute Resolution department with assistance from Elizabeth McClenan, trainee solicitor.
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