In Smith v Ministry of Defence  AC 52 (the “Susan Smith case”), the UK Supreme Court has recognised the judgment of the European Court in Al-Skeini as an authoritative exposition of the principles relevant to the issue of jurisdiction under article 1 of the Convention which should now be applied in British domestic courts.
In the Susan Smith case the claimants were relatives of British soldiers who were killed in Iraq. They claimed that the soldiers’ deaths had been caused by negligence of the Ministry of Defence in failing to provide suitable equipment in breach of an obligation to safeguard their right to life guaranteed by article 2 of the Convention. The Ministry of Defence successfully applied to have the claims struck out on the ground that the Convention did not apply because the soldiers’ deaths occurred outside the territorial jurisdiction of the United Kingdom. By a majority of 4-3, the Supreme Court allowed the claimants’ appeal on this issue. In doing so, the Supreme Court expressly departed from the view taken by the majority of the appellate committee of the House of Lords in R (Smith) v Oxfordshire Assistant Deputy Coroner  1 AC 1 (“the Catherine Smith case”) that the state’s armed forces abroad are not within its jurisdiction for the purpose of article 1.
Lord Hope, with whom the other members of the Supreme Court agreed on the question of the jurisdictional scope of the Convention, outlined the history of the Al-Skeini case and analysed the judgment of the Grand Chamber in that case, which he described as providing a “comprehensive statement of general principles” for the guidance of national courts (see paras 27, 46).
In particular, Lord Hope extracted as a principle of general application that “extraterritorial jurisdiction can exist whenever a state through its agents exercises authority and control over an individual” (para 49). He reasoned (at para 52) that the exercise of such authority and control by the armed forces of the state over local inhabitants, which was held to found jurisdiction in Al-Skeini, presupposes that the state has such authority and control over its own armed forces who are its agents for this purpose and therefore brings them also within the state’s article 1 jurisdiction. The decision that the UK owed duties under article 2 of the Convention to its own armed forces serving outside its territory was therefore expressly based on the principle of control over individuals articulated in Al-Skeini by the European Court.
The status of Banković after Al-Skeini
As I have previously observed in Serdar Mohammed v Ministry of Defence  EWHC 1369 (QB) at para 136, a disappointing feature of the judgment of the European Court in the Al-Skeini case is its lack of transparency in dealing with the Court’s previous decision in Banković. Nowhere in the judgment did the Court expressly acknowledge that it was departing from its previous approach or explain its reasons for doing so. Nevertheless, as I also noted and as the Supreme Court confirmed in the Susan Smith case (at para 137), it is clear that the Court has indeed departed from its earlier approach in a number of fundamental respects.
The critical point of departure is the European Court’s rejection in Al-Skeini of the notion that Convention rights constitute a single, indivisible package and cannot be “divided and tailored”. As Lord Hope noted in the Susan Smith case (at para 38):
“The effect of para 137 of the Al-Skeini judgment is that this proposition, which informed much of the thinking of the House of Lords in Al-Skeini (HL) and of the majority in Catherine Smith, that the rights in section 1 of the Convention are indivisible, is no longer to be regarded as good law. The extraterritorial obligation of the contracting state is to ensure the observance of the rights and freedoms that are relevant to the individual who is under its agents' authority and control, and it does not need to be more than that.”
Holding that Convention rights can after all be “divided and tailored” opened the door to accepting the notion, which had been rejected in Banković, that extraterritorial jurisdiction can be based simply on the state’s control over an individual. As Lord Hope said (at para 49 of the Susan Smith case):
“The concept of dividing and tailoring goes hand in hand with the principle that extraterritorial jurisdiction can exist whenever a state through its agents exercises authority and control over an individual. The court need not now concern itself with the question whether the state is in a position to guarantee Convention rights to that individual other than those it is said to have breached.”
Another important respect in which the European Court departed from its previous decision in Banković was in reinterpreting the concept of the Convention “legal space”. Lord Hope observed that, following the decision in Al-Skeini, Banković “can no longer be regarded as authoritative” on this point and that it is Issa that should be treated as “firmly in the mainstream of the Strasbourg court's jurisprudence on this topic” (para 47).
Further, although the judgment in Al-Skeini repeats earlier statements that jurisdiction under article 1 is “essentially territorial” and that extraterritorial jurisdiction is “exceptional”, it is apparent that these statements have now to be understood in a different and more attenuated sense. As explained by Lord Hope in the Susan Smith case (at para 30), the word “exceptional” is included “not to set an especially high threshold for circumstances to cross before they can justify a finding that the state was exercising jurisdiction extraterritorially,” but only “to make it clear that, for this purpose, the normal presumption that applies throughout the state's territory does not apply.”
Finally, in endorsing an approach which goes well beyond what the Court had found in Banković to be the ordinary meaning and original intention of article 1, the European Court has effectively treated article 1 as a “living instrument”. Thus, Lord Hope observed in the Susan Smith case (at para 30) that the words “to date” in para 131 of the Grand Chamber’s judgment indicate that “the list of circumstances which may require and justify a finding that the state was exercising jurisdiction extraterritorially is not closed”.