Soldiers’ legal rights – what’s really changed over the last 35 years? Professor Hilary Meredith-Beckham provides her detailed thoughts

It was 35 years ago this month when the law changed allowing members of the British armed forces and their families to claim through the courts if they were injured or killed in service.

This included at the time whether in combat, deployed overseas, practicing for war (on manoeuvres) or in a war time situation.

The change went largely unnoticed until 1988, when I succeeded in winning the first ever case, for a widow and children of a captain killed on manoeuvres in Canada.

As a result of that case making the headlines, I was inundated mainly by military widows who just wanted to know how their loved ones had died, mainly to tell their children when they were old enough to know.

Not information in those days came out of the MOD.

Shocking details and appalling accidents

I’ve brought thousands of cases over the last 35 years, uncovering, in some cases shocking details of appalling incidents where the MoD has been, a law unto itself, for far too long.

I’ve secured tens of millions of pounds for my clients through the courts, the highest at the time being £6million to a soldier blown up, loading a tank on to a train when the military “forgot “to turn off the overhead live wires. He survived but with life changing injuries and burns.

The men and women of our armed forces have always been the most reticent of claimants. It is only when an injury is life changing and their careers are lost that they make that decision to do something about it.

How many incidents in the past have gone unchecked or recorded due to a lack of civil claims through our courts?

The importance of accountability

When I look back on some of the incidents in my 35-year career in military litigation, I realise that I am the only person with the historic knowledge of what went on.
The MoD staff themselves are in post for a 2-year stint then move on and much of the historic continuity has been lost.

It is through the courts setting precedents, that details of what “went wrong” enter the public domain, which is the only way to force change.

Many cases I have dealt with involved the lack of equipment. Our troops are the best in the world but the most poorly equipped, procurement of equipment has been mismanaged at best.

A simple case in point, was a fatal incident I investigated into the death of a guardsman on duty. I discovered the guardroom in which he was stationed in Germany was so cold at night a small gas heater had been commandeered. The military, being so short of rubber tubing to mend engines or equipment, had made use of the rubber tube from the gas bottle to the heater, cutting it over time bit by bit, shorter and shorter until the night to of the incident this particular unfortunate guard lit the heater and the pipe by now was so close to the gas bottle it exploded, fatally injuring him.

What I had not been told by the military is that he was guarding the ammunitions store! This case was around 1989 and ammunition then worth over £1 million, exploded with the guard’s room, all destroyed. The fire took 4 days to put out.

This is tax payers’ money but the MoD are not accountable so the incident settled out of court and quietly slipped under the radar.

Blatant disregard for life

There are also the cases of blatant disregard for life including the “volunteer” tasked with undertaking an abseiling course in a valley in Wales who subsequently died as a result of a flash flood the MoD told me was “an act of god” and could not be avoided.

Not happy with the explanation I drove to Wales found the valley and climbed the gorge to the top where the incident took place.

Signs everywhere warned of rapid water flows and not to enter the gorge. At the top I found 2 reservoirs, a lower and higher damn to control water flows to a hydroelectric power station at the base of the valley. These reservoirs had 3 large gates which tripped automatically in high rainfall emitting 95,000 gallons of water per minute.

I met with manager of the power station to ask why on earth anyone would climb or abseil in this gauge? He informed me the military had insisted despite being informed of the dangers and advised not to, they had, in fact signed an undertaking written by the Secretary of State for Wales confirming they would be responsible for any accidents or deaths to their own whilst in this gorge!

These situations infuriate me. The risk to life is not acceptable.

The MoD’s immunity from prosecution

The MoD is immune to Health and Safety regulations and cannot be prosecuted. They are also largely exempt from the Corporate Manslaughter and Homicide Act. If ever there was a case where they should have been prosecuted, Brecon Beacons was it, not least as the information they told me was completely inaccurate.

The Brecon case has been reported in depth. The 6-week inquest into the death of 3 young reservists on Brecon hit the headlines but what is not so well publicised is the 2 deaths in 2 separate incidents that occurred after the damming report into the first. Incredibly lessons had still not been learned and changes had failed to be implemented resulting 2 more deaths.

Military diving is another shocking story where the health and safety executive had not power to prosecute despite, as parliament put it, far too many deaths in military diving exercises. Remember, this is not on active duty this is just practising.
The government at the time ordered a 6-month investigation onto the number of fatal incident sin diving. That investigation (at tax payers’ money) advised that the military diving suit the SABA was so inherently dangerous without a second breathing system it should be taken out of operation immediately. The report was sat on for 2 years casing further fatal diving incidents.

There is no check on the military, no one follows up recommendations to see if they have been complied with

The MoD in recent years have sought to curtail these claims through the courts in a number of ways.

They proposed at one stage to settle all these cases in house. In reality, this would reduce awards and reduce public exposure to what is really happening.

When it was pointed out they would have to look into every case as I do and assess such matters as life expectancy, adapted housing, care regimes for life, it became clear that they had a clear conflict of interest as the pay master. Equally, they would not possibly have the expertise or man power to undertake these essential investigations.

The Armed Forces Compensation Scheme

In 2005, came the Armed Forces Compensation Scheme hailed as a solution to “all these claims.”

Yes, it’s a non-fault scheme avoiding the necessary adversarial difficulties in proving someone was to blame but over the years, the AFCS has become more complex and difficult to make a claim with thousands of cases stuck in appeals.

The staff at AFCS are overrun with the task of now acting like insurers and finding ways not to make payments.

Claims thought the courts are down year on year as many are confused as a result of the word “compensation“ in the AFCS title.

Those recovering thousands of pounds under AFCS could have recovered millions of pounds if they had a fault claim through the courts but they are not told. In fact, nowhere does MOD state that you may have a claim through the courts.

Overseas Operations Act

Next came the Overseas Operations Act lauded as the next best thing to stop soldiers facing years of potential prosecutions as a result of deployment overseas.

This Act put a 6 year back stop on claims from overseas and took away the discretion of the courts to extend what is a 3-year limitation for death and injury claims and a 1-year limitation for Human Right Act claims.

This was a complete misrepresentation of what the original Bill was actually intended to achieve.

Firstly, it is inordinately difficult to extend limitation, the judiciary do not like granting extensions, they are rare indeed.

Secondly those facing investigation by the Iraq Historic Allegations Team (IHAT) were accused within 1 year of any alleged incident.

This is because the driving force behind all this a lawyer called Phil Shiner, a Human Rights Act lawyer who knew the time limits.

This Overseas Bill will not stop historic prosecutions; they are only historic because of the MoD’s bungled attempts and systemic failings to investigate.

What the Bill has achieved is to stop the armed forces themselves claiming extensions to limitation if injured or killed overseas and, as has been pointed out, the main group to be affected will be those suffering delayed PTSD symptoms often years after leaving the military but related to service.

What’s changed?

Although we’ve come a long way in 35 years, in many ways not much has changed.
The MoD still enjoys a level of immunity and in my view there are recent attempts to increase that immunity by a lack of public accountability, dealing with matters behind closed doors.

My legacy would be full public accountability for the MoD to prevent future incidents as a result of a lack of responsibility. The only way to achieve this is by removing the immunity to health and safety prosecution in such circumstances where there is a continued pattern of lessons not learned, as in military diving or Brecon training.

In addition, the court process should not be undervalued, this enables the judiciary to highlight incidents of fault and public accountability.

Defence of the realm is a dangerous activity but reckless disregard for life cannot continue.

Professor Hilary Meredith-Beckham