This is an important article. It deals with the blanket combat immunity clause invoked by MoD lawyers. This immunity is now being challenged by test cases and could have a bearing on the shooting down of XV179.
Army widows battle MoD on 'immunity'
The days when the military could avoid legal action by bereaved relatives over reckless actions could be numbered, writes Jon Robins
Sunday September 24, 2006
The Guardian
'I feel as though a weight has been lifted from my shoulders,' says Samantha Roberts. Her husband, Steve, was the first soldier to die in action in the Iraq war, but it has taken three-and-a-half years of legal wrangling for the Ministry of Defence (MoD) to admit liability. A confidential out-of-court settlement was agreed this month.
Steve Roberts was a 33-year-old sergeant with the 2nd Royal Tank Regiment when he was shot in the stomach and chest by 'friendly fire' in March 2003 while he was trying to quell a demonstration near Basra. His wife's campaign to discover the circumstances of his death caught the public imagination when it emerged that hours before he died he had been ordered to hand over his flak jacket to another soldier.
Mrs Roberts never wanted 'compensation'. 'I wanted an apology and an explanation, and this is where it has ended up,' she says. 'It's horrible to put a price on somebody's life, but sometimes money is the only language people listen to.'
Suing the MoD for negligence was a no-go area until 1987, when the statutory bar on legal action was lifted. Nonetheless, a doctrine known as 'combat immunity' continues to be invoked by the military when incidents arise out of fi ghting in a war zone, granting the military protection not available to other employers. Mrs Roberts's solicitor, Geraldine McCool, a partner at the law firm MPH, explains: 'Post-1987, there has been an almost knee-jerk line from the MoD that cases are covered by "combat immunity", even when they clearly aren't. The consequence is that military personnel don't get a penny, no matter how reckless the forces have been with their lives.'
According to the MoD's annual report on claims, circulated publicly last week, payments for claims in 2005-06 totalled £67.7m, including 621 claims by personnel (£26.3m). By contrast, the armed forces' boarding school allowance rose from £67.5m in 2000 to £100.2m last year. 'It puts claims against the MoD into some sort of perspective,' says McCool, who is advising 60 families of servicemen who have been on tours of duty in Iraq and Afghanistan.
Last week's claims report cites a 2004 case (Bici v MoD) in which the judge ruled that for immunity to apply any threat 'must be imminent and serious'. The MoD says: 'Following investigation and legal advice, the vast majority of cases have been accepted and some have now been settled.'
McCool hopes that the acknowledgement amounts to a change of policy. 'In most of our cases, combat immunity is cited, we fight it, and pretty much every time the Ministry concedes the point. But for a grieving widow, the intervening three years plus that the process takes is very long and painful,' she says.
A new armed forces compensation scheme came into effect in April, replacing the old war pensions scheme. McCool argues that calling the tariff-based system a 'compensation' scheme is misleading in so far as it supersedes old pension arrangements and that any claim made on it would not prevent service personnel from taking legal action in court: 'The disparity between compensation from the courts and compensation from the scheme can be considerable.' She cites one of her clients - a lance corporal who suffered a signifi cant spinal injury after a fall and settled out of court for £1.6m. Under the compensation scheme, he would have received £103,350, or an annual pension of £7,771.
'Every soldier signed up to the army knowing that it's highly likely they're going to be in a war situation,' says Mrs Roberts. 'But I always knew the army was at fault and that to try and hide behind "combat immunity" is a very ungracious response.'
She has helped to set up the Army Widows Association, providing information about pension rights and accommodation, as well as creating a support network.
· For more information, go to
www.armywidows.org.uk.
'I received an eviction notice two days after he was shot'
In April 2003, 23-year-old Lance Corporal Darren George of the 1st Royal Anglian Regiment was killed by 'friendly fire' while on patrol in Kabul.
'I was living in married quarters and received an eviction notice two days afterwards, saying that I had six months to get out,' says his 24-year-old widow Sarah.
'I was just on autopilot. I have a little boy and couldn't break down. The army hasn't helped me with a thing. Luckily, the local authority housed me pretty quickly.'
Her husband was shot in the head by a colleague who suffered a dizzy spell as he loaded a machine gun. At first, the Ministry of Defence pleaded combat immunity, but in January Sarah settled her negligence action for £500,000. However, her army pension has since been cut from £560 a month to £411 a year. 'It's an insult,' she says. 'The money is supposed to be there to provide a house and security for myself and my son.'
'When I watch the men come back now from Iraq to RAF Brize Norton, they're met by family, friends and people from the regiment to give them a proper homecoming. My husband was brought back late at night, no one was allowed in, and I couldn't talk to the press. I think that's because he was shot by one of his own.'
The RAF 'acts like a closed shop'
Nigel Gunther was a warrant officer attached to the RAF and lost his leg below the knee following a landmine explosion while rescuing a Land Rover for spares in April 2003 in the Ramala oil fields in Iraq. 'I've been a serviceman all my life and I loved my job,' says 45-year-old Gunther, who joined up when he was 16.
There has been a report and an inquiry into events surrounding his injury, but he is still not happy: 'The question I wanted answered was, why was my life put at risk for the sake of a Land Rover in a minefield when the next day it was allowed to be stolen by the Iraqis? I've come to terms with what has happened, but not a day goes by when I don't think about it. I still haven't had an answer.'
In his view, the RAF 'acts like a closed shop' and he has been forced to try and uncover details leading to his injury using freedom of information laws.
His legal case against the MoD was settled for £900,000 after the Ministry attempted to argue combat immunity. He is also entitled to an invalidity pension of £16,500 a year. 'You hear about the dead, but you never hear about the injured,' he says. 'The Americans are very good at looking after their guys. The British attitude is "stiff upper lip, get on with it".'