The Author
Hilary Meredith is a Solicitor, Chair of Hilary Meredith Solicitors Ltd, Chair of the Royal British Legion Solicitors Group and Visiting Professor of Law and Veterans’ Affairs at the University of Chester.
With over 30 years’ experience representing members of the Armed Forces
and their families in relation to injury and death during military exercises, no independent expert has such long standing experience.
Hilary has provided oral and written evidence to a number of Defence Committee Inquiries including the original Beyond Endurance? Military exercises and the duty of care investigation and the recent Drawing a Line: Protecting Veterans by a Statute of Limitations Inquiry.
Hilary’s firm was instructed in the Brecon Beacons Inquest in July 2015.
This evidence supplements our original submission last year.
Is a positive safety culture being instilled across the armed forces at all levels?
No.
While the MoD deserves credit for the proactive steps it has taken to improve training safety since the Beyond Endurance Inquiry with advances in technology, kit/equipment and health and safety compliance, there remains a huge amount of work to be done.
In 2016, when refusing to accept the recommendations of the Defence Select Committee, the MoD stated that while every death was a tragedy the existing system was sufficient to achieve improvement. The MoD said it was “not clear” how lifting Crown immunity would leader to “any tangible improvement” in training safety.
Madeleine Moon MP, who chaired the Defence Committee inquiry said at the time: “We are disappointed that the government has rejected our modest reform proposals. We continue to believe that these proposals would have improved accountability in these matters.”
Ms Moon’s words are even more relevant now than they were four years ago.
As a result of MoD’s failings, history is repeating itself time and time again. And with tragic consequences.
Last year’s Inquest into the death of Corporal Joshua Hoole concluded that there had been “very serious” failings at all levels.
Despite recent advances in technology, kit/equipment and health and safety improvements, it is an outrage that there has been more than a 30% rise in the number of training injuries in the armed forces in the last four years. In 2014 there were 2,800 injuries however over 3,900 injuries were reported during exercises and fitness training in 2018. MoD figures show that 23 troops were killed during training or on exercise since 2014, whilst approximately 17,400 troops have been injured in military training accidents over the same period.
Although it is not clear what this rise is attributable to, there may be a correlation between budget cuts/lack of resources and/or loss of senior personnel following enforced redundancies. There may also be an increase in the reporting of and recording of any injuries/incidents which historically the MoD has failed to do.
It is inexcusable that the men and women of our armed forces are not offered greater protection and that we still regularly see many serious injuries from often preventable accidents.
The MoD’s own figures demonstrate there has been an increase in injuries and fatalities during training. Training exercises are now more dangerous than ever. There is a higher rate of injury and fatalities while practising for war than in combat.
Highlighting the Army’s “continuing” failure in that field at Corporal Hoole’s Inquest, the Coroner said: “There was a very serious failure on the part of the Army to ensure the RIFLES training team were familiar with improvements in JSP 539 and how they applied to the AFT.”
She added: “There was a report to prevent future deaths issued in July 2015 following inquests which specifically raised concerns about lack of awareness of JSP 539.
“I consider the continuing lack of awareness and failure to follow up to be a very serious failing which directly impacted on the safety of the AFT.
“The failure of the Army to learn from previous mistakes is a very concerning matter for me.”
The Coroner continued:
“It leaves me very worried about the Army’s ability to learn from previous mistakes.
“[The Army] need to think about how to learn from things that have happened because I also know there are others here feeling this very hard, knowing perhaps the only comfort they had from their inquest was something might change, and we’re sitting here and it hasn’t changed. Quite simply it has to change.”
I fully support the Coroner’s comments. Indeed, I have been making similar comments for decades.
Whilst training has to be realistic, it cannot result in death. These are not mere accidents. This is about a blatant disregard for life and the MoD needs to be held accountable.
As detailed later in this submission (Are Crown Censures enough to make the MoD accountable when failures in a duty of care have been identified?) removing crown immunity would push the MoD to improve its standards and ultimately save lives. It is the only workable solution. The MoD’s insistence on policing itself is costing lives.
Most training deaths are caused by poor procedures which come from the top. Nothing will change for as long as the MoD continues to hide behind crown immunity.
The new website tells service personnel and veterans that they do not require legal advice or the courts.
Service personnel and veterans do, on occasions, require independent legal advice particularly if they have to lodge an appeal.
They have 7 years to claim under the Armed Forces Compensation Scheme (AFCS) from the date the injury happened or the date they realised their injury is service related.
They have 3 years to make a claim in the courts if they feel someone else caused death or injury in service and the MoD failed in their duty of care.
Their AFCS award will be deducted from court awarded damages but the AFCS award is capped at £650,000 while court awards are not capped.
Veterans and their families need to know their full rights. The new Veterans UK website fails to provide this service. Full and correct information needs to be provided with immediate effect.
Are Crown Censures enough to make the MoD accountable when failures in a duty of care have been identified?
I could not be any more emphatic in my response to this question - NO.
On 24 April 2016, The Defence Committee published its Third Report, Beyond Endurance? Military exercises and the duty of care.
The Beyond Endurance Inquiry was set up after the deaths of three army reservists during a training exercise on the Brecon Beacons.
The Sub-Committee examined the overarching policies, practices and guidance of the Ministry of Defence (MoD) and Armed Forces in respect of the health and safety of Service personnel during training, exercises and selection events and whether effective processes exist for capturing lessons from accidents and deaths that have occurred during such events.
The Report found that it was wrong for the MoD and Armed Forces to have exemptions under the Corporate Manslaughter and Homicide Act 2007 in situations where they have been penalised by Crown Censure (the highest penalty that can be issued to the MoD by the Health and Safety Executive) for serious failings in hazardous training and selection events.
The Defence Committee recommended that the MoD should be stripped of its historic immunity from prosecution when personnel are killed during training as a result of a serious failing in its duty of care. This recommendation was in line with the evidence I provided to the Inquiry.
Chair of the parliamentary sub-committee, Madeleine Moon MP, said there had been a small number of serious, yet avoidable, failings in training safety and risk assessment which needed to be addressed.
Ms Moon’s comments were as follows:
“Where a Crown Censure has been issued, it should be possible to prosecute the MoD.
“The lives of serving personnel are worth no less than those of civilians and those responsible for their deaths must be equally liable under the law.
“While it is important that the MoD and the armed services are accountable for all accidents and fatalities it is equally important that they are publicly seen to be so.
“The families and friends of those who have died whilst on training and selection events need to have confidence that that lessons have been learned for the future.”
On 10 July 2016, the Government published its response to the Defence Committee’s report, rejecting the modest proposals to reform the military exemptions in the Corporate Manslaughter and Homicide Act 2007.
The MoD owes our service men and women a duty of care at common law to take reasonable steps to avoid reasonably foreseeable injury, and the Health and Safety at Work Act 1974 applies. The MoD therefore owes exactly the same duty to service personnel in all their work, including training, as it does to its civilian employees. The only exception is in the field of battle, where combat immunity exempts the Crown from the duty of care towards its personnel. Mistakes in the preparations for battle, including in the maintenance of equipment and in training, are, however, breaches of the duty of care.
As detailed in previous answers, the MoD’s own figures demonstrate there has been an increase in injuries and fatalities during training. Training exercises are now more dangerous than ever. There is a higher rate of injury and fatalities while practising for war than in combat.
In hiding behind crown immunity, the MoD is defying the will of a Parliamentary Inquiry and flying in the face of public opinion. This issue has become even more mainstream following a recent documentary I filmed with the BBC - Our Son Died - Will They Ever Learn? The programme - https://www.bbc.co.uk/programmes/m000fltq - investigated the true extent of fatal failures by the MoD and followed parents as they questioned why lessons are not being learned.
Whilst training has to be realistic, it cannot result in death. These are not mere accidents. This is about a blatant disregard for life and the MoD needs to be held fully accountable.
Removing crown immunity would push the MoD to further improve its standards and ultimately save lives. It is the only solution.
In today’s society of transparency and corporate responsibility, the principle of immunity is archaic and wrong. For too long the MoD has hidden behind crown censures under health and safety legislation and immunity from prosecution.
Crown censures are not - and never will be - enough to make the MoD accountable when failures in a duty of care have been identified. Two areas need to be addressed:
I would urge the Defence Committee to act with immediate effect before any more lives are lost.
8 April 2020
Hilary Meredith