RAF Hercules crash families sue MoD in landmark rights case

Relatives claim government failed to protect victims of RAF Hercules crash

Families of British servicemen who died when their RAF Hercules was shot down in Iraq will this week launch legal action against the government, claiming it failed to protect the human rights of their loved ones.

The move is highly unusual, as the men - nine RAF servicemen and a soldier - died when enemy combatants shot down their plane in a war zone. But the families believe they have a strong case to sue the government after an inquest ruled that the men died due to a "serious systemic failure".

The Hercules C130K was brought down by small-arms fire as it flew at about 150ft between Baghdad and Balad on 30 January 2005. The rounds ruptured a fuel tank, causing it to explode and blowing the plane's right wing off.

Last year coroner David Masters concluded that the men were unlawfully killed and criticised the MoD's decision not to fit "explosive suppressant foam" (ESF) around the plane's fuel tanks, which experts said could have saved the lives of those on board.

It emerged during the inquest that a military research document had recommended in 2002 that Hercules aircraft should be fitted with ESF.

The families are being represented by Smithfield Partners, the law firm that launched landmark legal action against the MoD on behalf of servicemen killed when their Nimrod spy plane exploded in Afghanistan following refuelling.

The firm is expected to issue proceedings against the MoD on Wednesday that mirror those made on behalf of the Nimrod claimants. If so, it would see the MoD accused of negligence, breach of a duty of care and failing to comply with article 2 of the European convention on human rights - the respect for life.

It is the latter claim that is likely to prove the most contentious. Politicians have already attacked the convention, claiming it is being used to extend the rights of terrorists and prisoners. Legal experts fear that a ruling in favour of the Hercules claimants would open the door to hundreds of "copycat" legal actions on behalf of the families of military personnel who have died in war zones.

But the families of the Hercules crew believe their loved ones were badly failed by the MoD, a view shared by Whitehall officials and the coroner at their inquest. At the conclusion of the inquest, Masters said: "The failure to fit ESF was, on the facts found, a serious systemic failure and a contributory factor in the loss of the aircraft. There was a loss of opportunity for the survival of the crew by that failure."

Masters said he found it "difficult to find logic" in the decision not to fit the Hercules planes with the foam. He also criticised the military for a policy of "shredding" documents.

The inquest also heard how insurgents had attacked two US Black Hawk helicopters in the same area earlier in the day the Hercules was shot down, but intelligence officers had failed to pass the information on to aircrews.

John Cooper, the families' barrister, said: "The families are of the view that there had been significant failings on behalf of the MoD. Fitting explosion suppression foam to the Hercules could have bought the crew time to save themselves." He added: "Intelligence relating to US helicopters being shot at, three hours before the Hercules came under fire at virtually the same site, was not passed on to the stricken pilot."

Speaking after the inquest, Air Vice-Marshal Stephen Hillier said: "We were not able to provide the crew with all the up-to-date intelligence and tactical advice concerning potential vulnerabilities. The MoD did not take all available information into account in developing equipment to protect against likely threats. For these shortcomings, I would like to apologise, on behalf of the RAF and the MoD."

Bob Ainsworth, the armed forces minister, said ESF should have been fitted after the threat facing aircraft in Iraq changed.