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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ross v Secretary of State for Defence [2017] EWHC 408 (Admin) (06 March 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/408.html Cite as: [2017] EWHC 408 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/03/2017

Mr Justice Nicol :

1. This is a renewed application for permission to apply for judicial review of a decision of the Appeal Body which dismissed the Claimant's service complaint in a decision dated 20^th April 2016. Permission was refused on the papers by James Goudie QC sitting as a Deputy High Court Judge.
2. Paul Ross, the Claimant, is a Lieutenant in the Royal Navy. He was commissioned in 2003 with a 12 year commission.
3. On 20^th July 2009 a court martial found him guilty of one charge of drunkenness. It fined him £1,000 and ordered that he should suffer the consequential penalties. However, the President of the Court Martial indicated that no record of the fine or conviction should be kept with the Claimant's promotion file. But, it seems, a reference to the conviction and fine was kept with the Claimant's promotion file. The Claimant was unaware of this until he found out about it by chance in May 2011.
4. When he did find out, the Claimant made his first service complaint. In his decision of 18^th October 2012 Commodore I.J.P. Bisson RN upheld the complaint. By way of redress Commodore Bisson directed that all records of the Claimant's conviction should be removed from his personnel and promotional records. I shall refer to this as the 'Bisson decision'.
5. On 22^nd April 2013 the Claimant made his second service complaint. He sought further redress for the wrongful inclusion of the court martial decision in his promotion file. This included immediate promotion, transfer to Career Commission and compensation for loss of seniority.
6. The procedure for dealing with service complaints is that they are (or were) first considered by the complainant's commanding officer. In the Claimant's case that was Commander Watts RN. This is referred to as 'Level 1'.
7. On 12^th August 2013 Commander Watts wrote to the Superior Officer, Commodore Jameson RN, referred to as 'Level 2'. The nature of what Commander Watts did is critical for part of the Claimant's grounds for judicial review. I will return to that. For the moment, I will just summarise his letter.
8. Commander Watts said he had considered the Claimant's second service complaint. Two elements of it could not be investigated because they related to excluded matters. I need say no more about them.
9. Commander Watts had, however, investigated two further elements: the complaint that the Claimant had not been awarded a Career Commission nor been promoted because of the incorrect recording of the conviction record in his promotion file; and also his transfer from the E(TM) SM^[1] branch of the Royal Navy to the WE (SM)^[2] branch. The Claimant had applied for this transfer in April 2011 at a time when he was unaware of the presence of the Court Martial record on his personnel file, although the transfer actually took effect in September 2011.
10. Commander Watts said that these two elements of the complaint 'are deemed to hold merit'. However, 'a decision cannot be reached at this stage'. What Commander Watts considered was required was 'a full round of promotion boards, with their original deciding members… in order to produce a clear, definitive solution to this complaint and so that a formal conclusion can be drawn.' I shall refer to this as 'the Watts letter'.
11. Commodore Jameson made his decision on 13^th July 2015 (referred to below as 'the Jameson decision').
12. He concluded that the transfer boards sitting in 2009 and 2010 would have given some weight to the conviction and that would have been unfavourable to the Claimant. He was not persuaded that the Claimant's commission transfer and subsequent promotion would have occurred but for the wrongful inclusion of the court martial conviction. He did accept that the Claimant would have been selected for transfer to Career Commission at some stage either by the time he made his decision, or at some stage in the future. He did not accept that the Claimant had been prejudiced as to the geographical location of his assignments. The redress he thought appropriate was that, provided the Claimant was eligible in all respects for transfer for Career Commission as a WE (SM) and provided that he remained recommended, then notwithstanding any relative merit to other eligible candidates at the November 2015 transfer Selection Board, the Claimant was to be selected by that board for transfer to Career Commission with effect from 1^st February 2016.
13. The Claimant was told that, if he was dissatisfied with Commodore Jameson's decision, he could submit his complaint to the Defence Council (known as 'Level 3').
14. The Claimant was not satisfied with Commodore Jameson's decision and did wish to take his complaint to Level 3.
15. In mid-2015 the Defence Council could refer such a complaint to a Service Complaint Panel. That is what occurred in this case.
16. In a letter of 3^rd December 2015, the Claimant asked the Service Complaints Panel to convene an oral hearing. He said that his case was complex, an oral hearing was required in the interests of fairness and his request was consistent with the Ministry of Defence Manual 'Redress of Individual Grievances: Service Complaints' (7^th June 2010) annex K paragraph 1.
17. On 1^st January 2016 the Armed Forces (Service Complaints and Financial Assistance) Act 2015 ('the 2015 Act') came into effect. Service Complaints Panels were abolished. Complaints which reached Level 3 could still be referred to a panel, but it is now referred to as an 'Appeal Body'.
18. In this case the Appeal Body was composed of Commodore JJF Blunden CBE LVO RN and Surgeon Commodore PJ Buxton OBE QHP RN.
19. The Appeal Body did not grant an oral hearing. As its decision of 20^th April 2016 recorded,

'We considered whether an oral hearing was necessary and agreed that it was not, as a hearing would not have added to, nor aided our understanding of the case.'

20. The Appeal Body decided that the Claimant's complaint should not be upheld. It considered that its task was to consider the Claimant's complaint as a whole (and not just the parts of Commodore Jameson's decision with which the Claimant had been dissatisfied).
21. It referred to the Bisson decision and said,

'16. We reviewed the imposition of consequential penalties and the previous decision made by Cdre Bisson concerning the placing of a record of Court Martial conviction in a promotion file. It was noted that the matter of consequential penalties following a conviction is for the Service to decide and not a Court. We considered that the Service policy was very clear and that, at the discretion of the Naval Service, a not of the Court Martial finding could be placed on a promotion file for a period of up to 3 year. Consequently there was nothing unusual in the fact that this document appeared in Lt Ross's file.

17. We considered the main crux of Lt Ross's Service Complaint to be that of being disadvantaged following his decision to branch transfer, a transfer which he argued he would not have chosen to undertake if the record of Court Martial conviction had not appeared in his file. His decision to transfer was made as a result of being graded B at three consecutive transfer boards and, with only two opportunities remaining, he believed his chances of transfer were increasingly unlikely. Having subsequently discovered the record of Court Martial conviction was in his file at those transfer boards, Lt Ross argued that the opinion of the Board members could have been swayed against him being graded higher than a B. Consequently Lt Ross considered the inclusion of this paper in his file to have been a wrong by the Service and the cause for his decision to branch transfer. As evidence that the Service was wrong to include the paper in his file Lt Ross cited the decision of Cdre Bisson, the Superior Officer in his previous complaint, who upheld his complaint and ordered that the paper should be removed from his file. In reviewing the practice in relation to consequential penalties following Court Martial we noted the intent behind Cdre Bisson's decision but concluded Cdre Bisson was not bound to uphold the view expressed by the President of the Court Martial.

18. We also noted that it was open to Cdre Bisson to reconvene the Transfer and Promotion Boards that had seen the record of Court Martial conviction as part of the file; he did not do so. Equally, it was open to Lt Ross to reject the decision made by Cdre Bisson and refer his original complaint to Level 3 and request that the matter of the previous boards be looked at; Lt Ross did not do that. Indeed, Lt Ross had not completed fully his transfer to the WE Branch when he became aware of the record of conviction in his promotion file. When he was informed of this he could have taken steps to cease his transfer; he did not do so.'

22. The Appeal Body reviewed the Claimant's chances of selection at the boards in 2009 and 2010. It commented that the competition had been intense, though his B grade would not have precluded him from selection. It decided that, if he had remained in his former branch, he would have had a strong chance of selection for a Career Commission. It concluded as well that the Claimant's decision to transfer to a different branch was voluntary and made on the basis of an erroneous assumption as to what he perceived to be the relative prospects of Career Commission and promotion by being assigned to one branch or the other.
23. The Appeal Body recognised that it was reaching a different view to Commodore Jameson, but it said

'that decision is void as he [the Claimant] did not accept it and we are not bound by it.'

24. In summary, the Appeal Body did not accept that the ultimate loss of opportunity for promotion was due to the record of his conviction being placed on his file.
25. There is no further route of appeal from the Appeal Body. However, as the Claimant was told in the letter which sent him the Appeal Body's decision, he could refer his complaint to the Service Complaints Ombudsman. This the Claimant did.
26. On 20^th July 2016 the Service Complaints Ombudsman decided that it would not be a proportionate use of the Ombudsman's powers to reinvestigate the matter as she did not consider that a new investigation would reveal any substantive new evidence or be likely to achieve a different outcome.
27. The Claim Form was issued on 18^th October 2016.
28. A preliminary point taken by Mr Chegwidden for the Defendant is that the Claim Form was issued more than 3 months after the decision of the Appeal Body (whose decision it is sought to judicially review) and the claim is therefore out of time – see CPR r.54.5(1). Mr O'Donoghue for the Claimant argues that the courts encourage claimants to have recourse to other remedies before seeking judicial review and the Claimant should not be criticised for first having invoked the assistance of the Service Complaints Ombudsman before issuing the claim.
29. In truth, what the Claimant seeks is an extension of time, as Mr O'Donoghue recognised. I acknowledge the force of Mr Chegwidden's argument that the Claimant did not simply have another 3 months after the Ombudsman's decision. He should have started court proceedings more speedily after receiving the Ombudsman's decision. Nonetheless, I consider it would be right not to dispose of the renewed application on that ground, but to go on and consider the merits (as indeed had Mr Goudie at the paper application stage).
30. Mr O'Donoghue first argues that the Appeal Body was not the correct body to deal with the complaint at Level 3: it should have been dealt with by a Service Complaint Panel.
31. The commencement date for the relevant parts of the 2015 Act was 1^st January 2016. However, transitional provisions were made by The Armed Forces (Services Complaints and Financial Assistance) Act 2015 (Transitional and Savings Provisions) Regulations 2015 SI 2015 No. 1969. I shall refer to these as 'the Transitional Regulations.' The parties are agreed that this part of the Claimant's challenge rests on whether regulation 4 applied to the Claimant's second service complaint.
32. Regulation 4 of the Transitional Regulations says,

'Pre-commencement complaints where there has been two decisions on the complaints.

4. - (1) Sections 334 to 336A and 338, and provision made under them, continue to have effect in relation to a pre-commencement complaint where before the commencement date –

(a) a prescribed officer has referred the complaint to a superior officer under old regulation 21(c) (referral following a first substantive decision by the prescribed officer); and

(b) the superior officer has notified the complainant of his or her decision under old regulation 24.

(2) Paragraph (1) does not apply to a finalised complaint.

(3) A complaint to which paragraph (1) applies is referred to in these Regulations as "a Part 2 complaint".

(4) In its application to a communication purporting to relate to a Part 2 complaint, old regulation 19(b) (further communication amounting to a new complaint) applies as if –

(a) the reference to "these Regulations" were to the new regulations; and

(b) the reference to "a new service complaint" were to a service complaint within the meaning of section 340A.'

33. It is reasonably clear that the two decisions to which the heading of regulation 4 refers are those then spelt out in paragraph (a) and paragraph (b).
34. As can be seen, paragraph (a) only applies if the referral to a superior officer has followed a 'first substantive decision'. That expression is defined in the Transitional Regulations regulation 2(3) as,

'a decision under s.334(7) and (8) [of the Armed Forces Act 2006] as to whether a pre-commencement compliant is well-founded and, if so, the appropriate redress made by (a) a prescribed officer or (b) a superior officer to whom the decision was referred under old regulation 12(b) or (d).'

35. The Claimant argues that this is what Commander Watts did at Level 1 in the Watts letter. Commander Watts expressed the view that two of the Claimant's complaints 'hold merit'. He referred the matter to his superior officer because he did not consider his powers were sufficient to provide proper redress.
36. However, in my view that is not a tenable characterisation of what Commander Watts did. Commander Watts said expressly,

'While an investigation has been carried out into the complaint, a decision cannot be reached at this stage.' [emphasis added]

Thus Commander Watts did not take a decision that any part of the Claimant's complaint was well-founded. He did not take a 'first substantive decision'. Regulation 4(1)(a) was not therefore satisfied. In the words of the heading to regulation 4, this was not a case where there had been two decisions on the complaint before commencement. There had been only one, namely that of Commodore Jameson. That was insufficient to bring the Claimant's case within regulation.4.

37. Since the Claimant's case did not come within regulation 4 of the Transitional Regulations, it was not within Part 2 of those Regulations and was therefore characterised by the Transitional Regulations as a 'Part 3 complaint' – see regulation 6 of the Transitional Regulations. More specifically, it came within regulation 12 of the Transitional Regulations as a part 3 complaint where a first substantive decision had been notified (viz the Jameson decision) an application for referral (viz to Level 3) had been made and the prescribed or superior officer (in this case, the superior officer, Commodore Jameson) had agreed to make the referral. In such circumstances, regulation 12(5) required the Defence Council to decide who was to determine the appeal. The Defence Council decided that the Appeal Body was to determine the appeal and it was entitled to do so.
38. I agree with the defendant that what is said in paragraphs 1-3 of the original grounds (what Mr O'Donoghue called 'the jurisdiction challenge') is not reasonably arguable. Ground 4, is likewise dependent on the same argument and it, too, is not reasonably arguable.
39. Ground 5 argues that the Appeal Board impermissibly revisited the Bisson decision. The Defendant responds by saying that the Appeal Body did not overturn Bisson. At paragraphs 16 and 17 the Appeal Body recorded that it disagreed with some of the conclusions reached by Bisson, but it did not, and could not, overturn the redress given by Bisson which remains in force.
40. I remind myself that Commodore Bisson's redress was to direct that all records of the Claimant's conviction should be removed from his personnel and promotional records. There is no suggestion that the Royal Navy has resiled from that direction or failed to comply with it. While the Appeal Body did comment on the interrelationship between court martial decisions and personnel records, it did not reason from its views that the Claimant's complaint was therefore ill-founded. Rather, it went on to consider whether the inclusion of the court martial decision had actually caused the Claimant prejudice. It necessarily had to do this as part of its examination of the Claimant's complaint. This part of the grounds of challenge is not reasonably arguable.
41. Mr Chegwidden drew to my attention a change which was made in April 2015 to the Queen's Regulations for the Royal Navy which does now make clear at regulation 3803(1)(b) that any conviction by a court martial resulting in a fine of over 14 days' pay can be put on the personnel file. That, had no bearing, however, on the way in which the Claimant's service complaint was handled.
42. Grounds 6 – 8 argue that the Appeal Body impermissibly widened the scope of appeal beyond the grounds of referral which the Claimant had sought. The Defendant responds that the function of the Appeal Body was to consider the Claimant's complaint afresh. Thus the Appeal Body was entitled to consider all aspects of the complaint, not simply the parts of the Jameson decision with which the Claimant was dissatisfied.
43. I consider that the Defendant's submissions are correct and the contrary is not reasonably arguable. To explain why, I will consider the position under both the legislative regime which prevailed when the complaint was first referred to the Defence Council by Commodore Jameson and the regime which existed at the time the Appeal Body took its decision.
44. Until 1^st January 2016, s.334 of the Armed Forces Act 2006 required the Defence Council to make regulations which, among other things, provided for a service complaint considered by a superior officer to be referred on the application of the complainant to the Defence Council – see s.334(4)(e) as it then stood. Under this provision, the Defence Council made The Armed Forces Redress of Individual Grievances (Procedures and Time Limits) Regulations 2007. Since these were Defence Council Regulations they did not have an SI number. I shall refer to them as the 'Defence Council Regulations'. Regulation 25(a) of the Defence Council Regulations allowed a complainant (in situations such as the present) to apply to the superior officer 'for the service complaint to be referred by the superior officer to the Defence Council.' Section 334(7) of the Armed Forces Act 2006 as it stood prior to 1^st January 2016 then said that the Defence Council must decide 'whether the complaint is well founded'. Thus, what was referred to the Defence Council was 'the service complaint' and the Defence Council's task was to decide whether that complaint was well-founded.
45. From 1^st January 2016 the task of making regulations in this regard is given to the Secretary of State for Defence. By s.340C of the Armed Forces Act 2006 the regulations must provide for the Defence Council or the person or panel appointed to consider it to decide 'whether the complaint is well founded'. The applicable regulations are The Armed Forces (Service Complaints) Regulations 2015 SI 2015 No. 1955 ('the 2015 Regulations'). Regulation 9 deals with the situation (amongst others) where the Defence Council receives a referral of a service complaint. Its task (or the task of the person or panel appointed to consider it) is to 'decide whether the complaint is well-founded' – see 2015 Regulations regulation 9(2)(a). In certain circumstances, a complaint can now reach the Defence Council by way of an appeal - see Armed Forces Act 2006 s.340D and 2015 Regulations regulation 10. In those circumstances, the task of the Defence Council (or person or panel to whom the task is given) is again to decide 'whether the complaint is well-founded' – see 2015 Regulations regulation 13(2)(a).
46. Thus, under the new regime as well, it is the 'complaint' which has to be considered.
47. Mr O'Donoghue drew my attention to the fact that the Defence Regulations regulation 25(b) required the complainant to state his 'grounds for seeking referral of the service complaint' to the Defence Council and he submitted that the task of the Defence Council should then be limited to deciding whether those grounds are well-founded. I do not accept this argument or consider it to be reasonably arguable. The legislation in its old and new form and the regulations (whether from the Defence Council or the Secretary of State) speak of the Defence Council having to decide whether the 'complaint' is well-founded, not whether the grounds for seeking referral (or appeal) are well-founded. I reject Mr O'Donoghue's submission as a matter of construction of the legislation and the regulations which is the end of the matter. However, I also recognise the force in Mr Chegwidden's argument that it could be inconvenient at best and unjust at worst if the Defence Council was confined to the particular grounds of appeal (or referral) on which the complainant relied.
48. Mr O'Donoghue argued that the Appeal Body had been wrong to say that the Claimant had not accepted the Jameson decision. He had agreed with parts of it, as he had made clear in his correspondence. However, in my view, this is beside the point. When he received the Jameson decision, it was open to the Claimant to accept it (not parts of it, but all of it) or ask for it to be referred to Level 3. He took the latter course. Having done so, as I have said, it was for the Defence Council at Level 3 to address the whole of his complaint.
49. The next part of the Claimant's challenge is under the head of Wednesbury unreasonableness. This is always a high hurdle to cross, no less is that so when the body whose decision is under challenge is a panel with particular expertise in the area in question. The Claimant's theme seems to be that the inclusion of the court martial decision must have affected his prospects of promotion and a decision to contrary must be unreasonable. Mr O'Donoghue submits that the Appeal Body did not sufficiently examine whether the Claimant's chance of promotion was damaged by the inclusion of the Court Martial record on his file. The Appeal Body had said that others with a B grade had been promoted. It had also said that the Claimant had unwittingly harmed his own prospects by transferring to a different branch, but that did not completely answer his complaint. It left open the possibility that his grade might have been better, but for what was included on his file. It left open the possibility that the diminished chances of promotion in his new branch were even worse because of the stain on his record from the inclusion of the Court Martial decision.
50. I did wonder if this was properly described as a Wednesbury challenge. If a court asks itself the wrong question, that may impugn its decision but the illegality lies in misdirecting itself, not because the decision is irrational. However, on reflection, I consider that Mr O'Donoghue's classification is correct. The service complaint procedure is intended to address a situation where a person subject to service law 'thinks himself wronged in any matter relating to his service.' That was the case before 1^st January 2016 – see Armed Forces Act 2006 s.334(1)(a). It remains the case after 1^st January 2016 – see Armed Forces Act 2006 s.340A(1). Whether a service person has been 'wronged' is a different matter than whether he is the victim of a legal wrong. The concept is broader and more diffuse than that. Correspondingly the decision makers at the various levels have to make a judgment as to how to approach the complaint and how to determine whether the complaint of being 'wronged' is 'well-founded'. While the decision-makers have some latitude and discretion as to how to approach their task, it is not limitless and they cannot do so in a way which no reasonable decision-maker could.
51. However, while I therefore agree that Mr O'Donoghue has applied the right label to this part of the Claimant's challenge, I do not accept that it is a reasonably arguable challenge. Dealing with the Claimant's complaint in the way that they did was within the quite generous margin which a body like this is allowed. It was open to them to conclude, as Mr Chegwidden submitted, that the other operative factors (particularly the high level of competition and the effect of the Claimant changing branches) were independent significant contributors to why the Claimant was not awarded Career Commission or promotion and that it was not possible to isolate the inclusion of the conviction record as having caused the Claimant wrong.
52. Next Mr O'Donoghue argues that the Appeal Body frustrated the Claimant's legitimate expectations. In the course of oral submissions, it became plain that this was another way of expressing earlier challenges. Thus, Mr O'Donoghue argued that the Claimant had a legitimate expectation that the Bisson decision would be respected. However, as I have already explained, the redress which Commodore Bisson ordered has taken place and has not been repudiated. It is true that the Appeal Board in paragraphs 16-18 of its decision expressed a different view as to whether the Royal Navy was obliged to follow the indication of the Court Martial President. But, as I have also explained, the Appeal Body went on to consider whether the Claimant had been prejudiced on the basis that the personnel file should not have included a reference to the Court Martial. In this respect as well, therefore, the Claimant's expectation as to the Bisson decision has not been frustrated.
53. Mr O'Donoghue argued as well the Claimant had a legitimate expectation that those parts of the Jameson decision which were in the Claimant's favour would be respected. I do not accept that any such expectation on the Claimant's part would have been legitimate. That is because, as I have explained, by asking for his complaint to be referred to the Defence Council, he was placing the whole of the complaint in their hands. This is, therefore, a reformulation of the argument that the Appeal Body improperly widened the scope of its investigation and I have rejected that argument.
54. Mr O'Donoghue then argued that, even if, contrary to his earlier submissions, the Appeal Body was entitled to look at the whole of the complaint, it acted unfairly by not alerting him to the possibility that it would revisit the aspects of the complaint which had succeeded in front of Commodore Jameson. In my judgment this way of putting the case is also not reasonably arguable. The Appeal Body did what it was entitled and obliged to do. Fairness did not require it to tell the Claimant that it would indeed do what it was entitled and obliged to do.
55. Fairness, Mr O'Donoghue submitted, also required the Appeal Body to give the Claimant an oral hearing. I reject this ground. This was not a case where the resolution of factual differences was likely to be assisted by an oral hearing. The Appeal Body was well placed to consider how complex the case was and whether an oral hearing would assist it resolve any complexity. It decided that an oral hearing was not necessary. Its reasons were brief, but I am not persuaded that this even arguably showed that it had misdirected itself on this issue or had come to a decision which was not open to it.
56. Finally, Mr O'Donoghue submitted that the Claimant's rights under Article 6 of the European Convention on Human Rights had been infringed by the way in which his complaint had been handled. There are formidable obstacles in the way of that part of the challenge. First, Article 6 applies only where a civil right is being determined. I have drawn attention to the nature of a complaint in the service context. It is not a 'civil right', or at least not in the present context – see Crosbie v Secretary of State for Defence [2011] EWHC 879 (Admin). Secondly, there is a substantial overlap between the common law requirements of fairness and the obligations under Article 6. I have rejected the submission that the Claimant was treated unfairly. I was unclear as to what further benefit the Claimant could gain if Article 6 did apply. Mr O'Donoghue said that when human rights were engaged the courts had to apply 'anxious scrutiny'. I detect no absence of such scrutiny in the way in which the Navy authorities dealt with his complaint. In any event, the Claimant has taken the opportunity to apply for permission for judicial review. That, too, has properly been considered.
57. I have been conscious throughout that my task is simply to decide whether the Claimant's grounds for seeking judicial review or any of them are reasonably arguable. The hearing of the renewed application for permission took rather longer than is customary. It is uncommon for a decision as to permission to be reserved. However, neither of those matters are determinative of whether the reasonable arguability threshold has been crossed. After careful consideration of the multiple ways in which Mr O'Donoghue has formulated the Claimant's challenge to the Appeal Body's decision, I find that none of them are reasonably arguable. Accordingly, this renewed application for permission to apply for judicial review is refused.

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