Rosemary Fogg & Anor, R (on the application of) v The Secretary Of State For Defence & Anor

For the purposes of the Protection of Military Remains Act 1986, whether a vessel was “in service with” the armed forces depends on its function and activity at the time of loss. The expression is not confined to naval vessels, vessels formally requisitioned by the armed forces, or vessels subject to exclusive military possession. The court must consider whether the vessel and the armed forces were jointly engaged in an activity, including the degree of control, proximity and operational unity between them.

Whether a vessel was “being used for the purposes of” the armed forces requires more than a general contribution to the war effort. The cargo, its purpose and destination, the origin and route of the voyage, convoy arrangements, military control and the circumstances of the loss may all be relevant.

The claimants, daughters of a Royal Navy gunner who died when the merchant vessel SS STORAA was torpedoed in a wartime convoy, sought judicial review of the Secretary of State’s refusal to designate the wreck under the Protection of Military Remains Act 1986.

The Secretary of State concluded that the STORAA was a Ministry of War Transport merchant vessel, not in military service, and that the evidence did not establish that it was being used for the purposes of the armed forces. The central issue was whether that interpretation and approach lawfully applied section 9(2) of the Act.

1. Application succeeded. The Secretary of State’s decision letters were quashed and the matter was remitted for reconsideration in accordance with the judgment.
2. Section 9(2) provides the exclusive statutory meaning of military service. The relevant inquiry concerns the service or use of the vessel at the particular time when it sank. The phrase “in service with” is not confined to serving military vessels, formal requisitioning, chartering or an arrangement giving the armed forces exclusive possession.
3. Whether a vessel is “in service with” the armed forces depends on its function or activity at the material time and whether it was undertaking that activity jointly with the armed forces. Relevant considerations include the degree of military control, the proximity and coincidence of the activities, and whether the vessels appeared to be acting in unity. A merchant vessel in convoy may fall within the expression where it is subject to legally enforceable naval directions, armed for defence, carrying service personnel and participating in combat or the protection of the convoy.
4. The Secretary of State had treated civilian ownership, the civilian crew and the absence of formal military takeover as decisive. That approach failed to consider the statutory control exercised by the Ministry of War Transport, the Admiralty’s control of convoy navigation and security, the STORAA’s armaments and military personnel, and the particular circumstances of its voyage and loss.
5. For the alternative limb, “being used for the purposes of” the armed forces, a general contribution to the war effort is insufficient. The decision-maker must assess the immediacy of the connection with the armed forces, including the cargo, its origin, purpose and destination, the route and circumstances of delivery, and the role played by the armed forces in organising or protecting the voyage. The Secretary of State had treated the cargo destination as too decisive and had failed to assess the convoy and Admiralty context.
6. The court declined to determine any presently academic issue concerning Mr Short’s property rights, since designation had not occurred. Costs were to be addressed after representations.