Fogg & Anor, R (on the application of) v Secretary of State for Defence

For designation under the Military Remains Act 1986, whether a vessel was in military service must be assessed at the time of sinking and in context. The phrase in service with has a wider meaning than being a naval, requisitioned or otherwise military vessel. All relevant circumstances must be considered, including armed-forces control, convoy obligations, armament, military personnel and participation in the operation. Being used for the purposes of the armed forces requires more than a general contribution to the war effort, but is also assessed broadly. A decision based on an unduly narrow construction and omitting relevant matters is unlawful. The decision must be quashed and reconsidered. Participation in a convoy does not automatically qualify every merchant vessel.

The claimants, whose father died when the merchant vessel STORAA was sunk by enemy action in 1943, sought designation of the wreck under the Military Remains Act 1986. The Secretary of State refused, deciding that STORAA was not in military service when sunk. Newman J quashed that decision and remitted the matter for reconsideration.

The Secretary of State appealed. The central issues were whether STORAA was in service with the armed forces and whether it was being used for their purposes within section 9(2) of the Act, applying the facts at the particular time of sinking.

The appeal was dismissed unanimously. The Court of Appeal upheld Newman J’s order quashing the Secretary of State’s decision and remitting the matter for further consideration.

1. Review and statutory construction. The questions under section 9(2) were initially for the Secretary of State, not the court. The court’s function was to ensure lawful decision-making, including correct legal direction and consideration of relevant matters.
2. In service with the armed forces. The phrase has a wider meaning than a vessel being taken over, requisitioned, used as a military vessel or simply at the armed forces’ disposition. The question must be answered at the particular time of sinking by considering all the circumstances, including the degree of armed-forces control. Vessel status is important but not conclusive.
3. Application to STORAA. The court approved the judge’s consideration of the convoy’s military structure, the master’s obligations under section 31 of the Naval Discipline Act 1866, the escort’s protection duties, the armament, the military gunners and the vessel’s participation in the engagement with the E boats. These matters permitted the conclusion that STORAA was at least capable of being regarded as in service with the Royal Navy. The decision did not establish that every merchant vessel in convoy automatically qualified.
4. Used for the purposes of the armed forces. More was required than showing that the voyage furthered the war effort generally. Nevertheless, the whole role of the Admiralty and Royal Navy, including convoy control, armament and military personnel, was relevant. The Secretary of State had considered the matter too narrowly and had failed to take relevant circumstances into account.
5. Authorities and parliamentary material. The insurance authorities in [1921] 1 AC 99 were not directly applicable because STORAA was armed, manned by military personnel and had taken combative action. The court nevertheless relied on the stated significance of actual combat and agreed that a convoy operation could become warlike when attacked. The court expressed doubt about relying on Hansard, but reached its conclusion through ordinary principles of statutory construction.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 1270, Sir Anthony Clarke MR, Lord Justice Rix and Lord Justice Longmore unanimously dismissed the Secretary of State’s appeal and upheld the quashing and remittal.
2. High Court of Justice, Queen’s Bench Division, Administrative Court: Newman J, by order dated 13 December 2005, quashed the Secretary of State’s decision of 12 October 2004 and remitted the matter for reconsideration.