R (Crosbie) v Ministry of Defence

The court dismissed the claimant's application for judicial review of the Army Board's decision under s.180 of the Army Act 1955. The judge held that the Army Board had correctly investigated the claimant's complaint of wrong, had conducted a fair procedure and reached a merits-based decision that the claimant's Short Service Commission had not been wrongfully non-extended. Important legal principles applied include the test for apparent bias as set out in Porter v Magill and the autonomous approach to Article 6 ECHR. The court concluded that (i) the claimant had not framed an appearance-of-bias complaint before the Army Board and, in any event, the informed observer would not conclude there was a real possibility of bias by the RAChD, ACB or ACAB; (ii) the alleged irrationalities (reference to the summer ball and refusal to award costs) were not established; and (iii) Article 6 did not apply because the claimant had no arguable domestic law 'civil right' to continued service or to the particular ecclesiastical consequences he alleged.

The claimant, an ordained priest who undertook a Short Service Commission as an Army chaplain between 2000 and 2003, sought judicial review of the Army Board's decision which, after investigating his complaint under s.180 Army Act 1955, found he had been wronged in limited respects (for which it apologised) but that the Sentamu material had not improperly influenced the RAChD, the Army Commissions Board (ACB) or the Army Commissions Appeal Board (ACAB) and therefore rejected reinstatement or compensation for loss of career. The claimant alleged public law errors (failure to consider apparent bias; irrationality) and breach of Article 6(1) ECHR.

Key facts and procedure:

• The claimant's Personal File contained material sent by a Church official (Mrs Sentamu) in August 2000; the claimant argued this material prejudiced later military decision-makers and that he had been denied disclosure until obtaining it through separate court proceedings.
• His applications for extension were refused by RAChD and confirmed by ACB and ACAB; he pursued internal redress under s.180 and an Army Board hearing was held in 2008 which produced the principal decision under challenge.
• Permission to apply for judicial review was initially refused and then granted on oral renewal.

Issues framed by the court:

• Whether the Army Board erred in law by failing to investigate apparent bias arising from the Sentamu material.
• Whether the Army Board acted irrationally in referring to the summer ball incident after saying it would disregard related allegations and whether its refusal to award compensation for legal costs was irrational or inadequately reasoned.
• Whether Article 6 ECHR applied to proceedings before the Army Board (i.e. whether a 'civil right' was engaged) and, if so, whether the combination of the Army Board process and judicial review provided Article 6 protection.

Court's reasoning and outcome:

• The court emphasised that the Army Board's jurisdiction under s.180 is to investigate the officer's complaint as presented; the claimant had not advanced a distinct appearance-of-bias complaint before the Board and so the Board was not obliged to investigate that separate issue. Even if considered, the court found the informed observer would not conclude there was a real possibility of bias because the other boards operated on independent evidence, were experienced in disregarding irrelevant material, and their decisions were not final in any event.
• On irrationality, the court found the Army Board properly distinguished drunkenness (admitted and relevant) from uninvestigated allegations of indecent behaviour (to be disregarded). The refusal to award legal costs was within the broad discretion of the Army Board to grant redress under s.180 and was not irrational given the procedural context of Norwich Pharmacal proceedings and the possibility that any wrongdoer might later be ordered to pay costs.
• On Article 6, the court held the claimant had no arguable domestic law civil right to extension of his commission or to a guaranteed 'safe to receive' letter; the exclusion of Article 6 protection for the asserted rights was objectively justified by the special bond of trust and loyalty in military service. Even assuming Article 6 applied, the combination of the Army Board hearing and judicial review would have been sufficient to meet Article 6 requirements.

Result: the judicial review claim was dismissed.

The application for judicial review is dismissed. The court held that the Army Board had properly investigated the claimant's complaint under s.180 Army Act 1955, conducted a fair procedure and reached a lawful merits decision; apparent bias was not established and Article 6 ECHR did not afford the claimant redress because no arguable domestic civil right was engaged and, in any event, the Army Board process together with judicial review would satisfy Article 6.