Crosbie v Secretary of State for Defence

Under Army Act 1955, section 180, the Army Board’s duty is defined by the complaint made to it. It must investigate that complaint and grant such redress as appears necessary, but it is not required to investigate a materially different allegation which the complainant did not raise.

A judicial review of the Army Board cannot be converted into a direct challenge to earlier commissioning decisions. Where the Board itself makes a merits decision, a challenge to those earlier decisions may also be pointless.

The exclusion of armed forces personnel from unfair-dismissal protection did not create an arguable domestic-law right to renewal of a short-service commission. In the case of an Army chaplain, the special bond of trust and loyalty with the Army objectively justified exclusion from Article 6 protection in relation to non-renewal.

The claimant served as an Army chaplain under a short-service commission. His applications for extension were refused after concerns about his performance and conduct. He later discovered material supplied by a Church of England official which had been available within Army records.

He complained to the Army Board under section 180 of the Army Act 1955. The Board accepted that he had been wronged in several respects, apologised, but rejected his contention that the undisclosed material had caused the refusal of an extension.

The claimant sought judicial review, alleging failure to consider apparent bias, irrationality in the treatment of a summer-ball incident and refusal to compensate his disclosure costs. He also alleged that the Board’s procedure violated Article 6 because it was not an independent tribunal.

1. The application for judicial review was dismissed. The Army Board had understood the principal complaint to be that the undisclosed material had caused actual unfairness or had been improperly taken into account. The claimant had not made a distinct complaint of apparent bias. The Board was therefore not legally obliged to investigate that different issue.

2. The court could review only the Army Board’s decision, not directly the decisions of the RAChD, ACB or ACAB. The Board had itself decided the merits of whether an extension should have been granted. A direct judicial review of the earlier decisions would therefore have been likely to serve no useful purpose.

3. Even if apparent bias had been relevant, the informed observer would not have concluded that there was a real possibility of bias. The decisions were supported by substantial independent evidence, the boards were experienced in disregarding irrelevant material, the decision involved judgment about suitability and service needs, and redress remained available through the Army Board.

4. The reference to drunken behaviour at two military units was not irrational. The Board had excluded the disputed allegations of indecent conduct at the summer ball, but was entitled to consider the claimant’s admitted excessive consumption of alcohol. Its refusal to award legal costs was also lawful. Section 180 conferred a broad discretion to grant such redress as appeared necessary, and an apology could be sufficient.

5. The claimant had no domestic-law right to extension of his commission, to a safe-to-receive letter or to a reference. The exclusion of armed forces personnel from Part X of the Employment Rights Act 1996 meant that non-renewal of the commission did not engage an arguable domestic-law civil right.

6. Applying Eskelinen v Finland, the exclusion of Article 6 protection was objectively justified. An Army chaplain was integrated into military units, subject to military discipline and expected to serve loyally in demanding operational circumstances. That relationship involved the necessary special bond of trust and loyalty.

7. Article 6 was therefore inapplicable. Alternatively, if it applied, the combination of the Army Board hearing and judicial review would have satisfied it. The factual questions concerning the undisclosed material were staging posts towards the wider discretionary judgment whether the commission should be extended.