Clayton v Army Board of the Defence Council & Anor

Fairness does not automatically require an oral hearing whenever evidence conflicts. The decisive question is whether a substantial factual issue, central to the decision, cannot fairly be resolved from the written evidence. The statutory service-complaint process is not a series of appeals: the authorised decision-maker must determine whether the complainant was wronged. Article 6 is not engaged where the complaint concerns no domestic civil right. Delay is unlawful at common law only if it crosses the applicable threshold of unreasonableness. A panel need determine only the complaint actually submitted to it.

The claimant sought judicial review of a Service Complaints Panel decision dismissing his complaint about career management and promotion prospects. The Panel accepted that he had not received a Formal Career Review but concluded that he had not been wronged.

The claimant alleged that the Panel should have held an oral hearing, had taken 34 months to determine the complaint, had breached Article 6, and had failed to address a letter he regarded as a threat.

1. Application dismissed. None of the grounds for judicial review was made out.
2. The approach in R v Army Board of the Defence Council ex parte Anderson [1992] QB 169 remained applicable. Fairness does not invariably require an oral hearing. The question depends on the subject matter, circumstances, nature of the decision, and whether substantial factual issues central to the decision cannot fairly be resolved on the written evidence.
3. The Panel had rationally concluded that the issues concerning career advice and the different training and experience of OPMI and OPMI(L) soldiers could be resolved from the written material. The process under sections 334 and 335 of the Armed Forces Act 2006 was not a series of appeals. Level 3 alone decided whether the claimant had been wronged.
4. Article 6 was not engaged. The claimant had no domestic right to proper career management, promotion or a favourable outcome of his service complaint. His right to have the complaint considered fairly was procedural and was not a “civil right” for Article 6 purposes.
5. The delay was regrettable but not unlawful. The complaint had been progressed, involved some complexity and competing demands on senior officers, and the delay did not cross the applicable threshold of unreasonableness.
6. The Panel was required to determine only the complaint made to it. The allegation concerning Colonel Wilman’s letter had not formed part of the later complaint and its omission gave no ground for judicial review.