Ross v Secretary of State for Defence

In a service complaint, a referral to the Defence Council or an appeal body concerns the whole complaint, rather than only the grounds relied on for referral. Transitional provisions preserving the former regime apply only where the prescribed officer has made a first substantive decision and the superior officer has also decided the complaint. A communication stating that no decision can yet be reached is not such a decision. A service complaint alleging that a person has been wronged involves a broad evaluative judgment, but the decision-maker remains subject to rationality review. An oral hearing is not required where it would not assist with resolving factual disputes. The renewed application for permission to apply for judicial review was refused.

The claimant, a Royal Navy lieutenant, challenged the decision of an Appeal Body dismissing his service complaint. He alleged that an unlawfully retained court martial record had damaged his prospects of promotion, career commission and branch transfer.

His complaint began under the former service-complaints regime. A commanding officer stated that two elements had merit but that no decision could yet be reached. A superior officer later made the first substantive decision. Following statutory changes, the Defence Council referred the matter to an Appeal Body rather than a Service Complaint Panel. The Appeal Body considered the complaint as a whole and declined an oral hearing.

The central issues were whether the transitional provisions applied, whether the Appeal Body had exceeded the scope of its task, and whether its decision was unlawful for irrationality, unfairness, frustration of legitimate expectation or breach of Article 6.

1. Renewed permission application refused. Although the claim form appeared to have been issued outside the three-month period under CPR r 54.5(1), the court decided to consider the merits rather than dispose of the application solely on delay.
2. Transitional jurisdiction. Regulation 4 of the Transitional Regulations required both decisions identified in its heading: a referral following a first substantive decision and a decision by the superior officer. The Watts letter expressly stated that no decision could yet be reached. It therefore was not a decision that the complaint was well-founded under Armed Forces Act 2006, s 334(7) and (8). Regulation 4 did not apply. The complaint was instead a Part 3 complaint under regulations 6 and 12, and the Defence Council was entitled under regulation 12(5) to appoint the Appeal Body.
3. Scope of the appeal. Under both the former and current regimes, the task was to decide whether the complaint was well-founded. The relevant provisions did not confine the decision-maker to the particular grounds stated for referral or appeal. The Appeal Body was therefore entitled, and required, to consider the complaint as a whole.
4. Rationality. Whether a service person has been wronged is broader and more diffuse than whether the person has suffered a legal wrong. Decision-makers have latitude in determining how to approach such complaints, particularly where they possess specialist expertise, but the latitude is not unlimited. The Appeal Body could reasonably regard competition and the claimant’s voluntary branch transfer as independent significant contributors to the outcome and conclude that the effect of the conviction record could not be isolated.
5. Other grounds. The Bisson redress had been implemented and had not been repudiated. The claimant had no legitimate expectation that favourable parts of the Jameson decision would be preserved after referring the complaint to Level 3. Fairness did not require advance notice that the Appeal Body might reconsider the complaint as a whole. An oral hearing was unnecessary because factual differences were not likely to be resolved more effectively orally.
6. Article 6. There were substantial obstacles to treating the service complaint as concerning a civil right. The common law requirements of fairness substantially overlapped with Article 6, and the court found no absence of anxious scrutiny or procedural fairness. None of the grounds was reasonably arguable, so permission was refused.

The judgment concerned a renewed application for permission to apply for judicial review. Permission had previously been refused on the papers by James Goudie QC sitting as a Deputy High Court Judge. The court refused the renewed application.