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

This is an interim application by the Secretary of State for Defence to treat as academic challenges to Ministry of Defence policies governing service personnel communications with the media and Parliament. The court concluded the challenges were not academic and refused the Defendant’s application.

The Claimants, both of whom say they were raped while serving, challenged the original Defence Instruction Notices (the 2020 Media DIN, the 2019 and 2023 Parliamentarian DINs) on grounds of illegality/irrationality, incompatibility with Articles 8 and 10 ECHR (under section 6 of the Human Rights Act 1998), discrimination under Article 14 read with Articles 8 and 10, victimisation contrary to section 27 of the Equality Act 2010, and breach of the Public Sector Equality Duty under section 149 of the Equality Act 2010. The Defendant had replaced those policies with new policies (including the 2025 Media DIN, the 2024 Parliamentarian DIN and JSP492 chapter on Raising a Concern) and sought to treat the original challenges as academic.

The court held that past breaches of Convention rights remain justiciable and that there was a strong public interest in determining the legality of the original policies. The court accepted the concession that the 2020 Media DIN was introduced in breach of the PSED but rejected the Defendant’s attempt to secure summary disposal. The Application was dismissed with costs and further directions were made for a substantive hearing.

Background and parties: Two women (EPX and PGH), one serving and one former member of the Armed Forces, allege they were raped while serving. They brought judicial review proceedings challenging Ministry of Defence policies that required prior MoD approval for service personnel to communicate with the media or Parliament.

Nature of the claim and relief sought: Judicial review was brought seeking relief against the original policies on multiple grounds: (1) illegality and irrationality; (2) incompatibility with ECHR arts. 8 and 10 (HRA section 6); (3) discrimination under art. 14 read with arts. 8 and 10; (4) unlawful victimisation contrary to section 27 Equality Act 2010; and (5) breach of the Public Sector Equality Duty (section 149 Equality Act 2010). Permission to proceed was granted by Cavanagh J on 20 December 2024.

Procedural history: After the claim was issued the Defendant revoked the original DINs and issued new policies. The Defendant applied (without a substantive hearing) to vary existing directions and to require the Claimants to re-plead in light of the new policies, effectively asking the court to treat the original challenges as academic.

Issues framed by the court: (i) Whether the challenges to the original policies remained justiciable or had become academic following substitution by new policies; (ii) whether there was good reason (public interest) to decide the legality of the original policies; (iii) procedural propriety of the Defendant’s conduct and compliance with the court’s directions.

Court’s reasoning: The court rejected the contention that historical breaches of Convention rights become academic merely because the public authority has changed its policy. The court emphasised that claims under the Human Rights Act may address past acts and that a claimant is entitled to have such claims determined where relief would be just and appropriate under section 7(1)(a) HRA. The court found persuasive evidence from the Centre for Military Justice about the chilling effect of the original policies on service personnel wishing to report sexual assault and harassment, and concluded there was a strong public interest in resolving the legality of the original DINs. The court criticised the Defendant’s procedural approach and failure to engage substantively with the challenges to the original policies, recorded the Defendant’s limited concession that the 2020 Media DIN breached the PSED, and concluded the Application amounted to an attempt to secure summary disposal of a live dispute. The Application was dismissed with costs and further directions were given for continued litigation and a substantive hearing in the October 2025 term.

The Defendant’s application to treat the claims as academic and to vary case management directions in the way sought is dismissed. The court held that challenges to the original Defence Instruction Notices are not academic because historical breaches of Convention rights remain justiciable under the Human Rights Act, and there is a substantial public interest in determining the legality of the original policies given the demonstrated chilling effect on service personnel. The court also accepted the concession that the 2020 Media DIN was introduced in breach of the Public Sector Equality Duty and criticised the Defendant’s procedural conduct. Further directions and a substantive hearing were ordered for the term beginning 1 October 2025.