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

Policies regulating service personnel’s communications may restrict expression where the restrictions arise from service law, confidentiality obligations and legitimate interests such as national security, discipline, operational effectiveness and the rights of others.

A policy is unlawful at common law under the Gillick principle where it directs conduct contrary to the law. It need not eliminate every legal uncertainty. Whistleblowing protections may provide a lawful route for external disclosures, and a policy need not contain a specific exemption for every category of public-interest complaint. The court will respect the Defence Council’s broad discretion in balancing these considerations, absent irrationality or disproportionality.

A failure to comply with the public sector equality duty remains unlawful, but relief may be withheld where quashing would create a serious policy gap and the statutory threshold for refusing relief is not met.

The anonymised claimants, one serving and one former member of the Armed Forces, sought judicial review of the Media DIN 2025, the Raising a Concern policy in JSP 492, and the Parliamentarian DIN 2024.

They alleged that the policies unlawfully restricted communications about rape, sexual assault, harassment and bullying, particularly by requiring prior authorisation and compelling disclosure of highly personal information. The challenges relied on vires, common law freedom of expression, irrationality, Articles 8, 10 and 14 ECHR, and the public sector equality duty under section 149 of the Equality Act 2010.

The Defendant had previously conceded unlawfulness in superseded policies. The central issues were whether the current policies had the alleged restrictive effect, whether they were unlawful, and what relief should follow from the admitted equality-duty breach.

1. Grounds 1–3 dismissed. The policies were lawfully made by the Defence Council under the Royal Prerogative, service law and the duty of confidentiality. Sections 328 and 329 of the Armed Forces Act 2006, the King’s Regulations and the obligation to obey lawful commands supported the Defendant’s power to regulate communications.
2. The Media DIN 2025 expressly excluded communications made under whistleblowing protections. The Raising a Concern policy covered wrongdoing affecting a wider group, even where the individual was also the victim of bullying, harassment or discrimination. Paragraph 29 excluded purely individual complaints; it did not exclude wider concerns merely because an individual complaint also existed.
3. The Parliamentarian DIN 2024 permitted service personnel to contact their constituency MP or Member of a Delegated Legislature about matters personally affecting them without prior authorisation. It also preserved the whistleblowing route. The policies therefore did not impose the alleged blanket prohibition.
4. Applying the approach in R (A) v Secretary of State for the Home Department [2021] UKSC 37, the policies did not direct personnel to act contrary to law or Convention rights. The restrictions were prescribed by law, pursued legitimate aims and were proportionate. The Defendant was not required to draft an express exception for every form of public-interest disclosure. The policies provided a reasonable degree of predictability and safeguards against arbitrary decision-making.
5. The interference with Articles 8 and 10 ECHR was justified. The PIDA protections, extended by policy to service personnel, were in principle compatible with Article 10, while the constituency-MP safeguard provided additional protection. The alleged Article 14 difference in treatment was not established because the claimants’ interpretation of the policies was incorrect.
6. Ground 5 succeeded. The Defendant conceded that the Media DIN 2025 and Parliamentarian DIN 2024 had been adopted without lawful compliance with section 149 of the Equality Act 2010.
7. The court declined provisionally to quash the policies. It was not highly likely that the outcome would have been substantially the same following a lawful equality assessment, but quashing would create an undesirable policy gap. The Defendant was invited to give undertakings to review the policies and conduct lawful equality assessments. The court also indicated that a declaration might be appropriate concerning King’s Regulations that referred to superseded policies.

This was a first-instance judicial review. The claim was issued on 9 October 2024. Cavanagh J granted permission to amend the claim on 20 December 2024. Saini J refused the Defendant’s application to set aside permission and directed amended pleadings on 23 May 2025. The Defendant’s concessions concerning superseded policies were recorded in a consent order approved on 21 July 2025.