Clayton v Army Board of the Defence Council & Anor

On 8^th March 2013 a Service Complaints Panel acting on behalf of the Army Board dismissed the Claimant’s service complaint. In these proceedings the Claimant seeks to judicially review that decision. He does so with the leave of Foskett J. which was given on 25^th October 2013.

The Claimant joined the Army in 1991. He was originally attached to the Royal Signals as a linguist. In 2001 a decision was taken to amalgamate the linguists in Royal Signals with the linguists in the Intelligence Corps. Those affected, such as the Claimant, were given choices. They could remain in the Royal Signals, but would then have to re-train to a completely new trade (i.e. not an intelligence trade). If they joined the Intelligence Corps they were known as ‘OPMI(L)’s which stands for Operator Military Intelligence (Linguists). After transfer to the Intelligence Corps, they could transfer into a different position as an OPMI i.e. Operator Military Intelligence which would require basic training plus whatever other specialist training might be required. To a non-military person the distinction between OPMI and OPMI(L) may seem subtle, but the Panel had evidence that some significant extra training was required for a soldier who wished to make this transfer. The Claimant chose not to do so. He joined the Intelligence Corps and continued as an OPMI(L).

By this stage the Claimant had attained the rank of Sergeant. He was promoted to Staff Sergeant in 2006. The next rank above Staff Sergeant is Warrant Officer Grade 2 (‘WO2’). The Claimant applied for this promotion in 2010 but was unsuccessful. The essence of his service complaint was that his career had been mismanaged and he had not been given proper advice to allow him to maximise his chances of promotion. In particular, at or shortly after, his 14^th year of service (so in about 2005) he should have had a Formal Career Review (‘FCR’). This did not occur. He argued that, if this had taken place, he would have been advised to transfer to being an OPMI where his chances of promotion would have been better.

He made his first service complaint on 4^th May 2010. A complainant must specify the redress which they are seeking. He said that he wished to have retrospective transfer to the OPMI Career Employment Qualification (‘CEQ’), promotion to WO2 and for that promotion to be backdated in line with the last promotion board.

As it happened, shortly after this complaint was lodged, the Claimant was called off the reserve list and offered promotion to WO2 as an OPMI(L) to take up an assignment in October 2010.

On 12^th July 2010 Colonel Wilman, who was the senior career manager for soldiers in the Intelligence Corps, wrote to the Claimant and said that if he wished to take up this offer of promotion he would have to withdraw his complaint with its request for a transfer to OPMI since the new assignment was for an OPMI(L) serviceman. I will need to say a little more about this letter later. However, it had the consequence that the Claimant submitted a second service complaint at the end of July 2010. It repeated the substance of the previous complaint but it sought a different form of redress. Instead of a transfer to being an OPMI, the Claimant sought a final assignment for 3 years as a WO2 and OPMI(L) in the United States (which was where his wife came from). He took up his promotion as WO2.

There has long been a scheme for service personnel who consider they have been wronged to make formal complaints. It has evolved and continues to do so. In 2010, the governing provisions were in Armed Forces Act 2006 ss.334-339. In summary a complaint is first to be made to (in the Claimant’s case) his Commanding Officer. This is sometimes called ‘Level 1’. Level 1 had the choice of deciding the complaint himself or referring it up. The reference could be to the Superior Officer (‘Level 2’) or to the Defence Council (‘Level 3’) – see Armed Forces Act 2006 s.334(4)(b). The manual issued by the Ministry of Defence in 2008 for dealing with individual grievances (‘JSP 831’) says that Level 1 should only refer to Level 3 exceptionally and where, because of the nature of the complaint or the redress sought, Level 2 cannot add value to the complaint. Level 1 should discuss the matter with Level 2 before taking this course.

If the Commanding Officer (Level 1) does decide to refer the complaint to the Superior Officer (Level 2), then the Superior Officer had a similar choice: he could decide the complaint himself or he could refer it up to the next stage, i.e. Level 3, the Defence Council - see Armed Forces Act 2006 s.334(4) (c) and (d). In this case the Army Board is empowered to carry out the functions of the Defence Council – see Defence (Transfers of Functions) Act 1964 s.1(5). The Defence Council / Army Board can delegate consideration of a complaint to a Service Complaint Panel – see Armed Forces Act 2006 s.335. In some cases the Service Complaints Panel must include an independent member, but this was not one of those cases.

The Claimant’s Commanding Officer was Wing Commander Exley. On 27^th July 2010 he dealt with both of the Claimant’s complaints, treating the second as an amendment to the redress sought in the first. He said, “the amendment to the redress does not change the foundation of the SC [i.e. service complaint] and I believe that the SC is well founded but I do not have the authority to grant the redress sought or any other appropriate redress.” He referred it to the Superior Officer who, in this case, was Major General Kirkland.

There was then considerable exchange of correspondence to which the Claimant contributed concerning his complaint. The papers were then assembled and presented to Major General Kirkland on 23^rd August 2011 with the note, “Should you feel that this SC has merit, you should refer it to Level 3 without comment.” The Major General ticked the note and added “refer to Level 3”. The date when this was done is not clear, but it was received by the Service Complaints Wing of the Army Board on 2^nd September 2011.

This was one of a large number of complaints which needed to be determined by the Service Complaints Panels. In addition further investigation was carried out and advice prepared. In this case the Panel consisted of Brigadier Brittain, Head of Defence Logistics Policy and Brigadier Walker, Head of Defence Logistics Operations and Capability. They met on 15^th January 2013. Brigadier Susan Ridge, who is Director Legal Advisory of the Army Legal Service, attended as legal advisor to the Panel. The Panel decided that an oral hearing was not necessary. It said in its subsequent decision,

“In accordance with the principles set out in the case of R v Army Board of the Defence Council ex parte Anderson we met to consider our determination in this case. We satisfied ourselves that appropriate disclosure had been made to the Complainant and that WO2 Clayton had had an opportunity to comment on all the papers that are before us, less the legal advice. Having read all the papers we agreed that there was no need for further investigation. We were also satisfied that there were no disputes of fact that could not be fairly resolved on the basis of the evidence contained in the papers; we were satisfied that we could fairly determine the complainant without the need for an oral hearing. We were therefore able to determine the case on the papers before us.”

Because of pressure of other work, Brigadier Ridge was not able to draft a determination reflecting the Panel’s decision until the beginning of March 2013. She distributed it to the Panel members who approved it. It was dated 8^th March 2013 and received by the Claimant on 21^st March 2013.

The Panel directed itself that it had to consider whether the Claimant was wronged in relation to his career management. This was wider than whether he had been treated unlawfully but also required consideration of whether there had been procedural error or substantive unfairness which in either case had been to the Claimant’s detriment.

The Panel agreed that the Claimant had not received a FCR as he should have done. At that time he was serving in the USA which meant that there had been no convenient ‘roadshow’ at which such a review could have taken place. But the Panel agreed that other means should have been found to carry out an FCR. It did add, however, that there was an onus on the Claimant as well to seek out career advice, he had not done that and he had not therefore been wronged in that regard.

However, it went on to consider whether the Claimant would have transferred to OPMI if he had received career advice. The Claimant had submitted that he would have been fully qualified to be employed as an OPMI. The Panel, though, preferred the evidence of Colonel Wilman, Lt Colonel McCreath and Lt. Colonel Murray that OPMI was a parallel trade to OPMI(L) and that OPMI soldiers had to undertake a training which OPMI(L) soldiers would not have done. Looking specifically at the Claimant’s experience, the Panel accepted the evidence of Lt Colonel McCreath that “…his level of OPINTEL [presumably operational intelligence] was not comparable to that of a trained OPMI soldier and that he will have had virtually no Cl & Sy [Counterintelligence and Security]”. The Claimant had argued that if he had had proper career management, he would have been advised of the limited promotion and commissioning opportunities for OPMI(L)s and he would have transferred to OPMI where the number of openings were greater. However, in the Panel’s view the Claimant’s contention was flawed. He had not had all the training that an OPMI would have had or the same experience. His prospect of promotion as an OPMI would not therefore necessarily have been better.

The shortage of linguists had meant that a number of warrant officers had been allowed to continue beyond their usual service period. The Panel accepted that this had created something of a bottleneck for OPMI(L)s. Yet, although competition was strong, there were opportunities for promotion for OPMI(L)s as the Claimant’s own promotion to WO2 demonstrated. Consequently, the Panel did not consider the Claimant had been wronged in this regard.

The Claimant argues that the Panel should have directed an oral hearing. He says that there were issues of fact on which the Panel preferred the evidence of three senior army officers to his own. Furthermore, the officers who considered his complaint at Levels 1 and 2 thought it had merit. The Panel at Level 3 was obliged to hold an oral hearing before concluding that it did not. It can be seen that the panel directed itself by reference to R v Army Board ex parte Anderson [1992] QB 169. In granting permission to apply for judicial review Foskett J. noted the age of that authority and said that consideration should be given as to whether its guidance was still appropriate.

The complaint had taken 34 months to be decided. The Claimant argues that this is unlawful:

In his emails of 15^th July 2010 and 23^rd September 2010 the Claimant had complained of the letter from Colonel Wilman which he had interpreted as an improper threat. The Panel did not deal with this matter.

As I have already noted, the Panel considered whether to hold an oral hearing by reference to the principles in Anderson. In 1990 when this case was decided, members of the Armed Forces who alleged discrimination did not have access to Employment Tribunals (or Industrial Tribunals as they then were) –see what was then Race Relations Act 1976 s.75 (8) and (9). Their only recourse was to make a service complaint which would then be considered by the Army Board. Anderson complained of race discrimination. His service complaint had been dismissed and in his application for judicial review he challenged the procedure which the Panel had adopted including not holding an oral hearing. At p.187 Taylor LJ (with whom Morland J. agreed) said,

“The hearing does not necessarily have to be an oral hearing in all cases. There is ample authority that decision-making bodies other than courts and bodies whose procedures are laid down by statute, are masters of their own procedure. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed and there is no rule that fairness always requires an oral hearing: see Local Government Board v. Arlidge [1915] A.C. 120, 132-133; Reg. v. Race Relations Board, Ex parte Selvarajan [1975] 1 W.L.R. 1686, 1694B-D and Reg. v. Immigration Appeal Tribunal, Ex parte Jones (Ross) [1988] 1 W.L.R. 477, 481B-G. Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and upon the nature of the decision to be made. It will also depend upon whether there are substantial issues of fact which cannot be satisfactorily resolved on the available written evidence. This does not mean that whenever there is a conflict of evidence in the statements taken, an oral hearing must be held to resolve it. Sometimes such a conflict can be resolved merely by the inherent unlikelihood of one version or the other. Sometimes the conflict is not central to the issue for determination and would not justify an oral hearing. Even when such a hearing is necessary, it may only require one or two witnesses to be called and cross-examined.”

Taking her cue from the comment of Foskett J. when he granted permission to the Claimant to apply for judicial review, Ms Edington for the Claimant submitted that 24 years later this principle deserved reconsideration. However, I was not entirely clear from her submissions in what ways she submitted it needed updating.

The passage which I have quoted comes within a section of the Court’s judgment in which it observed (also at p.187) that,

“The Army Board as the forum of last resort, dealing with an individual’s fundamental statutory rights, must by its procedures achieve a high standard of fairness. I would list the principles as follows”

and the passage which I have quoted was then one of those principles. It is not entirely clear whether the Court was intending to limit its enunciated principles to cases where the Army Board was only dealing with fundamental statutory rights. If that was so, then I would agree that the common law has moved on. Mr Milford, for the Defendant, did not suggest otherwise and, indeed, it is notable that the Panel did not refuse to hold an oral hearing because this Claimant’s complaint did not deal with fundamental statutory rights. This is not to say that the subject matter of the complaint is irrelevant to the question of whether fairness requires an oral hearing.

That apart, the statement in Anderson as to when the common law principles of fairness require an oral hearing has stood the test of time. Thus, for instance, in R (Smith) v Parole Board (No.2) [2004] 1 WLR 421 at [37] Kennedy LJ said that an oral hearing should be ordered where there is a disputed issue of fact which is central to the board’s assessment and which cannot fairly be resolved without hearing oral evidence. The same approach was adopted by the Court of Appeal in R (Thompson) v the Law Society [2004] 1 WLR 2522 at [45] – [52].

Mr Milford noted that at [47] in Thompson Clarke LJ said that he could not think of a situation in which a solicitor could complain of the Law Society’s failure to hold an oral hearing if he did not ask for one. Mr Milford recognised that the Court was there concerned with a solicitor claimant. However, the Claimant in the present case was well familiar with the procedure and the MOD manual on Redress of Grievances said in Appendix K that an oral hearing might be held on the application of the complainant. The Claimant in this case had not asked for one. Ms Edington observed that the standard form for making a service complaint does not alert the complainant to the need to ask for an oral hearing and the Claimant’s omission to do so should not be held against him. I regard this as a barren part of the argument. Despite the Claimant not asking for an oral hearing, the Panel considered whether fairness required one. If they erred in law in answering that question, I would not have thought it right to deprive the Claimant of a remedy because he himself had not raised the matter.

However, I consider the Panel’s approach to this issue is unassailable. They applied the Anderson test. They gave clear and rational reasons for why resolution of the Claimant’s complaint did not turn on disputed issues of fact where an oral hearing might assist. It was common ground that the Claimant had not had an FCR as he should have done. The Panel considered that the Claimant should have taken the initiative to obtain career advice. The Claimant disagreed. But this was a matter of Army policy which the Panel was entitled to conclude could and should be resolved by reference to the documents. Similarly, there was a difference between the Claimant and the Army authorities as to whether OPMI soldiers required different training to OPMI(L) soldiers and whether, if he had transferred to OPMI, he would have been disadvantaged by a lack of that training and experience. Here, too, it seems to me, the Panel was entitled to take the view that they were able to resolve this dispute sufficiently with the extensive written exchanges between those authorities and the Claimant and an oral hearing was not necessary in order to fairly decide the matter.

Ms Edington submitted that there was another factor here which should have led to an oral hearing. Wing Commander Exley at Level 1 had said that he thought the Claimant’s complaint had merit. Major General Kirkland at Level 2 had been asked to refer the matter to Level 3 if he thought the complaint had merit. He had referred it. It was therefore implicit that he, too, thought the complaint had merit. Ms Edington submitted that in fairness to the Claimant, he should have been allowed an oral hearing before the Panel took a contrary view to Level 1 and Level 2.

In response, Mr Milford noted that s.334 gives Level 1 and Level 2 a choice: decide the complaint or refer. Neither Wing Commander Exley nor Major General Kirkland had the authority both to decide the complaint in the Claimant’s favour and to refer it upwards. I agree. The scheme which applied was that Level 3, and only Level 3, decided whether the Claimant had been wronged. It was not a series of appeals from Level 1 to Level 2 and then from Level 2 to Level 3. Mr Milford is also entitled to observe that neither Wing Commander Exley nor Major General Kirkland gave any reasons for their view of the merit of the Claimant’s case. Overall, there was nothing in the circumstances of Level 1 and Level 2 which required the Panel to take anything other than the Anderson approach to the issue of whether there should be an oral hearing.

Ms Edington suggested that the decision not to hold an oral hearing was taken by Brigadier Donnelly, the Director of Personal Services (Army) rather than the Panel. This was based on a letter which Brigadier Donnelly had written to the Services Complaints Commissioner on 26^th November 2012 and in which he had said “At this stage it is not thought that they [i.e. the Panel] will require a hearing.” I regard this as a prediction. It is far too slender a basis for a contention that the Panel did not discharge its own responsibility to take for itself the decision as to whether a hearing was necessary in fairness to the Claimant.

So far as relevant, Article 6 of the European Convention on Human Rights provides, “In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Ms Edington submitted that the 34 months which it had taken the Army authorities to deal with the Claimant’s complaint exceeded a “reasonable time” by a very substantial margin. She observes that the Services Complaint Commissioner has frequently had to complain of delays in the complaint system in general and (although she has no role in the resolution of independent complaints) has questioned the delay in the Claimant’s own case.

The difficulty for the Claimant is that Article 6 is engaged only in the determination of his “civil rights”. This term has an autonomous meaning which applies across the Contracting States to the Convention. In a judgment which I gave in Andrew Crosbie v Secretary of State for Defence [2011] EWHC 879 (Admin) [76] – [119] I had to examine the application of the expression in the context of the service complaints system. I noted that a proper starting point was whether the dispute involved a right which English domestic law would recognise (or would but for some specific exemption).

Ms Edington argued the Claimant had a right to proper career management or to fulfil his potential in the Army. However, neither of these is a right for which he could seek redress in the courts even if he was in comparable civilian employment. In the Army these matters gave him no domestic right, as opposed to the right to bring a complaint under s.334 of the Armed Forces Act 2006. Ms Edington submitted alternatively that his pay and pension suffered as a result of poor career management. But the Claimant received the pay and pension to which he was entitled by virtue of the rank he attained. He had no right to be promoted to a higher rank. Thirdly, Ms Edington argued that the Claimant’s trust and confidence in the Army was so undermined by the way that he had been treated that he would have been entitled to claim unfair dismissal (but for the fact that personnel in the armed forces cannot claim this remedy). The difficulty with this argument is that the Claimant never was dismissed. He did leave the army in October 2013 but that was because his 22 years of service for which he had originally signed up had come to an end. I was told that he had been offered an extension but (as was his right) he had chosen not to take it. Fourthly Ms Edington submitted that “the refusal to find [the Claimant] wronged” was a civil right. But this cannot be correct. The Claimant had no right to a favourable outcome of the service complaint process. He had a right to have that complaint considered fairly, but, as I said in Crosbie at [118] that is not a “civil right” for the purposes of Article 6. Finally, Ms Edington relied on Crompton v UK (27^th October 2009) App No. 42509/05, but in that case the UK government conceded what was at stake constituted a “civil right” for the purposes of Article 6. It was a quite different situation from the one that I am considering.

As I mentioned in Crosbie, there are situations where a “civil right or obligation” may be at stake even in the absence of a domestic right. But in my judgment, none of those apply to the present context.

I conclude that there was no “civil right or obligation” at issue in the determination of the Claimant’s service complaint. Consequently, Article 6 was not engaged.

Mr Milford argued that, even if Article 6 had been relevant, there was in the circumstances no breach of the “reasonable time” requirement. It is unnecessary for me to reach a decision on that matter.

Ms Edington argued that the Army authorities were exercising statutory powers in addressing service complaints. It was implicit that they had to do so within a reasonable time and the delays in this case were so egregious that there was a breach of that duty as a matter of domestic law.

It is fair to say that this way of putting the Claimant’s case did not leap out of the Claim Form or Ms Edington’s skeleton argument, but Mr Milford did not oppose Ms Edington developing it. She submitted that the length of time taken to deal with Level 3 in particular (some 18 months) was excessive and especially when seen in the context of the time that had been occupied by all three stages. She said that the Claimant had persuaded Level 1 and Level 2 of the merit of his complaint so that what was left outstanding (or should have been) was the redress he ought to receive. She again drew attention to the critical comments of the Service Complaints Commissioner both generally and in relation to Mr Clayton’s complaint in particular (see her letter of 30^th October 2012). It was not good enough for Brigadier Ridge, for instance, to say that there was a large number of Level 3 complaints and only a small number of staff to prepare them. More resources should be put into the complaints system.

Mr Milford agreed that there had been unacceptable delay, but he denied that it had reached the point of being unlawful. Level 1 had been completed in about 3 months and so relatively speedily. Level 2 had taken about a year, but that had been largely occupied with gathering information, seeking the Claimant’s comments and an on-going back and forth in what he termed an ‘iterative process’. This had taken a year and was not unreasonable. Level 3 had taken in total about 18 months. This was longer than desirable, but it was due to the large number of complaints waiting to be dealt with at that Level. This Level also involved the work of several senior officers. It was inevitable that there were competing pressures on their time. The Court could properly take account of available resources even in the context of Article 6 (see for instance Dyer v Watson [2004] 1 AC 379 at [55] – where there was a sudden surge in cases) and to a greater extent where the rights protected by that provision were not engaged (see for instance R (on the application of S) v Secretary of State for the Home Department [2007] EWCA Civ 546 at [51]). There was some complexity to the necessary examination of the Claimant’s complainant. It was not right to say that Level 3 was only concerned with redress. As previously explained, Level 1 and Level 2 had not been authorised by the scheme to determine the merit of the complaint if they were referring it up. It was the responsibility of Level 3 to decide whether the Claimant had been wronged, as well as deciding (if he had) what redress he should receive. The complaint had not simply been forgotten or put in abeyance. It had been progressed even if more slowly than would have been ideal. While the issue was important to the Claimant it did not require the speed of response of a matter with a more drastic potential impact such as a criminal charge or the loss of the right to carry on a profession.

Mr Milford submitted that, as a matter of domestic law, the period of time taken to deal with the complaint would only be unlawful if it was Wednesbury unreasonable. Regrettable as this delay had been, it did not cross that threshold.

It is sufficient for me to say that I agree with Mr Milford’s submissions in this regard. The delay was regrettable, but it was not unlawful as a matter of domestic law.

The Claimant in correspondence complained about what he perceived as Colonel Wilman’s threat (to withdraw the offer to the Claimant of promotion to WO2 if the Claimant did not withdraw his service complaint). Colonel Wilman defended his action by saying that what the service posting required was an OPMI(L). If the Claimant’s complaint was upheld and he was granted the redress which he originally sought, then he would transfer to OPMI and someone else would be needed to fill the vacancy which had led to the offer being made to the Claimant. It would be disruptive to have multiple moves in a short space of time. However, Colonel Wilman accepted that the letter had not been well expressed. He was not a decision maker at any of the three Levels.

It is true that the Panel did not adjudicate on this matter, but Mr Milford submits that was for the very good reason that the Claimant did not include it in his second (or, any subsequent) service complaint. The task of the officer or panel concerned is to decide the complaint and only the complaint. Before the Claimant’s complaint was considered by the Panel, he was sent the brief which had been drafted and which identified the issues the Panel would need to address. They did not include Colonel Wilman’s ‘threat’. The Claimant responded that the brief did properly identify the issues.

I agree with Mr Milford that in these circumstances the omission of the Panel to deal with Colonel Wilman’s letter gives no ground to judicially review its decision.

Since none of the Claimant’s grounds for seeking judicial review are made out, this application is dismissed.