Crosbie v Secretary of State for Defence [2011] EWHC 879 (Admin)

Case No CO/6534/2009[2011] EWHC 879 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/04/2011
Before
THE HON. MR JUSTICE NICOL
Between
Andrew CrosbieClaimantSecretary of State for DefenceDefendant
Tom Hickman (instructed by Malletts) for ClaimantPhilip Havers QC and Julian Milford (instructed by Treasury Solicitor) for DefendantHearing Hearing dates: 22 nd- 24 th February 2011
JudgmentMr Justice Nicol :Introduction
[1]Between 2000 and 2003 the Claimant held a Short Service Commission in the Army as a Chaplain. His two applications for the Commission to be extended were refused and these decisions were upheld by two different Army bodies. Members of the Armed Forces have a statutory right to complain if they consider that they have been wronged. The Claimant exercised this right and alleged (in essence) that he had been treated unfairly and that he should be given redress in the form either of reinstatement or compensation for the loss of his career as an Army chaplain. He submitted that he had been prejudiced by material which had been given to the Army by a Church of England official (Mrs Sentamu) in August 2000. This material included opinions about him which he considered to be unfair and wrong and on which he had never been given the opportunity to comment during his period of service. It had, nonetheless, remained in or associated with his Personal File and so been available to those who took the decisions to refuse him an extension of his Commission. Another of his complaints was that he had only been able to obtain access to this material by taking various legal proceedings and he sought compensation for the expense which these had involved. In its decision dated 24th March 2009 the Army Board accepted that he had been wronged because of the non-disclosure to him of various documents and, on behalf of the Army, it gave him an apology. It accepted as well that he had been wronged in two other respects. However, it did not accept his principal complaint - that the Sentamu material had prejudiced his applications for an extension of his Commission. Apart from the apology for the non-disclosure, it gave him no other redress.[2]The Claimant challenges the decision of the Army Board by these present proceedings for judicial review. He submits that its decision can be impugned on conventional public law grounds and because, he says, his rights under Article 6(1) of the European Convention on Human Rights have been violated.[3]In summary, his public law challenges are that: i) The Army Board failed to consider whether he had been treated unfairly by the previous Army authorities on the basis that, whatever effect Mrs Sentamu’s material had actually had on their decisions, a fair minded and informed observer would consider that there was a real possibility that they had been biased against him because of their access to that material. ii) The Army Board’s decision was irrational because(i) it took account of an incident which earlier in its decision it had said was immaterial; and(ii) it could not rationally have concluded that an apology was adequate redress for the non-disclosure. The Claimant did not pursue his allegation that the finding of the Army Board that there had been no actual bias was irrational.[4]His Article 6 challenge identifies three alternative ‘civil rights’ which he says have been determined other than by the independent court which that provision guarantees. First, his right to practice his profession of Army Chaplain was curtailed. Second, he says the Army refused to provide the documentation which would have been necessary for him to act as a priest outside the Army. Thus his ability to practice his more general ecclesiastical profession has also been brought to an end. Third, he says that, as a matter of public law and in accordance with the Terms and Conditions applied to members of the Armed Forces, he had the right to have his applications for an extension of his Commission considered fairly. The Army Board was incapable of adjudicating on any of these rights for the purposes of Article 6 because it was composed of senior Army officers and so was not ‘independent’ as Article 6 requires. Judicial review could not cure that deficiency because the Court did not have power to conduct the necessary factual investigations.[5]Permission to apply for judicial review was refused on the papers by Hickinbottom J. but granted by Bennett J. after an oral hearing.

The Facts

[6]The Claimant was born in 1962. He trained for the priesthood at St Stephens House, Oxford and received a diploma in June 1998. He became a curate on the island of St Helena and was ordained as a priest by the Bishop of St Helena in 1999.[7]In January 2000 he applied to become an Army Chaplain. Those who wish to undertake this work first obtain a Short Service Commission for the standard term of three years. This the Claimant did on 1st August 2000 when he was appointed Chaplain to the Forces 4th Class with an equivalent rank of captain with effect from 11th September 2000. Chaplains are part of the Royal Army Chaplains Department (‘RAChD’). The head of the Department is the Chaplain General who, at the time the Claimant began his Commission, was The Venerable John Blackburn. He was also Archdeacon for the Army. The Deputy Chaplain General was The Reverend Wilkes.[8]The Claimant’s first posting was to 1 Royal Irish Regiment in Canterbury.[9]The Claimant’s appointment as an army chaplain was noted in the Church Times Gazette and the announcement was seen by Mrs Sentamu who is the Senior Selection Secretary of the Ministry Division of the Archbishop’s Council. On 24th August 2000 she wrote to Bishop of Sherbone, who was Bishop to the Forces, with a copy to The Ven. Blackburn. She sent copies to various other people as well, but not the Claimant. She recorded her grave concern at the appointment, commented on the unconventional route which he had taken to ordination and referred to a larger file of documents on him which was held at Church House.[10]On 29th August 2000 The Ven. Blackburn replied to Mrs Sentamu and said that he was aware that the Claimant had had an unusual history. He added:
“Bishop Llewellin sent me some correspondence regarding Andrew Crosbie, which described in very different terms to the dark warnings indicated by your letter. His references were also good; indeed one was the Archdeacon of Plymouth. Given the evidence presented to me the judgment made at MOD Chaplains (A) was entirely reasonable. It is perhaps unfortunate that your concerns were not voiced earlier and by others who might have known of Andrew’s intention to join the RAChD. The present situation could have been avoided if the Service Archdeacons were routinely informed of clerics who are not well recommended for appointments in the Church. My establishment for chaplains is 180; therefore I need to be as aware as any bishop of difficulties that might follow when employing certain clerics. If a mechanism could be adopted which gives early warning of problems in this matter I would be very grateful.”
[11]Although The Ven. Blackburn’s letter did not in terms ask for the documentation which was in the Church House files, Mrs Sentamu did send him by fax on 29th August 2000 19 pages of documents. These referred to the Claimant’s efforts over many years previously to join the priesthood and the views of a number of clerics that he was unsuited for the role. The criticisms were to do with his personality and (to some extent) his liturgical preferences. I have already noted that the Claimant says that the views expressed were ones with which he disagreed and were not ones to which he had had an opportunity to respond.[12]On 31st August 2000 the Claimant’s posting was changed by The Rev. Wilkes. He was sent instead to 13 Air Assault Support Regiment at HQ Colchester with a special instruction that he was to be under close supervision of the Senior Chaplain of the 16 Air Assault Brigade. The Claimant suspected that this change was brought about because of the Sentamu material. The Defendant submitted that it was rather because of the limited training the Claimant had by then received. There is support for this second explanation in a letter written on 2nd August 2000 to the Chaplain General by the Administrative Secretary to the Registrar of the Provinces of Canterbury and York, Robert Wellen. Mr Wellen said that the Bishop at Lambeth, Bishop Llewellin, was willing to recommend to the Archbishop that the Claimant be given to permission to officiate under the Overseas and Other Clergy (Ministry and Ordination) Measure 1967 on the basis of the environment of close supervision that his period as an army chaplain would entail which would be akin to a first curacy.[13]As the Army Board subsequently put it, the Claimant’s appointment to 13 Air Assault Support Regiment, “was not an unqualified success. The undisputed evidence is that shortly after his arrival he became drunk while in the Officers’ Mess and lost the confidence of the [Commanding Officer].” On 14th December 2000 the Claimant asked to be relocated and, on the same day, Lt Col Poffley, his CO acceded to the request and removed him from his post with immediate effect. The Army Board noted the Claimant’s arguments that lots of people got drunk in the Mess and his conduct was excusable because of the conditions in which he had been required to live at Colchester. However, it accepted the response of The Rev. Wilkes that Army padres were expected to set an example, which he had not done and, while conditions were not ideal, chaplains were expected to be able to put up with a lot worse. There was no evidence that the Claimant was suffering from medical depression.[14]On 8th January 2001 the Claimant attended a disciplinary interview with the Chaplain General in which The Venerable Blackburn made clear that the Claimant had incurred his displeasure and conduct of this type was not to be repeated.[15]The Claimant’s next posting was to the Joint Support Unit at Corsham. This seems to have led to better reports on his progress and he was given a ‘good’ grade by Revd T.R. McKnight, the senior chaplain of the Cotswold Garrison. The Defendant observes that the positive reports were still accompanied by notes of caution and a ‘good’ grade was exceeded by 98% of Chaplains at the Claimant’s level.[16]Between 3rd October and 27th October 2001 the Claimant attended the Professionally Qualified Officers course at the Royal Military Academy Sandhurst (‘RMAS’). This was not a course which the Claimant was required to pass, but he acknowledges that he performed poorly. That is undoubtedly the impression given by the reports which were compiled. Thus his platoon commander said of him, “at his worst, Padre Crosbie was a disruptive influence, displaying few leadership qualities. Arrogant and over confident, he was not a team player and quickly lost the respect of his peers…He regularly displayed a condescending and argumentative manner, alongside a constant desire to put his own needs before those of his team.” His company commander added, “he showed no desire to learn about leadership or soldiering… towards the end of the course his lack of drive, determination and inter-personal skills came back to the fore.” 17. The College Commander wrote, “if this course had been a pass/fail course then Padre Crosbie would undoubtedly have fallen into the latter category…From his performance on this course, I am convinced that Padre Crosbie is currently unfit to work as a military padre.” In a witness statement on behalf of the Defendant, the Revd Michael Parker who is Staff Chaplain in the MOD Chaplains (Army), wrote of this report that it “is not only bad, it is quite probably the worst report that has been written about a Chaplain attending the PQO course in recent time….I am not myself aware of any other occasion when such strong criticisms have been made of a chaplain’s attitude by RMAS.”[17]The Army Board said that the Claimant was correct to say that professionally qualified officers do not have to pass at RMAS as they are already commissioned before they attend that course. However they rejected as untenable the argument that this meant the RMAS’ views could not be taken into account. The Army Board said, “In our view it would be open to the Chaplain General, for example, in assessing posting recommendations and all other management purposes to bear in mind the comments made by the Army’s own Academy which has considerable experience in assessing the suitability of professionally qualified officers for life in the Army….Of course the longer an individual remains in the Army the less impact his performance at RMAS will have on his subsequent management. But for an officer who has only been in the Army for a very short time and who was applying for an extension, the comments about his performance at the Academy must inevitably and properly form a relevant part of the picture.”[18]After the RMAS course the Claimant went out to Sennelager in Germany to take up a posting with 12 Regiment Royal Artillery (‘RA’). His arrival on that date was unexpected and there was a dispute as to what type of accommodation he should be allocated and what should happen to his belongings that had been brought out from England. The Community Chaplain for the garrison, The Revd. Price wrote a report of the events in which he concluded, “My personal opinion is that Padre Crosby is not RAChD material. I do not say this lightly – no one appreciated his bad mood, his language or his aggressive approach.”[19]Shortly after this, and in consequence of the reports received from the RMAS course, the Claimant’s posting to Germany was cancelled. He was summoned to a meeting with The Revd Wilkes and Col Sommerville on 14th November 2001. He was advised that, as things stood, his Short Service Commission was unlikely to be extended. His posting in Germany had been cancelled because he was not thought to be fit to serve in an operational environment. He was told that there were two options: removal from service or a formal appraisal. The Claimant wished to continue as an Army Chaplain. He was told he would then be put under a formal three month warning.[20]The three months began on 7th January 2002. The Claimant was posted to 5 General Support Medical Regiment in Preston. His Commanding Officer there was Lt Col Tuck whose reports on the Claimant were favourable. Thus, in his third monthly report, Lt Col Tuck said that the Claimant had shown himself to be an effective regimental padre and that he would be happy to retain the Claimant as his regimental padre, although he needed to be given the opportunity of being challenged by having a larger and possibly more unruly flock. The Revd A.W. Cumberlidge was the Deputy Assistant Chaplain General 42 (North West) Brigade. He had been appointed to provide professional oversight of the Claimant in this posting. The Revd. Cumberlidge’s reports had positive aspects but were more guarded and qualified. He noted that the Claimant sometimes became extremely unpleasant, arrogant and contemptuous. He wondered whether the Claimant had the necessary adaptability and willingness to compromise and observed that his ability to cope with the unpleasant demands of chaplaincy in the field had yet to be tested.[21]The three month warning period came to an end in April 2002. The Claimant’s service with 5 GS Medical Regiment was not considered to have been long enough for the Commanding Officer of that unit to prepare his appraisal. The task was instead given to The Revd. Cumberlidge. He was given a ‘B’ grade as did approximately 50% of his cohort of chaplains at the same level.[22]In June 2002 his posting was transferred to 40 Regiment RA. The regiment held a summer ball in 2002 which the Claimant attended. It was alleged that he had become drunk and behaved in a way which might have amounted to indecent assault. The Claimant accepted that he had suffered from an excessive consumption of alcohol but disputed the allegations of indecent behaviour. Nonetheless, the Commanding Officer, Col Jones, required the Claimant to apologise to those concerned. In due course the Army Board was critical of the way this had been handled. Allegations of indecent assault should have been left to the Royal Military Police to investigate. The Claimant should not have been required to apologise for matters which he disputed and before they had been properly investigated. The Army Board was given advice by its Legal Advisor to disregard the disputed allegations and it said that it accepted that advice. In any event it considered that those allegations were immaterial to its consideration of the propriety of material that was considered by the various bodies which decided on the Claimant’s applications for extensions of his Commission. It was not suggested that any of those bodies knew of the alleged events at this summer ball.[23]On 30th August 2002 the Claimant made his first application for an extension of his Commission (which was due to expire on 30th September 2003). The RAChD Commissioning Board did not approve the application on 27th September 2002. It graded him with a score of 18.5 against a quality line of 24.[24]It did however remind him that he could apply again at the next meeting of the RAChD Commissioning Board which was due to take place on 20th March 2003. His second report would be brought forward to allow this to be included with any such further application.[25]On 6th February 2003 the Claimant did apply again for his Commission to be extended. He had a very positive report from his Commanding Officer who recommended unequivocally that his Commission should be extended. The Senior Chaplain of 19 Mechanised Brigade also praised the Claimant though sounded a warning note as to his need for tolerance. The Assistant Chaplain General 3 (UK) Division was impressed by the Claimant but, he, too, added some cautious remarks as to how the Claimant would adjust to the military life and chain of command.[26]The RAChD Commissioning Board met on 20th March 2003. It comprised The Ven. Blackburn, The Revd Wilkes, Monsignor P. Rowland and Col. Geddie. It unanimously agreed that the Claimant’s application should be refused. It graded him with a score of 16 against a quality line of 24. It did, however, agree to submit the application to the Army Commissioning Board (the ‘ACB’) for confirmation.[27]The ACB deals with commissioning applications from across the entire army. This particular matter was considered ‘out of committee’ i.e. by the members each reviewing the papers but not meeting collectively. In this case the Army Commissions Board comprised Brigadier Burton, Colonel Wootton, a civil servant, Mr Millar and a fourth member. They decided (by 3:1) that the Claimant’s Commission should not be extended. The Claimant was informed of the decision on 9th May 2003. The Claimant’s Short Service Commission therefore came to an end on 10th September 2003.[28]The Claimant pursued two routes of challenge against the decision of the ACB. The first was to apply for redress of a complaint to his Commanding officer at 40 Regiment RA on 29th July 2003. It will be necessary to say more about the procedure for seeking redress within the Army in due course. It is sufficient for present purposes to note that provision is made for an officer to do this in s.180 of the Army Act 1955. If the officer remains dissatisfied with the response of his Commanding Officer, the request for redress can be passed up the chain of command. It was by this means that the Army Board in due course came to consider the Claimant’s application for redress.[29]Secondly, on 18th September 2003 the Claimant appealed against the decision of the ACB to the Army Commissions Appeal Board (‘ACAB’). The ACAB had before it a brief written by Lt Col Bruce for the Chaplain General, submissions from the Claimant, a document prepared by the secretary to the ACB for its consideration, the Claimant’s Personal File and Confidential Report Book. The Chairman of the ACAB was Major-General Tyler, then the Deputy Adjutant General. The other members of the ACAB were a senior civil servant, Mr Mike Scott, and two serving Brigadiers, neither of whom were in the Chaplain’s Department. On 6th August 2004 the ACAB dismissed the Claimant’s appeal. It said that the ACB’s decision was sound – “The [ACAB] agreed that there was a high risk attaching to retaining Rev Crosbie in the Army and that the risk was not outweighed by the additional evidence provided.”[30]The Claimant’s application for redress of wrong was eventually passed to the Army Board which held a hearing on 4th August 2008. The Board consisted of Lieutenant General Applegate, the Quartermaster General, and Major General S V Mayall, Assistant Chief of the General Staff.[31]By this stage the Claimant had learned of the material which Mrs Sentamu had sent to The Ven. Blackburn and it was his case that this had affected the decisions to refuse to extend his Short Service Commission. The Ven Blackburn had himself been a member of the RAChD which had refused him in March 2003. Furthermore, the material had then been attached to his Personal File and the Personal File was available to the ACB and ACAB.[32]The Claimant learned of the Sentamu material as a result of two sets of legal proceedings. In 2005 he made an application for disclosure against the College of Bishops of the Scottish Episcopal Church in respect of a matter unrelated to his appeal to the Army Board. In May 2005 Sheriff Neil McKinnon made a disclosure order which led to the production of Mrs Sentamu’s letter of 24th August 2000 (see paragraph 9 above). The second set of proceedings were brought by the Claimant in the Central London County Court against the Ministry of Defence. He did not allege wrongdoing by the Defendant but sought discovery pursuant to Norwich Pharmacal Co v Commissioners of Customs and Excise [1974] AC 133 on the basis, it seems, that the Claimant believed that this discovery would enable him to pursue a claim in defamation against Mrs Sentamu or others in the Church of England. On 29th November 2007 HHJ Knight QC ordered the Ministry of Defence to produce the documents which had been faxed to The Ven. Blackburn on 29th August 2000. Costs were reserved, but, on 14th December 2007 the Claimant was ordered to pay £850 to the Defendant in full and final settlement of the Defendant’s costs of the application. This is the usual practice where the Defendant to a Norwich Pharmacal application has not itself committed a legal wrong against the Claimant. If, as a result of the disclosure, the Claimant then is able to bring proceedings against the wrongdoer, it would be open to the Court to order the wrongdoer to pay the costs incurred by the Claimant in obtaining the disclosure. In this case, the Claimant did commence legal proceedings against Mrs Sentamu or the Church of England. After the Army Board hearing but before it reached its decision, the Church published an apology to the Claimant in the Church Times on 13th February 2009. The agreement reached between the parties did not, I was told, include any payment of compensation or costs to the Claimant. As I have indicated above, it was part of the Claimant’s grievance that he had had to spend money on legal costs to gain access to the Sentamu material which, in fairness, should have been disclosed to him without cost.[33]Prior to an Army Board hearing, a briefing document is prepared. That was done in this case and the document went through a number of drafts in response to comments which the Claimant made. The brief in its final form summarised what the Board might wish to consider and said:
“88. … the Army Board will have to decide if Rev Crosbie has proved on the balance of probabilities that he has been wronged. The Board may wish to consider, on the basis of the evidence provided, the following issues (a) Whether the Army Board is satisfied that it has been presented with sufficient evidence in order that it may make a fair, just and reasonable determination? (b) Between 9 Nov 01 and 6 Jan 02, did the RAChD properly fulifil its duty to report fairly and accurately on Rev Crosbie’s performance and potential? (c) Was the information presented to the RAChD Commissioning Board and the ACB flawed and/or incomplete and would they have reached a different decision if they had considered the (irregular) OJAR 01 instead of the SST Insert Slip which had been prepared by Lt Col Tuck (CO 5 GS Med Regt)? (d) In reaching its determination did the ACAB consider all relevant evidence? (e) Is the Army Board satisfied that the decisions made by the RAChD Commissioning Board, the ACB and the ACAB are fair, just and reasonable and in the best interests of the Service? (f) Whether the Rev Crosbie has been treated unfairly in relation to his applications to extend his SSC and if so, should he now be reinstated? (g) Whether Rev Crosbie is entitled to financial compensation? 89. If the Army Board concludes, based on all the evidence, that Rev Crosbie has not been wronged by the decision not to extend his SSC, they may wish to consider denying Rev Crosbie his redress. However, if the Army Board concludes that Rev Crosbie has been wronged by the decision not to extend his SSC, then they may wish to consider granting the redress sought by reinstating him into the Army and/or by awarding him an appropriate sum by means of compensation. Alternatively, the Board may wish to grant any such other form of redress they deem appropriate.”
[34]The Army Board, as I have said, was advised by a Legal Advisor. This was Major General Howell. It heard oral evidence from Mr Marsh, who was able to speak about the Claimant’s Personal File; The Revd. Wilkes; Major General Tyler who had chaired the ACAB; The Ven. Blackburn; Colonel Foster who had put together the brief for the ACB; Col Jones, who had been the Claimant’s last Commanding Officer and Brigadier McCall, who had been the Claimant’s first Commanding Officer. In each case the Claimant was able to question the witness. The Claimant then made a closing address to the Board.[35]In its decision given the Board observed that the Sentamu material had featured large in the Claimant’s submission and he had alleged that following its receipt The Ven. Blackburn and The Revd. Wilkes had sought to ensure that his Commission would not be extended. The Board agreed that the Claimant had been entitled to have his application for an extension considered on the basis of the reports of his performance after he had been commissioned. Had the various boards taken the Sentamu material into account, that would have been a wrong under s.180 of the Army Act 1955. The Army Board therefore considered whether there was any evidence of improper material having been used for the purposes of denying The Revd. Crosbie an extension.[36]It looked first at the decision of the RAChD. It noted that there was no reference to the Sentamu material and the Board said that what the RAChD had taken into account was entirely proper. It summarised the factors which had influenced the RAChD and concluded that it had arrived at its decision on an entirely proper basis without considering any improper material.[37]It then turned to the ACB and said that there was no evidence that that Board had considered any of the material submitted by Mrs Sentamu. Two Chaplains General had known about that material but there was no evidence that it had been taken into account by the ACB. It concluded that there was nothing unfair either in the way in which the ACAB had assessed the evidence which had properly been presented to it.[38]The Army Board addressed the Claimant’s central allegations that his career had effectively been blighted by the Sentamu material. The Board responded, “It seemed to us that the essential difficulty with this contention is that the various Boards which examined the Revd Crosbie’s application acted substantially upon independent evidence. It has not been suggested that the three officers [I take this to be a reference to the officers who took part in the ACB] who formed their views of The Revd Crosbie’s suitability to be a padre in Her Majesty’s Land Forces were in any way influenced by those in RAChD. There is no evidence that any of the Appeal Committees from the original decision by RAChD were influenced to arrive at a particular decision by either of the above named former Chaplain Generals or anyone else. The Revd Crosbie’s behaviour in two units is attested to by two COs, neither of whom, it seemed to us, showed any signs whatsoever of having been influenced to arrive at their views by The Ven. Blackburn or The Revd Wilkes. Overall, we believe that the evidence which we have seen falls well short of establishing some form of concerted action improperly to prevent The Revd Crosbie’s application to extend succeeding, or indeed any form of improper use of information.”[39]The Army Board did find that there were three matters for which the Claimant could make justified criticisms. One concerned disclosure (and I will return to that matter). The second was the wrongful requirement by his Commanding Officer to apologise after the 2002 Summer Ball. The third was a wrong allegation of impropriety by the Claimant in the documents he submitted to the ACAB. He had been wronged by the inclusion of that allegation. However, the Army Board added, “Fortunately, though, we note that the ACAB disregarded it; Major General Tyler explained that on many occasions his experience was that irrelevant or unfair material came to their attention and the Board is trained to concentrate solely on the matters which are properly before them, namely those that they set out in detail in arriving at their decision.”[40]In its conclusion, the Army Board said that the Claimant had not been given an extension for the entirely proper reasons which the various Boards had articulated:
“principally his poor performance at RMAS and his drunken behaviour at two military units. All of this evidence is independently attested to by officers unconnected with the Chaplain General’s department and we therefore reject the suggestion that any form of improper activity on the part of the Chaplain General’s department damaged The Revd Crosbie in any way to extend his Commission.”
[41]The Army Board considered but rejected the claim for financial compensation and legal costs associated with his applications for disclosure. It explained:
“For the avoidance of doubt we should say that we have considered his claim for financial compensation and legal costs associated with his applications for disclosure. Had we concluded that the wrongs from which he suffered had led directly to a failure to extend his Commission we would have looked favourably at financial compensation. In view of our main finding in this case which is in essence that he did not receive a Commission due to his own failures, we have concluded that financial compensation, as originally claimed, is inappropriate. We see no reason either, why the Ministry of Defence should pay the costs of his pursuit of a case which we felt had little merit. We do believe that there were three respects in which he was wronged and while we considered financial compensation for those, we felt in all the circumstances that an apology from us on behalf of the Army was appropriate.”
[42]It is plain that the Army Board did not think that this was a border line case. It said, “We must emphasise that in our view The Revd Crosbie is a highly articulate man with many fine qualities. We understand his disappointment at not receiving an extension to his Commission. Bearing in mind, though, the issues of which he must have been aware, namely his poor performance at RMAS, the subsequent need to place him on a three month warning order and his drunken behaviour, it is difficult for us to believe that any commissioned officer, in any Arm or Service, would seriously think that they were likely to be extended. It should have been obvious to him, as it is to us, that while he has many outstanding qualities, these do not include those required of a military Chaplain. As redress for those wrongs we have identified we extend to him our sincere apologies and we wish him every success in his future career.”[43]As I have said, after the hearing but before the decision, the Church of England published an apology to the Claimant in relation to the Sentamu material. The Claimant drew this to the attention of the Army Board. In an addendum to its decision, the Board said that this did not affect its decision. It said, “We had already concluded …that if the various Boards which considered Revd. Crosbie’s application for an extension had to any extent relied upon the allegations contained in the correspondence supplied by Ms Sentamu then that would have been a breach of MS rules. The point behind our determination is there is no evidence before us that this much criticised correspondence was a factor in not extending Reverend Crosbie’s commission.”[44]The Claimant alleges that he has also been adversely affected in his ability to act as a priest outside the Army. He says that, before a person can obtain a stipendiary post in the church, he must obtain a “safe to receive” letter in relation to his previous post. The Revd Parker explains the procedure as follows. A “safe to receive” letter merely states that there are no ongoing disciplinary procedures in relation to a particular individual. The Bishop who is minded to offer a post to the individual (the receiving Bishop) then asks the appropriate Bishop for the applicant’s previous post for a safe to receive letter. The communication is between the bishops. The letter is not sent to the individual concerned. The Claimant alleges that he was shortlisted for a position with the Bishop of Bath and Wells. The Revd Parker accepts that there was a request for a “safe to receive” letter from the Bishop of Bath and Wells dated 15th October 2003 on the Claimant’s Personal File. There was no record of a response. The Claimant says that in July 2004 he was offered a position as resident priest in St Mark’s Englefield by the patron of the church who was told by the Bishop of Reading that the Chaplain General had refused to provide a “safe to receive” letter. The Revd. Parker says that The Chaplain General had no recollection of such a request.[45]On 23rd December 2003 the Revd Wilkes did write to the Right Reverend Connor, who was by then the Bishop to the Forces, giving a short synopsis of the Claimant’s service. It said, “Throughout his time as a chaplain Mr Crosbie has tried hard to achieve the standards set by the Army and the Department with varying degrees of success. Despite genuine criticism from some of his colleagues, he has generally received favourable reports from his commanding officers who have appreciated his ministry.”

Legislative background

[46]Part X of the Employment Rights Act 1996 creates a statutory right not to be unfairly dismissed. Section 95 defines the circumstances in which an employee is treated as having been dismissed and they include a limited term contract which comes to the end of its term (see s.95(2) and s.235). Consequently, a private employee whose 3 year contract came to an end and was not renewed could (in principle at least) claim to be dismissed and, if the dismissal was unfair, would have a statutory remedy.[47]Whatever the precise characterisation of the relationship between civil servants and the Crown, the rights in Part X of the 1996 Act are applied to most of those in Crown employment – see s.191 of the 1996 Act. However, s.191 is subject to s.192. The version of s.192 which is currently in force is set out in Schedule 2 paragraph 16 of the 1996 Act. It simply provides that s.191 does not apply to service as a member of the naval, military or air forces of the Crown. There is no dispute that the Claimant, despite his non-combatant role, was for the period of his Short Service Commission, a member of the military forces of the Crown. Thus the Claimant did not have the benefit of the statutory protection against unfair dismissal in the 1996 Act.[48]From a date to be appointed, a different version of s.192 will come into force. So far as material this will provide:
“(1) Section 191 (a) applies to service as a member of the naval, military or air forces of the Crown but subject to the following provisions of this section. … (2) The provisions of this Act which have effect by virtue of s.191 in relation to service as a member of the naval, military or air forces of the Crown are – … (e) Part X, apart from sections 100 to 103, 104C and 134, …. (a) applies to service as a member of the naval, military or air forces of the Crown but subject to the following provisions of this section. … … (e) Part X, apart from sections 100 to 103, 104C and 134, (3) Her Majesty may by Order in Council - (a) amend subsection (2) by making additions to, or omissions from, the provisions for the time being specified in that subsection, and (b) make any provision for the time being so specified apply to service as a member of the naval, military or air forces of the Crown subject to such exceptions and modifications as may by specified in the Order in Council.”
Section 192(4)-(8) make further provisions in relation to modifications (which I take to be a reference to the power given in s.192(3)(b)) but nothing further is said to limit the power in s.192(3)(a) to omit provisions from s.192(2). As originally enacted, s.192 was in broadly the same terms. It has been amended from time to time by Parliament but in none of its formulations (save for the transitional one referred to in the previous paragraph) has it been brought into force. The position therefore remains that members of the armed forces do not currently have the statutory protection against unfair dismissal (including dismissal because a limited term contract has expired) to which other employees are entitled.[49]Statutory protections against discrimination have progressively been extended to the armed forces. Thus remedies under the Sex Discrimination Act 1975 were applied to them in 1995 – see The Sex Discrimination Act 1975 (Application to Armed Forces etc) Regulations 1994 SI 1994 No 3276. As originally enacted the Race Relations Act 1976 allowed members of the armed forces to seek redress of complaints within the army’s own procedures but not through industrial tribunals – see Race Relations Act 1976 s.75(9) as originally enacted. That was changed by Armed Forces Act 1996 s.23(2) with effect from 1997. Prohibitions on discrimination have now been brought together in the Equality Act 2010 and the protections which it provides to employees apply also to the armed forces –see Equality Act 2010 s.83(3).[50]I have already referred to the statutory right which members of the armed forces have to seek redress of complaints. As it applied to the Claimant, that was set out in the Army Act 1955 s.180 which provides, “(1) If an officer thinks himself wronged in any matter by a superior officer or authority and on application to his commanding officer does not obtain the redress to which he thinks he is entitled, he may make a complaint with respect to that matter to the Army Council. (2) On receiving any such complaint it shall be the duty of the Army Council to investigate the complaint and to grant any redress which appears to them to be necessary or, if the complainant so requires, the Army Council shall through the Secretary of State make their report on the complaint to Her Majesty in order to receive the directions of Her Majesty thereon.” The functions of the Army Council were transferred to the Defence Council by the Defence (Transfer of Functions) Act 1964 s.1(3) and the functions of the Defence Council may be discharged by the Army Board – ibid s.1(5). The Army Act 1955 has since been replaced by the Armed Forces Act 2006 but similar provision is made for the redress of wrongs by s.334 of that Act. The Public Law Challenges Alleged failure of Army Board to consider whether the decisions Royal Army Chaplain’s Department, the Army Commissioning Board and the Army Commissioning Appeals Board were unlawful because of apparent bias

The Public Law Challenges

[51]The Claimant’s argument under this head proceeds through the following stages: i) The Army Board was required to investigate the wrong which he alleged he had suffered. ii) He had complained about the unfairness of his treatment by the RAChD, the ACB and the ACAB. iii) He did allege that there had been actual bias because those bodies were affected by their knowledge of the Sentamu material which was on his Personal File. However, the Army Board should also have been aware that his complaint extended to the appearance of bias: a) because of what he said in his closing submissions and, in any case, b) because the Army Board, with the assistance of its Legal Advisor, should have appreciated that the decisions of those bodies would have been unlawful if there had been an appearance of bias. iv) Had the Army Board considered the matter it would have (or, alternatively, could only have) concluded that there was an appearance of bias. v) This Court should now so declare.[52]The Defendant’s response in summary is as follows: i) The Claimant did not expressly complain of the appearance of bias. ii) In these circumstances the Army Board was not obliged to investigate that matter. iii) In any case the Army Board rejected actual bias (whether conscious or unconscious). In those circumstances, “apparent bias” would not be a basis for rendering the decisions of the RACh.D, the ACB or the ACAB unlawful. iv) All of this is anyway irrelevant because the Army Board itself considered whether the Claimant’s Commission should have been extended and decided that it should not.[53]The task of the Army Board under s.180 of the Army Act was to investigate the Claimant’s complaint that he had been wronged and to give him such redress as appeared to it to be necessary. There have been times when the jurisdiction of the Army Board has been extended. As I have mentioned above, as originally enacted, the Race Relations Act 1976 s.75(9) precluded a member of the Armed Forces from bringing a claim for race discrimination before an Industrial Tribunal. Instead it provided that any such claim might be made, and if made should be dealt with in accordance with the provisions of s.180 of the Army Act 1955 (in the case of officers) or s.181 (in the case of soldiers). This meant that when such a complaint of race discrimination was made, the Army Board had to give full effect to the substantive provisions of the 1976 Act and make specific findings as to whether the complaint was proved – see R v Army Board ex parte Anderson [1992] 1 QB 169 DC. However, outside such specific jurisdiction, the Army Board’s power and function is as set out in s.180 of the 1955 Act.[54]This means that the officer’s “complaint” is key. I have set out above how the brief for the Army Board had identified the issues raised by the Claimant’s complaint. They did include whether the Claimant had been treated unfairly. But unfairness can take very many forms. Here (and so far as is presently material), the Army Board understood the complaint to be that the Sentamu material had infected The Ven. Blackburn’s and The Revd. Wilkes’ views of him so that his prospects of having his Commission extended were prejudiced and that the Sentamu material was wrongly taken into account by the various Boards which had considered his application for an extension.[55]Mr Hickman, on the Claimant’s behalf, emphasised that it had only become apparent during the course of the hearing before the Army Board that the Sentamu material had been contained in an envelope which had been attached to the Claimant’s Personal File. Since the Personal File was available to the ACB and the ACAB, this meant that they, too, would have had access to the Sentamu material. Mr Hickman argued that in the Claimant’s Closing submissions to the Army Board, the Claimant had submitted that this constituted apparent, as well as actual, unfairness. He relied on the following passages from the transcript where the Claimant is recorded as saying, “I have heard assurances from the Deputy Chaplain General and the Chaplain General that [the Sentamu material] never impacted on my military career, however we cannot really remove the fact they’ve read it and they read it and they stored it. They kept it. They kept it for a long time. The material was still in the Chaplain’s Department many years down the line.”[56]In my judgment that was not an allegation of apparent bias. It was part of the foundation for the Claimant’s charge of actual bias. In a passage from his closing submission quoted by the Army Board in its decision, he said, “an agenda was being played out, and the agenda from day one was that as a result of the improper, unlawful and unprocessed information provided by Mrs Sentamu, Padre Crosbie wasn’t going to get a chance to get beyond his three years of SAT. Simple as that.” An alternative way of presenting his case was that it had been unfair for the army authorities to take account of the Sentamu material when he had never had an opportunity to refute the accusations which it contained. But the predicate of that alternative was that the authorities had taken the Sentamu material into account.[57]These complaints were fully and properly addressed by the Army Board. It needs to be emphasised that it is no part of the Claimant’s case that the Army Board treated him unfairly. The Brief which went to the members was sent to him for comments and revised in light of them on more than one occasion. He received copies of everything that was before the Army Board. The Army Board held a hearing at which the Claimant was present. Witnesses were called whom the Claimant was able to cross examine. In my judgment this first way in which the Claimant puts his claim in relation to apparent bias on the part of the earlier boards fails on the simple basis that this was not part of his complaint before the Army Board and, for that reason, it was not a matter which the Board was obliged to investigate.[58]The Claimant secondly submits that the Army Board was, in any case, required to consider whether the earlier Boards had acted unlawfully because of their apparent bias by reason of their access to the Sentamu material. In my judgment, though, Mr Hickman has failed to establish that the Army Board was under any such duty. This Court can only quash its decision if it has in some way erred in law. But, as I have said, its task in law was to investigate the Claimant’s complaint of wrong: no less, but no more. It should not construe a complaint in an over-legalistic way, especially bearing in mind that this Claimant was not legally represented. But in my judgment, the Army Board in this case is not open to that criticism. After all, the rationale of the doctrine of apparent bias is summed up in the aphorism that justice should not only be done but seen to be done. It is not a legalistic principle. The Claimant had not, as I have just said, invoked that principle and I cannot see why the Board erred in law in failing to investigate a complaint which was different from the one that he had made.[59]Mr Hickman argued that this Court should now itself review the legality of the decisions of the ACB and the ACAB (and possibly the RAChD). However, that course is not open to me. It is the decision of the Army Board which the Claimant has permission to challenge by way of judicial review, not the decisions of those earlier bodies. If his challenge is to succeed it must be by showing that the Army Board’s decision was wrong in law. If the Claimant had tried to impugn those earlier decisions as well, I think it likely that he would have been refused permission for that wider attack. The Army Board could, and did, decide for itself whether the Claimant should have been given an extension of his Short Service Commission. It decided that he was rightly refused an extension. This was not just a review (of, for instance, the type which this Court classically performs) but another merits decision. In those circumstances, this Court would have been likely to say that a judicial review of the earlier decisions would have been pointless.[60]As a result it is not strictly necessary for me to resolve the issue which was debated between the parties as to whether the principle of apparent bias has any application to the kinds of decisions which were taken by the RAChD, the ACB and the ACAB. But, had it been necessary to do so, I would have said that it did not, or at least not in a way which assists the Claimant.[61]I remind myself that the test of apparent bias has been authoritatively laid down in Porter v Magill [2002] 2 AC 357 at [103]. As Lord Hope there said, “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” The House of Lords there endorsed the decision of the Court of Appeal in In Re Medicaments and Related Classes of Goods (No.2) [2001] 1 WLR 700 which had sought to align the common law test of apparent bias with the requirement in Article 6 of the European Convention on Human Rights guaranteeing a “fair” hearing by an “impartial tribunal”. Strasbourg had interpreted Article 6 as imposing (amongst other things) an objective test of fairness on the part of the tribunal. I will consider below the Claimant’s discrete argument based on Article 6. For present purposes, it is sufficient for me to say that in the present context Article 6 takes the Claimant’s case no further.[62]The paradigm bodies which are required to avoid apparent bias are courts. Lord Hope’s test is an updated refinement of Lord Hewart CJ’s famous phrase in R v Sussex JJs ex parte McCarthy [1924] 1 KB 256, 259, that “Justice must not only be done it must be seen to be done.” Apparent bias can also taint bodies exercising quasi-judicial powers. Porter v Magill itself is an example. The auditor in conducting an audit of a local authority’s accounts and in deciding whether councillors or officials should be made liable to a surcharge had to be free of apparent as well as actual bias. The same is true of certain bodies exercising disciplinary functions; see for instance R v Leicestershire Fire Authority ex parte Thompson (1979) 77 LGR 373 DC at 378. The Army Board itself exercises quasi-judicial functions, at least when it had jurisdiction to consider complaints of race discrimination – see Anderson (above) at p. 185. As Mr Milford, junior counsel for the Defendant put it, the decisions which were taken by the RAChD, the ACB and the ACAB were miles away from the quasi-judicial or disciplinary functions which were being exercised in those cases.[63]I acknowledge, though, that there is a powerful line of modern authority which has resisted the categorisation of decision-making into judicial or quasi-judicial on the one hand (where the doctrine of apparent bias does apply) from administrative or other public decisions (where it has no application). Ridge v Baldwin [1964] AC 40 gave momentum to this approach. Anderson itself considered it to be too inflexible an approach to seek to characterise the work of the Army Board as ‘judicial’ or ‘administrative’. In R v Secretary of State for the Environment ex parte Kirkstall Valley Campaign Ltd [1996] 3 All ER304, Sedley J. thought that the principles of apparent bias (at that time expressed by the House of Lords in R v Gough [1993] AC 646) could not be properly confined to judicial or quasi-judicial tribunals but were of general application. His approach appears to have been endorsed by the Court of Appeal in R (Lewis) v Redcar and Cleveland BC [2009] 1 WLR 83 CA. However, if what is now the Porter v Magill test is a general one, the way in which it is applied will vary very much from one context to another. Lewis concerned a decision to grant planning permission. Pill LJ said at [71] that in such a context the importance of appearances was generally more limited than in a judicial context. Rix LJ agreed at [98] and so did Longmore LJ at [113]. In Lewis the Court of Appeal distinguished between councillors having pre-determined views (which was not lawful) from the situation where they had previously espoused policies that favoured (or disfavoured) a particular application. Absent positive evidence of closed minds, the latter would not be unlawful. The Court of Appeal also emphasised the practicality of the matter. It was to be expected that in a democratic system, councillors might well have policies or views on particular matters that would come before them. As Collins J. had said in R (Island Farm Development Ltd) v Bridgend County Borough Council [2007] LGR 60 at [31] “The reality is that councillors must be trusted to abide by the rules which the law lays down, namely that whatever their views, they must approach their decision-making with an open mind in the sense that they must have regard to all the material considerations and be prepared to change their views if persuaded that they should…So it is with councillors and, unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision.”[64]The present context did not involve prior policies but access to information which the Claimant alleged was prejudicial to him. That information was on (or, more accurately, attached to) his Personal File and the Personal File was available to the ACB and the ACAB. However, the evidence, which the Army Board accepted, was that these Boards had not taken that information into account. Mr Hickman submits that the evidence from the Boards should not have been dispositive. Apparent bias is concerned with appearances. But in a context such as this, if the Porter v Magill test is the right benchmark, the informed observer would take account of the following amongst other matters. First, there was according to the Army Board, ample justification for the decisions of these other boards. It is not, in other words, as though their decisions would appear puzzling to an outside observer. Second, as Major General Tyler commented, the members of these boards were experienced and were used to finding irrelevant information amongst the papers which they were sent and used to disregarding it. Just as Collins J. looked for proof positive that councillors had not abided by the rules and adopted inflexible positions, so the informed observer in the present context would expect some evidence that the members of these boards had broken the Army rules and taken into account material which had all been generated long before the Claimant had been commissioned. Third, there are the practicalities. Set aside the Sentamu material, the Personal File of the Claimant may well have contained other information which was not relevant to the decision which the Army authorities had to take. The members of the ACB and the ACAB could not be expected by the informed observer to have recused themselves because it contained such information. Fourth, there is the nature of the decision which these bodies were taking. It was whether the Claimant’s Commission should be extended. That was a matter of judgment and assessment which involved a consideration of the qualities which the Claimant had manifested up to then during his Army service and the needs of the army. Fifth, their decisions were not final. There was the remaining avenue for the Claimant to complain of a wrong and seek redress. If the ACB or ACAB had actually taken improper material into account or had actually treated the Claimant unfairly, this could be corrected, ultimately by the Army Board which could decide for itself the merits of his application for an extension. Bearing all of these matters in mind, I do not consider that the informed observer would have regarded it as a real possibility that the ACB or ACAB was biased in the way that the authorities speak.

Irrationality (1): the summer ball 2002

[65]The Claimant alleges that the Army Board’s decision was irrational in two respects. I shall take first the submission that concerns the Board’s treatment of the summer ball which the Claimant attended while he was at 40 Regiment RA. It will be recalled that the Claimant became drunk on that occasion and several officers had alleged that he had behaved in a way which might have amounted to indecent assault. The Army Board’s Legal Adviser, Major General Howell, advised the Board to disregard these allegations because they had not been properly investigated (as they should have been) by the Royal Military Police. The Board said it accepted this advice. The Claimant’s complaint is that, later in its decision, the Board appeared to take a different view. In its conclusion, the Board said, “We have concluded that the Rev’d Crosbie was not given an extension for the entirely proper reasons which the various Boards articulated: principally, his poor performance at RMAS and his drunken behaviour at two military units.” The Claimant submits the reference to “drunken behaviour at two military units” must include the incident at 13 Air Assault Support Regiment in December 2000 and to the summer ball in 2002. He submits that the Board acted irrationally because, having said that it would disregard the events of the summer ball in 2002, it then took them into account in this important and concluding paragraph. The Claimant submits that the inclusion of this incident was all the more important because it was the only matter on which the Board relied which took place after he had successfully concluded his 3 month warning.[66]Mr Milford submits that this is a simple and obvious error on the part of the Board. In the light of their previous comment that the summer ball incident was to be disregarded, the passage which I have just quoted should have read “drunken behaviour at a military unit.”[67]That is one possibility. However, in my judgment it is more likely than not that the Army Board did not make a mistake. What the Board said should be disregarded were the allegations of any form of indecent behaviour. The reason for taking that course was that they had not been properly investigated. The Claimant’s drunkenness at the summer ball was another matter. He had admitted that he had then suffered from an excessive consumption of alcohol. There was nothing further to investigate. The distinction between these two aspects of the summer ball affair was made clear in the course of the hearing. At page 125 of the transcript the following exchange is recorded after a period of retirement by the Board:
“Major General Howell: The Army Board view is that the procedure carried out by the Commanding Officer with regard to the allegations made by those three Lieutenants was wrong and that it did not give you the rights you should have been given in respect of those allegations. …We have reviewed the order that [Colonel Jones] said he gave you to apologise to those three for the behaviour that was alleged against you. There will be no finding against you in respect to that behaviour at all…we do not wish to trespass into those allegations whatsoever… Lt. Gen. Applegate: There is a separation between the drunkenness issue and other events. Maj. Gen. Howell: You may wish to ask it – you began by saying you initially apologised for being drunk. Rev. Crosbie: Yes Maj. Gen. Howell: On that occasion, whatever that is worth. There then came the additional allegations which I told you the Army Board consider it did not handle properly and therefore cannot possibly be held against you. You may wish to make the point as you made before, a lot of people get drunk. I mean it is entirely up to you but it is an issue which before the board at the moment properly so. …. Rev Crosbie: I promise to try and not ask any questions. In fact, the best thing is just not to refer to the Summer Ball at all. Lt. Gen. Applegate: We may have to come back to that because of the issue of drunkenness. Rev. Crosbie: So, we can refer to that.”
Rev. Crosbie: Yes Rev. Crosbie: So, we can refer to that.”

Rev. Crosbie: Yes

[68]It is fair to say that his drunken behaviour on that night does not seem to have been one of the reasons which was articulated by the RAChD, the ACB or the ACAB for refusing his Commission, but in my judgment it was a matter which the Army Board itself could properly take into account. Doing so was not contrary to the earlier part of its decision. Doing so did not make its decision irrational. Irrationality (2): failure to order compensation for the Claimant’s legal expenses in obtaining copies of the Sentamu material.[69]The Army Board dealt with the claim for compensation in the way that I have quoted above (see paragraph 41).[70]The Claimant argues that the Army Board’s refusal to award him compensation for his legal costs in pursuing the court claims for disclosure was irrational. The Army Board appeared to accept that he should have been given disclosure of (amongst other things) the Sentamu material. He had obtained that material but by means which had involved him incurring legal costs in the proceedings against certain Scottish Bishops and the Norwich Pharmacal claim against the Ministry of Defence. The Army Board should have recognised that the wrong he suffered in not being given the disclosure to which he was entitled was quite separate from his complaints about the process by which his applications for extension of his Commission was handled. His failure in the later regard should therefore have had no effect on his claim for reimbursement of these legal costs. The Army Board could not rationally have concluded that an apology was sufficient when that left him out of pocket.[71]The Defendant emphasises that under s.180 of the Army Act 1955 the Army Board had a broad discretion to grant such redress as it thought necessary and its decision to give an apology but not financial compensation to the Claimant was properly within its power. Courts have their own procedures for awarding costs. The defendant in the Scottish proceedings was not, apparently, required to pay costs. The Ministry of Defence was the defendant to the Norwich Pharmacal proceedings but it had not been ordered to pay the costs of those proceedings as the Court could have done if it thought that appropriate. In any event, the purpose of Norwich Pharmacal proceedings is to obtain evidence which can be used against a ‘wrongdoer’. If legal proceedings are brought against the wrongdoer he or she can also be ordered to pay the costs including the costs of the Norwich Pharmacal action. The Claimant did not refer to this. So far as the apology is concerned, in deciding what redress is appropriate, the Army Board stands in the shoes of the Defence Council. An apology from or on behalf of the Defence Council comes from the highest authority within the armed forces. It was open to the Army Board to conclude that this was both proper and sufficient in the circumstances of the case.[72]I reject this second irrationality argument. I agree with the Defendant that the Army Board has a discretion in deciding what remedy is necessary – they must grant any “redress which appears to them to be necessary” (my emphasis). The position is different to the rules of law which determine what legal remedies a court must grant if an appropriate private law cause of action is proved.[73]Both the Scottish action against the Bishops and the English Norwich Pharmacal proceedings were for forms of disclosure. However, the first did not involve the Army and, although the second did, it was not (apparently) alleged that the Army, its officials or institutions were themselves wrongdoers. The later qualification is important. If a defendant to Norwich Pharmacal action is itself a tortfeasor it will normally be expected to pay the costs of those proceedings. A wholly innocent defendant will not be expected to do so. In this case, it seems, disclosure was sought to enable the Claimant to bring proceedings in defamation against Church of England officials. In his closing submission to the Army Board, the Claimant said “Mrs Sentamu got quite a fright when proceedings were issued against her last week.” In these circumstances, the Army Board could expect that, if those further proceedings were successful the defendant to them would be required to bear the costs, including the costs of seeking the initial disclosure. At the time of the hearing in August 2008 the outcome of those proceedings would not be known. The Addendum to the Board’s decision records that it was asked to delay its determination while an out of court settlement of the claim against the Church of England was concluded. The Board was then told of the apology which was published in the Church Times (see above). I was told that the settlement included no provision as to costs with the consequence that each side had to bear its own costs. I do not know if the Army Board was told this as well. But in any event, even if it was, the Board would be entitled to take the view that the allocation of these costs was a matter between the Claimant and the Church of England and did not require the Claimant to be given redress in the form of compensation for those costs.[74]The Claimant has argued that the disclosure which he received did not comply with his rights under the Data Protection Act 1998. However, the Information Commissioner examined this complaint and on 1st February 2007 rejected it. Had the Claimant wished he could have taken the issue further and litigated his rights under the 1998 Act – see section 7(9) – when the usual approach to costs of those legal proceedings would have applied. But he did not take any action of that kind and it was not those kind of costs for which he was seeking compensation.[75]Mr Hickman had a supplementary argument that the Army Board’s decision in this respect was inadequately reasoned. He said that it was unclear whether the late disclosure for which the Board was apologising included the Sentamu letters and its reasoning for refusing financial compensation made no allusion to the costs regimes of the courts. Mr Milford accepted that it was not entirely clear whether the complaint of late disclosure was intended to embrace the Sentamu materials but, he submitted, that when read in context it did. I agree that the Board’s decision in this respect is somewhat Delphic, but I agree with Mr Milford’s submission that it probably did include that material. I have quoted the paragraph in which it explained its decision on redress. Its reasoning was brief, but in my judgment it was legally adequate.

Article 6

[76]Article 6 of the ECHR provides:
“In the determination of his civil rights and obligations…everyone is entitled to a fair … hearing … by an independent and impartial tribunal established by law.”
[77]As I have said, the Claimant formulates the “civil right” on which he relies in three ways. First, he says that his right to pursue his career as an Army chaplain was brought to an end finally by the Army Board’s decision. Second, he says that the truncation of his Army career coupled with the failure to provide a “safe to receive” letter when requested to do so seriously adversely affected his career in the Church, such that it effectively brought it to an end. Third, he says that he had a right under his terms and conditions of service to have his application for an extension of service fairly considered by RAChD, the ACB and the ACAB. By its decision the Army Board determined that this right had not been infringed.[78]The Claimant then submits that these rights have been determined by the Army Board but the Army Board is not independent since it was itself composed of Army officers. While he has been able to apply for judicial review of the Army Board’s decision, that opportunity does not give him what Article 6 requires since this Court cannot investigate for itself whether he was in fact fairly treated by the boards that considered the matter before it reached the Army Board. Mr Hickman emphasises that in this context he is referring to the Claimant’s allegations that those earlier boards were actually biased against him as a result of the Sentamu material.[79]In summary the Defendant argues that in truth no “civil right” is engaged in the sense that that term is used by the European Court of Human Rights. This is because Article 6 is concerned with procedural protection not substantive rights and the Claimant has no arguable substantive right as a matter of domestic law. Alternatively, the issue with which the Claimant is really concerned is the extension of his Commission, but that is the type of the decision which Strasbourg (even allowing for recent extensions of the jurisprudence) would not regard as a “civil right”. The Defendant accepts that the Army Board does not itself have the necessary characteristics of an “independent” tribunal but, even if the Claimant was asserting a “civil right” his access to the Army Board, coupled with judicial review would satisfy Article 6.

Did the proceedings before the Army Board involve a “civil right”?

[80]It is common ground that the expression “civil right” in Article 6 is an autonomous concept which, ultimately, has to be determined by the European Court of Human Rights - see for instance Konig v Federal Republic of Germany (1978) 2 EHRR 170 at [88]. However, as Lord Bingham said in Mathews v Ministry of Defence [2003] 1 AC 1163 at [3] “the Strasbourg case law is emphatic that article 6(1) of the Convention applies only to civil rights which can be said on arguable grounds to be recognised under domestic law; it does not itself guarantee any particular content for civil rights in member states, Z v UK (2001) 34 EHRR 97, 134-5 paras 87, 98. Thus for the purposes of article 6 one must take the domestic law as one finds it, and apply the autonomous Convention concept of civil rights….An accurate analysis of a claimant’s substantive rights in domestic law is nonetheless the first essential step towards deciding whether he has for the purposes of the autonomous meaning give to the expression by the Convention a “civil right” such as will engage the guarantee in article 6”. Lord Hope adopted this guidance in R (Kehoe) v Secretary of State for Work and Pensions [2006] 1 AC 42 at [28]. Mr Hickman argues with some force that the position is not quite as simple as this, but I respectfully agree that an examination of the Claimant’s rights as a matter of domestic law is nonetheless the proper starting point.[81]It is clear that the Claimant had no domestic law right to have his Commission extended. It had been granted for three years. The Army authorities had discretion, but no obligation, to extend it further. As I have explained, an employee of a civilian employer would be treated as dismissed for the purposes of the Employment Rights Act 1996 if a short term contract was not extended and, if the other conditions were fulfilled, he would have a statutory right not to be unfairly dismissed. However, that regime does not apply to those who are in the Armed Forces. Consequently, the truncation of the Claimant’s career as an Army chaplain did not engage any domestic law right.[82]The Claimant has said that his wider career as a priest was adversely affected because the Chaplain General failed to provide him with a ‘safe to receive’ letter and a reference. The evidence is somewhat uncertain as to what requests were made to the Chaplain General. The Bishop of Bath and Wells did write to the Chaplain General asking for such a letter in connection with the Claimant’s application to be a rector. The Bishop’s letter is undated but it was received on 5th October 2003. There is no record of a response to that letter. In his statement, The Revd Parker says that the Bishop of Bath and Wells does not have any record of receiving a response. The Revd Parker continues (apparently still relaying information from the Bishop) that where a candidate is filtered out before interview, it was routine for such responses to be destroyed. In his second statement the Claimant says that that cannot be the explanation in the present case because he was interviewed for the post.[83]In his second witness statement the Claimant says also that in July 2004 he was offered the position of resident priest at a church in Berkshire by the patron. He says that he has been told by the patron that he in turn had been told by the Bishop of Reading that The Revd David Wilkes (who was by then the Chaplain General) had refused to provide a safe to receive letter. The Claimant says that, because he could not then be licensed under Church rules, the offer was withdrawn. The Revd Parker says that the Chaplain General has no recollection of such a request and there appears to be no reference to it in the Claimant’s Personal File. In these circumstances I do not find that I can conclude that there was a refusal in this case. The Revd Wilkes has no recollection of one. The evidence of that is provided by The Revd Parker and is hearsay, but the Claimant’s evidence is second hand hearsay. While that does not mean it is inadmissible, it is a matter which I can and do take into account in deciding the weight to be attributed to it. I note, incidentally, that when The Revd Wilkes came to give evidence before the Army Board, the Claimant did not ask him about this matter. The Claimant acknowledged this in the only passing reference to this issue in his closing address before the Army Board.[84]On 3rd May 2005 the Claimant’s solicitors wrote to the Chaplain General asking for a reference in an agreed form (to which, they said, the Claimant was entitled) and that the Chaplain General should send a safe to receive letter to the Archbishop of Canterbury’s office because the failure to do so would imply that the Claimant was not safe to receive. The Revd Wilkes replied on 12th May 2005. He said that it would be unreasonable to provide a reference in a form drafted by the Claimant. He observed that chaplains in the Army serve with the authority of their sending church which did not relinquish its ecclesiastical oversight or denominational discipline of a chaplain during his service. Whenever there were purely denominational issues with regard to one of its chaplains the Sending Church was to be consulted and informed. The Revd Wilkes added that he was no longer in a position to send a safe to receive letter because of the length of time that had passed since the Claimant’s work with the Army had come to an end.[85]There are three further relevant pieces of evidence. On 30th May 2003 The Ven Blackburn as Chaplain General wrote to Andrew Nunn who is the Lambeth Palace administrator responsible for Clergy seeking appointments. The Ven Blackburn said that the decision had been taken not to extend the Claimant’s short service Commission. He continued, “You will be aware that ministry as a chaplain in the Army is very specialised, a sector ministry in a particular environment with very specific demands, expectations and challenges. I can confirm that the decision not to extend Andrew’s commission reflects that he is not suited for ministry as a chaplain in the Royal Army Chaplain’s Department. Beyond his suitability as an Army Chaplain, I believe that it would not be appropriate for me to speculate. His vocation outside the Army and his employability in other spheres of ministry are matters in which the discernment of the wider Church needs to be brought to bear.”[86]Secondly, as I have already mentioned, on 23rd December 2003 The Revd Wilkes as Deputy Chaplain General wrote to the Bishop to the Forces with a short and balanced synopsis of the Claimant’s Army career. Thirdly, on 3rd June 2005 Mr Nunn wrote to the Claimant to recall what he had written previously to him in October 2003, namely that the Claimant had been ordained in the province of South Africa by the Bishop of St Helena. He was not therefore a priest in the Church of England. However, the Archbishop would be content to issue him with permission under the Overseas and Other Clergy (Ministry and Ordination) Measure 1967 to allow him to minister in this country should a bishop wish to licence him. He warned the Claimant, though, that bishops were not under any obligation to find posts for overseas clergy, particularly at a time when pressure on budgets meant that it was difficult enough to fund enough stipendiary posts for Church of England priests.[87]In conclusion, while there has been one instance of the Chaplain General failing to respond to a request for a safe to receive letter, I do not find that the Claimant has made out his assertion that there has been a persistent refusal to provide such a letter.[88]But even if there had, the Claimant has not been able to show that this would give him an arguable right as a matter of domestic law. It may be common practice for a priest who leaves one post to be able to secure a safe to receive letter, but that is not the same thing as saying that he has a legal right to one. It is common practice for an employee to be able to ask a former employer for a reference. Indeed, at times the Claimant referred to the ‘safe to receive letter’ as a reference. But an employee has no arguable legal right to a reference. The Claimant has not shown me any source from which he could derive a right to a safe to receive letter.[89]Mr Havers QC (who presented the Article 6 part of the case on behalf of the Defendant) made the further point that on the evidence, a safe to receive letter would be provided by the priest’s previous bishop. In this case that would be the Bishop to the Forces. His is an ecclesiastical position and he holds it within the Church of England. The Bishop to the Forces is not part of the Army. If there had been any default on his behalf in failing to provide a safe to receive letter (and Mr Havers did not accept that there had been any), it was not a fault which was attributable to the Army. The Bishop to the Forces would be reliant to some extent on information provided to him by the Army. However, he had been given that information by The Revd Wilkes in his letter to the Bishop to the Forces of 23rd December 2003. At times the Claimant seemed to be suggesting that The Ven Blackburn had wronged him by the letter of 30th May 2003, but it was not put as high as suggesting that this letter gave the Claimant a right as a matter of domestic law.[90]Consequently, I conclude that as a matter of domestic law, the Claimant has no arguable right in respect of whatever repercussions his Army career or its aftermath have had on his ability to pursue his calling as a priest.[91]The third way in which the Claimant puts his case is that he says he had a ‘right’ to have his application for an extension dealt with fairly. He identifies two sources for this right. First, the terms and conditions of service include a provision which says, “If you think you have been treated unfairly or wronged in any way, you may wish to make a complaint and have things put right: this action is called ‘redress’. Your complaint will be taken seriously and will be investigated.” This is described as an “entitlement” and the terms and conditions say “an entitlement is something that you, as a soldier, have a right to receive, and your entitlement can only be changed by the Army Board, or by a change in the law.” The second source on which the Claimant relies is the obligation as a matter of public law for the Army authorities to treat him fairly.[92]Mr Havers responds that the terms and conditions are no more than a reference to the statutory right under what was then s.180 of the Army Act 1955. But that right was available to the Claimant and he took full advantage of it. There has been no arguable breach of that right and so this way of putting the case does not assist the Claimant. Public law principles do not help the Claimant, submits Mr Havers. The Boards which the Claimant says were actually biased – the RAChD, the ACB and the ACAB were exercising managerial functions. There is not a sufficient public law element to engage the control of judicial review – see for instance R (Tucker) v Director General National Crime Squad [2003] ICR 599 CA. But even if that was wrong, these principles of public law are not enough to bring the Claimant within the autonomous concept of a “civil right”. I agree with Mr Havers’ submissions in this regard.[93]Mr Hickman submits, however, that the absence of an arguable right under domestic law cannot be determinative. There is a constant jurisprudence of the Strasbourg court that Article 6 includes the right to pursue one’s profession – see, for instance, Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1. The Claimant was stopped from pursuing his profession of Army chaplain. That was a form of public service, but Strasbourg’s attitude to the rights of civil servants has evolved.[94]In the early days Strasbourg considered that disputes relating to the recruitment, careers and termination of service of civil servants were as a general matter outside the scope of Article 6(1). That approach was eroded and in its judgment in Pellegrin v France (2001) 31 EHRR 26 the Court excluded from the scope of Article 6(1) only those posts which entailed, in the light of the nature of the duties and responsibilities appertaining to it, direct or indirect participation in the exercise of powers conferred by the public law and duties designed to safeguard the general interests of the state or of other public authorities. It then had to be determined whether the applicant did indeed exercise functions which could be characterised as falling within the exercise of public power. In other words, the inapplicability of Article 6(1) was decided by examining the role which the applicant performed in the state’s public service. In Eskelinen v Finland (2007) 45 EHRR 43 the Grand Chamber developed the case law further. At [59] the Court said this, “To recapitulate, in order for the respondent State to be able to rely before the Court on the applicant’s status as a civil servant in excluding the protection embodied in Art.6, two conditions must be fulfilled. First the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest. The mere fact that the applicant is in a sector or department which participates in the exercise of power conferred by public law is not itself decisive. In order for the exclusion to be justified, it is not enough for the State to establish that the civil servant in question participates in the exercise of public power or that there exists, to use the words of the Court in the Pellegrin judgment, a ‘special bond of trust and loyalty’ between the civil servant and the State, as employer. It is also for the State to show that the subject matter of the dispute in issue is related to the exercise of state power or that it has called into question the special bond. Thus there can in principle be no justification for the exclusion from the guarantees of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of relationship between the particular civil servant and the State in question. There will, in effect, be a presumption that Art.6 applies. It will be for the respondent Government to demonstrate, first that a civil servant applicant does not have a right of access to a court under national law and, secondly, that the exclusion of the rights under Art.6 for the civil servant is justified.”[95]Here Mr Hickman submits that the Defendant fails both tests. It is convenient for me to address them in turn.[96]First, Mr Hickman submits, the term “court” must include a tribunal. National law did permit the Claimant to have access to a tribunal in the form of the Army Board. Therefore the Defendant fails to pass the first Eskelinen test. I do not accept this argument. Of course, Article 6 itself uses the term “tribunal”. There are some forms of tribunal which do have the characteristics of “courts” for the purpose of Article 6. Employment tribunals are one example. But it is essential to a later stage of the Claimant’s Article 6 argument that the Army Board does not have the independence which is a prime characteristic of a “court”. It is his complaint that national law does preclude him from having access (or sufficient access) to such a court. The Grand Chamber explained this first requirement a little earlier in its judgment in Eskelinen at [58] when it said, “The Court recognises that the State’s interest in controlling access to a court when it comes to certain categories of staff. However, it is primarily for contracting states, in particular the competent national legislature, not the Court, to identify expressly those areas of public service involving the exercise of the discretionary powers intrinsic to state sovereignty where the interests of the individual must give way. The Court exerts its supervisory role subject to the principle of subsidiarity. If a domestic system bars access to a court, the Court will verify that the dispute is indeed such as to justify the exception to the guarantees of Art.6 If it does not, then there is no issue and Art.6(1) will apply.”[97]In the present context, the Employment Rights Act 1996 in its current form does bar access to employment tribunals for members of the Armed Forces who are aggrieved by their dismissal (or non-extension of their periods of service) and, in my judgment, the right to seek redress under s.180 of the Army Act 1955 does not reintroduce a right of access to a “court”. Consequently, I find that the first test under Eskelinen for the exclusion of Article 6 is satisfied.[98]Mr Hickman’s then argues that the Defendant cannot satisfy the second Eskelinen test (i.e. that the exclusion is objectively justified). His argument has a number of limbs. Again it is convenient to take these one by one. Mr Hickman submits that the version of the Employment Rights Act that will take effect, once a commencement date has been set, shows that in principle the legislature has recognised that service in the armed forces is compatible with access to the statutory remedies for unfair dismissal. Although no such commencement date has been set, the legislation is not to be ignored by the court. He refers to R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513. The House of Lords had to consider the situation where Parliament had enacted a statutory scheme for compensating criminal injuries. Its implementation was dependent on a commencement date being appointed by the Secretary of State. Subsequently, the Home Secretary announced that he did not intend to bring the provisions into force. Instead he intended to continue the existing non-statutory scheme modified to establish a tariff. The House of Lords held that Parliament had imposed a continuing obligation on the Secretary of State to consider whether to bring the statutory scheme into force. He could not lawfully bind himself not to do so or to adapt the non-statutory scheme in a way which was inconsistent with the statutory one. So in the present context, Mr Hickman submits, the Court should not accept that the exclusion of the armed forces from the protection against unfair dismissal is objectively justified when Parliament has enacted that that exclusion will at some point in the future come to an end.[99]Mr Havers submits that there is an important difference between the Employment Rights Act 1996 and the legislation which the House of Lords was considering in Fire Brigades Union. As and when it is brought into force, the prospective version of s.l91(2) (see paragraph 48 above) says that a defined list of provisions of the 1996 Act will apply to members of the armed forces. They include Part X of the Act which contains the protections against unfair dismissal. However, Parliament has also provided that Her Majesty may by Order in Council omit provisions from that list - see s.191(3). Thus Parliament has contemplated that, even when s.191 in this form is brought into force, it may still exclude the armed forces from the statutory right not to be unfairly dismissed.[100]Mr Hickman responds by saying that for the time being there is no such Order in Council and Parliament’s will is therefore as expressed in s.191(2). In addition, s.191(3)(b) allows the Secretary of State, instead of omitting the provisions listed in s.191(2), to modify them. Section 191(4)-(8) then contains quite detailed elaboration on the modifications which can or cannot be made.[101]In my judgment, though, Mr Havers is right. The terms of s.191 of the 1996 Act are significantly different from the Criminal Justice Act 1988 which was what the House of Lords had to consider in Fire Brigade Unions. In the present statutory scheme, Parliament has given the executive the power, not only to postpone implementation, but to deny members of the armed forces the listed rights. Nor does section 191(4)-(8) have any bearing. Those subsections govern the executive’s power to modify the listed provisions in the 1996 Act as and when they are applied to the armed forces. However that power, in s.191(3)(b) is separate from, and additional to, the distinct power in s.191(3)(a) to omit any of the listed provisions from application to the armed forces. Legislation in this contingent form means that very little the weight can be given to it in deciding whether the exclusion of armed forces from the statutory protection from unfair dismissal is objectively justified.[102]Mr Hickman next observes that changes have been introduced to the system for dealing with complaints from members of the armed forces. The Armed Forces Act 2006 s.335 allowed the Defence Council to delegate consideration of service complaints to a service complaint panel and s.336 empowered the Secretary of State to prescribe certain categories of complaint where the service complaint panel had to include at least one independent member (meaning someone appointed by the Secretary of State who was not a member of the armed forces or a civil servant). Regulations have beenmade stipulating that, in relation to complaints made after 1st January 2008, a service complaint panel must include an independent member where the complaint alleges dishonest, improper or biased behaviour – see Armed Forces (Redress of Individual Grievances) Regulations 2007 SI 2007 No. 3353 reg. 9.[103]However, the difficulty with this argument is that it does not take Mr Hickman far enough. He invokes these changes in support of his case that the exclusion of complaints, such as that made by the Claimant, from a court of a type which Article 6(1) contemplates is unjustified. Yet even after these changes prescribed complaints will be considered by a service complaint panel. The panel will include an independent member – but at least one of the other members of the panel must be a senior officer – see Armed Forces Act 2006 s.336(3). That would not be an independent tribunal. Thus the changes do not demonstrate a shift in Parliamentary intention so as to allow members of the armed forces access to a tribunal of a kind envisaged by Article 6, even in cases of complaints of biased behaviour.[104]Mr Hickman referred to the Ministry of Defence’s written evidence to the House of Commons Defence Select Committee on 8th September 2010 in relation to what was then the government’s proposed Armed Forces Bill. The MoD commented on the Crompton case as follows, “The European Court held the system to be compliant in relation to the particular case. But the Court also stated that in some cases which turn on a question of fact, the availability of judicial review would be insufficient. As a result, the proposal is for the Armed Forces Act 2006 to be amended to allow any Service complaint panel to include one or more independent members and to remove the requirement that at least one member of a Service complaint panel must always be a senior officer.” The Armed Forces Bill, which is currently before Parliament, would bring about that change by deleting s.336(3) of the 2006 Act. But even if I am entitled to take account of that possible alteration of the law it does not mean that a complaint of the kind which the Claimant raised would in the future be determined by a panel that consisted entirely of independent members. The Defendant would not accept, and nor would I, that this was a matter which turned simply on a question of fact.[105]The Armed Forces Act 2006 also established a Service Complaints Commissioner. The first Commissioner was appointed in 2007 and is Dr Susan Atkins. She is independent of the Armed Forces and must report annually to Parliament. This innovation may prove important and useful but it does not assist the Claimant’s case. The Commissioner plays no part in the consideration of individual complaints – see s.338.[106]Mr Hickman’s next argument focuses on the position of a chaplain as opposed to other members of the armed forces. It is common ground that chaplains cannot give executive orders, even though they have ranks equivalent to certain officers. They are prohibited from bearing arms. He notes that the Queen’s Regulations for the Army paragraph J5.261 provides that:
“When a commissioned chaplain cannot be made available, civilian clergymen of the appropriate denomination may be appointed officiating chaplains.”
Thus, there is a degree of interchangeability between an army chaplain and a civilian priest. Furthermore, paragraph 5.274 provides, “In spiritual and ecclesiastical matters chaplains are under the discipline of their appropriate Church authorities.” Thus they are not exclusively under the command of their Army superiors. In short, they do not exercise public power and there is no need for the ‘special bond of trust and loyalty’ between them and the state. Besides, the Armed Forces are now entitled to the same protection from discrimination as other people and this is required by EU law – see Sirdar v Army Board C-273/97 [2000] ICR 130.[107]In responding to this argument, Mr Havers relied, amongst other evidence, on the second witness statement of The Revd Parker who described the role of an Army Chaplain. He explained that chaplains are integrated into their units. They wear uniform. Like other soldiers and officers they are subject to the chain of command and may be disciplined if they disobey a lawful order. They minister to those in their unit, receive confidences and can play an important role in communicating grievances or problems to their commanding officer. They play a role in teaching and training core values of courage, discipline, respect for others, integrity, loyalty and commitment. They can be critical in establishing and sustaining morale. They can be, and are, deployed with their units. According to The Revd Parker approximately 85% of chaplains currently serving in the RAChD have been deployed to Iraq and Afghanistan. Their duties in theatres of war or other combat may include comforting a wounded or dying individual in a hospital and, although they are not sent on patrols which are seeking to engage an enemy, they may nonetheless find themselves in the middle of a firefight. They may have to help other colleagues cope with stress, danger and grief. To do their job well, like other officers, they need to be able to command the respect of others in their unit.[108]The evidence of General Sir Nicholas Houghton, Vice Chief of the Defence Staff, was to the same effect. He observed that chaplains were subject to the same duty to deploy as any other officer. They were required to be able to operate in any theatre without being a burden to their fellow soldiers. Chaplains played a key role in relation to discipline and morale and in maintaining high standards. They could perform this role only if fully integrated and sharing the conditions of others in their units.[109]Lieutenant General Rollo, the Deputy Chief of Defence Staff (Personnel and Training) also gave evidence as to why a legal right to claim unfair dismissal would sit uncomfortably with the demands of the Armed Forces more generally.[110]Mr Havers submitted that an Army Chaplain fulfilled both parts of the Eskelinen second test: they were part of a sector of public employment, namely the armed forces which plainly did exercise state power. But, in any case, their employment did depend on a special bond of trust and loyalty. Anti-discrimination measures raised special issues and the fact that the army was subject to them did not mean that it could properly be subject to legal processes outside that special context.[111]It does not seem to me that Mr Havers’ first contention can be correct. In Crompton v UK (2010) 50 EHRR 36 the applicant was a pay and accounts clerk in the Territorial Army. He was informed that he was to be made redundant and his post was to be converted to a civilian post of technical store man. His application for the new post was unsuccessful and he was discharged from the Army. He complained to the Army Board which agreed that he should have, but was not, given priority before the selection boards. He was offered compensation but was dissatisfied by the amount. He subsequently applied to the Strasbourg Court, amongst other things, claiming that the Army Board had not been an independent tribunal for the purpose of determining his right to compensation. The UK government conceded that the applicant’s civil rights had been determined in the domestic proceedings and the Court agreed. In Crompton it could also be said that the applicant, despite his somewhat lowly position, was in a sector or department (i.e. the Army) which exercised state power. Yet that did not necessarily mean that the exclusion of Article 6(1) was objectively justified. It is true that the matter was not argued out, but the Court does appear to have endorsed the government’s concession.[112]However, in my judgment, Mr Havers is on stronger ground with his argument that there is a special bond of trust and loyalty between a chaplain and the Army. While chaplains are not themselves combatants and cannot give orders, they are integrated into their units in the ways that The Revd Parker and General Houghton describe. They provide valuable services to the Army. The Army depends on them to provide those services efficiently and loyally in contexts which can be particularly demanding. I am satisfied that there is between them and the Army a “special bond of trust and loyalty”. It does not seem to me significant that in matters of doctrine, chaplains remain subject to the authority of their sending churches or that, in the absence of a chaplain, recourse can be had to a lay priest.[113]Eskelinen requires the Court to consider, not merely the position held by the person invoking Article 6, but also the nature of the dispute. It is exclusion of the dispute from Article 6 which has to be objectively justified. But, so far as the Claimant characterises his civil right as his right to pursue his career as an Army chaplain, this distinction makes no difference. The decision not to extend his Commission was all about whether he was suitable to remain in the post which had that special bond of trust and loyalty. It is quite different from the dispute in Crompton which concerned the quantification of compensation for a wrong which the Army Board itself had accepted.[114]For all of these reasons, I conclude that the exclusion of Article 6 from the Claimant’s asserted civil right to continue his career as an Army chaplain is objectively justified and Article 6 cannot assist him in that regard.[115]I turn to the Claimant’s alternative formulation of his civil right and obligation – his career as a priest. The decision not to extend the Claimant’s Commission did not as a matter of form bring this wider career to an end. However, Mr Hickman can properly submit that this is not necessarily the end of the matter. In R (G) v Governors of X School (Secretary of State for Children Schools and Families intervening) [2010] 1 WLR 2218 CA the Claimant was a school teacher who had been accused of sexual impropriety with a 15 year old who was undergoing a period of work experience at the school. A disciplinary committee of the governors refused his request to be legally represented at the committee’s hearing of the complaint. The committee summarily dismissed the Claimant and his judicial review argued that his rights under Article 6 had been engaged because his dismissal was likely to impact adversely on his ability to carry on with his teaching profession. In view of the seriousness of the matter Article 6 required him to be allowed legal representation. The school argued that it would be up to the Independent Safeguarding Authority (“ISA”) to decide whether the Claimant should be placed on the “children’s barred list”. He would have full procedural rights under that procedure and which could include a hearing before the First Tier Tribunal. The Court of Appeal held that the disciplinary proceedings were likely to have a serious effect on the later steps taken by the ISA and for that reason they did attract the protections of Article 6, notwithstanding the later processes which would have to be followed. As Laws LJ said at [37]. “In my view the effect of the learning (and I have already foreshadowed this) is that where an individual is subject to two or more sets of proceedings (or two or more phases of a single proceeding), and a ‘civil right [or] obligation’ enjoyed or owed by him will be determined on one of them, he may (not necessarily will) by force of article 6 enjoy appropriate procedural rights in relation to any of the others if the outcome of that other will have a substantial influence or effect on the determination of the civil right or obligation. I do not mean any influence or effect which is more than de minimis: it must play a major part in the civil right’s determination.”[116]However, in my judgment this line of authority does not assist the Claimant for two principal reasons. In the first place, the proceedings which G argued attracted Article 6’s protection were disciplinary. That, too, was the position in R (Wright) v Secretary of State for Health [2009] 1 AC 739 which concerned the placing of people on list of those considered unsuitable to work with vulnerable adults. Absent such measures the people concerned would have either the right or the reasonable expectation of being able to continue in their chosen professions. The Claimant’s position is different. The Army was not curtailing his Commission. It would come to its natural end unless extended. There is no example which the Claimant can identify of a decision of this type constituting an adverse influence on a person’s profession so as to attract the protections of Article 6.[117]The second reason that G does not assist the Claimant is my earlier findings on the evidence. I have not been persuaded that the decisions of the Army authorities culminating in that of the Army Board not to extend the Claimant’s Commission did have the effect on his later career that he has asserted. The Army provided the Bishop to the Forces with the necessary information as to the Claimant’s career as a chaplain. If (and it is a big ‘if’) there was any fault in failing to provide a ‘safe to receive’ letter, this was not the responsibility of the Army nor (on the evidence before me) can it be shown to be a consequence of the decision not to extend the Claimant’s Commission.[118]Mr Hickman’s third way of putting the Claimant’s “civil right” is that he had a right to have his application for an extension fairly considered. Mr Hickman notes that Lieutenant General Rollo said that, while the level of readiness which the armed forces were required to maintain meant that a wide range of the questions that may arise about a soldier’s service were not ones which it was appropriate for a court or tribunal to decide, nonetheless, what a court or tribunal could decide was whether the process in reaching that decision was fair. However, in my view Mr Havers is correct to say that there is no decision of the Strasbourg Court or, for that matter, of the UK courts which has extended the meaning of “civil right” to the degree that the Claimant would require. I have found that the Claimant had no such arguable civil right as a matter of domestic law. In substance, this alternative is another way of expressing the Claimant’s complaint that his Commission was not extended and I have already considered that both in terms of domestic law and when measured against the Convention jurisprudence. In conclusion, this third way of formulating the Claimant’s asserted “civil right” is no more successful than the previous two.[119]My overall conclusion therefore is that the proceedings before the Army Board did not involve a “civil right” of the Claimant nor were they proceedings which substantially affected any civil right of his. Accordingly, Article 6(1) was not applicable to those proceedings. In any event would the combination of proceedings before the Army Board coupled with judicial review satisfy the requirements of Article 6?[120]In view of my conclusion in the previous paragraph, this issue does not strictly arise. However, since the matter was fully argued out in the course of the hearing I am prepared to consider it on the (artificial) basis that the proceedings before the Army Board were within the scope of Article 6.[121]It is well accepted that in some circumstances the requirements of Article 6 may be satisfied by a combination of proceedings before a person or body who lacked the independence which Article 6(1) guarantees when taken together with judicial review - see for instance Bryan v UK (1995) 21 EHRR 342. In that case at [40] the Court recalled its decision in Albert and Le Compte v Belgium (1983) 5 EHRR 533 where it had said at [29] that even where an adjudicatory body determining disputes over “civil rights and obligations” did not comply with Article 6(1) in some respect, no violation of the Convention can be found if the proceedings before that body are “subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1)”.[122]In Bryan the applicant was aggrieved by the decision of a planning inspector to uphold an enforcement notice. The Court held that the Inspector lacked institutional independence because the Secretary of State who appointed him could at any time have revoked the appointment and called in the decision. The Court then had to decide whether an appeal to the High Court on a point of law against the Inspector’s decision could satisfy the requirement of Article 6. In making that decision the Court said at [45] “it is necessary to have regard to the matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute including the desired and actual grounds of appeal.” The Court noted that, although the Inspector was not independent of the executive, there were substantial procedural safeguards that attended the appeal before him. The Applicant was able to canvass challenges to the Inspector’s decisions on matters of law, but there was no dispute as to primary facts and the dispute really centred on questions of planning policy. In those circumstances the combination of the quasi-judicial procedure before the Inspector and judicial review did satisfy Article 6.[123]The Court reached a different conclusion in Tsfayo v UK (2009) 48 EHRR 18. In that case the Applicant had applied for back-dated housing benefit from her local authority. Her entitlement to this depended on whether there was “good cause” for her delay in applying. The local authority said there was not and this decision was upheld by the authority’s Housing Benefit Review Board. The Board was not independent of the authority and the issue was whether this deficiency could be made good by the availability of judicial review. The Strasbourg Court said that it could not. Whether there had been “good cause” was a simple question of fact and the Review Board’s decision that there was not turned on the Board’s view of the Applicant’s credibility. This question of fact could not be re-opened on judicial review.[124]Mr Hickman argues that the present case is akin to Tsfayo. In considering the Claimant’s allegation of actual bias on the part of the RAChD, the ACB and the ACAB, the Army Board had to make findings of fact about what had happened to the Sentamu documents, who had read them and what influence they had had on the decision not to extend the Claimant’s Commission. These were quintessential issues of fact which had to be decided by an independent body. The Army Board lacked that independence and on an application for judicial review it was not open to the Claimant to ask the Court to decide those issues for itself. Consequently, he submitted, the combination of the Army Board and judicial review would not give the Claimant what Article 6 required.[125]Mr Havers began by emphasising that, even though the Army Board lacked independence, its processes did give the Claimant a substantial measure of procedural protection. He saw all the documents which were before the Army Board. He had a chance to comment on the brief which was prepared for them and the brief went through a number of drafts in response to his comments. There was an oral hearing at which the Claimant was present with the assistance of another person (Mr Ormond). Witnesses were called who represented a fair cross section of his Army career. They were not sworn, but they were ordered to tell the truth. The Claimant was able to question the witnesses. He could and did make a closing oral address to the Army Board. The Board was assisted by a legal adviser. There is, as I have already said, no suggestion that the Army Board behaved in any way that was unfair to the Claimant.[126]Furthermore, Mr Havers submitted, the essential issue for the Army Board was whether the Claimant had been wronged by not having his Commission extended. Whether the Claimant’s Commission should be or should have been extended was a matter of judgment which the Army Board was best placed to take. The context was different to the planning issue in Bryan but the two shared this feature that the issue involved discretion and judgment which could properly be taken by a non-independent body. Mr Hickman’s attempt to separate out questions of fact was artificial. Mr Havers drew attention to Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430. In that case the claimant was homeless and in priority need. She was offered permanent accommodation by the local council but turned it down on the basis that the area in which it was located was characterised by drug problems and racism, that she had been attacked by two youths shortly after viewing the property and that her estranged husband had frequently visited the building. A reviewing officer concluded that there were no serious drug or racial problems, there were discrepancies in her account of the robbery which she said she had experienced and she was not satisfied that the relationship between the claimant and her husband made it intolerable that she should risk meeting him. In short, she rejected the claimant’s reasons for rejecting the offer of accommodation as unreasonable. The reviewing officer lacked the independence required by Article 6 (assuming that a civil right was engaged) and, the claimant argued, judicial review was inadequate because these factual conclusions of the reviewing officer could not be taken again by the Court. These arguments were rejected by the House of Lords. The reviewing officer did have to make factual findings, but, as Lord Bingham said at [9], they were “only staging posts on the way to the much broader judgments which the authority has to make.” Lord Millett at [105] likewise said that “Any factual issue arising in the course of the dispute, even if critical to the outcome, would be incidental to the final decision.” As Lord Hoffman said, the final decision which the local authority had to take was an example of those areas of law such as regulatory and welfare schemes in which decision making was customarily entrusted to administrators.[127]In Runa Begum’s case the House of Lords was prepared to assume that a decision as to housing for a homeless person did involve a “civil right” but in the more recent case of Ali v Birmingham City Council [2010] 2 AC 39 the Supreme Court confronted that question and decided that it did not. It was therefore unnecessary for the Court to go on and consider whether the combination of a reviewing officer’s decision and the statutory appeal to the county court (which acts on judicial review principles) would have satisfied the requirements of Article 6. Nonetheless the Court did go on to consider that second issue. It endorsed the views of the House of Lords in Runa Begum and its decision that this combination would satisfy Article 6 even though factual decisions had to be taken which could not be challenged on their merits in the statutory appeal. That was because these factual issues were simply staging posts on the way to a broader judgment. Tsfayo was different because, in the words of Lord Hope at [54] “no broad questions requiring professional knowledge or experience had to be addressed once the question whether there was good cause had been answered.”[128]The Supreme Court saw this decision as compatible with what the Strasbourg Court had said in Crompton v UK (2010) 50 EHRR 36. At [73] the Court had commented on Tsfayo in this way, “Whereas in Bryan, the issues to be determined required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims, in Tsfayo the Housing Benefits Review Board (‘HBRB’) was deciding a simple question of fact, namely whether there was ‘good cause’ for the applicant’s delay in making a housing benefit claim …No specialist expertise was required to determine this issue. Nor could the factual findings in Tsfayo be said to be merely incidental to the reaching of broader judgments of policy or expediency which it was for the democratically accountable authority to take.” In Crompton itself there was a sufficiency of review by judicial review because the High Court could examine the methodology which the Army Board had used to compute the Claimant’s redundancy pay.[129]In the present case, Mr Havers submits, the factual issues which Mr Hickman identifies were just staging posts along the way to the Army Board’s ultimate judgment as to whether the Claimant had been wronged and whether he should have had his Commission extended. That did call for expertise and discretion and an assessment of whether the Claimant had the qualities which the Army needed of its chaplains.[130]In his written submissions in reply Mr Hickman drew attention to what the Army Board had said in its decision, that “had the various Boards taken into account the correspondence supplied by Ms Sentamu, that would have been a breach of MS rules and accordingly in our judgment a wrong under section 180 of the Army Act.” Accordingly, Mr Hickman submitted that this factual issue (Did the various Boards take account of the Sentamu material?) was not a staging post or incidental to any wider decision.[131]In my judgment Mr Havers’ arguments on this issue are to be preferred and, for the reasons which he gives, I would have found that the combination of a hearing before the Army Board when taken with the opportunity to seek judicial review of the Board’s decision did give the Claimant what Article 6 requires on the assumption, contrary to my earlier finding, that Article 6 was applicable at all. I do not find Mr Hickman’s argument (which I have summarised in the previous paragraph) persuasive. It underscores the artificiality of the exercise in this part of my judgment. Breach of the MS Rules may lead the Army Board to grant redress under s.180, but that is not the same thing as saying that the Claimant has an arguable legal right to a remedy from the Army Board. The Claimant only has any purchase on the type of “civil right” which Article 6 recognises if he frames his claim in terms of the impact of such a wrong on his ability to pursue his career. For the reasons which I have already given, I do not consider that that way of formulating the matter does enable him to establish an arguable claim to a civil right either. Yet, if it did, it would at the same time mean that these factual issues on which Mr Hickman relies are in reality but staging posts on the way to the fundamental question: should the Claimant’s Short Service Commission have been extended?

Conclusion

[132]For all of these reasons this application for judicial review is dismissed.

Cited in 3 later judgments