EPX, (R on the application of) & Anor v Secretary of State for Defence [2025] EWHC 1277 (Admin)

[2025] EWHC 1277 (Admin)Case No AC-2024-LON-003068
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/05/2025
Before
THE HONOURABLE MR JUSTICE SAINI
THE KINGon the application of
Between
EPXClaimantsPGHClaimantSECRETARY OF STATE FOR DEFENCEDefendant
Oliver Sanders KC and Emma-Louise Fenelon (instructed by The Centre for Military Justice) for the ClaimantsCharlotte Ventham KC and Robert Cohen (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 21 May 2025
Approved JudgmentThis judgment was handed down remotely at 4pm on Thursday 22 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MR JUSTICE SAINI
[1]This is an interim application by the Secretary of State for Defence (“the Defendant”) in judicial review proceedings brought by two women. The Defendant says that the claim as originally formulated has become academic. One of the Claimants is currently serving with HM Armed Forces and the other is a former member. By an earlier Order of this Court made on 20 September 2024 and pursuant to section 1 of the Sexual Offences (Amendment) Act 1992, and CPR 39.2, it has been directed that there shall be no publication of the names and addresses of the Claimants, nor any other particulars likely to lead to their identification in any report of these proceedings. Under that Order, the Claimants were also anonymised: the First Claimant is to be referred to as “EPX”, and the Second Claimant as “PGH”. I gave a ruling on the application at the end of the hearing with reasons to be given the next day. This judgment contains those reasons (which are in a form which seeks to avoid identification of the Claimants while referring to enough of the facts to provide context).[2]I will describe some of the background in more detail below but, by way of summary, while serving with HM Armed Forces each Claimant says she was raped. EPX says she was raped by a colleague in Royal Air Force accommodation, and PGH says she was raped at a Royal Navy base. It is said on their behalf in this claim that as a result of the Defendant’s policies (“the original policies”) which governed communications by service personnel with the media and Parliament, the Claimants were each prohibited (like all other serving personnel) from making any communications about these serious sexual assaults and wider experiences during service unless approved in advance by the Ministry of Defence (“the MoD”). The Claimants’ basic case is that the requirement to seek and obtain prior approval from the MoD, and the process it entails, inhibits and prevents service personnel, particularly women, from communicating experiences of rape, sexual assault, harassment and bullying in HM Armed Forces. They argue this has a seriously adverse impact on the victims themselves, journalists and Parliamentarians and (thereby) the wider public and the public interest.[3]Grounds 1-4 of the judicial review claim challenged the original policies on the following grounds:(1) Illegality and irrationality: the policies are ultra vires the powers of the Defendant and irrational as a matter of common law; (2) Arts. 8 and 10 of the European Convention on Human Rights (“the ECHR”): the policies are incompatible with the ECHR rights of the Claimants (and others) to freedom of expression under art. 10 and to respect for private and family life under art.8 and are therefore unlawful under section 6 of the Human Rights Act 1998 (“the HRA”); (3) Art. 14 ECHR: the policies are incompatible with the prohibition of discrimination in art. 14 (read with arts. 8 and 10) and are similarly unlawful under section 6 of the HRA; (4) Victimisation: the policies unlawfully permit, encourage and/or lead to victimisation contrary to section 27 of the Equality Act 2010 (“the EA”); and (5) Public Sector Equality Duty (“PSED”): the policies were made without due regard to the matters set out in section 149 of the EA, and therefore made in breach of the PSED. Permission to pursue judicial review proceedings on these 5 grounds against these policies was granted by an Order of Cavanagh J dated 20 December 2024. Directions were given in the normal way for service of Detailed Grounds for Contesting the Claim.[4]The hearing before me arises because the Defendant has now issued revised policies (“the new policies”) which govern communications and also claimed “whistleblowing” disclosures. There was correspondence between the parties in relation to the judicial review. However, the Defendant did not comply with Cavanagh J’s Order and instead issued an Application Notice dated 27 March 2025 (“the Application”) seeking (without a hearing) variations of that Order and requiring the Claimants to amend their grounds with provision for the Defendant to file detailed grounds relating to the new policies. The Application complained that “... the Claimants are seeking to pursue two parallel claims. On the one hand they wish to litigate as to policies which have been superseded. Their current position requires the Defendant to file detailed grounds of resistance addressing the merits of a policy framework which no longer applies. At the same time they wish to advance a challenge to the new policies (including on a similar basis to the superseded policies)...”.[5]The Application is supported by a witness statement from Mr Samuel Littlejohns, a Deputy Director of the Government Legal Department, dated 28 March 2025. In outline, on behalf of the Defendant, Mr Littlejohns says that because the Defendant has replaced the original policies with the new policies the claims have now become “academic”. However, contrary to Littlejohns, §§2 and 22, the Defendant’s application is not in reality an application to vary case management directions or to put the case “on a procedurally sound footing”, as claimed. Rather, as I said at the hearing, it appears to me to be an attempt to secure the summary disposal of a substantive dispute between the parties in relation to the original policies and in effect to set aside the permission granted by Cavanagh J. Before I turn to the Application in more detail, I need to provide some more background in order to put the issues in dispute into context. II. What happened to EPX and PGH and what they want to do[6]It is common ground that by operation of the original policies, each of EPX and PGH were prevented from communicating what happened to them without permission of the MoD. They have each provided witness statements which make difficult reading. I will refer to those statements in order to provide some basic background.[7]EPX is currently serving in the RAF. Her, thus far, uncontested evidence is that she was raped by a male colleague in the period of her initial training on military property. She reported the matter to the Service Police and they opened an investigation. She was discouraged from reporting her rape to the civilian police. Shortly after she made her report, she began to be ostracised and treated badly by the colleagues in her unit. She was told the situation was her fault because she had been drinking and she was accused of ‘crying rape’. She received verbal and other abuse from colleagues and she was accused of having made up the rape allegation. Her Officer Commanding said her name had come across his desk ‘too many times’ and ordered her not to invite any males to her room. In due course, the person who assaulted her was acquitted of the offence of rape. There are many more distressing features of EPX’s evidence but if I refer to them it may lead to her jigsaw identification.[8]PGH served in the Royal Navy. Her, thus far, uncontested evidence is that she was regularly subject to serious sexual harassment and that she was raped at a Royal Navy base. At this informal event, she was served extra measures of spirits (that she had not asked for). The males involved had the intention of getting her drunk so that they could take advantage of her and they did so. She remembers becoming frightened and distressed as a group of males removed all of their clothing. After this, she has very little memory of what happened. But she knows now (from what others have said) that she was raped in front of others. The Service Police failed to investigate aspects of her complaint and they were very disbelieving of her, and made excuses on behalf of the accused. In the end, the Service Prosecuting Authority did not bring charges of rape against her assailants. Again, I have set out the bare minimum of what is a highly distressing and much more detailed account.[9]EPX and PGH each say that they do not consider it right or fair that they should have to go through a further burdensome process to obtain explicit consent from the MoD, the institution that they are challenging, in order to share their experiences of rape and harassment with the press or with Parliament. They say, with some justification, that they would be required to reveal personal and sensitive details to justify their requests and to explain why they think it would be justified to share this information. They would have to share information with their current Chain of Command, and with different press teams within the MoD. They do not feel comfortable doing this because they would have to identify themselves for the purposes of making the application and to say they are the victims of rape. Each says that they should be able to speak about these horrific experiences without the MoD being in control.[10]It appears to me that their concerns are justified when one considers what happened when one of the Claimants sought to share information on a limited basis. In 2021, the Defence Committee of the House of Commons held an inquiry into the experiences of women in the armed forces. In advance of the Committee publishing its report, one of the Claimants specifically asked the MoD through her solicitors for its consent to allow her to speak to the press about her own experiences and views, once the report was published. Her solicitors asked of the MoD:
‘Once the Inquiry reports, it will be important that those that are the subject of it are permitted to communicate with the public, through the media, about its contents and recommendations, should they wish to do so and without having to seek the prior consent of the institution that is likely to be the subject of the recommendations and, potentially, some criticism.’
The request was refused with the MoD saying:
‘...what your clients seek is an entirely unconstrained ability to comment publicly on the contents and recommendations of the Committee’s report including, potentially, private information about others; information which gives rise to personal security issues; or comment which goes beyond personal matters and raises UK Defence and Government matters such as concerns about the approach and systems of the Armed Forces in handling and resolving the types of experiences that they claim to have suffered.’
This was a somewhat surprising response and shows the nature of the problem with the original policies in issue.[11]One of the Claimants explains in her evidence that it is striking that the MoD requires prior approval of (and would wish to control) what she says about her rape and experiences when for many years the MoD has used footage and information about her to promote HM Armed Forces as a positive place for women. She was a “poster girl” for them and the MoD has also used her profile to promote HM Armed Forces as a “safe and positive place” for women. She says the policies create a huge imbalance, and explains that it makes her feel as though the MoD can “control” how she can publicly portray her experience as a woman in the Armed Forces for its own benefit and in a hypocritical way. III. The Application[12]The Application originally came before me as a “paper” application for directions a few weeks ago. Given the history of this matter and the substantial public interest of the issues raised (as well as the concerns I have summarised above about the procedure adopted by the Defendant - in substance seeking to set aside permission) I was not willing to make an order without a hearing. Accordingly, I made an Order dated 8 April 2025 (“the Directions Order”) with directions for what needed to be done before the oral hearing. I observed as follows in my reasons for making that Order (with my underlined emphasis):
“I am not persuaded that the directions sought in the Application should be made without the Court having heard from both parties at a hearing. These directions are not mere mild procedural variations but will have the effect, if granted, of achieving a wholesale change in the nature of the challenge the Claimants wish to bring. In particular, there are important public interest issues raised by the challenge, the target of the challenge, and the procedural history of alleged delay by the MOD. I would expect disclosure/further information to be provided to the Claimants to enable them to provide the Court with a draft re-amended pleading (ASFG) in time for the hearing. In the meantime, the Defendant's existing procedural obligations to respond to the claim remain in force. For the avoidance of doubt, they are not stayed. I will be assisted with knowing the shape of the defence when considering the Application (and the claim it may be in part academic) and making further directions for resolution of the claim. I have reserved this matter to myself because I have spent some time on reading the core papers. If however my availability with other cases at the start of next term makes it difficult to fix an early hearing before me, the matter can be released to another judge. The overall delays justify the Application being heard urgently...”
[13]The Application was listed before me on 21 May 2025 for an oral hearing. The Defendant, in purported compliance with my Directions Order (and as had in fact been required under Cavanagh J’s Order made as long ago as 20 December 2024), served a document entitled “Defendant’s Response to the Grounds of Claim” (“the Response”) dated 12 May 2025. I am sorry to say this is a misdescription of its contents and it is nothing of the sort. In short, it is not a response to the arguments concerning alleged unlawfulness of the original policies. It does not address, let alone concede, any of Grounds 1-4, i.e. the Defendant’s position appears to be that the original policies were lawful. I note that the Defendant concedes only part of Ground 5 by accepting that one of the original policies (called the 2020 Media DIN: see [18] below) was formulated in breach of the PSED.[14]The approach of the Defendant to compliance with my Directions Order falls below the standards the Administrative Court is entitled to expect from a Government Department. I made it clear that I wished to see the Response in order to know the shape of the defence when considering the Application (and the submission that the claim may be academic), and for the purpose of making further directions for resolution of the claim. I wanted to know what the Defendant said about the challenge to the legality of the original policies, but the Response as served does not help me on that issue. It simply fails to engage with the claim including a response to the serious factual allegations of rape by armed forces personnel and what appears (on the basis of the materials I have seen) to be an attitude of victim blaming and cover-up by those in positions of responsibility, combined with a silencing of the Claimants.[15]In particular, it appears to be the case that the Defendant (sub silentio) maintains the legality of the original policies in circumstances where it does not appear to be in issue that they did in fact seriously curtail the free speech rights of the Claimants. The Response does however set out a defence of the new policies against an anticipated challenge to them (which had yet to be pleaded on behalf of the Claimants).[16]For completeness, I should record that Ms Ventham KC said that there was a “degree of confusion” as to whether the Directions Order required the Defendant to respond by way of Detailed Grounds to the claim based on the original policies given that the purpose of the Application was to avoid having to respond. I found this a surprising submission when one considers the terms of my Order and reasons which I have set out (and underlined) above. It could not have been clearer that there was no stay of the existing procedural obligations under Cavanagh J’s permission order.[17]I should also record that I am disappointed that the Claimants’ representatives appear to have overlooked my direction that they provide draft amended grounds in advance of the hearing before me. Mr Sanders KC said this was an “oversight”. He explained that some further time would be needed to consider the nature of the amendments and that the Claimants may wish to provide further evidence. I have however been provided in the Claimants’ skeleton at [4.4] with an outline sketch of the challenges they wish to make to the new policies. That will need to be reduced to a pleading. IV. The original and the new policies[18]The original policies the subject of challenge were contained in Defence Instruction Notices (“DIN”) as follows: i. 2020DIN03-005 “Contact with the Media and Communicating in Public” (“the 2020 Media DIN”). ii. 2019DIN05-14 “Contact with Parliamentarians” (“the 2019 Parliamentarian DIN”). iii. 2023DIN05-028 “Contact with Parliamentarians” (“the 2023 Parliamentarian DIN”).[19]The Defendant says that none of the original policies remain in force and (since these proceedings were commenced) they have all been revoked and replaced. The current policy framework (“the new policies”), insofar as applicable to the matters in issue in this claim, is said to consist of the following: i. DIN “Contact with the media and communicating in public” (“the 2025 Media DIN”). ii. 2024DIN05-040 “Contact with Parliamentarians” (“the 2024 Parliamentarian DIN”). iii. JSP492 “Raising a Concern” chapter (“the Raising a Concern policy”).[20]The Defendant says that the Claimants’ challenge to the original policies was rooted in the assertion that they “impose a blanket ban on or “brightline rule” against [any communications by service personnel with the media and Parliament] during service unless approved in advance by D”. Ms Ventham KC argues that this criticism cannot be made of the new policies. In particular, she submitted that the 2025 Media DIN does not apply to service personnel who “wish to raise a concern using the whistleblowing protections provided by legislation or extended through MOD policy”. The same is said to be true of the 2024 Parliamentarian DIN. In other words, the alleged “brightline rule” complained of by the Claimants is said now not to exist.[21]As to the original policies, Ms Ventham KC accepts that the 2020 Media DIN was introduced without due regard to the matters set out in section 149 of the EA and therefore in breach of the PSED. To that extent, she said that Ground 5 of the claim is conceded. However, she submits that the revisions made to the applicable policy framework since the claim was issued have addressed, and rendered academic, the issues raised in the original grounds of claim. Further or alternatively, she argued that detailed exploration of a series of old policies and/or the individual grounds of challenge to them, where a concession of unlawfulness (even if only in part) has been made, would be an academic exercise, which judicial review proceedings should not be used to conduct.[22]Although no formal defence of the original policies has yet been pleaded, I note that there is an attempt in the Response to seek to defend some aspects. So, there is the suggestion that the 2020 Media DIN was “primarily directed at communication with the media (or otherwise in public) by personnel who were speaking (or purporting to speak) on behalf of the MOD - as opposed to personnel speaking on behalf of themselves (i.e. in a personal capacity) about the MOD” (Response §18). That is wholly unconvincing. That policy said it contained:
“The authorisation procedures that all members of the armed forces and MOD civilians must follow before making or responding to contact with the media or communicating in public”
. It described its purpose as:
“the arrangements that all MOD (Ministry of Defence) personnel, military and civilian, must follow if they wish to have contact with the media, or write or speak publicly on defence or government matters”
. Contrary to what is suggested by the Defendant in the Response, the words “on behalf of” do not appear in that policy, whereas the words “all contact” appear five times.[23]Mr Sanders KC argued that the Defendant has “fenced” with the claims for years and he is continuing to do so with the Application. I note that the personal identity of the Defendant has changed over the relevant years. Mr Sanders KC submitted that it has never once occurred to the Defendant that he owes a response to these women who were raped by his personnel while in his service. It was argued that from the moment the Defendant received the PAP letter dated 21 February 2021, the Defendant has instead proceeded on the basis that he can escape the courtesy of a response as and when he chooses simply by amending his policies. Mr Sanders KC said that having argued that the claims were “unnecessary and premature” for some four years, the Defendant now argues they are “academic”. He forcefully submitted that it matters to the Claimants that they were adversely affected and their rights were breached by unlawful policies; it matters to them that the Defendant maintained these policies in place for four years after they were first challenged; it matters to them that the Defendant has treated them with “disdain”, that the Defendant has never engaged with their challenge and has assumed that he will never need to do so; it matters to them that the Defendant still maintains that the policies were lawful and that he was entitled to keep them in place; and it matters to them that the Defendant is seeking an outcome which would leave him free to revert to the previous policies at any time he chooses.

V. Are the claims academic?

[24]I considered the relevant principles recently in Caterpillar (Xuzhou) Ltd, R (on the application of) v Secretary of State for Business and Trade & Anor [2025] EWHC (Admin) 1124 at [136], where I explained by reference to the Administrative Court Guide (2024) at [6.3.4.2], that in “exceptional circumstances”, the court may exercise its discretion to determine a claim even though the outcome has become academic for the claimant. I said that a more structured approach is perhaps to consider whether on the facts before the court there is a wider public interest in resolving the issues. One of the underlying policy reasons why courts do not usually decide academic issues is because limited judicial resources should be used on deciding real issues in dispute, particularly when there are substantial pressures on the list in the Administrative Court. I said a “good reason” needs to be identified for not following this policy imperative. If many people are affected by the decision under challenge and its impact goes beyond the immediate parties that is potentially a “good reason”.[25]In my judgment, not only are the challenges not academic but, had they been, I would have decided that there were good reasons for allowing them to continue to judgment on the legality of the original policies.[26]I begin with my reasons for concluding that the challenges to the original policies are not in fact academic.

(a) of the HRA:

“(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a) bring proceedings against the authority under this Act in the appropriate court or tribunal...”.”
[27]The Claimants say that the Defendant has acted in a way which was made unlawful by the HRA, section 6(1) by applying the original policies to them. In my judgment, they are entitled to have that claim determined and to argue that the relief they are seeking is “just and appropriate” for the purposes of section 7(1)(a) of the HRA. The false logic of the Defendant’s position is that a claim brought against a public authority for past breaches of the HRA would become “academic” if the authority discontinued the breach. That cannot be right. A historic violation of Convention rights can always ground a claim and in most cases the breach will have been in the past. There is rightly no suggestion by Ms Ventham KC that the experiences of the Claimants and how their free speech rights have been restrained in the past do not raise a serious case for the MoD to answer as regards the legality of the original policies. She also accepted that the HRA claims the Claimants bring could be brought in private law proceedings and the court would not regard them as academic.[28]In the Response it is contended, in effect, that the challenge to the original policies is academic because the new policies are lawful (§§25-40). But this misses the point: the issue is whether the previous policies were unlawful at the time they were in force and whether the Claimants’ ECHR rights were violated by restraints.[29]However, even if contrary to my judgment, the claim has become academic, the impressive and in many respects distressing evidence of Emma Norton, Solicitor of the Centre for Military Justice (CMJ) shows there is a substantial public interest in the legality of the original policies being considered by the Court. Ms Ventham KC accepted this evidence was relevant to the public interest considerations which arise. In the light of this evidence (see further below) I have concluded that there is clearly a “good reason” for the Court to decide the legality of the original policies (particularly the HRA complaints) when it considers the legality of the new policies (a matter which the Defendant accepts will go forward). So, judicial resources are going to be spent in any event, and I do not consider, based on my reading of the materials, that a challenge to the original policies will substantially increase the time estimate.[30]I will outline the parts of Ms Norton’s evidence which I found persuasive in this regard. The CMJ was established in 2019 to provide legal support to people in the armed forces, or their bereaved families, in particular where there have been allegations of sexual assault, sexual harassment/discrimination, or other forms of unacceptable or illegal conduct. Ms Norton has (over a long period of time) been contacted by substantial numbers of service personnel who wish to speak out publicly about various matters of concern in the armed forces. Her extensive experience shows that this has never entailed a desire to communicate information that might be considered particularly sensitive, in terms of revealing defence secrets. She says that enquiries have always concerned a personal experience or event which, in the opinion of the person concerned, may reflect a wider problem in the armed forces and they want to be able to talk about it. The classic and most common example she gives is where a service woman has suffered sexual discrimination or sexual assault and is unhappy at the quality of the service response she has received and which she thinks may be indicative of a wider issue with the service. Ms Norton describes that her response is always the same: if they are serving, they are prevented from communicating with the press or Parliament by the policies. As she accurately describes, the policies essentially require them to seek the consent of the MoD before making any public communication or communication to Parliament (including to the Defence Committee); and if they do not abide by the policy then, as the policy itself states they run the risk of being made subject to minor or major ‘Administrative Action’ (disciplinary action) or even charged with an offence under the Armed Forces Act 2006. This has had a serious chilling effect: she has never known of anyone she has supported deciding to make an application for permission, save the example of one of the Claimants and that was refused (see above at [10]).[31]Ms Norton explains that she thinks such applications will be exceptionally rare if not non-existent in the context of sexual assault and harassment, and very rare in relation to any matter to do with what the MoD terms ‘unacceptable behaviours’. Her evidence shows that there is a concern that simply by making the application to be permitted to communicate externally, service personnel risk harming their career, and, in many cases, would have to reveal highly personal identifiable information to people inside their particular service branch or MoD press teams just for the purposes of seeking authorisation. She also explains that those involved in the authorisation process are not well placed or qualified to deal with such matters. Most of her clients are victims of sexual offences so very particular considerations arise in those cases. They therefore decide against speaking out publicly until after they have left service which may be many years after the events in issue. In the meantime, they and others are exposed to the ongoing risk of harm. Furthermore, at the point of discharge, some will just want to move on with their lives and put the past behind them. Some will not have the motivation or energy for a public argument with their former employer or feel that, as ex-service personnel, their voices will count for less or be ignored or it will be assumed that they have an axe to grind. Others may take the risk of communicating while they are in service, anonymously and knowingly in breach of the policy.[32]In my judgment, overall, the evidence of Ms Norton provides compelling reasons as to why the Administrative Court should consider the legality of the original policies when it considers the challenge to the new policies. Of course, it is always open to the Defendant, with advice, to reconsider whether its apparent position that the original policies were lawful is sustainable in light of the fact that (on its own case) the policies have been radically amended. V. Orders[33]The Application is dismissed with costs. I made further directions at the hearing for further conduct of the claim with a substantive hearing in the Term beginning 1 October 2025.