A soldier under orders to proceed from his station in one Indian presidency to take part in the war going on in another; and making his will only two clays before he commenced the march, is not entitled to the privilege of a military testament.
[1854] EngR 432, (1854) 1 Sp Ecc and Ad 294, (1854) 164 ER 170
England and Wales
Updated: 20 December 2022; Ref: scu.293289
The deceased was an off-duty naval airman. The claim was based upon the alleged negligent failure of the defendant to enforce disciplinary regulations against drunkenness so as to protect the deceased against his own known proclivity for alcohol abuse.
Held: The Ministry of Defence has no duty to prevent a forces member from the abuse of drink. It was not liable, even though the death from drunkenness was contributed to by an officer’s encouragement. The Ministry was liable on the basis that, following his collapse, service personnel voluntarily assumed a duty of care by acting as the deceased’s quasi-rescuer and were negligent in that capacity. In relation to the original drunkenness of the deceased, the court emphasised that foresight of harm alone was not sufficient to create a duty to guard him against his own folly.
Beldam LJ said: ‘The plaintiff argued for the extension of a duty to take care for the safety of the deceased from analogous categories of relationship in which an obligation to use reasonable care already existed. For example, employer and employee, pupil and schoolmaster, and occupier and visitor. It was said that the defendant’s control over the environment in which the deceased was serving and the provision of duty-free liquor coupled with a failure to enforce disciplinary rules and orders were sufficient factors to render it fair just and reasonable to extend the duty to take reasonable care found in the analogous circumstances. The characteristic which distinguishes those relationships is reliance expressed or implied in the relationship which the party to whom the duty is owed is entitled to place on the other party to make provision for his safety. I can see no reason why it should not be fair just and reasonable for the law to leave the responsible adult to assume responsibility of his own actions in consuming alcoholic drink … . To dilute self-responsibility and to blame one adult for another’s lack of self-control is neither just nor reasonable and in the development of the law of negligence an increment too far.’
As to the context of the armed forces and its regulations: ‘In my view the judge was wrong to equate Queen’s Regulations and Standing Orders with guidance give in the Highway Code or in pamphlets relating to safety in factories. The purpose of Queen’s Regulations and Standing Orders is to preserve good order and discipline in the Service and to ensure that personnel remain fit for duty and, while on duty, obey commands and, off duty, do not misbehave, bringing the service into disrepute. All regulations which encourage self-discipline, if obeyed, will incidentally encourage service personnel to take greater pride in their own behaviour but in no sense are the Regulations and Orders intended to lay down standards or to give advice in the exercise of reasonable care for the safety of men when off duty drinking in bars. . .’
Beldam LJ
Times 13-Jan-1995, Independent 03-Jan-1995, [1995] 1 WLR 1217, [1994] EWCA Civ 7, [1995] 3 All ER 87
Fatal Accidents Act 1976, Law Reform (Miscellaneous Provisions) Act 1934
England and Wales
Appeal from – Barrett v Ministry of Defence QBD 3-Jun-1993
The MOD was liable in negligence for an airman’s death due to its breach of duty if regulations were not kept to. . .
Cited – Jebson v Ministry of Defence CA 28-Jun-2000
The claimant was a guardsman travelling in the rear of a service lorry. He fell from the tailgate suffering severe injury. He was drunk after a social trip.
Held: Though a person could normally expect to be responsible himself for incidents . .
Cited – Calvert v William Hill Credit Ltd ChD 12-Mar-2008
The claimant said that the defendant bookmakers had been negligent in allowing him to continue betting when they should have known that he was acting under an addiction. The defendant company had a policy for achieving responsible gambling, . .
Applied – Michael Alexander Watson v British Boxing Board of Control Ltd, World Boxing Organisation Incorporated CA 19-Dec-2000
The claimant was seriously injured in a professional boxing match governed by rules established by the defendant’s rules. Ringside medical facilities were available, but did not provide immediate resuscitation. By the time he received resuscitation . .
Cited – Geary v JD Wetherspoon Plc QBD 14-Jun-2011
The claimant, attempting to slide down the banisters at the defendants’ premises, fell 4 metres suffering severe injury. She claimed in negligence and occupiers’ liability. The local council had waived a requirement that the balustrade meet the . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.78255
(Open judgment agreed after hearing using closed material) The claimants in this case are Pakistani nationals both of whom allege that they were captured by British forces in Iraq in February 2004. They contend that they were subsequently handed over to United States’ control and, thereafter, taken to Afghanistan where they were subjected to prolonged detention, torture and mistreatment.
The case against the defendants is based upon three broad categories of allegation:
i. mistreatment by UK personnel upon arrest and before the claimants were transferred to United States’ control;
ii. transfer to United States’ control; and
iii. failures thereafter to intervene to bring the claimants’ detention to an end and/or stop the United States’ authorities from further mistreating them (‘the return claim’)
The claims are strenuously denied.
This hearing considered the issue of disclosure.
Turner J
[2019] EWHC 3849 (QB)
England and Wales
Updated: 09 December 2022; Ref: scu.652256
Claims by Iraqi citizens to have been detained by the British forces in Iraq and handed over to the US Army – ‘ preliminary issue to determine whether the claims in tort made in these handover cases have a valid legal basis under Iraqi law.’
Leggatt J
[2015] EWHC 1254 (QB)
England and Wales
Updated: 07 December 2022; Ref: scu.546887
The claimant challenged the procedures operated by the defendant for the transfer of detainees in Afghanistan to the Afghan authorities, saying that they involved mistreatment.
Richards LJ, Cranston J
[2010] EWHC 1445 (Admin)
England and Wales
Updated: 07 December 2022; Ref: scu.418445
In a collision in fog between the steamship Clan Stuart and the steamship Orlock Head, whilst both were travelling in convoy in the English Channel, the Clan Stuart was lost. It was said that the Orlock Head was engaged on a warlike operation and that the collision arose as a consequence of that warlike operation. The Orlock Head was carrying steel bars for munitions to France and was following a course set by the Admiralty.
Held: The court considered the significance which can flow from merchant vessels having travelled in convoy.
Atkinson J: ‘The conclusion at which I have arrived from a careful examination of the authorities to which I have referred is this, that a warlike operation is one which forms part of an actual or intended belligerent act or series of acts by combatant forces; that part may be performed preparatory to the actual act or acts of belligerency, or it may be performed after the actual acts or acts of belligerency, but there must be a connection sufficiently close between the act in question and the belligerent act or acts to enable a tribunal to say, with at least some modicum of Lord Dunedin’s common sense, that it formed part of acts of belligerency. If military equipment is being taken in a ship to a place behind the fighting front from which the forces engaged, or about to be engaged on that front, may be supplied, that ship may beyond question be said to be taking part in a warlike operation. If a ship is bringing home such equipment after it has been employed on a fighting front, or has been lying available for and at the service of a fighting front, again beyond question in view of the decisions she is taking part in military operation; but to hold that to carry steel rounds on behalf of the French Armament Mission from Manchester to a port mainly used for commercial purposes, albeit also used at times for receiving supplies of munitions of war, for the purpose of carriage to some factory or factories doubtless to be chosen because of their distance from the fighting front, is a warlike operation would be to hold something which, in my judgment, would be completely out of harmony with the substance of everything said since Britain Steamship Company, Ltd. v. The King, sup. The cargo of the Orlock Head was not yet military equipment. I do not say that that is in itself conclusive. It is unnecessary so to decide. Army workshops may, for all I know, have to handle much material not yet in its final usable form, but this cargo was not destined for a force in the field, but only for a factory; it was not being carried to a place where it would be available for an army in the field; that is, an army engaged in or about to engage in acts of belligerency; it was not connected with any belligerent act or acts of an army in being; and, in my judgment, it is outside everything indicated in the cases to which I have referred. It is quite true that odd sentences here and there may be found in the judgments and opinions given in the cases which, taken by themselves, may seem to go beyond the view which I think the cases present; for example, a passage much stressed by Mr. Hodgson: ‘The real point to my mind …. is whether the ship in question was engaged on a war errand, so that she was engaged in a warlike operation at the moment when the collision occurred,’ language used by Lord Wrenbury in Liverpool and London War Risks Insurance Association, Ltd v Marine Underwriters of s.s. Richard de Larrinaga, but if the context is examined it will be seen that he was speaking, not of a commercial ship, but of a warship where different considerations apply. If there is to be a further development in the application of the words ‘warlike operation’ it must come from a higher tribunal than a judge of first instance. In my judgment, therefore, the collision was not a consequence of hostilities or of a warlike operation, and the claim fails’.
Atkinson J
[1942] 73 Ll L Rep 165
England and Wales
Applied – Britain Steamship Company Limited v The King and Others (‘The Matiana’) HL 1921
The House considered the relationship between a merchant vessel in convoy and a convoying naval vessel.
Held: The appeal succeeded. Lord Atkinson: ‘With all respect, I am quite unable to concur in the learned judge’s view that the merchant . .
Cited – Fogg and Ledgard v The Secretary of State for Defence, Short Admn 13-Dec-2005
The applicants sought judicial review of a decision of the respondent not to name the wreck of the merchant ship SS STORAA as a protected site under the 1986 Act. It had been a merchant ship forming part of a convoy, and was sunk by enemy action in . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.237693
The claimant, which is responsible for managing property belonging to the Ministry of Defence (including residential property), to house members of the Armed Forces and their families, seeks possession of premises in Leeds in which the defendant and members of her family are living, and the claimant also seeks damages for use and occupation.
[2009] EWHC 1049 (Admin)
England and Wales
Updated: 06 December 2022; Ref: scu.346707
The claimant renewed his application for leave to appeal against refusal of a judicial review of a decision of the Pensions Appeal Tribunal. He was injured in a motorcycle accident whilst on National Service in 1951. He challenged a decision to reduce his disability pension from 70 to 30 per cent. The appeal tribunal had declined jurisdiction.
Held: The Pensions Appeal Tribunal had acted beyond its powers. The appeal was allowed. In case of an appeal under section 5(1) of the 1943 Act on the issue of assessment only, the tribunal must start upon the basis of the minister’s acceptance that there was a disability within article 41(1) of the 2006 Order. In this case there was no difficulty in differentiating between the assessment of the extent of disability and whether there was a disability in the first place. This was a decision as to extent, and the tribunal should have allowed the claimant to present his appeal.
Lord Justice Laws, Lord Justice Wall and Lord Justice Aikens
[2009] EWCA Civ 451, Times 15-Apr-2009
Pensions Appeal Tribunals Act 1943 5(1), Naval, Military and Air Forces, Etc (Disablement and Death) Service Pensions Order 2006 (SI 2006 No 606)
England and Wales
Appeal From – Bunce, Regina (on the Application of) v Pensions Appeal Tribunal Admn 5-Mar-2008
. .
Applied – Scanlon, Regina (on the Application of) v Pensions Appeal Tribunals and Another Admn 31-Jan-2007
Where there was an appeal under section 5(1) of the 1943 Act on the issue of assessment only, the tribunal must start upon the basis of the minister’s acceptance that there was a disability within article 41(1) of the 2006 Order. . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 December 2022; Ref: scu.330949
[2007] EWHC 1451 (Admin)
England and Wales
Updated: 06 December 2022; Ref: scu.253563
Renewal of Mr Gunn’s application for leave to appeal against his conviction for battery by a Court Martial Board. The first ground advanced relates to the constitution of the Board.
Lady Justice Hallett DBE VP
[2018] EWCA Crim 1384
England and Wales
Updated: 05 December 2022; Ref: scu.651736
Where an army doctor was accused of failing to diagnose a serviceman’s ocular cancer, the negligence which caused the consequent injury was caused by the delay in a correct diagnosis, and the treatment fell within the scope of Crown Immunity.
Times 30-Mar-1999, Gazette 21-Apr-1999, [1999] EWCA Civ 1016, [1999] PIQR P204
England and Wales
Appeal from – Derry v Ministry of Defence QBD 8-Jun-1998
A military doctor has exemption under Crown Immunity, from liability from his failure to diagnose and treat ocular cancer properly, and the exemption applied even though the medical condition pre-existed the treatment. The cause of action lay in the . .
Cited – Matthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 December 2022; Ref: scu.145931
[1999] EWCA Civ 797
England and Wales
Updated: 05 December 2022; Ref: scu.145712
War Pensions and Armed Forces Compensation – War Pensions – Assessment
[2019] UKUT 409 (AAC)
England and Wales
Updated: 04 December 2022; Ref: scu.651684
Blair
[2012] EWHC 2267 (QB)
England and Wales
Updated: 04 December 2022; Ref: scu.463363
A ban on homosexuals serving in the armed forces was not irrational, and the challenge to the ban failed. The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations. ‘The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.’ Profound cultural changes do take time, but ‘A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z.’
Sir Thomas Bingham MR
Times 06-Nov-1995, [1996] QB 517
England and Wales
Appeal from – Regina v Ministry of Defence Ex Parte Smith and Others QBD 7-Jun-1995
An MOD ban on employing homosexuals was not Wednesbury unreasonable, even though it might be out of date. Pannick (counsel for the applicant, approved): ‘The court may not interfere with the exercise of an administrative discretion on substantive . .
Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Appeal from – Smith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
Cited – Bennett v Officers A and B and Commissioner of Police for the Metropolis CA 2-Nov-2004
Police Officers had been involved in a shooting in which a man died. They were granted anonymity before the coroner’s court, on evidence suggesting they might be at risk. The family of the deceased appealed.
Held: The coroner misdirected . .
Cited – A and Others, Regina (on the Application of) v Lord Saville of Newdigate and others CA 28-Jul-1999
Former soldiers who had been involved in the events in Londonderry in 1972, and were to be called to give evidence before a tribunal of inquiry, still had cause to fear from their names being given, and so were entitled to anonymity when giving such . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 November 2022; Ref: scu.87689
[2003] EWCA Civ 817
England and Wales
Updated: 25 November 2022; Ref: scu.184061
(Canada) The court discussed the human rights compliance of the courts martial system, and whether the trial of a soldier on a criminal charge by a General Court Martial met the requirements of s 11(d) of the Charter. L’Heureux-Dubee J said: ‘When measuring the General Court Martial against the requirements of the Charter, certain considerations must be kept in mind. Among those considerations are that the armed forces depend upon the strictest discipline in order to function effectively and that alleged instances of non-adherence to rules of the military need to be tried within the chain of command’.
Lamer CJC said: ‘The essential conditions of independence, or basic mechanisms by which independence can be achieved, were discussed by Le Dain J. in Valente. He emphasized that a flexible standard must be applied under s. 11(d). Since s. 11(d) must be applied to a variety of tribunals, it is inappropriate to define strict formal conditions as the constitutional requirement for an independent tribunal. Mechanisms that are suitable and necessary to achieve the independence of the superior courts, for example, may be highly inappropriate in the context of a different tribunal. For this reason, the court chose to define three essential conditions of independence that can be applied flexibly, being capable of attainment by a variety of legislative schemes or formulas . . Similarly, s. 11(d) of the Charter requires that a decision-maker have a basic degree of financial security. The substance of this condition is as follows . . `The essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the executive in a manner that could affect judicial independence.’
Within the limits of this requirement, however, the federal and provincial governments must retain the authority to design specific plans of remuneration that are appropriate to different types of tribunals. Consequently, a variety of schemes may equally satisfy the requirement of financial security, provided that the essence of the condition is protected.’
Lamer CJC also said: ‘I emphasize that an individual who wishes to challenge the independence of a tribunal for the purposes of s. 11(d) need not prove an actual lack of independence. Instead, the test for this purpose is the same as the test for determining whether a decision-maker is biased. The question is whether an informed and reasonable person would perceive the tribunal as independent.’
L’Heureux-Dubee J, Lamer CJC
(1992) 88 DLR (4th) 110
Canada
Updated: 25 November 2022; Ref: scu.420998
[2003] EWHC 2867 (Admin)
England and Wales
Updated: 23 November 2022; Ref: scu.188525
A member of the armed forces had died. The Department of Social Services had decided that his death was attributable to service for the purposes of the War Pension Scheme. The Defence Council sought to determine again whether his widow was entitled to a family pension under the Armed Forces Pension Scheme.
Held: The decision of the Social Service department was binding on the Secretary of State. Construing the regulation so as to require a second determination of substantially the same question was not intended, and the Defence Council was not in a position itself to make such an inquiry.
Neuberger J
Times 25-Apr-2003
Queens Regulations for the Royal Air Force 3090(1)
England and Wales
Appeal from – Secretary of State for Defence v Pensions Ombudsman CA 19-Nov-2003
A member of the Armed Forces had died whilst mountaineering. The Department of Social Security had decided that the death was attributable to his service for the purposes of the war pension scheme. The Ombudsman had held himself bound by that . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 November 2022; Ref: scu.181853
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 with regard to general structure of court martial system; No violation of Art. 6-1 with regard to specific complaints; No violation of Art. 6-3-c; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings
The factor which gave rise to an allegation of bias is that the members of a court-martial are subject in general to ‘the risk of outside pressure .. and that there was no statutory or other bar to their being made subject to external Army influence when sitting on the case’ The risk of perceived bias was because of pressure on the decision-maker not to make a decision of which his employer would disapprove.
38784/97, (2002) 34 EHRR 1253, [2002] ECHR 162
Human Rights
Cited – Regina v Boyd, Hastie, Spear (Courts Martial Appeal Court), Regina v Saunby, Clarkson, English, Williams, Dodds, and others HL 18-Jul-2002
Corts Martial System Complant with Human Rights
The applicants were each convicted by courts martial of offences under civil law. They claimed that the courts martial were not independent tribunals because of the position of the president of the court, and that it was wrong to try a serviceman by . .
Cited – PD, Regina (on the Application of) v West Midlands and North West Mental Health Review Tribunal Admn 22-Oct-2003
The claimant was detained as a mental patient. He complained that a consultant employed by the NHS Trust which detained him, also sat on the panel of the tribunal which heard the review of his detention.
Held: Such proceedings did engage the . .
Cited – Haase, Regina (on the Application of) v Independent Adjudicator and Another CA 14-Oct-2008
The appellant complained that as a prisoner he was subjected to disciplinary proceedings for refusing to co-operate with drugs tests. He said that he had not been informed that there would be a penalty if he did not comply. He now complained that . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 November 2022; Ref: scu.167676
Spencer J
[2011] EWHC 1690 (QB)
England and Wales
Updated: 20 November 2022; Ref: scu.441401
Whether the UK government has any right in law to imprison people in Afghanistan; and, if so, what is the scope of that right.
[2014] EWHC 1369 (QB), [2014] CN 1019
England and Wales
Updated: 19 November 2022; Ref: scu.525175
The Secretary of State appealed an order declaring the wreck of a merchant ship lost through enemy action in 1943 when part of a convoy. He said it was wrong in law to make the declaration, having not been in military service as such when sunk even though in a convoy.
Held: The Secretary of State argued for a narrow meaning of the phrase ‘in service’. Under the 1866 Act a officer on board a convoy ship was subject to military discipline. The British Steamship case was directly appicable. The judge’s order was correct; the Secretary of State’s interpretation of the 1986 Act was too narrow.
Sir Anthony Clarke, Rix LJ, Longmore LJ
[2006] EWCA Civ 1270, Times 10-Oct-2006, [2007] QB 96, [2006] 3 WLR 931
Military Remains Act 1986, Naval Discipline Act 1866 31
England and Wales
Applied – Britain Steamship Company Limited v The King and Others (‘The Matiana’) HL 1921
The House considered the relationship between a merchant vessel in convoy and a convoying naval vessel.
Held: The appeal succeeded. Lord Atkinson: ‘With all respect, I am quite unable to concur in the learned judge’s view that the merchant . .
Approved – Britain Steamship Company Limited v The King and Others (‘The Matiana’) CA 1919
The court was asked wheter a merchant vessel was acting a a military ship when in convoy.
Held: The appeal succeeded. Warrington LJ said: ‘Of course the sailing with convoy may easily assume the character of a warlike operation; if the convoy . .
Appeal from – Fogg and Ledgard v The Secretary of State for Defence, Short Admn 13-Dec-2005
The applicants sought judicial review of a decision of the respondent not to name the wreck of the merchant ship SS STORAA as a protected site under the 1986 Act. It had been a merchant ship forming part of a convoy, and was sunk by enemy action in . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.245188
The claimants sought damages for psychiatric injury for stress and anxiety in being engaged on the behalf of the respondent in the course of combat.
Held: The defendant had no duty to maintain a safe system of work for military personnel during combat operations. The term ‘combat’ must be given a wide meaning. The immunity was not limited to accasions when an enemy was present, but extended to all activities directed against an enemy where the service personnel were at risk of attack themselves.
Owen J
Times 29-May-2003, [2003] EWHC 1134 (QB)
England and Wales
Cited – Bici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 November 2022; Ref: scu.182727
The applicant had been a sergeant in the army. He had misused army property and his uniform to assist in smuggling operations. After serving his sentence he now sought repayment of the money he had earned.
Held: His claim failed. The money had been earned by his msuse of his official position, and therefore his employer was entitled to keep the money even though it had been earned unlawfully. The soldier owed a fiduciary duty to the Crown, which was an additional ground on which he lost his claim.
Viscount Jowitt LC, Lord Porter, Lord Normand, Lord Oaksey
[1951] AC 507, [1951] UKHL 1, [1951] 1 All ER 617, [1951] 1 TLR 480, 95 Sol Jo 155
England and Wales
Cited – Walsh (as executrix of the estate of David G Walsh) and Others v Deloitte & Touche Inc , Trustee of the estate of Bre-X Minerals Limited , a bankrupt PC 17-Dec-2001
(Bahamas) Shares were sold in a mining company whose prices had been buoyed by rumour, but where disclosure of difficulties had not been made, and eventually it became clear that samples had bee fraudulently salted. The company became insolvent, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 November 2022; Ref: scu.180655
The defendant, a corporal in the Royal Corps of Signals had been tried and convicted by a Court Martial in Egypt for the murder of an Egyptian national in an Egyptian village. The issue in the appeal was whether a Court Martial had jurisdiction under the statute creating it to try for murder a British subject who had killed an alien abroad in circumstances which would amount to murder if the killing was done in England and Wales. It was argued that section 9 of the 1861 Act extended the law of murder beyond the offence of murder at common law where the victim had to be a British subject, otherwise the requirement that the killing should be ‘within the Queen’s peace would not be satisfied.
Held: The appeal failed. The general rule of English law had been that the offences committed by British subjects out of England were not punishable by the criminal law of England. Statute had made exceptions to that rule, including the statute of King Henry VIII. After considering the statutory provisions that governed the jurisdiction of Courts Martial, the court concluded that a person subject to military law could be tried for any offence, wherever committed, which would be an offence against the law of England; the crime of murder when defined in a statute had the meaning it always had: an unlawful killing with malice aforethought.
As to the comment of Lord Ellenborough in R v Serva ‘That, of course, is entirely intelligible. Nobody would suggest that an English court could try an alien for an offence not committed on English soil.’ Speaking as to whether the victim of a killing committed abroad had historically to be a British subject if the killing was to amount to murder. He observed: ‘It was no doubt to allay any doubts that there may have been on the subject that section 9 of the Offences against the Person Act 1861 is in such wide terms . . We have no doubt that when the word ‘murder’ is found in a statute it has the meaning which has always attached to it throughout the ages, namely, an unlawful killing with malice aforethought.’
Lord Goddard CJ, Havers and Glyn Jones JJ
[1954] 1 QB 170
Offences Agansit the Persons Act 1981 9
England and Wales
Cited – Regina v Serva and nine others 26-Jul-1845
The court considered the meaning of the phrase ”against the peace of the King’
Held: The phrase applies to the offender: it relates to his capacity to commit the crime. . .
Cited – Regina v Abu Hamza CACD 28-Nov-2006
The defendant had faced trial on terrorist charges. He claimed that delay and the very substantial adverse publicity had made his fair trial impossible, and that it was not an offence for a foreign national to solicit murders to be carried out . .
Cited – Regina v Adebolajo and Another CACD 3-Dec-2014
The defendants had been convicted of the brutal and public murder of Fusilier Lee Rigby in London, and sentenced to whole life term for Adebolajo and 45 years for Adebowale. They now sought leave to appeal against conviction and sentence.
Lists of cited by and citing cases may be incomplete.
Updated: 17 November 2022; Ref: scu.247652
In 2000, the defendant introduced a policy to make compensation payments for those British services personnel who had been imprisoned by the Japanese in the second world war. The appellant, a citizen of Pakistan had served in the Indian Army, was captured and became a prisoner of war of the Japanese. He accepted that he did not meet the criteria in the statement, but submitted that the criteria in that policy were racially discriminatory.
Held: The relevant question was what was the ground upon which the distinction was made in the scheme. The judge was right to conclude that the distinction made in the present case was ‘on the grounds of’ nationality and not race. The claim failed.
Ward LJ, Latham LJ, Sir Peter Gibson
[2007] EWCA Civ 1023
England and Wales
Cited – The Association of British Civilian Internees – Far Eastern Region (ABCIFER) v Secretary of State for Defence CA 3-Apr-2003
The association sought a judicial review of a decision not to pay compensation in respect of their or their parents or grandparents’ internment by the Japanese in the Second World War. Payment was not made because those interned were not born in . .
Cited – Elias, Regina (on the Application of) v Secretary of State for Defence and Another Admn 7-Jul-2005
. .
Cited – Gurung, Pun and Thapa v Ministry of Defence QBD 27-Nov-2002
The applicants were British Nepalese soldiers who had been imprisoned by the Japanese in the second world war. They challenged the decision of the respondent in November 2000 to exclude them from a compensation scheme, but to allow other British . .
Cited – Regina v Birmingham City Council ex parte Equal Opportunities Commission HL 1989
At the council’s independent, single-sex grammar schools there were more places available for boys than girls. Consequently the council were obliged to set a higher pass mark for girls than boys in the grammar school entrance examination.
Cited – Hampson v Department of Education and Science HL 7-Jun-1990
A teacher of Hong Kong national origin was refused qualified teacher status in this country because the Secretary of State had not exercised a power conferred on him by the relevant regulations to treat her Hong Kong qualifications as equivalent to . .
Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Cited – Swiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
Cited – James v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
Cited – Chief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
Appeal from – Mohammed, Regina (on the Application of) v Secretary of State for Defence Admn 11-Aug-2006
Claim for payment under ex gratia compensation scheme for service members imprisoned during second world war. . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.251576
Claim for payment under ex gratia compensation scheme for service members imprisoned during second world war.
[2006] EWHC 2098 (Admin)
England and Wales
Appeal from – Mohammed, Regina (on the Application of) v Secretary of State for Defence CA 1-May-2007
In 2000, the defendant introduced a policy to make compensation payments for those British services personnel who had been imprisoned by the Japanese in the second world war. The appellant, a citizen of Pakistan had served in the Indian Army, was . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.245125
War pensions and armed forces compensation – Armed Forces Compensation Scheme
[2013] UKUT 69 (AAC)
England and Wales
Updated: 14 November 2022; Ref: scu.471797
War pensions and armed forces compensation – War pensions – assessment
Rowland UTJ
[2013] UKUT 54 (AAC)
Updated: 14 November 2022; Ref: scu.471788
EAT UNFAIR DISMISSAL – Exclusions including worker/jurisdiction
An Employment Tribunal was entitled to find that section 94(1) did not apply to the wife of a serving soldier who was employed to manage a children’s play area in what was generally a NAAFI complex in Germany, where she was herself a German national, engaged to work wholly in Germany under an (oral) contract made in Germany for a trust which though linked to the Armed Forces operated wholly in Germany. Such a case should be approached as a matter of principle, and not by extrapolation from the facts of decided cases from categories such as set out in Burke. A decision of an ET which correctly set out the principles, and exercised its judgment as to whether the connection of the employee and employment outside the UK with Great Britain and British employment law was one of those exceptional cases in which it was sufficiently close, deserved considerable respect. The ET was entitled in the present case to reach the view it did.
Langstaff P J
[2013] UKEAT 0455 – 12 – 0102
England and Wales
Updated: 14 November 2022; Ref: scu.471563
War pensions and armed forces compensation – Armed Forces Compensation Scheme
[2012] UKUT 479 (AAC)
Armed Forces and Reserve Forces (Compensation Scheme) Order 2005
Updated: 14 November 2022; Ref: scu.471125
Crane J
[2006] EWHC 1066 (Admin)
England and Wales
Updated: 13 November 2022; Ref: scu.241774
The Gurka applicants challenged the lawfulness of the refusal to them of entry clearance.
Lord Neuberger MR, Sullivan, Patten LJJ
[2013] EWCA Civ 8
England and Wales
Updated: 13 November 2022; Ref: scu.470474
Referral to Grand Chamber
Josep Casadevall, P
23459/03, [2010] ECHR 1998
European Convention on Human Rights
See Also – Bayatyan v Armenia ECHR 27-Oct-2009
The claimant was a Jehovah’s Witness and accordingly a pacifist. He complained of being obliged to undertake military service. No alternative service was offered. He was convicted, and his punishment increased on the prosecutor’s appeal.
Held: . .
See Also – Bayatyan v Armenia ECHR 7-Jul-2011
(Grand Chamber) The applicant was a practising Jehovah’s Witness and a conscientious objector. He said that his conviction for refusing to serve in the army had violated his right to freedom of thought, conscience and religion. That complaint had . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 November 2022; Ref: scu.470469
(Grand Chamber) The applicant was a practising Jehovah’s Witness and a conscientious objector. He said that his conviction for refusing to serve in the army had violated his right to freedom of thought, conscience and religion. That complaint had been rejected.
Held: (Gyulumyan dissenting) There had been a violation of the applicant’s article 9 rights. The respondent had already promised to implement the necessary reforms, and had given an interim undertaking which implied that it would not conduct such prosecutions.
‘The Court reiterates that, as enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion.’
Jean-Paul Costa, P
23459/03, [2011] ECHR 1095, (2012) 54 EHRR 15
European Convention on Human Rights 9
See Also – Bayatyan v Armenia ECHR 27-Oct-2009
The claimant was a Jehovah’s Witness and accordingly a pacifist. He complained of being obliged to undertake military service. No alternative service was offered. He was convicted, and his punishment increased on the prosecutor’s appeal.
Held: . .
See Also – Bayatyan v Armenia ECHR 10-May-2010
Referral to Grand Chamber . .
Cited – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .
Cited – Doogan and Another v NHS Greater Glasgow and Clyde Health Board SCS 24-Apr-2013
(Extra Division, Inner House) The reclaimers, Roman Catholic midwives working on a labour ward as co-ordinators, sought to assert a right of conscientious objection under the 1967 Act. The respondents said that only those directly involved in the . .
Cited – Bull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 November 2022; Ref: scu.470468
[2002] EWCA Crim 931
England and Wales
Updated: 12 November 2022; Ref: scu.171187
[1997] EWCA Civ 2865, [1998] PIQR P387
England and Wales
Cited – Matthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 November 2022; Ref: scu.143264
The mother of a soldier claimed after he had died in an attack while serving in Iraq. She asserted that if he had had proper equipment his life would not have been.
Held: Claims arising from the deaths of soldiers on active service abroad alleging breach of the right to life in article 2 of the Convention fell outside the United Kingdom’s jurisdiction under the Convention. However claims in negligence for failing to provide safe equipment and technology to serving soldiers who suffered death or injury would be justiciable here.
Lord Neuberger PSC, Moses, Rimer LJJ
[2012] EWCA Civ 1365, [2013] HRLR 2, [2012] WLR(D) 281, [2013] 1 All ER 778, [2013] 2 WLR 27, [2013] PIQR P3
European Convention on Human Rights 2
England and Wales
Updated: 05 November 2022; Ref: scu.465045
It was said that a squad of the British army had caused the deaths of 24 civilians in 1948 in Batang Kali (now part of Malaysia.
Held: No inquiry was required. It was a matter of discretion, and there were no sustainable reasons for overturning the decisions of the respondents.
Sir John Thomas P, Treacy J
[2012] EWHC 2445 (Admin), [2012] WLR(D) 261
Inquiries Act 2005 1, Human Rights Act 1998, European Convention on Human Rights
England and Wales
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Appeal from – Keyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another CA 19-Mar-2014
In 1948, there had been an incident in what later became part of Malaysia, in a counter insurgency patrol, when 24 civilians were said to have been killed by a patrol from the Scots Guards. The claimant now appealed against the refusal of a further . .
At first instance – Keyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another SC 25-Nov-2015
The Court was asked whether the respondents should be required to hold a public inquiry into a controversial series of events in 1948, when a Scots Guards patrol was alleged to shot and killed 24 unarmed civilians in a village called Batang Kali, in . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 November 2022; Ref: scu.463812
[2007] EWCA Crim 1735
England and Wales
Updated: 03 November 2022; Ref: scu.259775
Kerr LCJ, Sir Michael Nicholson LJ and Sir John Sheil
[2007] NICA 44
Northern Ireland
Updated: 03 November 2022; Ref: scu.261650
Sentence for desertion
[2010] EWCA Crim 1781
England and Wales
Updated: 01 November 2022; Ref: scu.421078
The applicants served as Gurkha soldiers with the army. They claimed that the pensions they received, being substantially less than those paid to other servicemen were discriminatory.
Held: The positions of a retired serviceman in England and one in Nepal were so different as to make the attempted comparison invalid. A better comparison was with retired servicemen in India.
Sullivan J
Times 10-Mar-2003, [2003] EWHC 445 (Admin)
European Court of Human Rights 14
England and Wales
Appeal from – Purja and others v Ministry of Defence CA 9-Oct-2003
The applicants were Gurkha soldiers who complained at the differences in treatment of them as against other members of the forces as regards payment, pensions and otherwise, alleged infringement oftheir Article 14 rights, which prevented . .
See Also – Limbu and Others, Regina (on the Application of) v Secretary of State for the Home Department and others Admn 30-Sep-2008
The applicants who were retired Gurkha soldiers challenged the decision of the Secretary of State to impose a cut off of disallowing those who had retired from the armed forces before 1997.
Held: The rules applied to the Ghurkas were . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 November 2022; Ref: scu.180079
A Lloyd-Davies UTJ
[2012] UKUT 116 (AAC)
England and Wales
Updated: 01 November 2022; Ref: scu.460223
Claims were made after the deaths of British troops on active service in Iraq. In one case the deaths were from detonations of improvised explosive devices, and on others as a result of friendly fire. It was said that there had been a foreseeable risk of the deaths. The defendant sought the strike out of the claims as without merit.
Held: The court was being asked as to the scope of the principle of combat immunity.
Owen J
[2011] EWHC 1676 (QB), [2011] HRLR 35
European Convention on Human Rights 2
England and Wales
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Solutia UK Limited v Griffiths CA 26-Apr-2001
The court considered issues relating to the appropriateness of the claimants instructing London solicitors in a case in which those solicitors had submitted a bill of costs totalling pounds 220,000 in connection with a claim in which their clients . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – Wragg and Another v Partco Group Ltd UGC Ltd CA 1-May-2002
A claim was made against directors of a company involved in a takeover, for failure to make proper disclosure. The case involved also other issues. The defendants appealed against a refusal to strike out the claim.
Held: The rules made . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Mulcahy v Ministry of Defence CA 21-Feb-1996
A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was . .
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Cited – Bankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
Cited – Wragg and Another v Partco Group Ltd UGC Ltd CA 1-May-2002
A claim was made against directors of a company involved in a takeover, for failure to make proper disclosure. The case involved also other issues. The defendants appealed against a refusal to strike out the claim.
Held: The rules made . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2022; Ref: scu.441403
The General Officer Commanding during the war of 1939 to 1945 ordered the appellants oil installations near Rangoon to be destroyed. The Japanese were advancing and the Government wished to deny them the resources. It was done on the day before the Japanese occupied Rangoon. The question was, whether compensation was payable for this destruction.
Held: The Government were exercising a prerogative power which required them to pay compensation. However, their Lordships distinguished this situation from one where property was damaged or destroyed during the course of battle: (Lord Reid) ‘In my judgment, those authorities and others quoted in their opinions afford ample justification for the decision of the First Division with regard to the general rule, and no contrary Scots authority has been cited. This case therefore turns, in my view, on the extent of the exception of what has been called battle damage. Such damage must include both accidental and deliberate damage done in the course of fighting operations. It cannot matter whether the damage was unintentional or done by our artillery or aircraft to dislodge the enemy or by the enemy to dislodge our troops. And the same must apply to destruction of a building or a bridge before the enemy actually capture it. Moreover, it would be absurd if the right to compensation for such a building or bridge depended on how near the enemy were when it was destroyed. But I would think that Vattel is right in contrasting acts done deliberately (librement et par precaution) with damage caused by inevitable necessity (par une necessite inevitable). His examples show that he means something dictated by the disposition of the opposing forces. It may become necessary during the war to have new airfields or training grounds and the necessity may be inevitable, but that kind of thing would not come within the exception as stated by any of the commentators, inevitably necessary because there is really no choice: for example, there may be only one factory in the country or one site available for a particular purpose.’
The House discussed the use of the Royal prerogative: ‘The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute. So I would think the proper approach is a historical one: how was it used in former times and how has it been used in modern times?’ and (per lord Reid) ‘[T]he residual prerogative is now confined to such matters as summoning and dissolving Parliament, declaring war and peace, regulating the armed forces in some respects, governing certain colonial territories, making treaties (though as such they cannot affect the rights of subjects), and conferring honours. The one drastic internal power of an administrative kind is the power to intern enemy aliens in time of war.’
The House considered the right to self help in an emergency. Lord Upjohn said ‘No doubt in earlier times the individual had some . . rights of self-help or destruction in immediate emergency, whether caused by enemy action or by fire, and the legal answer was that he could not in such circumstances be sued for trespass on or destruction of his neighbour’s property. Those rights of the individual are now at least obsolescent. No man now, without risking some action against him in the courts, could pull down his neighbour’s house to prevent the fire spreading to his own; he would be told that he ought to have dialled 999 and summoned the local fire brigade.’
Lord Reid said ‘it would be very strange if the law prevented or discouraged necessary preparations until a time when it would probably be too late for them to be effective’.
Lord Pearce said: ‘the prerogative power in the emergency of war must be one power, whether the peril is merely threatening or has reched the ultimate stage of crisis. Bulwarks are as necessary for the public safety when they are constructed in good time against a foreseen invasion as when they are hastily improvised after the enemy has landed. The Crown must have power to act before the ultimate crisis arises’.
Lord Upjohn, Lord Reid, Lord Pearce
[1965] AC 75, [1965] AC 75, [1965] 2 All ER 348, 1964 SC (HL) 117, [1964] UKHL 6, [1964] 2 WLR 1231, 1964 SLT 218
Scotland
Appeal from – Burmah Oil Company Limited (Burma Trading) v Lord Advocate IHCS 1963
The 1965 Act was to be construed restrictively, lest ‘what was intended as a reasonable protection for a public authority would become an engine of oppression.’ . .
Cited – Mulcahy v Ministry of Defence CA 21-Feb-1996
A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was . .
Cited – Bici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Regina v Secretary of State for the Home Department, ex Parte Northumbria Police Authority CA 18-Nov-1987
The Authority appealed from refusal of judicial review of a circular issued by the respondent as to the supply of Plastic Baton Rounds and CS gas from central resources only. The authority suggested that the circular amounted to permission for the . .
Cited – Miller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Cited – Miller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2022; Ref: scu.241353
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was not argued that they occurred in combat, and it was established that in cases of riot, soldiers would be liable in tort. In civil law a belief that a defendant was under threat had to be reasonable to avoid liability. Even so, soldiers were in a particularly difficult position. Soldiers owe the same duties as ordinary citizens, and the latter clearly owe a duty of care in the circumstances. No contributory negligence could be supported. The court applied English law when giving the judgment. Elias J: ‘In trespass, any unlawful interference with the bodily integrity of the claimant will not be unlawful if it is justified and it will be justified if the defendant can establish that the claimant’s conduct was such that the defendant reasonably apprehended that he would be imminently attacked and used reasonable force to protect himself.’
Mr Justice Elias
[2004] EWHC 786(QB), Times 11-Jun-2004
England and Wales
Cited – Palmer v The Queen PC 23-Nov-1970
It is a defence in criminal law to a charge of assault if the defendant had an honest belief that he was going to be attacked and reacted with proportionate force: ‘If there has been an attack so that defence is reasonably necessary, it should be . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Cited – Attorney General for Northern Ireland’s Reference no 1 of 1975 HL 1975
Often a soldier has to act intuitively, and, in assessing his conduct and judging the action of the reasonable soldier, it is important to recognise that his action ‘is not undertaken in the calm analytical atmosphere of the court room after counsel . .
Cited – James v Campbell 1832
The defendant was involved in a fight at a parish dinner and it was suggested that he had hit the claimant by mistake, giving him two black eyes. The jury were that even on that premise he would be liable. . .
Cited – Ball v Axten 1866
A defendant who was aiming to hit a farmer’s dog and by mistake hit the farmer’s wife who was trying to protect it was liable in assault. . .
Cited – Page v Smith HL 12-May-1995
The plaintiff was driving his car when the defendant turned into his path. Both cars suffered considerable damage but the drivers escaped physical injury. The Plaintiff had a pre-existing chronic fatigue syndrome, which manifested itself from time . .
Cited – Livingstone v Ministry of Defence CANI 1984
The plaintiff was injured when a soldier fired a baton round after some soldiers were attacked by rioters. The round had been deliberately fired, but not to strike the plaintiff. The claim was in negligence and assault and battery. The trial judge . .
Cited – F v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Cited – Letang v Cooper CA 15-Jun-1964
The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
Held: Trespass is strictly speaking . .
Cited – Regina v Burstow, Regina v Ireland HL 24-Jul-1997
The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes . .
No part in current law – Wilkinson v Downton 8-May-1997
Thomas Wilkinson, the landlord of a public house, went off by train, leaving his wife Lavinia behind the bar. A customer of the pub, Downton played a practical joke on her. He told her, falsely, that her husband had been involved in an accident and . .
Cited – Regina v Savage; Director of Public Prosecutions v Parmenter HL 7-Nov-1991
The first defendant had been convicted of wounding. She had intended to throw beer over her victim, but her glass slipped from her hand, and cut the victim. The second defendant threw his three year old child in the air and caught him, not realising . .
Cited – Entick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .
Cited – Mulcahy v Ministry of Defence CA 21-Feb-1996
A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was . .
Cited – Nissan v The Attorney General HL 11-Feb-1969
The plaintiff was a British subject with a hotel in Cyprus taken over by British troops on a peace-keeping mission. At first the men were there by agreement of the governments of Cyprus and the United Kingdom. Later they became part of a United . .
Cited – Burmah Oil Company (Burma Trading) Limited v Lord Advocate HL 21-Apr-1964
The General Officer Commanding during the war of 1939 to 1945 ordered the appellants oil installations near Rangoon to be destroyed. The Japanese were advancing and the Government wished to deny them the resources. It was done on the day before the . .
Cited – Shaw Savill and Albion Company Ltd v The Commonwealth 1940
(High Court of Australia) The plaintiff owned a ship ‘The Coptic’ which was in a collision with His Majesties Australian Ship ‘Adelaide’. The plaintiff alleged that the collision resulted from the negligence of the defendant’s officers, saying the . .
Cited – Hughes v National Union of Mineworkers QBD 1991
The court struck out as disclosing no cause of action a claim by a police officer who was injured while policing the miners’ strike and who alleged that the police officer in charge had deployed his men negligently.
Held: The officer in charge . .
Cited – Bell, Multiple claimants v Ministry of Defence (1) and (2) QBD 21-May-2003
The claimants sought damages for psychiatric injury for stress and anxiety in being engaged on the behalf of the respondent in the course of combat.
Held: The defendant had no duty to maintain a safe system of work for military personnel . .
Cited – Al-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
Cited – Ashley and Another v Sussex Police CA 27-Jul-2006
The deceased was shot by police officers raiding his flat in 1998. The claimants sought damages for his estate. They had succeeded in claiming damages for false imprisonment, but now appealed dismissal of their claim for damages for assault and . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2022; Ref: scu.195488
(High Court of Australia) The plaintiff owned a ship ‘The Coptic’ which was in a collision with His Majesties Australian Ship ‘Adelaide’. The plaintiff alleged that the collision resulted from the negligence of the defendant’s officers, saying the Adelaide was sailing too fast, that it failed to keep a proper lookout for the Coptic and that it was not navigated in a proper and seaman like manner. The defence was that, at the relevant time; the Adelaide was part of the naval forces of Australia and was engaged in active naval operations against the enemy. The Court accepted that in principle such a defence was open to the state:’It could hardly be maintained that during an actual engagement with the enemy or a pursuit of any of his ships the navigating officer of a King’s ship of war was under a common-law duty of care to avoid harm to such non-combatant ships as might appear in the theatre of operations. It cannot be enough to say that the conflict or pursuit is a circumstance affecting the reasonableness of the officer’s conduct as a discharge of the duty of care, though the duty itself persists. To adopt such a view would mean that whether the combat be by sea, land or air our men go into action accompanied by the law of civil negligence, warning them to be mindful of the person and property of civilians. It would mean that the Courts could be called upon to day whether the soldier on the field of battle or the sailor fighting on his ship might reasonably have been more careful to avoid causing civil loss or damage. No one can imagine a court undertaking the trial of such an issue, either during or after a war. To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy. But the principle cannot be limited to the presence of the enemy or to occasions when contact with the enemy has been established. Warfare perhaps never did admit of such a distinction, but now it would be quite absurd. The development of the speed of ships and the range of guns were enough to show it to be an impracticable refinement, but it has been put out of question by the bomber, the submarine and the floating mine. The principle must extend to all active operations against the enemy. It must cover attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement. But the real distinction does exist between active operations against the enemy and other activities of the combatant services in time of war.’
Dixon J
(1940) 66 CLR 344, [1940] HCA 40
Cited – Mulcahy v Ministry of Defence CA 21-Feb-1996
A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was . .
Cited – Bici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2022; Ref: scu.198144
A civilian who was subject to military law whilst abroad was properly tried by a court-martial for a murder committed whilst abroad. The accused was the son of a serving soldier, and living with him, and subject to martial law. There was no inherent abuse of process, and the procedure had been explicitly adopted by Parliament. He could be tried by the court-martial even after his return to the UK, provided the procedure was commenced within six months. That had happened.
Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Hope of Craighead, Lord Clyde
Gazette 21-Jan-1998, [1997] UKHL 56, [1998] AC 917, [1998] 1 All ER 193, [1998] 2 WLR 1, [1998] 1 Cr App Rep 347
Army Act 1955 77A 131, Rules of Procedure (Army) 1972
England and Wales
Cited – Regina v Bow Street Metroplitan Stipendiary Magistrate, Ex parte Director of Public Prosecutions QBD 1992
Defendant policemen challenged as an abuse of process, the issue of summonses relating to events some 18 years earlier.
Neill LJ said: ‘The freeing of the Guildford Four and the comments made by the Court of Appeal attracted immediate and very . .
Cited – Regina v Beckford CACD 27-Jan-1995
Procedures are needed so that cars which have been involved in major accidents or crashes and criminal proceedings are envisaged should only be destroyed with consent. Neil LJ considered the law of abuse of process saying that: ‘the constitutional . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2022; Ref: scu.158931
A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was negligently fired by the gun commander. The Ministry of Defence sought to have the application struck out as disclosing no cause of action. The judge held at first instance that there should be a trial.
Held: The Court struck out the claim by application of combat immunity principles. Even on the facts pleaded, the plaintiff did not have a cause of action in negligence against the defendant. No duty of care can be owed by one soldier to another on the battlefield, nor can a safe system of work be required from any employer under such circumstances.
Neil LJ said: ‘Where . . the court is satisfied that additional facts will not change the framework of the claim and that the opposing arguments have been fully deployed the court should not shrink from deciding whether the application to strike out is well-founded in law. At the same time the Court must take account of Lord Browne-Wilkinson’s admonition that it is normally inappropriate to decide novel questions on hypothetical facts. But the novelty of the question of law is not an absolute barrier. It is to be remembered that the resolution of a question of law at an early stage in proceedings may result in a very substantial saving of costs.’
Neil LJ
Independent 29-Feb-1996, Times 27-Feb-1996, [1996] QB 732, [1996] 2 All ER 758, [1996] EWCA Civ 1323, [1996] 2 WLR 474
England and Wales
Cited – Nissan v The Attorney General HL 11-Feb-1969
The plaintiff was a British subject with a hotel in Cyprus taken over by British troops on a peace-keeping mission. At first the men were there by agreement of the governments of Cyprus and the United Kingdom. Later they became part of a United . .
Cited – Burmah Oil Company (Burma Trading) Limited v Lord Advocate HL 21-Apr-1964
The General Officer Commanding during the war of 1939 to 1945 ordered the appellants oil installations near Rangoon to be destroyed. The Japanese were advancing and the Government wished to deny them the resources. It was done on the day before the . .
Cited – Shaw Savill and Albion Company Ltd v The Commonwealth 1940
(High Court of Australia) The plaintiff owned a ship ‘The Coptic’ which was in a collision with His Majesties Australian Ship ‘Adelaide’. The plaintiff alleged that the collision resulted from the negligence of the defendant’s officers, saying the . .
Cited – Matthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Cited – Bici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
Cited – Smith v The Assistant Deputy Coroner for Oxfordshire Admn 11-Apr-2008
The claimant’s son had died of hyperthermia whilst serving in the army in Iraq. The parties requested a new inquisition after the coroner had rules that human rights law did not apply to servicemen serving outside Europe. Reports had been prepared . .
Cited – Davies v Global Strategies Group Hong Kong Ltd and Another QBD 25-Sep-2009
The claimants alleged that the deceased had been shot while employed by the defendants working in Iraq. The defendants said that he had been an independent contractor for whom they did not have responsibility. . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Smith and Others v Ministry of Defence QBD 30-Jun-2011
Claims were made after the deaths of British troops on active service in Iraq. In one case the deaths were from detonations of improvised explosive devices, and on others as a result of friendly fire. It was said that there had been a foreseeable . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2022; Ref: scu.84111
(Court’s Martial Appeal Court) The newspaper appealed against an order under section 94 of the 1955 Act restricting the identification of the defendants. The judge had said there would be a threat to both the safety of the defendants and as to the administration of justice and national security. It was now accepted that the actual order made was wider than necessary and beyond the powers available under the 1955 Act. The prosecution had now offered no evidence.
Held: The court could not revisit the earlier hearings to make public the material placed before them. The court had powers beyond those of the 1955 Act, including under the 1981 Act and at common law. The justifiable policy of the Special Forces in not identifying its members did not of itself justify the court applying the same rule. In this case there was a demonstrated risk to the lives of the defendants, and anonymity was a reasonable and proportionate response.
Lord Justice Latham, Mr Justice Mackay and Mr Justice King
[2008] EWCA Crim 2559
Contempt of Court Act 1981, Army Act 1955 94
England and Wales
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – Regina v Reigate Justices ex parte Argus Newspapers and Larcombe 1983
The court considered an application by the defendant, a ‘supergrass’ for his trial to be held in camera.
Held: Such an order was possible but should only be made if it was the only way of protecting the defendant. . .
Cited – Regina v Evesham Justices, ex parte McDonnagh QBD 1988
The court considered the existence of a power in the magistrates court to order a hearing to be held in camera and referred to section 11 of the 1981 Act. Watkins LJ said: ‘However, I am bound to say that I am impressed with the argument that the . .
Cited – Trinity Mirror and Others, Regina (on the Application Of) v Croydon Crown Court CACD 1-Feb-2008
The defendant had pleaded guilty in the Crown Court to 20 counts of making or possessing child pornography. No direction was made for withholding the defendant’s identity in court, but the Crown Court made an order in the interest of the defendant’s . .
Cited – In re Officer L HL 31-Jul-2007
Police officers appealed against refusal of orders protecting their anonymity when called to appear before the Robert Hamill Inquiry.
Held: ‘The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 October 2022; Ref: scu.278289
The applicants sought judicial review of a decision of the respondent not to name the wreck of the merchant ship SS STORAA as a protected site under the 1986 Act. It had been a merchant ship forming part of a convoy, and was sunk by enemy action in the Second World War.
Held: The review was granted. It was clear that some merchant ships were not to be protected in this way, but in this case the merchant officers were subject to naval discipline. The description by the respondent of the gunners serving on the vessal as passengers was bizarre. The cargo included armoured tanks, and anti-aircraft devices. ‘a vessel, not being one of Her Majesty’s vessels, nor belonging to Her Majesty, but being a red ensign vessel (Merchant Shipping Act 1894, section 73(4)) belonging to a British subject, in convoy under one of Her Majesty’s ships, is whilst travelling in convoy: (1) obliged to obey the Commanding Officer of Her Majesty’s vessel in relation to matters relating to the navigation or security of the convoy;
(2) obliged to take such precautions for avoiding the enemy as may be directed by such Commanding Officer; and
(3) is subject to compulsion to obey by force or arms without liability for loss of life or property which may result from forceful compulsion.’ the STORAA was not, when it sank, simply carrying cargo. It was voyaging under compulsion in dangerous waters, laden with cargo, in a convoy under the protection of a naval vessel, and was armed so as to be able to engage in conflict with the enemy. It was also carrying Royal Naval personnel, namely members of the armed forces having the duty to protect the vessel and the convoy. The context of the Act requires attention to be paid to the fact that a merchant vessel was armed, so as to engage the enemy, and was required by law to obey all directions given by a Commanding Officer of the armed forces, not simply to protect itself but in matters ‘relating . . to the security of the Convoy’. A merchant vessel in convoy cannot act as it sees fit to protect itself and its cargo. By joining the convoy each vessel is bound to act in the interest of the other vessels and, to that extent, is required to act jointly.
Mr Justice Newman
[2005] EWHC 2888 (Admin), Times 13-Jan-2006, [2006] 1 LLR 579, [2006] 3 WLR 53, [2006] 1 Lloyd’s Rep 579
Protection of Military Remails Act 1986, Naval Discipline Act 1957 132(1), Ministers of the Crown (Emergency Appointments) Act 1939 1(1), Naval Discipline Act 1866 30
England and Wales
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Cited – Brutus v Cozens HL 19-Jul-1972
The House was asked whether the conduct of the defendant at a tennis match at Wimbledon amounted to using ‘insulting words or behaviour’ whereby a breach of the peace was likely to be occasioned contrary to section 5. He went onto court 2, blew a . .
Cited – Moyna v Secretary of State for Work and Pensions HL 31-Jul-2003
The appellant had applied for and been refused disability living allowance on the basis of being able to carry out certain cooking tasks.
Held: The purpose of the ‘cooking test’ is not to ascertain whether the applicant can survive, or enjoy a . .
Cited – Britain Steamship Company Limited v The King and Others (‘The Matiana’) HL 1921
The House considered the relationship between a merchant vessel in convoy and a convoying naval vessel.
Held: The appeal succeeded. Lord Atkinson: ‘With all respect, I am quite unable to concur in the learned judge’s view that the merchant . .
Cited – Clan Lines Steamers Ltd v Liverpool and London War Risks Insurance Association Ltd 1942
In a collision in fog between the steamship Clan Stuart and the steamship Orlock Head, whilst both were travelling in convoy in the English Channel, the Clan Stuart was lost. It was said that the Orlock Head was engaged on a warlike operation and . .
Cited – Yorkshire Dale Steamship Co Ltd v Minister of War Transport HL 1942
Treatment of Merchant as War Vessel
The House considered when a merchant vessel may be treated on the same footing as a war vessel and be deemed to be engaged on a warlike operation.
Held: This depended on the nature of the cargo and the voyage: ‘She was then in the act of . .
Cited – Britain Steamship Company Limited v The King and Others (‘The Matiana’) CA 1919
(Year?) The steamship was insured under a time policy against perils of the sea and stranding, and under further insurance against risks excluded under the first, particularly risks of hostile action. It was in a convoy of four ships zig zagging in . .
Cited – Britain Steamship Company Limited v The King and Others (‘The Matiana’) CA 1919
The court was asked wheter a merchant vessel was acting a a military ship when in convoy.
Held: The appeal succeeded. Warrington LJ said: ‘Of course the sailing with convoy may easily assume the character of a warlike operation; if the convoy . .
Appeal from – Fogg and Another, Regina (on the Application of) v Secretary of State for Defence CA 5-Oct-2006
The Secretary of State appealed an order declaring the wreck of a merchant ship lost through enemy action in 1943 when part of a convoy. He said it was wrong in law to make the declaration, having not been in military service as such when sunk even . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 October 2022; Ref: scu.237445
The defendants were to face trial alleging that whilst serving in Afghanistan, they had committed murder. They had been granted anonymity, but that order was ordered to be lifted. They sought leave to appeal.
Held: The application was rejected. A Courts-Martial Appeal Court does not have a jurisdiction to hear an application for leave to appeal against the lifting of an order prohibiting the identification of parties to proceedings before a Court-Martial.
Lord Thomas CJ, Tugendhat, Holroyde JJ
[2013] EWCA Crim 2367, [2013] WLR(D) 486
Armed Forces (Court Martial) Rules 2009, Contempt of Court Act 1981
England and Wales
Updated: 13 October 2022; Ref: scu.519023
The claimant had been subject to experiments at Porton Down in the 1950s. He later sought damages, but the respondent issued a certificate under the 1947 Act.
[2004] EWHC 2344 (Admin)
Crown Proceedings Act 1947 10, Naval, Military and Air Forces (Disablement and Death) (Services Pension) Order 1983
England and Wales
Updated: 05 October 2022; Ref: scu.226912
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into private lives and sexual activity were intrusive, and given the excessive consequences following, were also striking in their inability to admit of exceptions. The threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court’s analysis of complaints under article 8 of the Convention.
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8; No separate issue under Art. 14+8; No violation of Art. 3 or Art. 14+3; Not necessary to examine under Art. 10 or Art. 14+10; Violation of Art. 13; Just satisfaction reserved
Hudoc Judgment (Just satisfaction) Non-pecuniary damage – financial award; Pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings
Gazette 10-Nov-1999, Times 11-Oct-1999, (1999) 29 EHRR 493, (1999) IRLR 734, (2001) 31 EHRR 620, [2000] 29 EHRR 549, [2000] ECHR 383, 33986/96, [1999] ECHR 72, [1999] ECHR 180, 33985/96
Worldlii, Worldlii, Bailii, Bailii
European Convention on Human Rights 8 13 41, Prison Act 1952, European Convention on Human Rights
Human Rights
Appeal from – Regina v Secretary of State for Defence Ex Parte Smith; Regina v Same Ex Parte Grady Etc CA 6-Nov-1995
A ban on homosexuals serving in the armed forces was not irrational, and the challenge to the ban failed. The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more . .
Appeal from – Regina v Ministry of Defence ex parte Smith; ex parte Grady CA 3-Nov-1995
Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services.
Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to . .
Cited – The Association of British Civilian Internees – Far Eastern Region (ABCIFER) v Secretary of State for Defence CA 3-Apr-2003
The association sought a judicial review of a decision not to pay compensation in respect of their or their parents or grandparents’ internment by the Japanese in the Second World War. Payment was not made because those interned were not born in . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
Cited – Regina v Secretary of State for Home Department ex parte Turgut CA 28-Jan-2000
When the Court of Appeal was asked to look at the decision of the Home Secretary on an appeal to him for asylum, the court should investigate the factual circumstances which lay behind the decision. The court must follow the practice of the European . .
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Cited – Pay v Lancashire Probation Service EAT 29-Oct-2003
The appellant challenged refusal of his claim for unfair dismissal. A probation officer, he had business interests in fire breathing and bondage merchandising which the service said were incompatible with his duties, and dismissed him. He complained . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Wilkinson, Regina (on the Application Of) v Inland Revenue HL 5-May-2005
The claimant said that the widows’ bereavement tax allowance available to a wife surviving her husband should be available to a man also if it was not to be discriminatory.
Held: Similar claims had been taken before the Human Rights Act to the . .
Cited – Copsey v WWB Devon Clays Ltd CA 25-Jul-2005
The claimant said that his employer had failed to respect his right to express his beliefs by obliging him, though a Christian, to work on Sundays.
Held: The appeal failed. ‘The Commission’s position on Article 9, as I understand it, is that, . .
Cited – Energy Financing Team Ltd and others v The Director of the Serious Fraud Office, Bow Street Magistrates Court Admn 22-Jul-2005
The claimants sought to set aside warrants and executions under them to provide assistance to a foreign court investigating alleged unlawful assistance to companies in Bosnia Herzegovina.
Held: The issue of such a warrant was a serious step. . .
Cited – Wilkinson v Kitzinger and Another FD 12-Apr-2006
The petitioner intended to seek a declaration as to her marital status. She and the respondent had married in a civil ceremony in British Columbia in 2003. She sought a declaration of incompatibility with regard to section 11(3) of the 1973 Act so . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
See Also – Smith And Grady v United Kingdom (Article 41) ECHR 25-Jul-2000
. .
Cited – Pearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 October 2022; Ref: scu.165747
War pensions and armed forces compensation – War pensions – specified decisions
[2011] UKUT 455 (AAC)
Updated: 04 October 2022; Ref: scu.451117
The Hon Mr Justice Turner
[2019] EWHC 3088 (QB)
England and Wales
Updated: 04 October 2022; Ref: scu.645961
The claimant alleged sex discrimination in the promotion systems used by the defendants.
Maurice Kay VP, Rix, Rimer LJJ
[2011] EWCA Civ 1516
England and Wales
Updated: 01 October 2022; Ref: scu.449857
Renewed application for leave to appeal. Complaint at military activities being conducted under the Euratom Treaty.
[2001] EWCA Civ 987
England and Wales
Updated: 01 October 2022; Ref: scu.218249
The claimants were Pakistani nationals both of whom alleged that they were captured by British forces in Iraq in February 2004. They contend that they were subsequently handed over to United States’ control and, thereafter, taken to Afghanistan where they were subjected to prolonged detention, torture and mistreatment.
Turner J
[2019] EWHC 3172 (QB)
England and Wales
Updated: 01 October 2022; Ref: scu.645966
The defendant appealed against his conviction that as a member of the armed forces, he had failed to obey a lawful order. He had, as a conscientious objector working as a medical assistant and non-combatant, refused to undergo advanced weapons training.
Toulson LJ, Openshaw, Hickinbottom JJ
[2011] EWCA Crim 2808
England and Wales
Updated: 29 September 2022; Ref: scu.449749
The claimant sought a public inquiry into allegations of systematic ill treatment by UK soldiers in Iraq. He now appealed against refusal of an inquiry, the court having found it permissible for the Secretary of Styate to await the outcome of related inquiries before deciding. The applicant was particularly unhappy at the involvement of the Army Provost branch in the separate inquiry, which he said would go against its independence.
Held: The appeal succeeded. It had not been shown that the IHAT enquiry would have sufficient independence.
Maurice Kay VP, Sullivan, Pitchford LJJ
[2011] EWCA Civ 1334
England and Wales
Appeal from – Mousa, Regina (on The Application of) v Secretary of State for Defence and Another Admn 21-Dec-2010
Application for judicial review of the Secretary of State’s refusal to order an immediate public inquiry into allegations that persons detained in Iraq at various times between 2003 and 2008 were ill-treated in breach of article 3 of the European . .
Cited – Lawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
Cited – Stephen Jordan (No 2) v The United Kingdom ECHR 10-Dec-2002
The applicant was a soldier who had been court marshalled for misuse of travel warrants. He wished to use in his defence his recent epilepsy. There was some delay while medical reports were obtained, and subsequently when the new legal system was . .
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Mentioned – JL, Regina (On the Application of) v Secretary Of State for Justice Admn 7-Oct-2009
. .
Lists of cited by and citing cases may be incomplete.
Updated: 26 September 2022; Ref: scu.448408
EAT VICTIMISATION – Discrimination claims
PRACTICE AND PROCEDURE – Striking-out
PRACTICE AND PROCEDURE – Imposition of deposit
C1 was an Army officer against whom court-martial proceedings were brought, and subsequently dropped, and who was thereafter involved in prolonged proceedings under the Army’s procedure for redress of complaints – Her treatment in both sets of proceedings was alleged to constitute sex discrimination and (by a subsequent application to amend) victimisation – C2 was her defending officer in the court-martial proceedings and her assisting officer in the complaint proceedings and claimed to have suffered adverse treatment as a result, constituting ‘associative discrimination / victimisation’ – Both sets of claims were poorly particularised and arguably to a greater or lesser extent out of time
Judge at PHR made deposit order in relation to victimisation claims but not in relation to the remainder of the claims.
Underhill P J
[2011] UKEAT 0104 – 11 – 2705
England and Wales
Updated: 20 September 2022; Ref: scu.444524
[2010] EW Misc 17 (WPAFCC), [2010] UKFTT 642 (WPAFCC)
Updated: 16 September 2022; Ref: scu.442175
Lord Justice Jonathan Parker Lord Justice Judge Lord Justice Simon Brown
[2003] EWCA Civ 1612
England and Wales
Updated: 16 September 2022; Ref: scu.188109
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights where there was a conflict between them. ‘If the Security Council, acting under Chapter VII, consider that the exigencies posed by a threat to the peace must override, for the duration of the emergency, the requirements of a human rights convention (seemingly other than ius cogens, from which no derogation is possible), the UN Charter has given it power to so provide. The Security Council has primary responsibility for the maintenance of international peace and security, and one of the purposes of the United Nations, by which it is bound to act, is to take effective collective measures for the prevention and removal of threats to the peace (see para 56 above). There is no need for a member state to derogate from the obligations contained in a human rights convention by which it is bound in so far as a binding Security Council resolution overrides those obligations.’ and ‘The concept of internment for imperative reasons of security is a very familiar one in international law. It creates a high threshold test, and it is available in the ordinary way to a belligerent power both during a war and for up to a year during any period of occupation that follows the end of the war. International law obliges those states who are parties to Geneva IV to treat their internees in the humanitarian way prescribed by that Convention and to afford them the rights of review and appeal that are prescribed by Article 78. In the case of Iraq, it can be taken that UNSCR 1511 (2003), by authorising the MNF ‘to take all necessary measures to contribute to the maintenance of security and stability in Iraq’, extended the power of internment beyond the original one-year term under Geneva IV. It is not open to this national court to hold that the Security Council had no power to do so. ‘
Lord Justice May Lord Justice Brooke Lord Justice Rix
[2006] UKHRR 855, [2006] HRLR 27, [2006] 3 WLR 954, [2006] EWCA Civ 327, Times 25-Apr-2006, [2007] QB 621
Charter of the United Nations 103, European Convention on Human Rights, Private International Law (Miscellaneous Provisions) Act 1995 11 12
England and Wales
Appeal from – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence Admn 12-Aug-2005
The claimant was born an Iraqi, but had been granted British Nationality. He was later detained in Iraq suspected of membership of a terrorist group. No charges were brought, and he complained that his article 5 rights were infringed. The defendant . .
Cited – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Cited – Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970) ICJ 21-Jun-1971
The International Court of Justice referred to the maintenance of an apartheid regime as being a flagrant violation of the purposes and principles of the UN Charter,
Article 22(1) of the Covenant of the League of Nations provided for the grant . .
Cited – Loizidou v Turkey (Merits) ECHR 18-Dec-1996
The court was asked whether Turkey was answerable under the Convention for its acts in Northern Cyprus.
Held: It was unnecessary to determine whether Turkey actually exercised detailed control over the policies and actions of the authorities . .
Cited – McElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
Cited – Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v Ireland ECHR 30-Jun-2005
ECHR Judgment (Merits) – Preliminary objections rejected (out of time, non-exhaustion of domestic remedies); No violation of P1-1. . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Cited – Case Concerning United States Diplomatic and Consular Staff in Tehran ICJ 24-May-1980
The International Court of Justice said that ‘wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Cited – Greenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Cited – Harding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .
Cited – Bici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
Cited – Regina (Abbasi) v Secretary of State for Foreign Affairs CA 6-Nov-2002
There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its . .
Cited – Liversidge v Sir John Anderson HL 3-Nov-1941
The plaintiff sought damages for false imprisonment. The Secretary of State had refused to disclose certain documents. The question was as to the need for the defendant to justify the use of his powers by disclosing the documents.
Held: The . .
Appeal from – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening) HL 12-Dec-2007
The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security . .
Cited – VTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
At CA(1) – Al-Jedda v Secretary of State for the Home Department SIAC 23-May-2008
The appellant had been granted british citizenship. He now appealed against a an order under section 40(2) of the 1981 Act depriving him of his British citizenship on the ground that the respondent was satisfied that deprivation was conducive to the . .
At CA – Al-Jedda v Secretary of State for the Home Department SIAC 22-Oct-2008
The Court was asked whether or not the procedural protections afforded by Article 6(1) ECHRR as identified by the House of Lords in Secretary of State for the Home Department v MB [2007] UKHL 46 [2008] 1 AC 440 apply to the Appellant’s appeal . .
At CA – Al-Jedda v The United Kingdom ECHR 2-Mar-2009
The claimant, an Iraqi and British national complained of his arrest and internment on suspicion of terrorist involvement. . .
At CA – Al-Jedda v Secretary of State for Defence QBD 5-Mar-2009
The claimant, an Iraqi/British national complained of his detention in Iraq by the defendant without any due process. . .
At CA – Al-Jedda v Secretary of State for the Home Department SIAC 7-Apr-2009
The appellant challenged an order made under the 1981 Act revoking his British citizenship, saying that it infringed his article 8 rights to family life. . .
At CA (1) – Al-Jedda v Secretary of State for The Home Department CA 12-Mar-2010
The claimant appealed against a decision withdrawing his British citizenship, saying that this would leave him stateless. . .
At CA(1) – Al-Jedda v Secretary of State for Defence CA 8-Jul-2010
Al Jedda, who had both Iraqi and British nationality, sought damages for unlawful imprisonment by reason of his detention by British forces in a military detention centre in Iraq. . .
At CA (1) – Hilal Al-Jedda v Secretary of State for The Home Department SIAC 26-Nov-2010
Deprivation of Citizenship – Substantive – Dismissed . .
At CA (1) – Al-Jedda v United Kingdom ECHR 7-Jul-2011
Grand Chamber – The international measure relied on by the respondent state had to be interpreted in a manner that minimised the extent to which arbitrary detention was sanctioned or required.
The court described its role in settling awards of . .
At CA (1) – Al-Jedda v Secretary of State for The Home Department CA 29-Mar-2012
The appellant had been deprived of his British Citizenship by an order of the respondent under the 1981 Act. That had meant that he was unable to return to the UK. He now appealed against refusal of his challenge to the order. . .
At CA (1) – Secretary of State for The Home Department v Al-Jedda SC 9-Oct-2013
The claimant had obtained British citizenship, but had had it removed by the appellant by an order under the 1981 Act after he came to be suspected of terrorist involvement. He had appealed against the order, eventually succeeding on the basis that . .
See Also – Al-Jedda v Secretary of State for The Home Department (Deprivation of Citizenship Directions – Oral Ruling ) SIAC 7-Feb-2014
Order . .
See Also – Hilal Al-Jedda SIAC 18-Jul-2014
lSIAC Deprivation of Citizenship : Preliminary Issue . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2022; Ref: scu.239737
Leggatt J
[2017] EWHC 3289 (QB), [2018] 3 WLR 95, [2017] WLR(D) 837
Foreign Limitation Periods Act 1984, Cross-Border Mediation (EU Directive) Regulations 2011, Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015, Private International Law (Miscellaneous Provisions) Act 1995, European Convention on Human Rights, Human Right Act 1998
England and Wales
Updated: 09 September 2022; Ref: scu.602132
The defendant appealed against his conviction for communicating information likely to be useful to an enemy. His sentence was heavier because of the trust placed in him as an army officer, but the relationship with the foreign power had not fully developed. He appealed against his sentence of 10 years which the judge had said was intended to be a deterrent.
Lord Judge, Lord Chief Justice, Mr Justice Collins and Mr Justice Owen
[2009] EWCA Crim 1261, Times 01-Jul-2009
England and Wales
Cited – Regina v Prime CACD 1985
Lawton LJ confirmed the need for deterrent sentencing in cases of communication information likely to be of assistance to an enemy: ‘Anyone, particularly those in the Armed Services and Government Service who is tempted, whether by money, threats of . .
Cited – Regina v Smith CACD 1996
The defendant appealed against his sentence for communicating information likely to be of assistance to an enemy.
Held: The sentence for communicating information was reduced to 5.5 years’ imprisonment, while the longer consecutive sentence . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.347230
The claimant challenged the defendant’s refusal to allow him advancement in the army as a chaplain.
Nicol J
[2011] EWHC 879 (Admin)
Updated: 06 September 2022; Ref: scu.432769
The claimant was employed by the Army. He claimed that he was racially discriminated against because the army refused to provide him with Halal meat.
Held: The 1976 Act first required the applicant to have exhausted the Army’s own internal grievance procedures. He had not done so. The employment tribunal therefore had no jurisdiction to hear the complaint. Article 6 could not be prayed in aid to give the tribunal jurisdiction.
Peter Gibson, Tuckey, Buxton LJJ
Times 12-Jul-2003, Gazette 28-Aug-2003, [2003] EWCA Civ 801
European Convention on Human Rights 6, Race Relations Act 1976 4(2) 75(8) 75(9), Race Relations (Complaints to Employment Tribunals) (Armed Forces) Regulations 1997 (1997 No 2161) 2, Race Relations Act 1976
England and Wales
Updated: 02 September 2022; Ref: scu.184445
The claimant brigadier challenged dismissal of his request to the defendant for redress in failing to apply its own policies and not providing accommodation on his posting to Whitehall.
Ouseley J
[2011] EWHC 145 (Admin)
Updated: 01 September 2022; Ref: scu.428868
Application for leave to appeal against a ruling in the Court Martial.
Simon LJ
[2019] EWCA Crim 1863
England and Wales
Updated: 01 September 2022; Ref: scu.643859
Application for judicial review of the Secretary of State’s refusal to order an immediate public inquiry into allegations that persons detained in Iraq at various times between 2003 and 2008 were ill-treated in breach of article 3 of the European Convention on Human Rights by members of the British Armed Forces.
Held: Judicial review was refused. Anticipating that anoter inquiry was to look at related issues, it was not unlwaful for the Secretary of State to await the outcome of that inquiry before deciding on a public inquiry. The ‘wait and see’ approach was legally permissible. ‘The core fact-finding exercise already under way through IHAT is liable to impact on the systemic issues’; that the Baha Mousa and Al-Sweady Inquiries overlap with the issues in the present case; that civil claims may provide further answers; and that the ‘very heavy resource implications’ merit ‘real weight’.
Richards LJ, Silber J
[2011] ACD 32, [2011] UKHRR 268, [2010] EWHC 3304 (Admin)
Appeal from – Mousa, Regina (on The Application of) v Secretary of State for Defence and Another CA 22-Nov-2011
The claimant sought a public inquiry into allegations of systematic ill treatment by UK soldiers in Iraq. He now appealed against refusal of an inquiry, the court having found it permissible for the Secretary of Styate to await the outcome of . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 August 2022; Ref: scu.427397
Appeals against convictions at a general Court-Martial for causing grievous bodily harm with intent.
Rose LJ VP, Rougier, Sullivan JJ
[2001] EWCA Crim 3041
England and Wales
Updated: 29 August 2022; Ref: scu.406601
The wife of a British Army soldier serving in Germany delivered a premature baby, ‘A’, with a German obstetrician in a German hospital. A suffered brain damage in the birth as a result of the obstetrician’s negligence. The mother claimed against the MoD and the English NHS Trust which had contracted with the MoD to arrange for designated German hospital providers to provide health care for servicemen and their dependents. She alleged a non-delegable duty of care in the MoD and in the Trust to ensure that she and ‘A’ were provided with medical treatment that was administered with due skill and care.
Held: Lord Phillips MR disapproved the decision in M v Calderdale and Kirklees Health Authority [1998] Lloyd’s Rep Med 157 on a number of grounds including the fact that it was based on the observations of Lord Greene MR in Gold v Essex County Council and Denning LJ in Cassidy v Ministry of Health, ‘although in neither instance did these represent the reasons for the decision of the majority of the court.’
However, he observed ‘in each of these cases the court was concerned with the duty of the hospital that was actually carrying out the treatment of the patient’. He rejected the submission that on policy grounds the non-delegable duty of care should be extended beyond cases where the hospital was actually carrying out the treatment.
A further argument advanced on behalf of ‘A’ was based on the position of the MoD before it ceased running its own hospitals.
Lord Phillips said: ‘The starting point of Mr Tattersall’s argument was that, when the MoD was running its own hospitals in Germany, it owed service personnel and their dependents a non-delegable duty of care in relation to the secondary medical treatment that they received. The second stage in the argument was that, because the duty was non-delegable, it remained binding upon the MoD after the transfer in 1996 of the provision of secondary health care from the military hospitals to the DGPs.
As to the first limb of the argument, I was attracted by the Australian jurisprudence on which Mr Tattersall has relied. It seems to me that there are strong arguments of policy for holding that a hospital, which offers treatment to a patient, accepts responsibility for the care with which that treatment is administered, regardless of the status of the person employed or engaged to deliver the treatment. Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 proceeded on the premise that this is established English law.
I am, however, unable to accept the second limb of Mr Tattersall’s argument. We put to him in argument the possibility that, in England, the MoD might abolish all military hospitals and leave service personnel to seek hospital treatment under the NHS. Even in that situation he contended that the non-delegable duty undertaken by the MoD before 1996 would persist.
The answer to Mr Tattersall’s argument, as Mr Lloyd Jones submitted, is that the basis of the duty asserted by Mr Tattersall, assuming such duty to be made out, was the fact that the MoD itself undertook the hospital care of its personnel and their dependants. Only while it continued to do so would the duty persist.’
Lord Phillips of Worth Matravers MR, Tuckey, Wall LJ
Times 17-May-2004, Gazette 03-Jun-2004, [2004] EWCA Civ 641, [2005] QB 183
England and Wales
Appeal from – A v Ministry of Defence and another QBD 16-Apr-2003
The claimant’s father a member of the armed forces had been posted to Germany, and his wife, A’s mother had gone with him. A had been born in Germany, but suffered injury at birth through the negligence of the doctor’s appointed by the defendant . .
Disapproved – M v Calderdale and Kirklees Health Authority 1998
(Huddersfield County Court) . .
Appealed to – A v Ministry of Defence and another QBD 16-Apr-2003
The claimant’s father a member of the armed forces had been posted to Germany, and his wife, A’s mother had gone with him. A had been born in Germany, but suffered injury at birth through the negligence of the doctor’s appointed by the defendant . .
Cited – Farraj and Another v King’s Healthcare NHS Trust (KCH) and Another CA 13-Nov-2009
The claimant parents each carried a gene making any child they bore liable to suffer a serious condition. On a pregnancy the mother’s blood was sent for testing to the defendants who sent it on to the second defendants. The condition was missed, . .
Cited – Woodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
Cited – Woodland v Essex County Council CA 9-Mar-2012
The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2022; Ref: scu.197039
[2013] EWHC 1412 (Admin)
England and Wales
Updated: 29 August 2022; Ref: scu.510079
The claimants had been obliged as servicemen to witness atmospheric tests of thermonuclear explosions and now said that they had later suffered adverse health consequences over many years.
Smith, Leveson LJJ, Sir Mark Waller
[2010] EWCA Civ 1317, (2011) 117 BMLR 101
England and Wales
Updated: 27 August 2022; Ref: scu.426447
[2010] EWCA Civ 1098
England and Wales
Updated: 25 August 2022; Ref: scu.425186
War pensions and armed forces compensation – Armed Forces Compensation Scheme
[2010] UKUT 317 (AAC)
Updated: 25 August 2022; Ref: scu.425166
The Claimants claimed damages against the Defendant for alleged abuses arising during the course of the Kenyan Emergency during the 1950s.
Stewart J
[2018] EWHC 1305 (QB)
England and Wales
See Also – Kimathi and Others v The Foreign and Commonwealth Office (Strike out) QBD 24-Nov-2016
The defendant sought to have struck out from the group litigation, as a nullity the claim by one claimant who had been deceased at the time of issue. His PRs responded that the court could deal with the matter under CPR Pt 3.
Held: The court’s . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office (Cross examination request) QBD 24-Nov-2016
Application to cross examine translators of claimant witness statements. . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office QBD 9-Feb-2017
Application notice seeking an order that certain issues be listed for hearing as a preliminary point. . .
Cited – Kimathi and Others v The Foreign and Commonwealth Office QBD 9-May-2018
Admissibility of extracts from Hansard . .
Cited – Kimathi and Others v The Foreign and Commonwealth Office QBD 18-Apr-2018
Continued dispute as to admissibility of certain documents . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office QBD 2-Aug-2018
Allegations of abuse by persons for whose conduct it is alleged the Defendant is liable, arising out of the Kenyan Emergency. . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office QBD 21-Nov-2018
. .
Lists of cited by and citing cases may be incomplete.
Updated: 21 August 2022; Ref: scu.617216
Stewart J
[2018] EWHC 3144 (QB)
England and Wales
See Also – Kimathi and Others v The Foreign and Commonwealth Office (Strike out) QBD 24-Nov-2016
The defendant sought to have struck out from the group litigation, as a nullity the claim by one claimant who had been deceased at the time of issue. His PRs responded that the court could deal with the matter under CPR Pt 3.
Held: The court’s . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office (Cross examination request) QBD 24-Nov-2016
Application to cross examine translators of claimant witness statements. . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office QBD 9-Feb-2017
Application notice seeking an order that certain issues be listed for hearing as a preliminary point. . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office QBD 9-May-2018
Admissibility of extracts from Hansard . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office QBD 18-Apr-2018
Continued dispute as to admissibility of certain documents . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office QBD 24-May-2018
The Claimants claimed damages against the Defendant for alleged abuses arising during the course of the Kenyan Emergency during the 1950s. . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office QBD 2-Aug-2018
Allegations of abuse by persons for whose conduct it is alleged the Defendant is liable, arising out of the Kenyan Emergency. . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 August 2022; Ref: scu.630746
Al Jedda, who had both Iraqi and British nationality, sought damages for unlawful imprisonment by reason of his detention by British forces in a military detention centre in Iraq.
Arden LJ, Sir John Dyson, Elias LJ
[2010] EWCA Civ 758, [2011] 2 WLR 225, [2011] QB 773
England and Wales
At CA(1) – Al-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
At Admn (1) – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence Admn 12-Aug-2005
The claimant was born an Iraqi, but had been granted British Nationality. He was later detained in Iraq suspected of membership of a terrorist group. No charges were brought, and he complained that his article 5 rights were infringed. The defendant . .
At HL – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening) HL 12-Dec-2007
The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security . .
At SIAC (1) – Al-Jedda v Secretary of State for the Home Department SIAC 23-May-2008
The appellant had been granted british citizenship. He now appealed against a an order under section 40(2) of the 1981 Act depriving him of his British citizenship on the ground that the respondent was satisfied that deprivation was conducive to the . .
At SIAC (2) – Al-Jedda v Secretary of State for the Home Department SIAC 22-Oct-2008
The Court was asked whether or not the procedural protections afforded by Article 6(1) ECHRR as identified by the House of Lords in Secretary of State for the Home Department v MB [2007] UKHL 46 [2008] 1 AC 440 apply to the Appellant’s appeal . .
At ECHR (1) – Al-Jedda v The United Kingdom ECHR 2-Mar-2009
The claimant, an Iraqi and British national complained of his arrest and internment on suspicion of terrorist involvement. . .
See Also – Al-Jedda v Secretary of State for Defence QBD 5-Mar-2009
The claimant, an Iraqi/British national complained of his detention in Iraq by the defendant without any due process. . .
At SIAC (3) – Al-Jedda v Secretary of State for the Home Department SIAC 7-Apr-2009
The appellant challenged an order made under the 1981 Act revoking his British citizenship, saying that it infringed his article 8 rights to family life. . .
See Also – Al-Jedda v Secretary of State for The Home Department CA 12-Mar-2010
The claimant appealed against a decision withdrawing his British citizenship, saying that this would leave him stateless. . .
At CA – Al-Jedda v Secretary of State for The Home Department CA 29-Mar-2012
The appellant had been deprived of his British Citizenship by an order of the respondent under the 1981 Act. That had meant that he was unable to return to the UK. He now appealed against refusal of his challenge to the order. . .
At SIAC (3) – Al-Jedda v Secretary of State for The Home Department (Deprivation of Citizenship Directions – Oral Ruling ) SIAC 7-Feb-2014
Order . .
At SIAC – Hilal Al-Jedda v Secretary of State for The Home Department SIAC 26-Nov-2010
Deprivation of Citizenship – Substantive – Dismissed . .
At ECHR (2) – Al-Jedda v United Kingdom ECHR 7-Jul-2011
Grand Chamber – The international measure relied on by the respondent state had to be interpreted in a manner that minimised the extent to which arbitrary detention was sanctioned or required.
The court described its role in settling awards of . .
See Also – Hilal Al-Jedda v Secretary of State for The Home Department SIAC 26-Nov-2010
Deprivation of Citizenship – Substantive – Dismissed . .
See Also – Al-Jedda v United Kingdom ECHR 7-Jul-2011
Grand Chamber – The international measure relied on by the respondent state had to be interpreted in a manner that minimised the extent to which arbitrary detention was sanctioned or required.
The court described its role in settling awards of . .
See Also – Al-Jedda v Secretary of State for The Home Department CA 29-Mar-2012
The appellant had been deprived of his British Citizenship by an order of the respondent under the 1981 Act. That had meant that he was unable to return to the UK. He now appealed against refusal of his challenge to the order. . .
See Also – Secretary of State for The Home Department v Al-Jedda SC 9-Oct-2013
The claimant had obtained British citizenship, but had had it removed by the appellant by an order under the 1981 Act after he came to be suspected of terrorist involvement. He had appealed against the order, eventually succeeding on the basis that . .
See Also – Hilal Al-Jedda SIAC 18-Jul-2014
lSIAC Deprivation of Citizenship : Preliminary Issue . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 August 2022; Ref: scu.420400
Davis LJ, Jeremy Baker, Holgate JJ
[2020] EWCA Crim 1297, [2020] WLR(D) 557, [2020] 4 WLR 144
England and Wales
Updated: 19 August 2022; Ref: scu.654612
War pensions and armed forces compensation – Armed Forces Compensation Scheme
[2010] UKUT 48 (AAC)
Updated: 17 August 2022; Ref: scu.410612
War pensions and armed forces compensation – War pensions – entitlement
[2010] UKUT 9 (AAC)
England and Wales
Updated: 17 August 2022; Ref: scu.410583
MacDuff J
[2009] EWHC 3516 (QB)
Updated: 14 August 2022; Ref: scu.402524
The claimant sought damages after her lifelong partner had died of asbestos associated illness after exposure while serving in the Navy. Liability had been refused under the 1947 Act, because the 1987 Act was not retrospective.
19298/08, [2010] ECHR 166
European Convention on Human Rights, Crown Proceedings Act 1947, Crown Proceedings (Armed Forces) Act 1987
Human Rights
Questions to parties – ME MacRitchie v The United Kingdom ECHR 2-Nov-2010
The claimant’s life partner died after contracting diseases associated with his exposure to asbestos while serving in the Navy. . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2022; Ref: scu.401707
[2001] EWCA Civ 190
England and Wales
Updated: 13 August 2022; Ref: scu.218019
The applicants sought to challenge the pension provisions made for Gurkha soldiers who had retired before 1997.
Burnett J
[2010] EWHC 3 (Admin)
Armed Forces (Gurkha Pensions) Order 2007 SI 2007/2608
Updated: 11 August 2022; Ref: scu.392648
The applicant had joined the Territorial Army as a pay and accounts clerk but was made redundant. He claimed redress in respect of his redundancy from his Commanding Officer. There then followed a prolonged series of proceedings which took eleven years to reach their conclusion before he achieved a settlement of his claim. He contended that this was a breach of his right to a hearing within a reasonable time under article 6(1). The Government accepted that his civil rights were determined in the civil proceedings and that article 6 was applicable.
‘The Court has previously held that in order to determine whether the article 6-compliant second-tier tribunal had ‘full jurisdiction’, or provided ‘sufficiency of review’ to remedy a lack of independence at first instance, it was necessary to have regard to such factors 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.’
42509/05, [2009] ECHR 1659, (2010) 50 EHRR 36
European Convention on Human Rights
Statement of Facts – Crompton v The United Kingdom 13-May-2008
(date) Statement of Facts . .
Cited – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .
Cited – Molaudi v Ministry of Defence EAT 15-Apr-2011
molaudi_modEAT11
EAT JURISDICTIONAL POINTS
The Claimant sought to bring a claim for racial discrimination against the defendant relating to events which occurred while the Claimant was a serving soldier. He had previously . .
Judgment – Crompton v The United Kingdom ECHR 14-Sep-2011
Supervision of execution of final judgments. . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2022; Ref: scu.377275
The claimant was a Jehovah’s Witness and accordingly a pacifist. He complained of being obliged to undertake military service. No alternative service was offered. He was convicted, and his punishment increased on the prosecutor’s appeal.
Held: The complaint failed.
Josep Casadevall, P
23459/03, [2009] ECHR 1652
European Convention on Human Rights, Charter of Fundamental Rights of the European Union
See Also – Bayatyan v Armenia ECHR 10-May-2010
Referral to Grand Chamber . .
See Also – Bayatyan v Armenia ECHR 7-Jul-2011
(Grand Chamber) The applicant was a practising Jehovah’s Witness and a conscientious objector. He said that his conviction for refusing to serve in the army had violated his right to freedom of thought, conscience and religion. That complaint had . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2022; Ref: scu.377274
The claimant objected to having no remedy when dismissed from the Army for being homosexual.
10615/05, [2007] ECHR 1146
European Convention on Human Rights
Human Rights
Updated: 04 August 2022; Ref: scu.271003
[2010] EWCA Crim 378, (2010) 174 JP 169
England and Wales
Updated: 03 August 2022; Ref: scu.408573
The Kenyan and British authorities agreed for the building by the plaintiff of a bridge supported by the imposition of tolls. Btitish military were exempt from payment. At the time of the agreement there was only one unit of military, but as time went on more troops arrived, and the bulk of the traffic was exempt. The bridge owner challenged the arrangement in Britain.
Held: The term ‘military’ included all soldiers of the Queen and was not restricted to the original detachment. It remained a military vehicle when driven by a military driver on duty. However, construing the agreement, a toll became payable in certain limited circumstances.
The task of making qualifications to English law to suit the circumstances of overseas territories called for wisdom on the part of their judges. This was a ‘wise provision.’
As to the application of the common law in a foreign jurisdiction, the court recogised the wisdom of applying the common law qualified as necessary to suit local circumstances: ‘Just as with an English oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England.’
Lord Denning
[1956] 1 QB 1
England and Wales
Cited – Christian and others v The Queen PC 30-Oct-2006
(The Pitcairn Islands) The defendants appealed convictions for assorted sexual offences against underage girls. They denied that the laws under which they were convicted had applied to the Pitcairn Islands.
Held: The appeals against conviction . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.245767
Christopher Clarke J
[2009] EWHC 1881 (QB)
Updated: 30 July 2022; Ref: scu.361476
[1835] EngR 523, (1835) 2 My and K 404, (1835) 39 ER 998
England and Wales
Updated: 30 July 2022; Ref: scu.316031
The court held the appellant Ministry liable for a soldier’s injuries incurred when jumping from a high bridge. A senior officer had earlier ‘assumed responsibility to prevent the junior soldiers from taking undue risks of which he was or ought to have been aware’. Sir Anthony May pointed out that the senior officer had been asked if the men might jump, concluding that ‘the very fact that they asked predicates reliance sufficient for a duty of care and their assumption that he had authority to order them not to jump.’
Sir Anthony May P QBD, Hooper, Sullivan LJJ
[2009] EWCA Civ 635
England and Wales
Cited – Geary v JD Wetherspoon Plc QBD 14-Jun-2011
The claimant, attempting to slide down the banisters at the defendants’ premises, fell 4 metres suffering severe injury. She claimed in negligence and occupiers’ liability. The local council had waived a requirement that the balustrade meet the . .
Cited – Reynolds v Strutt and Parker LLP ChD 15-Jul-2011
The defendant had organised a team bonding day, including a cycling event. The claimant employee was severely injured falling from his cycle. He said that the defendant had been engligent in not providing cycling helmets. The circuit hosting company . .
Cited – Cockbill v Riley QBD 22-Mar-2013
The claimant sufferd catastrophic injury diving into a paddling pool at a party held by the defendant for his daughter to celebrate completing her GCSEs.
Held: The claim failed. ‘It was reasonably foreseeable that someone would lose his . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.347295
Lord Judge LCJ
[2012] EWCA Crim 2734
England and Wales
Updated: 26 July 2022; Ref: scu.468988