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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Armed Forces - From: 2004 To: 2004

This page lists 17 cases, and was prepared on 03 April 2018.

 
Scott v Regina [2004] 123 CRR (2d) 371
2004


Constitutional, Armed Forces
Participation in religious prayers were required of soldiers during routine parades at a Canadian Forces base. The soldiers were preceded by an order to remove headdress. The soldier had no religious convictions, had (after having previously raised with his superior his concerns about being made to participate in a prayer service in which he did not believe) refused to remove his headdress (but had evidently continued to stand on parade) and was being charged simply with that refusal. Held: The order conflicted with paragraph 2(a) of the Charter: "The order that was given . . was to show 'respect' for what was being done and not mere passive toleration. That is to say, it was designed to constrain him to make a public gesture of approval for a religious ceremony in which he did not believe. .
The fact that the practice of pronouncing prayers at parades and requiring some form of public assent thereto has been hallowed by a tradition of many years in the military as well as other circles cannot justify a breach of the appellant's Charter rights. We emphasize that what was required of the appellant was active participation in the religious ceremony with which he disagreed. The question of enforced passive participation by mere presence is an entirely different issue and one that we do not reach today."
1 Citers


 
Busmer v Secretary of State for Defence [2004] EWHC 29 (Admin)
20 Jan 2004
Admn

Armed Forces, Benefits

Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983 5
[ Bailii ]
 
Secretary of State for Defence v President of the Pension Appeal Tribunals (England and Wales) [2004] EWHC 141 (Admin); Times, 27 February 2004
4 Feb 2004
QBD
The Honourable Mr Justice Newman
Armed Forces, Benefits
The secretary appealed a decision of the Pensions Appeal Tribunal to set aside a decision of the Pensions Tribunal. The applicant had been awarded a service pension. Held: The PAT had no general power to set aside a decision of the tribunal for an irregularity. The rules provided for a right of appeal to the High Court, and therefore no great hardship resulted. The PAT should have remitted the case for directions.
Pensions Appeal Tribunals Act 1943
[ Bailii ]
 
The Secretary of State for Defence v Frank David Hopkins [2004] EWHC 299 (Admin)
20 Feb 2004
QBD
The Honourable Mr Justice Newman
Armed Forces, Benefits, Financial Services

[ Bailii ]
 
Regina v Dundon Times, 18 March 2004; [2004] EWCA Crim 621
18 Mar 2004
CMAC
Mr Justice Douglas Brown Mr Justice Newman Lord Justice Rose VP
Armed Forces, Criminal Practice, Human Rights
The defendant had been convicted under a system of trial later confirmed not to be compliant with the need for a fair trial. Held: The judge advocate in this trial had been a serving officer. Unless the positive obligation to show an independent tribunal could be shown, a trial could not normally be shown to be fair. There was no criticism of the judge advocate, but the trial was unfair as a matter of principle and authority. Other appeals out of time might not be allowed.
Naval Discipline Act 1957 11
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Bici and Bici v Ministry of Defence [2004] EWHC 786(QB); Times, 11 June 2004
7 Apr 2004
QBD
Mr Justice Elias
Personal Injury, Armed Forces
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."
1 Cites

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A v Ministry of Defence; Re A (A Child) Times, 17 May 2004; Gazette, 03 June 2004; [2004] EWCA Civ 641; [2005] QB 183
7 May 2004
CA
Lord Phillips of Worth Matravers MR, Tuckey, Wall LJ
Negligence, Armed Forces
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."
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Saggar v Ministry of Defence UKEAT/1385/01; [2004] UKEAT 1385_01_1006
25 May 2004
EAT
The Honourable Mr Justice Burton
Discrimination, Armed Forces
Three Defence employees sought to bring claims of variously race and sex discrimination against the Ministry. In each case their services were provided almost entirely abroad, and the defendant argued that there was no jurisdiction to hear the case, and that jurisdiction was not created by minimal presence here. Held: The provisions as to jurisdiction in the two Acts are identical. The jurisdiction had to be founded at the date of the hearing. A minimal presence in the United Kingdom could not be used to found jurisdiction.
Race Relations Act 1976 - Sex Discrimination Act 1975
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Secretary of State for Defence v Reid [2004] EWHC 1271 (Admin); Times, 07 July 2004
28 May 2004
Admn
Newman J
Armed Forces
The claimant served in the armed forces. He claimed for the failure of the respondent to give him fair notice of the availablity of benefits. Omission of appellant causing delay in making of claim under regulations. Held: Providing information about the scheme was reasonably part of the duty of its proper administration. The respondent had failed in that duty, and the Pensions Appeal Tribunal had been correct in allowing the claimant to backdate his claim.
Naval, Military and Air Forces Etc. (Disablement and Death) Services Pensions Order 1983
[ Bailii ]
 
Secretary of State for Defence v Carver [2004] EWHC 1272 (Admin)
28 May 2004
Admn

Armed Forces

[ Bailii ]
 
Le Petit v The United Kingdom 35574/97; Times, 09 July 2004; [2004] ECHR 258; [2004] ECHR 258
15 Jun 2004
ECHR

Human Rights, Armed Forces, Criminal Practice
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Non-pecuniary damage - finding of violation sufficient ; Costs and expenses partial award - Convention proceedings
Naval Discipline Act 1957
1 Cites

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Thompson v The United Kingdom 36256/97; [2004] ECHR 267; [2004] ECHR 267
15 Jun 2004
ECHR

Human Rights, Armed Forces, Criminal Practice
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Non-pecuniary damage - finding of violation sufficient ; Costs and expenses partial award - Convention proceedings
1 Citers

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G.W. v The United Kingdom 34155/96; Times, 09 July 2004; [2004] ECHR 255; [2004] ECHR 255
15 Jun 2004
ECHR

Human Rights, Armed Forces, Criminal Practice
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Pecuniary damage - claim rejected ; Non-pecuniary damage - finding of violation sufficient ; Costs and expenses partial award - Convention proceedings
Naval Discipline Act 1957
1 Cites

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Mohisin Khan v Royal Air Force Summary Appeal Court [2004] EWHC 2230 (Admin); Times, 28 October 2004
7 Oct 2004
Admn
Mr Justice Forbes Lord Justice Rix
Armed Forces, Crime, Human Rights
The defendant claimed that he had gone absent without leave from the RAF as a conscientous objector. Held: The defendant had not demonstrated by complaint to the RAF that he did object to service in Iraq. In some circumstances where there was no procedure to make his objection known, the failure to do so might be taken account of, but here such a procedure did exist. For article 9, ""law" (i) must have the status of law, (ii) must be adequately accessible, (iii) must be of sufficient precision to be foreseeable, and (iv) must be compatible with the rule of law. " Although the appellant's recall papers did not expressly refer to conscientious objection as a ground for claiming exemption, it did sufficiently identify a relevant ground, namely "any other grounds…for compassionate reasons". Nevertheless there was no relevant manifestation of conscientious objection and no interference with any such manifestation by reason of the appellant's recall, arrest, prosecution or conviction.
European Convention on Human Rights 9.1 - Air Force Act 1955 - The Reserve Forces (Call Out and Recall) (Exemption Etc) Regulations 1997 (SI 1997 No 307)
1 Cites

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Roche v Secretary of State for Defence [2004] EWHC 2344 (Admin)
8 Oct 2004
Admn

Armed Forces, Personal Injury
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.
Crown Proceedings Act 1947 10 - Naval, Military and Air Forces (Disablement and Death) (Services Pension) Order 1983
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Secretary of State for Defence, Regina (on the Application Of) v Pensions Appeal Tribunal and Another [2004] EWHC 2525 (Admin)
22 Oct 2004
Admn

Armed Forces
Appeal against tribunal's permission to applicant to claim war disability pension out of time.
[ Bailii ]
 
Al Skeini and Others, Regina (on the Application of) v Secretary of State for Defence and Another [2004] EWHC 2911 (Admin); Times, 20 December 2004; [2007] QB 140; [2005] 2 WLR 1401; [2005] HRLR 3; [2005] UKHRR 427; [2005] ACD 51
14 Dec 2004
Admn
Mr Justice Forbes Lord Justice Rix
Human Rights, Armed Forces, Jurisdiction, Coroners
Several dependants of persons killed in Iraq by British troops claimed damages. Held: The court considered extensively the scope and applicability of Article 1 duties. In general an English court would have no jurisdiction over deaths abroad at the hands of British troops in a war situation. One death however had occurred whist the deceased was in the custody of the British Forces whilst they were the occupying power. Here sufficient jurisdiction and duties of care arose, and the family were entitled to a proper investigation of the circumstances of the death.
European Convention of Human Rights
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