Daniel Frederick Kenneth Clayton v The Army Board of the Defence Council and Another The Service Complaints Commissioner (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 22 May 2014 |
| Neutral Citation | [2014] EWHC 1651 (Admin) |
| Docket Number | Case No: CO/7536/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 May 2014 |
[2014] EWHC 1651 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nicol
Case No: CO/7536/2013
and
Fiona Edington (instructed by Lewis Cherry Solicitors Ltd) for the Claimant
Julian Milford (instructed by Treasury Solicitor) for the Defendants
Hearing dates: 14 th May 2014
On 8 th March 2013 a Service Complaints Panel acting on behalf of the Army Board dismissed the Claimant's service complaint. In these proceedings the Claimant seeks to judicially review that decision. He does so with the leave of Foskett J. which was given on 25 th October 2013.
The Claimant joined the Army in 1991. He was originally attached to the Royal Signals as a linguist. In 2001 a decision was taken to amalgamate the linguists in Royal Signals with the linguists in the Intelligence Corps. Those affected, such as the Claimant, were given choices. They could remain in the Royal Signals, but would then have to re-train to a completely new trade (i.e. not an intelligence trade). If they joined the Intelligence Corps they were known as 'OPMI(L)'s which stands for Operator Military Intelligence (Linguists). After transfer to the Intelligence Corps, they could transfer into a different position as an OPMI i.e. Operator Military Intelligence which would require basic training plus whatever other specialist training might be required. To a non-military person the distinction between OPMI and OPMI(L) may seem subtle, but the Panel had evidence that some significant extra training was required for a soldier who wished to make this transfer. The Claimant chose not to do so. He joined the Intelligence Corps and continued as an OPMI(L).
By this stage the Claimant had attained the rank of Sergeant. He was promoted to Staff Sergeant in 2006. The next rank above Staff Sergeant is Warrant Officer Grade 2 ('WO2'). The Claimant applied for this promotion in 2010 but was unsuccessful. The essence of his service complaint was that his career had been mismanaged and he had not been given proper advice to allow him to maximise his chances of promotion. In particular, at or shortly after, his 14 th year of service (so in about 2005) he should have had a Formal Career Review ('FCR'). This did not occur. He argued that, if this had taken place, he would have been advised to transfer to being an OPMI where his chances of promotion would have been better.
He made his first service complaint on 4 th May 2010. A complainant must specify the redress which they are seeking. He said that he wished to have retrospective transfer to the OPMI Career Employment Qualification ('CEQ'), promotion to WO2 and for that promotion to be backdated in line with the last promotion board.
As it happened, shortly after this complaint was lodged, the Claimant was called off the reserve list and offered promotion to WO2 as an OPMI(L) to take up an assignment in October 2010.
On 12 th July 2010 Colonel Wilman, who was the senior career manager for soldiers in the Intelligence Corps, wrote to the Claimant and said that if he wished to take up this offer of promotion he would have to withdraw his complaint with its request for a transfer to OPMI since the new assignment was for an OPMI(L) serviceman. I will need to say a little more about this letter later. However, it had the consequence that the Claimant submitted a second service complaint at the end of July 2010. It repeated the substance of the previous complaint but it sought a different form of redress. Instead of a transfer to being an OPMI, the Claimant sought a final assignment for 3 years as a WO2 and OPMI(L) in the United States (which was where his wife came from). He took up his promotion as WO2.
There has long been a scheme for service personnel who consider they have been wronged to make formal complaints. It has evolved and continues to do so. In 2010, the governing provisions were in Armed Forces Act 2006 ss.334–339. In summary a complaint is first to be made to (in the Claimant's case) his Commanding Officer. This is sometimes called 'Level 1'. Level 1 had the choice of deciding the complaint himself or referring it up. The reference could be to the Superior Officer ('Level 2') or to the Defence Council ('Level 3') – see Armed Forces Act 2006 s.334(4)(b). The manual issued by the Ministry of Defence in 2008 for dealing with individual grievances ('JSP 831') says that Level 1 should only refer to Level 3 exceptionally and where, because of the nature of the complaint or the redress sought, Level 2 cannot add value to the complaint. Level 1 should discuss the matter with Level 2 before taking this course.
If the Commanding Officer (Level 1) does decide to refer the complaint to the Superior Officer (Level 2), then the Superior Officer had a similar choice: he could decide the complaint himself or he could refer it up to the next stage, i.e. Level 3, the Defence Council — see Armed Forces Act 2006 s.334(4) (c) and (d). In this case the Army Board is empowered to carry out the functions of the Defence Council – see Defence (Transfers of Functions) Act 1964 s.1(5). The Defence Council / Army Board can delegate consideration of a complaint to a Service Complaint Panel – see Armed Forces Act 2006 s.335. In some cases the Service Complaints Panel must include an independent member, but this was not one of those cases.
The Claimant's Commanding Officer was Wing Commander Exley. On 27 th July 2010 he dealt with both of the Claimant's complaints, treating the second as an amendment to the redress sought in the first. He said, "the amendment to the redress does not change the foundation of the SC [i.e. service complaint] and I believe that the SC is well founded but I do not have the authority to grant the redress sought or any other appropriate redress." He referred it to the Superior Officer who, in this case, was Major General Kirkland.
There was then considerable exchange of correspondence to which the Claimant contributed concerning his complaint. The papers were then assembled and presented to Major General Kirkland on 23 rd August 2011 with the note, "Should you feel that this SC has merit, you should refer it to Level 3 without comment." The Major General ticked the note and added "refer to Level 3". The date when this was done is not clear, but it was received by the Service Complaints Wing of the Army Board on 2 nd September 2011.
This was one of a large number of complaints which needed to be determined by the Service Complaints Panels. In addition further investigation was carried out and advice prepared. In this case the Panel consisted of Brigadier Brittain, Head of Defence Logistics Policy and Brigadier Walker, Head of Defence Logistics Operations and Capability. They met on 15 th January 2013. Brigadier Susan Ridge, who is Director Legal Advisory of the Army Legal Service, attended as legal advisor to the Panel. The Panel decided that an oral hearing was not necessary. It said in its subsequent decision,
"In accordance with the principles set out in the case of R v Army Board of the Defence Councilex parte Anderson we met to consider our determination in this case. We satisfied ourselves that appropriate disclosure had been made to the Complainant and that WO2 Clayton had had an opportunity to comment on all the papers that are before us, less the legal advice. Having read all the papers we agreed that there was no need for further investigation. We were also satisfied that there were no disputes of fact that could not be fairly resolved on the basis of the evidence contained in the papers; we were satisfied that we could fairly determine the complainant without the need for an oral hearing. We were therefore able to determine the case on the papers before us."
Because of pressure of other work, Brigadier Ridge was not able to draft a determination reflecting the Panel's decision until the beginning of March 2013. She distributed it to the Panel members who approved it. It was dated 8 th March 2013 and received by the Claimant on 21 st March 2013.
The Panel directed itself that it had to consider whether the Claimant was wronged in relation to his career management. This was wider than whether he had been treated unlawfully but also required consideration of whether there had been procedural error or substantive unfairness which in either case had been to the Claimant's detriment.
The Panel agreed that the Claimant had not received a FCR as he should have done. At that time he was serving in the USA which meant that there had been no convenient 'roadshow' at which such a review could have taken place. But the Panel agreed that other means should have been found to carry out an FCR. It did add, however, that there was an onus on the Claimant as well to seek out career advice, he had not done that and he had not therefore been wronged in that regard.
However, it went on to consider whether the Claimant would have transferred to OPMI if he had received career advice. The Claimant had submitted that he would have been fully qualified to be employed as an OPMI. The Panel, though, preferred the evidence of Colonel Wilman, Lt Colonel McCreath and Lt. Colonel Murray that OPMI was a parallel trade to OPMI(L) and that OPMI soldiers had to undertake a training which OPMI(L) soldiers would not have done. Looking specifically at the Claimant's...
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The Queen (on the application of Damilola John Ogunmuyiwa) v The Army Board of the Defence Council
...set out at paragraphs 267 to 273. 56 In Clayton v The Army Board of the Defence Council and Secretary of State for Defence [2014] EWHC 1651 (Admin), Nicol J held, at paragraphs 20 to 24: ‘20. As I have already noted, the Panel considered whether to hold an oral hearing by reference to the ......