The Queen (on the application of Damilola John Ogunmuyiwa) v The Army Board of the Defence Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Ellenbogen DBE |
| Judgment Date | 29 March 2022 |
| Neutral Citation | [2022] EWHC 717 (Admin) |
| Docket Number | Case No: CO/3592/2019 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 717 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Ellenbogen DBE
Case No: CO/3592/2019
Mr Pravin Fernando (instructed by Austen Jones Solicitors), for the Claimant
Mr Simon Murray (instructed by Government Legal Department), for the Second Defendant
Hearing dates: 19 and 20 May 2021
APPROVED JUDGMENT
Introduction
This is the Claimant's application for judicial review, following the order of Peter Marquand, sitting as a Deputy Judge of the High Court, dated 5 November 2019, by which he granted permission to advance six of the seven pleaded grounds. By the same order, the claim against the First Defendant was stayed, on the basis of the Second Defendant's acknowledgement that he is responsible for the First Defendant. The claim has therefore proceeded against the Second Defendant only.
By his claim form, issued on 10 September 2019, the Claimant challenges a decision made on 10 June 2019 (‘the Determination’), by the Army Board of the Defence Council, sitting as an appeal body (‘the Appeal Body’), in relation to a service complaint, dated 3 June 2015 (‘the Service Complaint’), submitted to his Commanding Officer and brought under section 334 of the Armed Forces Act 2006 (‘the 2006 Act’).
At all material times, the Claimant was a private soldier and serving member of the Royal Logistics Corp. By the Service Complaint, he made allegations of mistreatment, bullying and harassment by then Acting Warrant Officer Second Class (‘A/WO2’) Rennie, said to have occurred whilst the Claimant had been serving as his driver at British Army Training Unit Suffield (‘BATUS’), Canada, between April and May 2015. The Claimant was later promoted to the rank of Lance Corporal. He was medically discharged from the Army on 27 December 2018, but for which he would have been expected to serve until 8 January 2024. At the end of his time at BATUS, A/WO2 Rennie reverted to his substantive rank of Staff Sergeant. There is no suggestion that that was in any way connected with the subject matter of the Service Complaint. He was subsequently promoted to WO1.
The remedy sought in these proceedings, at section 7 of the claim form, is that: (i) the Determination be quashed in its entirety; (ii) the Service Complaint and the Claimant's appeal be put before a differently constituted appeal body; and (iii) the new appeal body have proper regard to the relevant law and policies/guidance applicable to the Service Complaint. The Claimant contends that, in investigating and determining his appeal, the Appeal Body acted irrationally, unlawfully and without procedural propriety. In particular (and in summary), it is said to have:
4.1. acted unlawfully and/or irrationally/unreasonably in its application of secondary legislation and associated guidance;
4.2. irrationally/unreasonably concluded that he had not been bullied;
4.3. unlawfully and/or irrationally/unreasonably failed to have formed conclusions about facts concerning the Service Complaint;
4.4. irrationally/unreasonably determined that the Claimant's account in respect of the entirety of the Service Complaint lacked credibility;
4.5. acted unlawfully and/ or irrationally/unreasonably by failing to have considered matters which were relevant to the Determination; and
4.6. acted in a way which was procedurally unfair and/or irrational/unreasonable in failing to have convened an oral hearing and, specifically, to have heard evidence from the Claimant.
Before considering each of those grounds, it is necessary to set out the history of the Service Complaint and related matters.
The Facts
The allegations contained in the Service Complaint
WO2 Clark acted as the Claimant's Assisting Officer, on the Claimant's case distilling his original material from eight to two pages 1. The Service Complaint, as submitted, raised the following six allegations:
6.1. Allegation 1: On an unknown date in April 2015, whilst the Claimant had been acting as A/WO2 Rennie's driver, during a live-firing exercise in BATUS, A/WO2 Rennie had shouted at him furiously and then, when the vehicle was stopped, said several words to the Claimant; grabbed him by the collar; and shouted directions at him regarding the following of instructions and route selection. A/WO2 Rennie had then informed a Royal Military Police Corporal and most of ‘8 Group’ that the Claimant was a ‘bad driver’;
6.2. Allegation 2: On 23 May 2015, A/WO2 Rennie had warned the Claimant ‘never in [his] life to touch the volume again’, after the Claimant had tried to lower the radio volume from its highest setting. A/WO2 Rennie had continued to shout at the Claimant throughout that day. At one-point, whilst standing on the passenger seat looking out of the open vehicle canopy, he had kicked the Claimant;
6.3. Allegation 3: On 23 May 2015, A/WO2 Rennie had instructed the Claimant to drive on, despite instructions from Sergeant Hood that he should wait, whilst an obstruction ahead was cleared. When the Claimant failed to drive on, A/WO2 Rennie had approached him and struck him in the face, through the open driver's side window, whilst the Claimant had raised his hand to guard his face. In the process, A/WO2's finger had entered the Claimant's eye, causing it to water;
6.4. Allegation 4: On 30 May 2015, after the Claimant had driven through a pot-hole, A/WO2 Rennie, again standing on his seat, had repeatedly kicked him through the back of the seat whilst shouting that the Claimant was a bad driver. When the Claimant had failed to react, A/WO2 Rennie had grabbed him by his helmet strap, pulling him backwards. A/WO2 Rennie had then put his mouth close enough to the Claimant's right ear to touch it and had shouted directly into the Claimant's ear for 30–40 seconds, until the vehicle had come to a stop. The Claimant had then begun to suffer pain in his right ear;
6.5. Allegation 5: When the Claimant had expressed his wish to visit the hospital in order to address the pain in his ear, A/WO2 Rennie had, again, grabbed the
Claimant by his helmet and shouted in his ear, stating that he would not apologise. After calming down, A/WO2 Rennie had asked the Claimant what he would tell the doctor, were he to attend a clinic. He had then apologised for having grabbed the strap of the Claimant's helmet and shouted in his ear, but had informed the Claimant that he could not go to hospital, as they were required to go to EXCON (Exercise Control) the next morning;6.6. Allegation 6: After the Claimant had sought help at the medical centre from Sergeant Matley, who had advised him to see a doctor, A/WO2 Rennie had called Sergeant Matley and told her to inform the Claimant that he should wait until 07.30 the next day to go to the doctor and that A/WO2 Rennie would drive him there. A/WO2 Rennie had then attended the medical centre in person, requesting the vehicle key from the Claimant. The Claimant had been concerned that A/WO2 Rennie had been attempting to prevent him from going to see the doctor.
Referral to the Service Police and the Service Prosecuting Authority
The Service Complaint was referred to the Service Police, on 5 June 2015, for investigation, and was stayed pending conclusion of the latter. The Service Police concluded their investigation in November 2015 and referred the matter to the Service Prosecuting Authority (‘the SPA’). In a letter to the Claimant dated 12 November 2015, the SPA stated, ‘I have very carefully considered all the available evidence in this case, including your witness statements and the effect the incident has had on you. Looking at the case as a whole however, I have reached the conclusion that in respect of the majority of matters there is not a realistic prospect of conviction. This is principally because of the lack of corroborating evidence to support your account but also some of his behaviour, whilst unpleasant, does not amount to a criminal offence. Accordingly, Court Martial proceedings will not be taken against the accused. I know that my decision will be a disappointment to you, but I must emphasise that it does not mean that your account is disbelieved, or that his account is believed. It simply means that there is insufficient evidence to meet the high standard required in criminal cases such as this.”
The SPA considered that one issue should be referred to A/WO2 Rennie's Commanding Officer, but did not specify the issue to be referred. HQ BATUS received notification of the SPA's decision on 3 December 2015 and, on 11 February 2016, Minor Administrative Action was taken against A/WO2 Rennie, in the form of a Formal Interview.
Appointment of (a) a Specified Officer and (b) a Harassment Investigation Officer
No further action in respect of the Service Complaint was taken until a Specified Officer (‘SO’) was appointed, in May 2017, eighteen months after the conclusion of the investigation by the Service Police and the decision of the SPA. The SO was Lieutenant Colonel Geary, who made an admissibility decision on 24 May 2017 in respect of the Service Complaint, stating that the complaints raised by the Claimant were just and equitable and disclosed conduct which could amount to harassment and/or bullying. The matter was to be referred to the Army Service Complaints Secretariat who would appoint a Decision Body (‘the DB’) to investigate the complaint. On 30 May 2017, Lieutenant Colonel Geary was appointed as the DB. As the Service Complaint raised allegations of bullying and/ or harassment it was necessary for the DB to appoint a trained Harassment Investigation Officer (HIO), requested on 16 June 2017. In the...
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