Forces Law Briefing June 2022

20 Jun 2022

Introduction
FLB 2022

Clare Dalby, Wace Morgan: Chair’s Overview

As the current Chair of Forces Law I am excited to introduce the very first edition of Forces Law Briefing. 

In April 2021 I had the honour of being appointed as Chair and I am now half way through my 2 year appointment.  I would say that the most valuable part of Forces Law is not only being able to offer specialist legal services to the Armed Forces community including veterans and their friends but to be able to build a network of close working relationships with many of the charities and offer support to that community as well.  These connections I believe are invaluable and enable the organisation to point clients in the right direction when more than legal advice is required.

The aim of our Forces Law Briefing is to provide a practical guidance for serving personnel and veterans as well as looking at some of the more interesting legal topics that our practitioners may encounter.

Whilst we at Forces Law are celebrating our first edition of Forces Law Briefing and our newly updated website we are also getting ready for Armed Forces Day on Saturday 25th June 2022. A chance to show support for the men and women who make up the Armed Forces Community including currently serving troops, service families, veterans and cadets

Monday 20th June 2022 will see the raising of the Armed Forces Day Flag on Buildings and Landmarks around the country. Many of our member firms will be getting involved in local events or even organising their own. Another really important day that week is Wednesday 22 June which is  Reserves day when we will have the chance to show support for those who give up their spare time to serve alongside the country’s full time service personnel.

I hope that you enjoy reading this Briefing and that you find it useful

Finally I would like to say thank you to Andrew Bano, retired Judge of the Upper Tribunal for all the training sessions that he has given to our members in the past and his most helpful book on War Pensions and the Armed Forces Compensation Scheme which has been given a thorough review by Mr Jeremy Taylor, Consultant at Wace Morgan Solicitors.

In this edition:

Practical Guidance for Serving Personnel and Veterans

  1. Natasha Mason, Wolferstans: There’s No such Thing as a Silly Question
  2. Ahmed Al-Nahhas, Bolt Burdon Kemp: Armed Forces Compensation Scheme

For The Practitioner

3. Emma Norton, Solicitor and Director at the charity Centre for Military Justice: The Armed Forces Act 2021
4. Clare Dalby, Wace Morgan: Extra Time, Limitation in Personal Injury cases
5. Hugh O’Donoghue, Mountford Chambers: The Court Martial – the Crown Court in uniform?

Opinion Piece

6. Keir Hirst, Wace Morgan: The Military Employment Relationship

Book Review

7. Jeremy Taylor, Wace Morgan: War Pensions and Armed Forces Compensation, Law And Practice, Second Edition by Andrew Bano

Natasha Mason, Solicitor at Wolferstans and Royal Navy Veteran

Natasha is Wolferstans’ Armed Forces Engagement Champion; a Royal Navy Veteran who qualified as a Solicitor in January 2020.

Natasha joined Wolferstans in June 2015 as our Armed Forces Coordinator and worked within the Family and Personal Injury departments before commencing her training contract gaining experience in our Residential Conveyancing and Court of Protection teams. Natasha graduated from Plymouth University in 2016 with a 2:1 Honours degree in Law and graduated from the University of Law in 2017 with a Masters in Professional Legal Practice.

Natasha is often the first point of contact for members of our armed forces community looking for legal advice. Working across the firm, Natasha assists fee earners on military related matters or military clients and engages with organisations in the community to support those who serve, those who have served and their families.

Natasha is a committee member and former Chairman of the Forces Law legal network of which, Wolferstans is a long-standing member.

There’s No Such Thing As A Silly Question!

We’re all hardwired to be independent and want to do things on our own.  Asking for help often makes us feel uneasy, almost like we’re surrendering to someone else’s control.

Knowing when to ask for help and who to ask, is key to moving forwards.

If you’re serving and know you’re deploying, plan early to ensure your family have access to the finances they need while you’re away.  Consider whether you may need a General Power of Attorney; does your Will reflect your current situation and your wishes?  Plan early and if you need some help, asking a solicitor for advice on your Will or POA will help you plan should the need to use them arise.

At some point serving personnel will reach their date of discharge, whether through time served, medical discharge or some other reason.  Again, plan early and ask for help with next steps.  Planning your civilian life can take some time.  Asking the right questions to the right people will help your planning.  Career Transition Partnership are available to serving personnel through your resettlement office and can advise on all aspects of re-training and employment.  The Forces Pension Society provide roadshows throughout the year to explain the various Armed Forces Pension Schemes and help you understand your entitlement.  

Don’t forget to consider where you will live!  Ask when you need to give notice on your SFA.  Ask when and how you pay back your FHTB loan.  Ask how you register for social housing.  Ask for help on budgeting for civilian life.  Charities such as Citizens Advice can help with budgeting. 

For anyone leaving under medical discharge it’s imperative to ask your medical centre how your care and treatment plans will be transferred to the NHS.  Ask when you should be registering with a GP and, during the registration process ask if they have an Armed Forces Champion.  Tell them, you are a Veteran.  NHS England and NHS Scotland have some useful information available to help you (and your GP) to navigate the healthcare system.  Have you considered Armed Forces Compensation Scheme or a Personal Injury Claim?  Ask your local Department for Work and Pensions Armed Forces Advisors (Job Centre Plus) about any welfare benefits you may be eligible for such as ESA, Universal Credits and Personal Independence payments.

There is always someone who can help if you’re ready to ask.  Here is a small selection of organisations that could answer your questions:

Veterans Gateway
SSAFA
NHS England Op Courage Mental Health Services
Armed Forces & Veterans Breakfast Clubs

Ahmed Al-Nahhas, is a Partner and Solicitor Advocate.

Ahmed Al-Nahaas, is a Partner and Solicitor Advocate.  

Ahmed joined Bolt Burdon Kemp in 2011 and heads our Military Claims team.

As well as being named a “up and coming star” within the personal injury sector, Chambers and Partners 2022 has highlighted that Ahmed “has specialist knowledge and is very determined, tenacious and lovely to work with.”

Legal 500 2022 describes Ahmed as a solicitor who “has specialist knowledge and is very determined, tenacious and lovely to work with.”

Ahmed manages high value personal injury and clinical negligence claims, often involving serious accidents suffered by service personnel during training or through failures to treat and rehabilitate.  He ensures that all his clients are seen at an early stage by the right medical experts, so that their injuries can be fully investigated, an assessment made of their future needs and a strategy agreed for the successful progression of their claims.

As an experienced Solicitor-Advocate, Ahmed often appears in the High Court to represent his clients.  He has led our work defending the rights of service personnel in the workplace against poor conditions, bullying, discrimination and harassment.  He has an in depth understanding of service complaint procedures and will advise clients all the way through to appeal stages and beyond.  He is passionate about protecting the rights of women and minorities in the armed forces.

AFCS or a civil claim: which route is right for me?

At Forces Law we often get enquiries from Service personnel and veterans asking how to go about claiming for an injury that they have suffered. This article hopes to give some general guidance about the types of claims available.

The Armed Forces Compensation Scheme

The AFCS is a government run scheme which provides compensation for any service related injury, illness or death that has occurred since 6th April 2005. You can also claim for an award if you have an injury or illness that has been made worse by service. AFCS replaced the older “War Pensions Scheme” (WPS). Both schemes are run by Veterans UK, which is part of the Ministry of Defence.

You can apply for compensation while you are still serving or having left service, so long as you are within the time limits for making a claim. In general, an application must be made within seven years of the earliest of the following dates:

  • the date of the incident leading to your injury or illness;
  • the date on which your injury or illness was made worse by service;
  • in the case of illness, the date you first sought medical advice for that illness; or
  • your date of discharge.

If your claim relates to an injury that occurred before 6th April 2005, then you will not be entitled to AFCS but you may be entitled to a War Pension. A claim for a War Pension does not have the same time limits and so you may still be eligible for an award if you have not already claimed.

The AFCS is a “no-fault” scheme. This means that you don’t have to prove that your injury or illness was caused by someone else, only that it was caused as a result of your service. So, for example, you may have suffered your injury whilst on training in the UK, or on operational tour abroad (including combat situations). If you can say that your injury would not have happened but for your service, then it is likely that you will be eligible for an award.

The level of your award will depend on the severity of your injury and its effects on your life. The Government sets the tariffs for these awards and updates them from time to time. The tariffs class each type of injury from level 1 to 15, 15 being the most severe and often applied to cases involving serious or ongoing disability. There are normally two types of award you can receive under the AFCS:

  • A tax free lump sum to compensate you for pain and suffering.
  • A Guaranteed Income Payment paid monthly to compensate your lost income, again tax free.

If it is unclear whether your injury will get better or worse with time, then Veterans UK will normally make an ‘interim’ award to you. This is an award that aims to tide you over whilst your condition is treated and your prognosis becomes clearer. At a later stage, and once your situation is clearer, your award will be made ‘final’. You can seek to review or appeal awards but time limits will apply.

Importantly, nothing will stop you from making a claim under the AFCS in addition to a civil claim, mentioned below.

You can make a claim under the AFCS using the application form found here: https://www.gov.uk/guidance/armed-forces-compensation-scheme-afcs#how-to-make-a-claim

A civil claim

There are a number of different types of civil claims that you might bring if you are injured, depending on the circumstances of your injury and/or the losses you have suffered. By “civil claim” I mean a claim brought in the civil courts or an Employment Tribunal. Unlike AFCS, all these claims require you to prove fault of some kind, though the legal tests will be different depending on the type of claim you are making. These are examples of the main types of civil claims that you can bring:

  • A claim for assault or battery, for example where you have been the victim of a crime.
  • A claim for dependency and/or a bereavement award, for example if your loved one died in service.
  • A claim for negligence, for example because you were injured as a result of poorly maintained equipment.
  • A claim under the Protection from Harassment Act, for example where you have been bullied at work.
  • A claim for discrimination in the Employment Tribunal, for example where you have been treated different because of your sex, race or another protected characteristic.

There are very strict time limits that apply to civil claims. Generally speaking these are:

  • Three years for any assault or battery.
  • Three years from the date of injury for a claim in negligence.
  • Three years from the date of death for a claim of dependency and/or for a bereavement award.
  • Six years from the date of the first incident of harassment for claims under the Protection from Harassment Act.
  • Three months for a claim in the Employment Tribunal (although this deadline can be extended where you have brought a Service complaint).

Normally if you are out of time to bring a claim then you will lose your right to compensation. In very special circumstances you may be able to apply to the Court or the Tribunal for permission to allow your claim to proceed out of time. But these applications are complex and not always successful. You should always check time limits at an early stage by taking specialist advice from a solicitor.

The awards that you can achieve in a civil claim will vary depending on the type of claim and your losses, although generally speaking these are far higher than the awards you might receive under the AFCS. This is mainly because in civil claims you can claim your future losses in addition to your pain and suffering. So where you may have lost your military career because of someone else’s fault, then you may be entitled to a very significant award of compensation for loss of income, benefits and pension.

Which route is right for me?

The short answer is: both! If you are entitled to an award under the AFCS and have a potential civil claim, then nothing should stop you from claiming through both routes. In fact I would encourage you to do so because you may not succeed in both routes and the process can take time. However, you cannot recover twice for the same losses, so any award you receive under the AFCS may have to be credited in your civil claim, and vice versa.

Many service personnel and their families are not clear about their rights to bring a claim and they often believe that they should wait until the conclusion of their service career before seeking to make a claim. Equally, some personnel only seek legal advice after their AFCS claim has been unsuccessful. The problem is that the time limits to make a civil claim may have expired by then. So my advice is to get advice soon after an injury or incident, so that you can be clear about your rights, check the deadlines and plan ahead.

THE ARMED FORCES ACT 2021

Emma Norton, Solicitor and Director at the charity Centre for Military Justice (CMJ), discusses some of the issues that arose during the passage of the Armed Forces Act 2021.

(The Centre for Military Justice is a charity (charity no. 1186988) that was established by the former Director of Army Personnel Services Brig John Donnelly, the father of the late Pte Cheryl James who died at Deepcut barracks, Des James, and Emma Norton who used to work at the human rights organisation Liberty. The CMJ provides legal advice and support to service personnel or their bereaved families. In particular, we support people that have experienced bullying, harassment, discrimination, racism or sexual violence. We also promote wider learning within the armed forces about the rule of law, access to justice and human rights)

The Armed Forces Act  2021 (AFA 21) received Royal Assent on 15 December 2021 after taking almost a full year to work its way through Parliament. As Forces Law members will know, periodic Parliamentary consent is required for the raising and keeping of a standing army during peacetime – a requirement that dates back to the 1688 Bill of Rights. In modern times, consent to maintain the armed forces is provided through the presentation of an Armed Forces Bill every five years. The previous Armed Forces Act, passed in 2006 (AFA 06), provided the legal basis for the maintenance of the armed forces and the UK’s system of military law. It founded the Service Justice System (SJS) which underpins the maintenance of discipline throughout the chain of command. At its renewal, the Act also provides an opportunity for Parliament to introduce new measures outside the Act’s traditional remit of service discipline and to address matters of public or service concern that require legal reform.  During the course of the passage of the 2021 Act, Parliament took the opportunity to examine a wide range of different issues affecting the armed forces today, including: the constitution of Court Martial boards; concurrent jurisdiction of the Court Martial and the Crown Court (particularly concerning the handling of serious sexual offences); the armed forces covenant; service police reform; the service complaints system; and sentencing reform.

In this short article, I will provide an overview of some issues of particular interest that arose during the passage of the Bill.

Concurrent jurisdiction

Prior to the AFA 06, serious criminal offences allegedly committed by service personnel in the UK could not be tried in the Court Martial. They were sent to Crown Court. Section 50 of the AFA 06 provided the Court Martial with the necessary jurisdiction to try those offences on the basis that, in rare cases, it would assist the administration of justice. The Parliamentary debates at the time describe the kinds of situations envisaged: cases where offences had allegedly taken place both at home and overseas and that would benefit from being tried in a single set of proceedings; or cases requiring a particular kind of military or technical knowledge in order to be able to try them fairly. As Judge Lyons explained in the Service Justice System Review of 2020 (SJSR), it was not envisaged ‘that the existing practice of the Crown Court being the normal forum for these trials would change’. Indeed, the Armed Forces Select Committee had made clear in April 2006 that it accepted ‘the arguments for extending the jurisdiction of courts martial so that they may consider those serious cases. However, we note that, unless there is a specific need to try such cases by court martial, public confidence may be better served by their being tried, as now, in the civilian system.’ In a similar vein, the then Government assured Parliament that ‘we do not propose that, under the Bill, murder, rape or treason alleged to have been committed by a serviceman in the United Kingdom will normally be investigated and tried within the service system.’ [1]

The AFA 06 itself was silent on the issue of concurrent jurisdiction, however. How offences that could be tried in either the civil or SJS should be dealt with in practice was to be governed instead by a formal protocol that had been agreed between the Director of Public Prosecutions (DPP) and the Director of Service Prosecutions (DSP).  Notwithstanding the apparent position of the then Government, the protocol in fact stipulated that ‘offences alleged only against persons subject to service law which do not affect the person or property of civilians should normally be dealt with in service proceedings’. This clearly envisaged a far wider role for the Court Martial than had been presented during the passage of the AFA 06. In the event of a dispute between prosecutors in the SJS or civil system as to which route a case ought to take, the DPP would have the final say. In the years that followed, increasing numbers of serious cases were dealt with in the SJS, including serious sexual offences.[2] Freedom of Information Act requests made in 2017 and 2020 have confirmed that the DPP held no record since 2011 of it being asked to make a determination on whether a disputed matter ought to be progressed in one system or another. Victims of serious sexual crime that contacted the CMJ reported not being aware that their case could have been investigated by civilian police and prosecuted by the Crown Prosecution Service, assuming that only the SJS had jurisdiction to handle their case. Overwhelmingly, internal policies, such as they were, on the handling of criminal offences including sexual assaults, tended to refer people to the service, not the civilian authorities.

Matters came to a head with the publication of the Service Justice System Review (SJSR) in February 2020, led by HHJ Shawn Lyons and former Chief Constable of Merseyside Police, Sir Jon Murphy. Among other things, the SJSR identified significant concerns about the quality of service policing and some prosecutorial decision making.[3] On that basis and in light of the apparent original intention behind the legislation, HHJ Lyons recommended that the most serious offences of murder, manslaughter, rape (MMR) and sexual assault by penetration offences that were alleged to have occurred in the UK ought henceforth to be taken forward in the civil system, not the SJS.

On the same day that the Ministry of Defence (MoD) published the SJSR, the Secretary of State for Defence (SSD) rejected that recommendation. A judicial review brought by three survivors of rape or serious sexual assault (and who had complained at the quality of service policing and service prosecutorial decision-making in their cases) argued that the SSD had unreasonably rejected the recommendation, in that he had failed to consult, and that the offence of rape ought to be presumed one that should proceed in the civil system not the SJS. The SSD agreed to look again at the issue and there then followed a period of consultation and the judicial review claim settled on the basis of an agreement on the part of the SSD to place the matter before Parliament, to review all internal policies on the handling of sexual assaults, and to remind all service personnel of their right to report serious crimes to the civilian police if they wished to do so. 

In due course the Bill was published and contained a clause now requiring the DPP and DSP to agree a protocol regarding the exercise of concurrent jurisdiction in cases that could proceed in either forum. It was required to set down the general principles to be taken into account when deciding whether a case should proceed in one jurisdiction or the other, and may give guidance as to the procedures for making such decision with the objective of ensuring the promotion of fair and efficient justice. Where a disagreement cannot be resolved, the final decision lies with the DPP.[4]

The clause enabled there to be extensive Parliamentary debates on the issue of the handling of rape cases in the SJS. These debates were significantly energised following the report of the Defence Committee Inquiry on Women in the Armed Forces in July 2021 that revealed a largely unhappy picture for the majority of the more than 4100 women that had taken part in it, including in relation to the handling of allegations of serious sexual assault. [5]  Despite a Lords amendment that would have created a presumption that MMR cases should proceed in the civil system, as well significant cross-party support for that amendment (including from former Minister Johnny Mercer MP, and Sarah Atherton MP as well as opposition parties), the clause remained unamended and passed on the above terms.

At the time of writing the Protocol does not appear to have been published. The SSD issued a Defence Instruction Notice requiring all service personnel to be reminded of their right to report criminal allegations to the civil police; and the review of internal sexual assault policies appears to be ongoing, including the development of a Defence-wide strategy for rape.

Service Policing reform

The AFA 21 created for the first time an independent Service Police Complaints Commissioner (SPCC), recognising the fact that there was no independent oversight body (similar to the Independent Office of Police Conduct) with whom individuals could bring individual complaints about service policing.[6] The creation of an independent oversight body was another recommendation of HHJ Lyons in the SJSR, although it is worth noting that this issue had not originally been intended to be within the scope of his review and the issue was only placed within his terms of reference following the threat of legal proceedings by another sexual assault survivor. The new SPCC will be supported by investigating officers and, like the IOPC, will be able to consider ‘super complaints’ that enable the SPCC to consider issues raised on behalf of the service community about harmful patterns or trends in service policing. The SPCC is not in post yet and recruitment is expected to start shortly.

The AFA 21 also created a new ‘tri-services serious crime unit’ (also referred to during the passage of the Bill as the ‘Defence Serious Crime Unit’).[7] This followed the recommendations of both HHJ Lyons and Sir Richard Henriques in his review, that was tasked with investigating ways to improve service policing in the difficult environment of overseas military operations. Following the Lyons and Henriques recommendations, a new Provost Marshal for Serious Crime is created. The three Special Investigations Branches of the single services will effectively be brought into a single unit, something that is acknowledged will ‘be challenging and will take time’.[8]  A careful reading of the Henriques Review suggests there was significant opposition to the proposals within the service policing communities and it will be interesting to see how the DSCU settles into its role, particularly as regards its engagement with civilian police potential sources of support, expertise and oversight.

Service Complaints Appeals

Members supporting service personnel seeking to raise service complaints (either free-standing or because they are required to do so in order to bring claims in the Employment Tribunal[9]) will be familiar with the criticisms of that system. It has been described as neither efficient, effective or fair in each of the annual reports of the Service Complaints Ombudsman for the Armed Forces (SCOAF) and is riven with delay, with strong evidence of poor-quality decision-making.[10] The MoD’s response in the AFA 21 was to reduce further the timescale within which a complainant must appeal their service complaint, either from stage one (Decision Body) to stage two (Appeal Body); or from Appeal Body to SCOAF.[11] The time limit may now be reduced from six weeks to just two. Forces Law members Keir Hirst (Wace Morgan Solicitors) and Ahmed Al-Nahhas (Bolt Burden Kemp), along with the CMJ, wrote to the Chief of Defence People about this proposed reform which, it was suggested, was very much not in the interests of hard-pressed service personnel trying to navigate an already unfair and complex system. The Government’s proposal was also strongly opposed by the  Defence Inquiry on Women in the Armed Forces. However the clause passed unamended and readers should be aware that in due course regulations are expected to be laid that will reduce the time limit for service complaints appeals, from six weeks to just two weeks, which carry important implications for all Employment Tribunal claims brought by service personnel.

Clare joined Wace Morgan in 2015, working within our Litigation department. She has over 20 years of legal experience and qualified as a Solicitor in 1998.

An accredited Senior Litigator with the Association of Personal Injury Lawyers (APIL), Clare has demonstrated considerable competency and specialist knowledge in the area of Personal Injury.

She has experience in dealing with Serious Injury claims arising out of Road Traffic Accidents, Accidents at work, Slips and Trips, Fatal Accidents and Clinical Negligence.

Clare also has strong experience in Military Law Matters, in particular claims against the MOD for personal injuries such as Non-Freezing Cold Injuries and Pelvic Stress claims.

She has also dealt with claims against the MOD for administrative failings resulting in Negligent Treatment as well as Bullying & Harassment claims. In financial matters she can assist with Armed Forces Compensation Scheme (AFCS) and War Pension claims.

Extra Time

An article on the topic of Limitation by Clare Dalby – Head of Personal injury at Wace Morgan Solicitors

Those of us that specialise in personal injury claims will often be faced with military personnel approaching you in relation to claims that are out of time.  Often those personnel will say that they were informed by colleagues / superiors that they would have to wait until the end of their service to bring a claim.  Some will be worried about losing their career and so will wait until their service terminates.  The question to ask yourself is therefore whether or not you should just dismiss those enquiries.  From my experience I would say “ do not be too hasty”.  Running a claim when you have limitation as an issue is not easy.  It can be difficult and stressful not just for the solicitor and the legal team but also for the client.  However it is not impossible to achieve a successful outcome.

I have successfully recovered compensation on a number of occasions where limitation is an issue. Many of those claims have never been challenged on the limitation point because, although potentially technically out of time, we have been able to gather sufficient evidence to show that

a. the injury occurred

and 

b. the cogency of the evidence has not been affected.

Surprisingly, on some occasions, the Ministry of Defence’s own witnesses have been supportive of the Claimant’s allegations of exposure and negligence even though a substantial period of time has elapsed since the injury occurred.  In fact, in May of 2019, having made a Freedom of Information Act Request to the Ministry of Defence, I received confirmation that no cases had been run to trial on the issue of liability and no cases had been run in relation to the preliminary issue of limitation.  There was however a case pending for June 2019 which is the very case that I am going to speak about in this article. But first of all we shall have a look at the legislation.

Limitation Act 1980 – S33

Section 33 will apply if the court is satisfied that it would be equitable to allow an action to proceed having regard to the degree to which the Claimant would be prejudice and the degree to which a decision of the court under this section would prejudice the Defendant or any person whom they represent.  There are six factors that the court needs to consider.  The length of and reasons for the delay, the extent to which having regard to the delay the evidence is likely to be less cogent, the conduct of the Defendant after the cause of the action arose, the duration of any disability of the Claimant, the extent to which the Claimant acted promptly and reasonably once he or she knew whether or not the act or omission of the Defendant to which the injury was attributable might be capable at that time of giving rise to an action for damages.  Finally the court will look at the steps taken by the Claimant to obtain medical legal or other expert advice and the nature of that advice.  It is worth bearing in mind that the burden is on the Claimant to show that it would be equitable to dis-apply the limitation period however, the evidential burden of showing that the evidence is less cogent due to the delay, is on the Defendant.

It is therefore really important that immediate action is taken when you are faced with a claim that potentially has already been time-barred.  It is very important to gather your evidence as quickly as possible including medical evidence and, I cannot stress enough, the importance of comprehensive witness statements, in particular from the Claimant, setting out insofar as is possible, the exact nature of the injuries and the basis of their cause.

Mr Carew v the Ministry of Defence 6 WLUK 858.

By way of background, Mr Carew joined the British Army in 2003 and, upon completion of basic training, joined 1 Royal Regiment of Fusiliers under Y Company in Germany.  In 2005 whilst on an exercise in Sennelager he developed a non-freezing cold injury.  Thereafter he was subjected to 13 other cold exposures which ultimately led him to make the decision to leave the Army in 2016.  Mr Carew had sought legal advice from another firm of solicitors before approaching Wace Morgan in 2016.  Naturally there were concerns regarding the length of time since the first exposure, nevertheless I decided that it would be appropriate to pursue this claim based upon experience and the knowledge that there would be a very good chance of being able to gather sufficient evidence to run a successful argument under Section 33 of the Limitation Act 1980.

In the case of Mr Carew this required a very detailed description from him as to the dates of exposure to cold and the exact nature of the activities that he was conducting when the cold exposure occurred.  Any witnesses who can assist are also extremely beneficial.  This was a little bit difficult for Mr Carew because, although we have successfully achieved settlements for other soldiers where they have sustained a non-freezing cold injury from as far back as 2005 and 2006, none of them were on the same exercise as Mr Carew.  Nevertheless, armed with very good medical evidence contained within his military medical records to show that he sustained the injury on that exercise in 2005 and that he had had subsequent exposures, we decided to proceed with the claim. 

The allegations of exposure and the courts decision

  1. In February 2005 in Sennelager the Defendant was able to call witness evidence in this case from Colonel Stitt who did his very best to remember the incident.  He was adamant that it was a mounted exercise in warrior vehicles and that the Claimant would not have had any significant cold exposure.  Documentation in relation to risk assessments, health and safety training records, safety inspections and accident reports had not been retained.  Arguments were raised on behalf of the Claimant that this was a breach of the MoD’s policy however, the evidence at trial was such that the MoD are only responsible for retaining records of this nature for a period of three years and therefore there was no breach of their own policy.  The only records that are retained for longer are medical records and health surveillance records which are kept to 60 years.  The Judge found that the Claimant had knowledge of his injury in June 2006 when he was diagnosed with NFCI and he failed to take any further action.  The Judge found that there were no good reasons for the delay and there was nothing to qualify or temper the prejudice which had been caused by the effect of the delay on the Defendant’s ability to defend the claim. There is an argument that the Claimant should have been given Lowa boots to protect him prior to exposure on the exercise, unfortunately there was a finding against the Claimant in this respect and it was held that the Defendant was not obliged to provide Lowa boots based on the mere fact of the Claimant’s ethnic heritage.
  • Allegations 2 – 4 from 2005 to 2006 Mr Carew was exposed to further cold in Batters in April / May 2005, Iraq in 2005 and 2006 and again whilst on exercise in Bavaria in 2006. 

Again there was very little documentation available in relation to these exercises and again no real witnesses.  Exposures, on the Claimant’s evidence, were fairly minor and by 2009 the Claimant had recovered to a very low level with symptoms from his NFCI. Again there was a finding against the Claimant on this particular exposure to the extent that there would be severe prejudice to the Defendant by allowing these allegations to proceed on the basis that there is limited documentation and witness evidence. 

  • The fifth allegation related to an incident when the Claimant participated in a JNCO Cadre  course in October 2006.  The court felt that the Claimant had not lost much by this incident because of the subsequent recovery by 2009 and this particular allegation against the Defendant was not allowed.
  • Mr Carew had a further three allegations which constitute allegations 6 – 8 which occurred in Sennelager in 2007, Iraq in 2008 and in Tidworth in 2011.  Whilst we did our best to gather as much evidence as we could in relation to those periods and the incidents of cold exposure, naturally with the lapse of time, Mr Carew found it difficult to recall exact specific events.  It was held that it was not just and equitable to spend time in relation to these exposures as there was no good reason for the Claimant not taking advice at that stage.
  • Matters were more promising for Mr Carew in this case when we considered the final five allegations of cold exposure which spanned a period of July 2011 to 2015.  In July 2011 Mr Carew passed a JNCO Cadre course but, during that exercise, was exposed to cold.  Limitation in that case expired on the 13th July 2014.  The court found that the Defendant had not undertaken any proper documentary search for this period and had a number of witnesses that could give evidence in relation to it.  The Defendant had not taken any proper steps to investigate this later period, nor had they provided the Claimant with Lowa boots even though there had been medical recommendation from 2009 onwards that Lowa boots should be provided.  The Claimant also gave evidence that he had been informally warned off by a superior officer from making any claims back in 2011.  The Claimant was then exposed again in October / November of 2011 whilst in Wainwright and on a course in Batters in 2012 as well as Afghanistan in 2013. 

Whilst the Judge highlighted that some of the documentation from those courses may have been destroyed under the three year principle, the Defendant had failed to undertake any exercise to try and locate that information and for that reason the court held that it was just and equitable to extend to extend time in relation to these later incidents, in particular it was highlighted that as far as the JNCO Cadre course the extension to the limitation period was 2 years and 3 months. For the Wainwright, Canada incident 1 year 11 months.  For Batters in 2012, 1 year and 9 months and Afghanistan was an extension of 4 months.

Having achieved a partially successful outcome for Mr Carew at this preliminary issue stage we were then able to negotiate a settlement on his behalf. 

Conclusion

To date this is the only case of which I am aware that has been heard by way of a trial on the preliminary issue of limitation involving the Ministry of Defence as the Defendant.  Although we were not successful on all issues, looking back this is probably one of the most difficult and hard fought claims that I have conducted.  However there was still a huge sense of achievement in being able to help Mr Carew who had given so much of his life to the British Army.

In this situation if Mr Carew had only had the one exposure in 2005 and had then sought advice in 2016 and had proceedings been issued on only that one exposure, he would not have been successful.  But, having said that, we have dealt with other claims which have involved only one exposure and we have been able to gather evidence ourselves and force the MoD’s hand to disclose documents that ultimately demonstrate the prejudice to the Defendant, damage to the cogency of the evidence is minimal and if they continue to defend the claim on the balance of probability it is likely that we will be able to persuade a court that it would be equitable too dis-apply the limitation period in the Claimants favour.

The Overseas Operations Act came into force on 30 June 2021. Will this have any impact on claims like this? There is a possibility but that is a discussion for another day.

Hugh O’Donoghue, Mountford Chambers: The Court Martial – the Crown Court in uniform?

Hugh has a wealth of injunctive experience, including (world-wide) freezing orders, interim relief and applications to restrain presentation or advertisement of a winding up petition. Many of his cases are reported. Hugh is known as a stunningly competent advocate with outstanding trial experience. He is also regularly instructed in CPR-based applications (for example, contested security for costs applications and strike out & summary judgment application.

Hugh O’Donoghue also accepts instructions in matters relating to public law, regulation and mixed regulation and crime and judicial review. He has a special interest in aviation being a qualified pilot himself. He has In the past year represented a pilot prosecuted jointly by the Civil Aviation Authority and the CPS following a crash landing near Manchester.

He brings enormous energy and commitment to his professional life, has a strong following of solicitors and lay clients (direct public access) (both large and small) that will always pick him for their work. He prides himself on giving clear and practical advice, quickly absorbing complicated instructions in order to give clear bite-sized advice and sharing the workload with his instructing solicitors. Hugh is regarded as being user-friendly and accessible. He is open to CFA arrangements in suitable cases. He promises speedy turn-around and guarantees thorough research.

Hugh is Chair emeritus of the EU and International Affairs of the Law Society in Ireland and served in the years 2004-2006; Vice-Chair 2003-2004. Member of the Irish Law Society Standing Committee on Curriculum Development (CDU) 2005-2007. Vice-Chair 2006.  He represented Ireland on the prestigious Union International du Notariat Latin between 2005 and 2007. He holds membership of the Association of Law Teachers (IALT) and Canon La Society of England and Wales and  is currently accredited by OHIM (EU). He is a member of the South East Circuit. He is also a member of the Administrative Bar Association, the PNBA and the British Institute of International & Comparative Law.

Hugh has lectured extensively in International Human Rights protection and was while based in Ireland an associate faculty member of the Law School of the Irish Law Society. He lectured in Warsaw (2003) and also in Pretoria, South Africa (2004-2005) where he contributed to a programme extensively funded by the Irish Government to assist local lawyers become skilled in the rewarding but monopolised commercial field. His manual of human rights was published by the Oxford University Press. His continuing interest in education is reflected in a lecture at the College of Law Bloomsbury in London on the topic of Military Law. He has assisted the Inner Temple undertaking an extensive review of a published work on International Arbitration which was a serious contender for the coveted Pegasus prize. He is a member of the Kings Inns Dublin and has a seat at the Irish Law Library.

Introduction

This article consists of the briefest introductions to the Court Martial. The focus is for those readers new to the area. Anyone seeking to plunge deeper can do no better than refer to Rant on the Court Martial & Service Law 3rd Ed by HHJ Jeff Blackett. Most agree Rant with its extensive treatment of the subjectserves as an indispensable vade mecum. Online, the Manual of Service Law in three volumes is the go-to open source. Volume 3 lists the relevant legislation and is particularly useful although be careful it may not be entirely up to date.

Legislative Matrix

Historically the relationship between Crown and the Armed Forces was based on royal prerogative. The prerogative is now largely displaced by statutory provisions pre-eminently the Armed Forces Act 2006 (AFA) renewed currently (as they must be every five years) by the Armed Forces Act 2021.

The idea of the court martial (now enshrined in section 154 AFA) is that of a single permanent and standing court which has jurisdiction to try cases involving the personnel of all the armed forces both regular and reserve within or outside the UK. The jurisdiction of the CM runs parallel to although not coextensive with the Crown Court and tries what are termed service offences.  CM jurisdiction extends to appeals brought by persons convicted on summary disposal or sentenced by the Service Civilian Court. Nevertheless, the primary role is to try service offences. Within the Service justice system, a defendant is no longer said to be tried by Court Martial. He is tried in the Court Martial, a nod perhaps to the unitary system now in place.

Service Offences

Enabling legislation has in effect incorporated the criminal law of England & Wales into the Service jurisdiction. Several disciplinary (like random drug testing) offences are also created. Together, they make up the canon of service offences dealt with by the CM.

MCC’s

There are two permanent military court centres (MCC) at Bulford and Catterick. However, CMs are highly portable with hearings taking place in such far flung places as Cyprus, Brunei, Kenya and the USA.  During the pandemic there was a Nightingale court at Tidworth. Up to recently hearings took place regularly in Sennelager[1] in Germany. Traditionally, army cases are divided between the Bulford and Catterick venues and Bulford is usually chosen for RAF cases. By default, RN cases are held at Bulford.

A Tour of the Court

What can the lawyer expect at one of the centres? First up are the court staff of the Military Court Service (MCS) under the leadership of the CAO.[2]  The MCS is, as might be expected, hugely efficient though no less helpful[3].  The MCS is responsible for listings and results and coordinates, administers and provides support to all court proceedings.

The visiting advocate will also meet the Service Prosecuting Authority (SPA) and the prosecuting lawyer a fully commissioned officer and who presents the case in full uniform. In 2009 the three individual prosecuting authorities were merged under the control of the Director, independent of the Department of Defence, but under the superintendence of the Attorney General. The service is equivalent to the CPS in the civilian sphere. A case is referred to the DSP by a commanding officer or by Service or civilian police.

Weapons Grade Ceremonial

Which brings us to procedure which in many discreet ways is in striking contrast to civilian courts. As has been said it is important to the ethos and gravitas of a Service court that there is a certain military precision in proceedings. The pithy commentary, a quotation from Rant, understates if anything the ceremonial drill as well as the elaborate order of procedure. The author helpfully reproduces a table of the order of procedure deployed by presiding judge advocates.  It suggests the regimentation which translates to the proceedings.  The advocate may nonetheless stand at ease somewhat by the important qualification: “it is important that participants do not become anxious about these matters to the detriment of the legality of the proceedings or the fairness of the trial”[4].

The visitor will also be introduced to the Defence assisting officer (DAO). There is every likelihood that they have already been in contact. The role of the DAO, chosen by a defendant from a short list, is to assist the defendant prepare for the CM. He has no legal standing. His function is administrative only. Although he can and is invariably a very useful member of the defence team. It is to the DAO the lawyer turns to organise lines of communication between the defence and the military authorities like organising transport if warranted. A very important consideration in remote venues.

Personalities of the Court

To continue our imaginary tour, we might also expect to meet, beyond the prosecutor, court staff and DAO, the remaining cast of the Court Martial itself. Front and centre of course we see the Judge Advocate. It is he who presides at the trial and his function is the same as a Crown Court judge in all contested matters.

The Board

In contrast to courts most of us are used to the constitution of the CM provides for a board of least three, perhaps five but no more than seven ‘lay members’, depending on the seriousness of the offence charged. The board is a feature of military law that resembles but is assigned a wider remit than a jury. All lay members will be drawn by the MCS from a list of qualified officers including warrant officers who hold commissions for at least three years. The underlying concept is that Service experience of the members can provide context within which the alleged offending can be judged.

The senior officer is designated the President of the board. The rules allow an objection to a lay member and there is invariably a waiting member in attendance to fill in where required. The board alone determines guilt or innocence of the accused. However, if found guilty the board will retire with the Judge Advocate to consider sentence. This represents another unique feature of the military system[5]. Should an occasion require, the board members aid the judge by advising him about the Service considerations like career implications for the offender. All the lay members have an equal vote on sentence. In the event of an equality of votes the judge has the casting vote.

Judge Advocate.

But to return again momentarily to the Judge Advocate. He will be fully robed as a Crown Court judge. He will preside over the case should the matter be contested. He can also sit alone for instance for management hearings. Also assisting the court and the Judge Advocate we might find a court officer sitting below the judge. There is also an usher, again in full uniform, who is usually provided by the defendant’s own Service. To complete the picture the defendant will be accompanied by an Escort again chosen from his own Service.

Appeals

Finally, I should say a word about the appellate system[6]. The Court Martial (CM) is subject to the supervision both by way of appeal to the Court Martial Appeal Court (CMAC) and in a limited manner the prerogative orders obtained on judicial review. The writ of habeas corpus is available to any person in custody by order of a service tribunal to test the validity of his imprisonment[7] There is a right of appeal at the instance of the accused or the Director of Service Prosecutions (DSP) to the Supreme Court. Stated generally leave can only be expected where there exists a point of law of general public importance. The judges of the CMAC are normally two or three judges drawn from the Court of Appeal (Criminal Division) and they sit in the Royal Courts of Justice in London[8].

Afterword

To conclude therefore substance and procedure is similar enough to civilian life for most practitioners to easily adjust to the novelties.  However, it is not quite the Crown Court in uniform, although for the most part service offences will be familiar territory.  A thorough study of the crucial differences is necessary but on the other hand will prove a valuable addition to the criminal lawyer’s repertoire.

Keir Hirst, Solicitor, Director and Head of Military Law, Wace Morgan:

Keir joined Wace Morgan in 1998 as a trainee solicitor  and qualified as a solicitor in the year 2000. He was made a Partner in 2003. Keir has represented members of the armed forces and veterans since he qualified.  He lectures on Service Complaints and is a recognised expert in this complex area of law. He has appeared on File on 4 regarding Military law and has been involved in several high profile military employment law cases.

The Crown’s Gift? The Military Employment Relationship – An Opinion Piece

The Recent decision in Malone shows that the Military Employment relationship is rooted in the past.

The Military Employment relationship is one that dates back millennia.

The Modern military employment relationship was explored by the High Court in the recent case of Malone.

No Enforceable Contract

It often comes as a surprise to those new to Military Law that members of the Armed Forces do not enjoy enforceable contracts of employment.

The Service engagement derives from the Royal prerogative. Put simply, Soldiers, Sailors and Airman are engaged at the ‘Gift’ of the Crown.

In the case of Malone[1] (a case bought by Mr Malone via member firm Biscoes) the High Court decided that the Queens Regulations were ‘non-justiciable’ and confirmed the position that members of the Armed Forces do not have enforceable contracts in the courts. In this case the Court stated the following:

“The starting point is, as is agreed, that military servicemen are not engaged pursuant to a contract of employment. The authorities were summarised in Quinn [1998] PIQR P387 starting with In re Tufnell [1876] 3 Ch D 164 where it was held that every officer in the army holds his office subject to the will of the Crown and is liable to be dismissed at any moment without cause. Of particular significance is, perhaps, Mitchell v The Queen (Note) [1896] 1 QB 121 where it was held that “”no engagement made by the Crown with any of its military or naval officers in respect of services either present, past or future can be enforced in any court of law”. In Quinn, Swinton Thomas LJ, with whom the other members of the court agreed, stated towards the end of his judgment, at p 396: “”For my part, I would have no doubt at all that when Mr Quinn enlisted in the Royal Navy pursuant to the Kings Regulations neither he nor the Crown had any intention to create legal relations.”

Unfair Dismissal?

The right for members of the Armed Forces to make a claim for unfair dismissal appears under Section 192 of the Employment Rights Act. However, this right has never been implemented by the Government, despite parliament legislating over  20 years ago.

Wages

Moreover, one may think it very odd that members of the Armed Forces have no legal right to commence legal proceedings for unpaid wages in the Courts, but this still remains the ‘orthodox’ legal position.

No Right to Resign

Whilst there are various accepted ways to leave the Armed Forces, unless there are statutory provisions to the contrary, an Officer in the Armed Forces has no legally enforceable right to resign.

Service Complaint System 

It is true that members of the Armed Forces are able to bring a Service Complaint, and can bring claims for certain types of discrimination in the employment tribunal, but it is equally true that the Service Complaint system is neither ‘efficient, effective or fair’ (see the  Annual Reports from the Service Complaints Ombudsman for the Armed Forces).  On any  view,  an Ombudsman  system,  cannot be a proper substitute for an Independent Court/Tribunal process  for claims arising from military employment.  Much like our Armed Forces, our Court and Tribunal system has an excellent international reputation and should be available to members of the Armed Forces for employment matters.  The current system is clearly not working.

The Armed Forces Covenant

The Armed Forces and Society rightly place great importance on the Armed Forces Covenant. The Covenant provides that members of the Armed Forces, veterans and their families should be treated “fairly”. I must confess my view that the unequal relationship between a Service Person and the Ministry of Defence, does lead one to the conclusion that the employment relationship is not one based on fairness.

The Importance of the Chain of Command

It is understood by all that the military Chain of Command should have proper authority over their subordinates and that service in the Armed Forces is based on selfless commitment, duty and hierarchy; but giving Service Persons basic legal rights should not militate against this.

Conclusion

Whilst members of the Armed Forces do receive an ‘X-factor’ in respect of their pay and favourable benefits (including a good pension), the employment relationship they currently have with the Ministry of Defence does seem profoundly one sided. 

In the view of the writer, perhaps the imbalance of the relationship provides an answer as to why there have been so many problems with retention, morale, discrimination, bullying and harassment, the service complaint system and the military employment relationship, taken as a whole.

At the risk of stating the obvious, we are now well into the 21st century, surely things need to change?

Jeremy Taylor, Consultant, Wace MorganBook Review

Jeremy Taylor qualified as a solicitor in October 1985 after obtaining Upper Second LLB Hons at Newcastle on Tyne University in 1983 and professional qualifications at the College of Law, Chester in 1984.

Jeremy trained with JCH Bowdler and Son in Shrewsbury and, after a short spell as prosecuting solicitor, joined Wace Morgan in 1987.  He became a Partner in 1990.

He is dedicated to acting for those clients injured by the wrongful acts of others to obtain justice and fair compensation.

Jeremy has developed a specialism in areas of Military Law, Bullying and Harassment, Clinical Negligence and head injury.

Jeremy is a member of the Association of Personal Injury Lawyers (APIL), Forces Law, Headway (Solicitors List) and is also a Trustee of two local charities.

WAR PENSIONS AND ARMED FORCES COMPENSATION

LAW AND PRACTICE

SECOND EDITION

ANDREW BANO

PUBLISHED – WYLDY, SIMMONS AND HILL PUBLISHING

During the reign of Queen Elizabeth I a law was passed to allow parishes to impose a weekly tax so that disabled army veterans “should at their return be redeemed and regarded to the end that they may reap the fruit of their deserving’s and others may be encouraged to perform their endeavours”.  There is schemes to provide for disabled soldiers and seaman introduced over further time culminating in the establishment of the Ministry of Pensions in February 1917. Subsequently the War Pension Scheme provided compensation for injury or death suffered by members of the Armed Forces from the Second World War to 2005 and the legislation which was particularly generous to the applicant in placing the onus on the authorities to disprove the entitlement to benefits beyond reasonable doubt.   Further from 1943 the Pensions Appeals Act provided for cases to be heard by Tribunals with an appeal thereafter to High Court Judges.   The War Pensions Tribunal consisting of a lawyer, medical service members is one of the earliest examples of Tribunals as we know them today.

In 2005 the War Pensions Scheme was replaced for injuries occurring after 6th of April 2005 by the Armed Forces Compensation Scheme.

The Scheme operates on entirely different principles than that of the War Pensions Act.  However anyone in practice who is advising service personnel and their families will need to be aware of the details of both schemes specifically because there are no time limits on claims under the War Pensions Act and applications and appeals can be made in respect of existing payments.

The State has therefore always recognised its obligations to look after with varying degrees of success those who have served their country and to support their families.   However providing advice has always proved difficult because as this reviewer is aware there is no single source of information or adequate resource explaining the operation of the two schemes until the publication of the First Edition of Andrew Bano’s book in 2016.   He is a retired Judge of the Upper Tribunal and former President of the War Pensions and Armed Forces Compensation Chamber of the First Tier Tribunal.  At the date of publication of that book there were few decided decisions with regard to the Armed Forces Scheme.   Since which a number of issues have been clarified and amendments have  been made although there remains huge difficulties in understanding and operation of the Scheme, not least with the difficulty in finding details of reported cases.

Judge Bano’s book is an invaluable resource and a model of clarity which fulfils his intention that it should be accessible to both lawyers and non lawyers alike.

The book is clearly divided into two parts dealing with War Pension Scheme and with the Armed Forces Compensation.    The title of both systems can prove confusing.   All military personnel are liable to be entitled to an occupational pension but this is entirely distinct from a war pension.  Further occupational pension can be affected by injury in service.   When advising former service personnel it may appear they are receiving one pension and it may be that they are entitled to a war pension.   This could apply to historic hearing loss arising from events prior to 2005.

Likewise the term “compensation” in the post 2005 Scheme has caused considerable confusion for service personnel and those advising them.  There are a number of cases where a service person may think they have made a civil claim for example using this Scheme which a time limit as opposed to the three year limit which readers will be familiar with for civil claims. Practitioners will also need to be aware of the interaction between the AFCS Scheme and personal injury awards although discussion of that is beyond the scope of this book.

One of the books greatest strengths is its practical guide to procedures and navigating around issues likely to arise regarding time limits, appeals and reviews and how injuries are assessed.

Appendices

The tariffs are set out clearly in the back of the book and the figures are up to date as at the publication.   Often trying to find the internet can be confusing particularly if you are navigating past adverse posts by Solicitors and claims companies once you enter the term AFCS.

Particularly useful are the discussions in the book about concepts such as injury arising “due to service” as that in itself is an abstract concept which has led to a number of cases as to whether for example a service on the way to work who is injured in an ordinary road accident is entitled to make a claim under the Scheme or whether a ski instructor being service personnel but being injured by a civilian is entitled to claim compensation.    You will likely find if not the answers to these questions in this book at least how the question should be correctly framed or represented in order to ensure that your client has the best chance of succeeding in their initial application and on a review or before a  Tribunal.

Legal costs or disbursements are not recoverable on either Scheme and it is important therefore that both clients and practitioners are able to navigate the law and procedure without wasting precious time.   Whilst much information continues to be available online there is an enormous benefit in having a very handy volume which is also an interesting read in its own right and remarkably contains all the things that you are likely to need.

Our office copy of the 2016 edition is in daily use it is our first go to resource on any questions that arise.

Whilst it is intended that the old and the new Scheme are non contentious and are operated by the Veterans Agency in order to assist the injured service person or their family the reality is that the Veterans Agency is an emanation of the Ministry of Defence.   In this respect applications and awards are routinely turned down or made at the lowest possible level.  

The book is likely to provide the relevant to deal with any questions arise at your finger tip with very clearly set out chapters and paragraphs.

In short this is an excellent publication and it should be at hand of any practitioner advising personnel in personal injury, employment and occupational claims.


[1] Malone v Ministry of Defence (2022) ICR 478


[1] No longer a permanent centre

[2] Appointed by the Defence Council. Operates from the Bulford Centre. The CAO is responsible for the administration of the CM. In practice the CAO delegates most of his administrative functions.

[3] Each Court Centre has a dedicated Court Officer who is directly responsible for the day-to-day management of court proceedings, liaison with the Judiciary and court listings. Service Court proceedings are open to the public unless otherwise directed by the presiding judge. The staff are drawn from the MOD.

[4] Page 127

[5] If a guilty plea has previously been accepted by a judge advocate sitting alone, the board members sit with a judge from the beginning of the sentencing proceedings.

[6] The procedural rules for appeal to the CMAC are contained in the Court Martial Appeal Court Rules 2009 (as amended).

[7] See generally Halsbury 5ed Vol 3, 240 et seq.

[8] The appeal may be against conviction and against any sentence (where the sentence is not fixed by law) passed on him for the offence for which he was convicted. Leave is required from the CMAC.


[1]  See the Service Justice System Review (SJSR) in full here: https://www.gov.uk/government/publications/service-justice-system-review; and the  2006-9 Parliamentary debates quoted extensively at pp 38-42 of Part 1, SJSR.

[2] See the sexual offences bulletins as published by the MoD each year since 2015 which show the numbers increasing year on year. Prior to 2015, this data was not published. https://www.gov.uk/government/collections/sexual-offences-in-the-service-justice-system

[3] SJSR Policing Report at §68 on Service Policing: ‘Through no fault of their own they have not had the experience of their civilian counterparts in having to operate in the perpetual “daily grind” of a local CID office. The reality is that in all three Service Police the individual workloads of investigators is a fraction of that in a Home Office police force and consequently investigators are denied the opportunity to put some of their skills into practice – this leaves the individual investigator, the service police and the service justice system exposed…The simple truth is that these service police do not investigate enough serious crime to be considered proficient. While some individual investigations have been carried out to a sufficient standard, a number have not and this needs to be addressed….’; and on the SPA, at SJSR Part 1, pp36-37:  ‘The turnover of service prosecutors is quite high; particularly in the more junior ranks whose average length of tour is under two years … (CPS prosecutors) are more experienced – they are career prosecutors – and have a greater degree of staff stability; they are more familiar with the work and are able both as individuals and as an organisation to achieve faster throughputs. The Service Justice System is manned by lawyers who will often be unfamiliar with the task they have been posted to conduct, particularly at the beginning of their careers and will need time and experience to operate effectively.’

[4] S7 AFA 21 https://www.legislation.gov.uk/ukpga/2021/35/section/7

[5] https://committees.parliament.uk/work/856/women-in-the-armed-forces-from-recruitment-to-civilian-life/publications/

[6] S11 AFA 21

[7] S12 AFA 21, and Schedule 5 AFA 21.

[8] J Henriques Review p136: https://www.gov.uk/government/publications/sir-richard-henriques-review-report-on-strengthening-the-service-justice-system

[9] It is a requirement of s121 Equality Act 2010 that in order to bring a claim in the Employment Tribunal, a service person must have made and not withdrawn a service complaint: https://www.legislation.gov.uk/ukpga/2010/15/section/121

[10] Statistics published by SCOAF show a significant proportion of decisions overturned on appeal. 63% of completed investigations into undue delay found in favour of the complainant in 2020. 62% of completed substance investigations were upheld or partially upheld in favour of the complainant in 2020. 76% of completed maladministration cases in 2020 were upheld or partially upheld in favour of the complainant. See SCOAF Annual Report at p6-8. These figures do not indicate an internal complaints system in which an individual may have a huge amount of confidence prior to Ombudsman stage.

[11] S10 AFA 21

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