Armed Forces - 1995

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This page lists 6 cases, and was prepared on 27 October 2012.

Barrett -v- Ministry of Defence [1995] 1 WLR 1217; [1994] EWCA Civ 7; [1995] 3 All ER 87
3 Jan 1995 CA Beldam LJ	Negligence, Armed Forces	Casemap 1 Cites
	The deceased was an off-duty naval airman. The claim was based upon the alleged negligent failure of the defendant to enforce disciplinary regulations against drunkenness so as to protect the deceased against his own known proclivity for alcohol abuse. Held: The Ministry of Defence has no duty to prevent a forces member from the abuse of drink. It was not liable, even though the death from drunkenness was contributed to by an officer's encouragement. The Ministry was liable on the basis that, following his collapse, service personnel voluntarily assumed a duty of care by acting as the deceased's quasi-rescuer and were negligent in that capacity. In relation to the original drunkenness of the deceased, the court emphasised that foresight of harm alone was not sufficient to create a duty to guard him against his own folly. Beldam LJ: "The plaintiff argued for the extension of a duty to take care for the safety of the deceased from analogous categories of relationship in which an obligation to use reasonable care already existed. For example, employer and employee, pupil and schoolmaster, and occupier and visitor. It was said that the defendant's control over the environment in which the deceased was serving and the provision of duty-free liquor coupled with a failure to enforce disciplinary rules and orders were sufficient factors to render it fair just and reasonable to extend the duty to take reasonable care found in the analogous circumstances. The characteristic which distinguishes those relationships is reliance expressed or implied in the relationship which the party to whom the duty is owed is entitled to place on the other party to make provision for his safety. I can see no reason why it should not be fair just and reasonable for the law to leave the responsible adult to assume responsibility of his own actions in consuming alcoholic drink ... . To dilute self-responsibility and to blame one adult for another's lack of self-control is neither just nor reasonable and in the development of the law of negligence an increment too far." As to the context of the armed forces and its regulations: "In my view the judge was wrong to equate Queen's Regulations and Standing Orders with guidance give in the Highway Code or in pamphlets relating to safety in factories. The purpose of Queen's Regulations and Standing Orders is to preserve good order and discipline in the Service and to ensure that personnel remain fit for duty and, while on duty, obey commands and, off duty, do not misbehave, bringing the service into disrepute. All regulations which encourage self-discipline, if obeyed, will incidentally encourage service personnel to take greater pride in their own behaviour but in no sense are the Regulations and Orders intended to lay down standards or to give advice in the exercise of reasonable care for the safety of men when off duty drinking in bars. . ."
	Fatal Accidents Act 1976 - Law Reform (Miscellaneous Provisions) Act 1934
	Link[s] omitted

Regina -v- Hiley
10 Mar 1995 CMAC	Criminal Practice, Armed Forces
	Applications for leave to appeal to Courts Martial Appeal Court must provide fresh & argued grounds of the appeal.

Regina -v- Ministry of Defence Ex Parte Smith and Others
7 Jun 1995 QBD Simon Brown LJ and Curtis J	Employment, Administrative, Human Rights, Discrimination, Armed Forces	Casemap 1 Cites 1 Citers
	An MOD ban on employing homosexuals was not Wednesbury unreasonable, even though it might be out of date. Pannick (counsel for the applicant, approved): ´The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.' After referring to changes of attitude in society towards same-sex relationships: "I regard the progressive development and refinement of public and professional opinion at home and abroad, here very briefly described, as an important feature of this case. A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z. Public and professional opinion are a continuum." Sir Thomas Bingham MR: "It is, inevitably, common ground that the United Kingdom's obligation, [under article 8] binding in international law, to respect and secure compliance with this article is not one that is enforceable by domestic courts. The relevance of the Convention in the present context is as background to the complaint of irrationality. The fact that a decision-maker failed to take account of convention obligations when exercising an administrative discretion is not of itself a ground for impugning that exercise of discretion."
	European Convention on Human Rights 8

Regina -v- Ministry of Defence ex parte Smith; ex parte Grady [1995] EWCA Civ 22; [1996] 2 WLR 305; [1996] QB 517; [1996] IRLR 100; [1996] ICR 740; [1996] 1 All ER 257
3 Nov 1995 CA Sir Thomas Bingham MR, Henry LJ, Thorpe LJ	Employment, Armed Forces, Administrative, Human Rights	Casemap 1 Cites 1 Citers
	Four appellants challenged the policy of the ministry to discharge homosexuals from the armed servces. Sir Thomas Bingham MR said: "The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."
	Link[s] omitted

Regina -v- Secretary of State for Defence Ex Parte Smith; Regina -v- Same Ex Parte Grady Etc [1996] QB 517
6 Nov 1995 CA Sir Thomas Bingham MR	Employment, Discrimination, Armed Forces	Casemap 1 Cites 1 Citers
	A ban on homosexuals serving in the armed forces was not irrational, and the challenge to the ban failed. The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations. “The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.” Profound cultural changes do take time, but "A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z."

Ministry of Defence -v Wheeler
22 Dec 1995 EAT	Discrimination, Armed Forces, Damages
	The tribunal gave details of the proper approach to the assessment of damages for pregnancy dismissals from forces.