Fogg & Anor, R (on the application of) v Secretary of State for Defence [2006] EWCA Civ 1270 (05 October 2006)

Fogg & Anor, R (on the application of) v Secretary of State for Defence [2006] EWCA Civ 1270 (05 October 2006)

The Court held that the Secretary of State applied too narrow a construction of 'in military service' under the Military Remains Act 1986. The correct approach requires considering all relevant circumstances at the time of sinking, including the vessel's arming, command structure, and operational integration with the armed forces. The STORAA, being armed, under naval command, and engaged in combat as part of a convoy, was at least capable of being regarded as in service with the armed forces. The Secretary of State's failure to consider these factors rendered the refusal unlawful.

Citation
[2006] EWCA Civ 1270
Parties
Claimant/respondent: Rosemary Fogg; Claimant/respondent: Valerie Ledgard; Defendant/appellant: Secretary of State for Defence
Jurisdiction
England and Wales
Judgment Date
05 October 2006
Procedural Posture
Judicial Review (administrative Law) / Appeal From High Court to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Designation of Military Remains, Interpretation of 'military Service' Under Military Remains Act 1986, Protection of War Graves, Ministerial Discretion, Judicial Review of Statutory Interpretation
Administrative Law Military Law Statutory Interpretation Designation of Military Remains Interpretation of 'military Service' Under Military Remains Act 1986 Protection of War Graves Ministerial Discretion Judicial Review of Statutory Interpretation

Case Brief

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Parties

Rosemary Fogg

Claimant/respondent

Valerie Ledgard

Claimant/respondent

Secretary of State for Defence

Defendant/appellant

Procedural Posture

Judicial Review (administrative Law) / Appeal From High Court to Court of Appeal

Legal Issues

  1. 1 Whether the steamship STORAA was 'in military service' at the time it was sunk within the meaning of the Military Remains Act 1986
  2. 2 Whether the Secretary of State for Defence applied the correct legal test in refusing to designate the STORAA under the Act

Ratio Decidendi

The Court held that the Secretary of State applied too narrow a construction of 'in military service' under the Military Remains Act 1986. The correct approach requires considering all relevant circumstances at the time of sinking, including the vessel's arming, command structure, and operational integration with the armed forces. The STORAA, being armed, under naval command, and engaged in combat as part of a convoy, was at least capable of being regarded as in service with the armed forces. The Secretary of State's failure to consider these factors rendered the refusal unlawful.

Court Disposition

Appeal dismissed

Orders

  • Order of the High Court quashing the Secretary of State's decision affirmed
  • Matter remitted to the Secretary of State for further consideration in accordance with the correct legal test