Fogg & Anor, R (on the application of) v Secretary of State for Defence

Fogg & Anor, R (on the application of) v Secretary of State for Defence

The Secretary of State applied an unduly narrow construction of 'in military service' under the Military Remains Act 1986. The correct approach requires considering all relevant circumstances, including the vessel's activity, control by the armed forces, arming, and participation in convoy operations. The STORAA was at least capable of being regarded as in service with the armed forces at the time of its sinking, and the Secretary of State failed to take all relevant factors into account. The refusal to designate was therefore unlawful and must be quashed.

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 Judgment
Outcome
Appeal dismissed
Legal Topics
Designation of Military Remains, Interpretation of 'military Service' Under Military Remains Act 1986, Protection of War Graves
Administrative Law Statutory Interpretation Military Law Designation of Military Remains Interpretation of 'military Service' Under Military Remains Act 1986 Protection of War Graves

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 Judgment

Legal Issues

  1. 1 Whether the steamship STORAA was 'in military service' at the time of sinking within the meaning of the Military Remains Act 1986
  2. 2 Whether the Secretary of State applied the correct legal test in refusing designation under the Act

Ratio Decidendi

The Secretary of State applied an unduly narrow construction of 'in military service' under the Military Remains Act 1986. The correct approach requires considering all relevant circumstances, including the vessel's activity, control by the armed forces, arming, and participation in convoy operations. The STORAA was at least capable of being regarded as in service with the armed forces at the time of its sinking, and the Secretary of State failed to take all relevant factors into account. The refusal to designate was therefore unlawful and must be quashed.

Court Disposition

Appeal dismissed

Orders

  • Order of the High Court quashing the Secretary of State's refusal is upheld
  • Matter remitted to the Secretary of State for further consideration