ARMED FORCES


Shipping - human remains - military service - wrecks - protection of military remains - vessel in service with or used for purposes of armed forces - merchant ships



R (on the application of (1) Rosemary Fogg (2) Valerie Ledgard) v Secretary of State for Defence: CA (Civ Div) (Sir Anthony Clarke, Master of the Rolls, Lords Justice Rix, Longmore): 5 October 2006



The appellant secretary of state appealed against the quashing of his decision that the steamship Storaa was not capable of designation under the Protection of Military Remains Act 1986.



In 1943, Storaa, owned by the Ministry of War Transport, was sunk by enemy action off Hastings. It had been torpedoed when the convoy in which it was proceeding was attacked by German E-boats. The convoy was headed by HMS Whitshed and comprised 19 merchant ships, three of which were sunk.



The respondents (F) were the daughters of a Royal Navy petty officer, who was serving as a gunner on board the Storaa and lost his life when it was sunk. F were concerned that diving was being carried out on the wreck, which was in only 37 metres of water, and sought to protect their father's remains by asking the secretary of state to designate the Storaa under the Act. The secretary of state refused to do so on the ground that the vessel had not been sunk 'while on military service', defined in section 9 of the Act as being 'in service with, or being used for the purposes of, any of the armed forces'.



The judge held that those words were to be given a wide meaning, and that the refusal to designate was unlawful because the secretary of state had not considered the question as broadly as he should have done. The secretary of state submitted that the expression 'in service with' should be narrowly construed, so as to mean only vessels that were at the disposition of the armed forces in the sense that they could be directed to perform such services as the armed forces required, because for instance they had been requisitioned or chartered by the armed forces.



Held, in deciding whether the Storaa was 'in service with' the armed forces when it was sunk, the focus was not only on the relationship of the role of the Storaa with that of HMS Whitshed. The relevant circumstances encompassed a broader picture. To be in service with any of the armed forces, the vessel would have to be at least in some respects under their control, and the facts indicated that the Storaa was to a significant extent under the control of the Admiralty or of the Royal Navy by virtue of section 31 of the Naval Discipline Act 1866, which governed the Storaa's participation in the convoy.



The sole reason for both the guns themselves and the naval and army gunners being on the Storaa was to protect both the Storaa and the other vessels in the convoy from enemy action. The gunners remained service personnel and, although under the command of the master, remained subject to naval discipline under the 1866 Act. At the relevant time, the Admiralty controlled the use and disposition of the vessel.



Both HMS Whitshed and the Storaa took part in the attempts to fight off the E-boats, not just on behalf of the Storaa but on behalf of the other vessels in the convoy and of HMS Whitshed. At the time the Storaa was sunk, it was or had just been engaged in using its guns against the E-boats, one of which sank it. In all the circumstances, the Storaa was at the relevant time 'in service with' the Royal Navy, giving that expression the wider meaning adopted by the judge, and not the narrower construction advanced on behalf of the secretary of state. The judge had been correct to quash the order of the secretary of state and to remit the matter to him for further consideration.



The secretary of state had also failed to consider as broadly as he should have done the question whether the vessel was 'being used for the purposes of' the armed forces when it was sunk. He did not take account of the role played by the Admiralty in connection with the convoy and did not take sufficient account of the fact that the Storaa was armed and manned by gunners, not just for its own safety but for the safety of the convoy, for which the Royal Navy was responsible.



Appeal dismissed.



Michael Pooles QC, Luke Wygas (instructed by Richard Buxton) for the claimants; Nigel Teare QC, David Goldstone (instructed by the Treasury Solicitor) for the defendant.