Haroon Marshall and Others v Deputy Governor of Bermuda and Others

• Jurisdiction: Bermuda
• Judgment Date: 07 March 2008
• Date: 07 March 2008
• Docket Number: Civil Jurisdiction 2006 No. 369
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

In The Supreme Court of Bermuda

Ground, CJ

Civil Jurisdiction 2006 No. 369

Civil Jurisdiction 2007 No. 58

BETWEEN:

Larry Winslow Marshall and others

Plaintiffs

and

The Deputy Governor of these Islands

The Governor of these Islands

The Attorney-General

Lt. Col. William White

Defendants

BETWEEN:

Haroon Wendell Charon Eve

Applicant

and

The Deputy Governor of these Bermuda

The Governor of Bermuda

The Attorney-General

Respondents

Mr D Duncan and Mr E Johnston for the Plaintiffs and the Applicant

Mr H Shepheard and Mr L Rochester for the Defendant and the Respondents

The following cases were referred to in the judgment:

R v Lancashire County Council ex parte HuddlestonUNK[1986] 2 All ER 941

R v Civil Service Appeal Board ex parte CunninghamUNK[1991] 4 All ER 410

Carltona v Commissioner of WorksUNK[1943] 2 All ER 560

Whitter v DPPBDLR[2002] Bda LR 33

Defence Act 1965

Bermuda Regiment Governor's Orders 1993

Human Rights Act 1981

Conscription for military service in the Bermuda Regiment Duty of respondents to give full evidence Judicial review Recruitment practices Whether quota should extend to women Discrimination Delegation of authority to publish notice

JUDGMENT of Ground, CJ

Introduction

1. In these consolidated matters1 the applicants2 seek to challenge their conscription for compulsory military service in the Bermuda Regiment. They do so on various grounds, some of which I considered at an interlocutory stage in Civ. 2006/3693. The issues have, however, been redefined and expanded since then by the pleadings in Civ. 2007/58, to the extent that any reference to the issues as they stood at the time of my judgment on the interlocutory application is unlikely to be very helpful. To the extent that the pleaded issues differed between the two actions, that might have had some bearing on relief4, but in view of the outcome I do not think it necessary to be delayed by any extensive consideration of that.

2. Although the history of each of the applicants is different in detail, the essential picture is that each has been conscripted into the Bermuda Regiment (the Regiment) and is due to serve. Some failed to report at the outset; some served a short time and then ceased to report; some were granted deferments which have now expired. Mr. Eve, the applicant in the second action, who was selected for service on 5^th September 2006, wrote in requesting a hearing before the Exemptions Tribunal. He says that he received no response, while the evidence for the respondents is that they made one attempt to contact him which failed because, when a regimental messenger went to the address given in his letter, he was told that Mr. Eve no longer lived there.5

The Bermuda Regiment

3. It will help to make the issues clearer if I give a brief overview of the regiment. It is established and governed by the Defence Act 1965 (the Act), section 3 of which provides

Subject to and in accordance with this Act, there shall be raised and maintained in Bermuda one military force to be called the Bermuda Regiment, consisting of such number of officers and men as may from time to time be determined by the Governor after consultation with the Minister of Finance; and such military force is in this Act referred to as the regiment.

I take the requirement of one military force to reflect the historical necessity of amalgamating the pre-existing racially segregated forces. I take the requirement to consult the Minister of Finance to embody the need to make sure the country can afford the regiment.

4. As to recruitment for the regiment, that is governed by section 4 of the Act, which provides:

Voluntary enlistment supplemented by compulsory military service

4. The regiment shall be raised and maintained by means of voluntary enlistment, and also, in case voluntary enlistment proves inadequate for the raising or maintenance of the regiment, by means of compulsory military service, in the manner hereinafter in this Act provided.

That is a key provision for the argument in this case, and I will have to return to it later. In recent times it seems that the regiment has, in practice, been raised largely by conscription.

5. As to conscription, section 13A of the Act provides that every specified person shall, on attaining the age of 18, be liable for military service unless otherwise exempted. A list of such persons, known as the military training register, is maintained and every specified person has to enroll on it on turning 18. The procedure for enrolling is set out in the Bermuda Regiment Governor's Orders 1993, and requires all specified persons to report to a police station or Warwick Camp and complete a form. The form contains a question asking if they wish to volunteer, and explains that it is possible to volunteer and start forthwith, rather than await selection. It tells the registrant that, for persons who do not volunteer, a ballot is held each August to select those who will actually have to perform military service, and that those selected by the ballot will be told to report for a medical examination in October. The key to all of this is the meaning of specified person. That is set out in section 12(2) of the Act, and it is limited to Bermudian males between the ages of 18 and 236.

6. Females are not specified persons under the Act as currently framed, and so are not liable to compulsory service. They are not, therefore, required to register or complete the form. They may, however, still volunteer: any volunteer who is a commonwealth citizen may be enlisted in the Regiment, and that includes females and non-Bermudians7. The possibility of female soldiers is expressly recognised in the definition of man of the regiment which includes a volunteer who is a woman8. I am told by counsel for the respondents (although it is not in the evidence) that 13 women are currently serving, and that 137 have done so in the past. To put that in context, the current establishment of the regiment is 6099.

The Issues

7. As they now stand the issues are essentially those set out in the applicant's Notice of Application [12] in the second action (Civ. 2007/58)[, where they are fully pleaded. In the applicants' skeleton argument they are condensed as follows

• i. The precondition for conscription under section 4 of the Defence Act 1965 has not been satisfied (the Precondition Argument).

• ii. The decision to implement conscription is unlawful because it has been reached without taken into account a relevant consideration, namely the possibility of establishing a quota for women in the Regiment (the Quota Argument).

• iii. The conscription of men only involves unlawful discrimination contrary to section 6(1)(a) and/or (e) and/or (g) of the Human Rights Act 1981 (the Discrimination Argument).

• iv. The notices purportedly issued under section 17(1) of the Defence Act are invalid (the section 17 Argument).

8. I should note that, although the Originating Summons in Civ. 2006/369 recites at paragraph 14 that On the basis of their conscience, each of the Plaintiffs declared their opposition to being mandatorily conscripted into the Regiment, no relief was sought in respect of that and it was abandoned in paragraph 4 of their skeleton argument10. Nor was any challenge made to conscription on expressly Constitutional grounds.

The Parties

9. I need to say a brief word about the respondents, although no point is taken on it. The Governor has been joined as having primary responsibility for the regiment under the Act. I should note, however, that by the Governor's (Bermuda Regiment Powers) Delegation Directions 1998, the Governor has delegated to the Minister responsible for the Security Services responsibility for recruitment; community relations; budget; and answers to questions raised in the House of Assembly and the Senate. In this context it seems to me that recruitment includes conscription, and that also seems to be how it has been interpreted by those administering the regiment. To the extent that it may be suggested that recruitment only includes voluntary enlistment, I reject that. It may, therefore, be that the Minister should also have been joined, but nothing turns on that, particularly given that the Attorney General is a party.

The Duty of Candour

10. Before turning to the individual points made by the applicants, I need to deal with a general point that they make on the evidence, or rather the lack of it. The applicants contend for a general duty of candour on respondents in public law cases, and they say that the respondents in this case have fallen short of that. They say, therefore, in those cases where the respondents have failed to provide information which must have been available to them, that I should draw adverse inferences.

11. In support of their contention the applicants rely upon two statements by Lord Donaldson MR. These statements of the law are worth setting out in full, as this is by no means the first case to come before the Supreme Court in which the respondents in a public law cases files minimal evidence, leaving the court to grope its way to an assessment of the facts. There also seems to be an assumption on the part of respondents that applications for the judicial review of administrative action can be decided on law alone, in a vacuum and divorced from the facts. That may be so in a limited number of cases, but in most the outcome will turn upon a complex interaction between fact and law. If the court is to do justice on the law, it needs to be put in possession of the facts.

12. The first statement of principle is found in R v Lancashire County Council, ex parte HuddlestonUNK[1986] 2 All ER 941. The case concerned a decision by an education authority to refuse an educational grant. His Lordship said:

Counsel for the council also contended that it may be an undesirable practice to give full, or perhaps any, reasons to every applicant who is refused a discretionary grant...