Matthew Bolt: http://www.5pumpcourt.com/barristers/mastthewbolt
Service in HM Forces is unlike any other employment. There is no contract of employment and significant restrictions are placed on the freedoms enjoyed in civilian life. All service personnel are subject to a disciplinary system designed to maintain the efficiency of the service. The Army’s discipline system consists of ‘criminal law’ under the Armed Forces Act 2006 (Summary Dealing and the Court Martial) and ‘employment law’ under AGAI67. Its application is far wider than civilian employment law; a minor breach of contract in civilian life e.g. failing to turn up to work will amount to a criminal matter, and infidelity outside of work will amount to an employment matter for service personnel. This article deals with AGAI67. The Royal Navy and the Royal Air Force have similar systems for administrative action.
What is AGAI67?
Administrative Instruction 67 sets out the Army’s employment law, its scope,
purpose and procedure. Depending on the severity of the alleged breach service
personnel may be subject to either Major or Minor Administrative Action. Minor
Minor Administrative Action is used to deal with minor failures to meet the stated standards of behaviour or performance, such as poor turnout, bad soldiering, performing duties below the expected standard, or an absence of up to 48 hours.
Major Administrative Action is used to deal with more serious failures up to and including conviction for criminal offences in the civilian courts.
What is the purpose of Administrative Action?
The purpose of Administrative Action is to sustain and uphold the values and standards of the British Army and involves the imposition of sanctions which are intended principally to be corrective and restorative rather than punitive. Sanctions are designed to restore operational effectiveness and safeguard it in the future.
What sanctions may be applied?
Sanctions for Minor Administrative Action include:
1. Report Back/Muster Parades
2. Extra Tasks or Duties
3. Extra Work
4. Informal Interview
5. Formal Interview
6. Returned to Unit. (Only used in a Joint unit)
Sanctions for Major Administrative Action include:
1. Censure (No Discipline Entry)
2. Any of the other sanctions available under Minor Administrative Action
3. Censure (Discipline Entry)
4. Reduction in Rank (NCOs and WOs) or Forfeiture of Seniority (Officers)
5. Removal from Appointment by the Army Board
6. Termination of Service (Dismissal, Retirement or Resignation)
What triggers Administrative Action?
When the chain of command is considering administrative action they will apply The Service Test and ask: “Have the actions or behaviour of an individual adversely impacted or are they likely to impact on the efficiency or operational effectiveness of the Service?”
If the answer is “yes” then the Service Test is breached, and Administrative Action may be commenced.
The question is answered,
on the balance of probabilities, the same standard of proof used in the
civilian Employment Tribunal. The decision maker must decide if it is more likely
than not that the Service Test is breached.
A civilian conviction will always breach the Service Test.
I am facing Minor Administrative Action, what will happen?
When a suspected minor failing is identified Administrative Action is initiated by the Deciding Officer who investigates the alleged failing and applies the Service Test. If the Service Test is breached an appropriate sanction will be selected and you will be informed verbally of the decision. The decision is reviewed and if you believe the finding is unfair or you should not receive the sanction you will have the opportunity to appear before the Reviewing Officer and say why you believe the finding or sanction should not be approved. If the sanction is approved or amended, you will then receive the sanction under the supervision of an officer or NCO.
I am facing Major Administrative Action, what will happen?
When a suspected major failing is identified an Originating Officer will make an initial assessment and conduct an initial interview with you before deciding if there are sufficient grounds to investigate. If there are sufficient grounds to investigate then the Originating Officer will investigate. A copy of the report should be disclosed to you before a further interview at which the Originating Officer will receive your representation. The report will then be sent to The Deciding Officer.
The Deciding Officer will interview you and decide on the balance of probabilities:
1) If the alleged misconduct occurred; and
2) If the Service Test is breached.
The Originating Officer and the Deciding Officer do not have to follow strict rules of evidence in the way the Court Martial or the civilian courts do.
If the Service Test is founded to be breached, then you will be awarded a sanction and if necessary, you will be directed to undertake remedial training.
Can I have legal representation?
Minor Administrative Action: You are not permitted to have legal representation.
Major Administrative Action: You are not permitted legal representation during your initial interview. Representation at the final interview is at the discretion of the Deciding Officer. When deciding whether or not to permit legal representation, the Deciding Officer should consider the seriousness of the allegations and their potential impact on you. The Deciding Officer will not make the decision without seeking legal advice from the Army Legal Service. Generally legal representation will be allowed in cases involving significant factual disputes and where the likely sanction will result in termination of service.
However, in all cases you can instruct a lawyer at your own expense to draft your representations.
Will there be an Oral Hearing, like Summary Dealing?
It is unusual for an Oral Hearing to be deemed necessary, in almost all instances the Deciding Officer will simply interview you and read any written representations. However, where there is substantial conflict in the evidence or points of law an Oral Hearing will likely be deemed necessary.
There is no prescribed procedure for an Oral Hearing, procedure will be decided by the individual Deciding Officer. The Deciding Officer will be advised by a legal officer and can receive oral and written evidence. The Deciding Officer must then decide facts on the balance of probabilities, based on the evidence before them.
The Deciding Officer will then apply the facts to the Service Test and decide if it has been breached. If the Service Test has been breached, then the Deciding Officer will impose a sanction.
Can I appeal?
There is no automatic right of appeal in cases of Major Administrative Action. A Higher Authority may decide on their own to review any case or sanction. You may also request a review. Your request must be in writing. You may instruct a lawyer to help you draft the request and set out the errors you believe were made. The Reviewing Officer must adopt the role of the Deciding Officer and will afford you a fresh interview. You may request legal representation at the interview.
A sanction will only be upheld if the Reviewing Officer is satisfied that:
1) That there was an expeditious, through and fair investigation;
2) That based on the evidence, the Service Test was breached; and
3) That based on the evidence the sanction was reasonable and proportionate.
This is a fresh assessment of the case and the facts. If the Reviewing Officer concludes the investigation was not fair they may order a new investigation.
If you are not happy with the way you are treated following a review you may file a Service Complaint or in exceptional cases apply for judicial review by the High Court. A judicial review must be applied for as soon as possible and in any case within three months.
I’ve received the Originating Officer’s Report – What are the first 3 things I should do?
1) Check the Report. The Originating Officer must disclose to you:
Flag A – The Main Report (aka The Annex C)
Flag B – A record of your initial interview
Flag C – A copy of the witness statements and other evidential documents
Flag D – Guidance on the financial and career implications of sanctions
Flag E – Your conduct sheets
Flag F – A copy of your representations to the Originating Officer
Flag G – AFB 130 (Only if discharge is recommended)
Flag H – Written record of authorisation from Higher Authority if required
2) Check the recommended sanction and the financial and career implications. The recommended sanction may affect your financial security and your family. Before responding you need to assess the full impact of the recommended sanction.
3) Draft your representation in response or request time to instruct a lawyer to advise you and draft your representation for you.
If you are facing Major Administrative Action you are entitled to consult a lawyer at your own expense and your Chain of Command should grant you time to obtain legal advice. You can instruct a direct access barrister who can assist you in preparing your representations to the Deciding Officer and if necessary represent you at an Oral Hearing.
In the 21st Century it is very common for long term unmarried partners to cohabit, with or without children. Inevitably and sadly some of these relationships come to an end. There is often a false assumption that, on the breakdown of a relationship between non-married cohabitees, their legal rights in respect of any property they own are the same as if they had been married. In fact there are huge differences. Whilst the division of property of married partners falls into the realm of Family Law, that of non-married partners remains a Civil Law matter and is dealt with under the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”). This note provides a brief outline of how the law in relation to the property of non-married partners operates.
When considering parties’ beneficial interests in a property, the starting point is that “equity follows the law”. This means that beneficial interests reflect the legal interests in the property. Where the legal title to the property is held in joint names, the presumption is that the beneficial ownership is held jointly in equal shares, unless and until the contrary is proved. Where the legal title is held by one partner only, the presumption is that they own the entire beneficial interest in the property.
The leading cases in this area is Stack v Dowden  UKHL 17 (“Stack”), which established key principles for determining parties’ respective beneficial interests as follows:
a. A conveyance into joint names will result in a legal and beneficial joint tenancy unless the contrary is shown.
b. The burden of proof is on the owner seeking to show that they intended to hold their beneficial interests as tenants in common in unequal shares.
c. The Court must ascertain the parties’ shared intentions in the context of the whole course of their conduct relating to the property. Factors to be considered include:
i. Advice or discussions at the time of the transfer which cast light on the parties’ intentions at that time;
ii. The reasons why the home was acquired in joint names;
iii. The purpose for which the home was acquired;
iv. The nature of the parties’ relationship;
v. Whether they had children for whom they had responsibility to provide a home;
vi. How the purchase was financed;
vii. How the parties arranged their finances, whether separately, together, or both; and
viii. How they discharged the outgoings on the property and their other household expenses.
Stack was explored further in the more recent case of Jones v Kernott  UKSC 53 para 25 (“Jones”) in which it was held that, where a property is purchased in joint names for occupation by an unmarried couple, there is no presumption of a resulting trust arising from their having contributed to the purchase in unequal shares. The presumption is that the parties intended a joint tenancy both in law and equity. This presumption can only be rebutted by evidence of a contrary common intention.
The leading judgment of Lord Walker and Lady Hale in Jones at paragraph 51 summarises the principles applicable in cases where a family home is bought in joint names of a cohabiting couple who are both responsible for any mortgage, but without an express declaration of their beneficial interests as follows:
“(1) The starting point is that equity follows the law and they are joint tenants both in law and in equity
(2) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change.
(3) Their common intention is to be deduced objectively from their conduct: “the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party’s words and conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party
(4) In those cases where it is clear that either (a) the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it is not possible to ascertain by direct evidence of inference what their actual intention was as to the shares in which they would own the property, “the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property
(5) Each case will turn on its own facts. Financial contributions are relevant but there are many other factors which may enable the court to decide what shares were intended (as in case (3)) or fair (as in case (4)).”
The case law above shows that, unlike married couples, the starting point is not that non-married partners own the property in 50% shares. The starting point is the legal ownership of the property and the assumption that the beneficial ownership follows that. The following 2 examples show how the law operates in a practical context
A and B have lived together for 15 years with their 2 children. Their family home is registered solely in the name of A. The home was purchased using savings from both A and B as the deposit and by way of a mortgage in A’s name. A and B have both contributed to the mortgage, household bills and living expenses over the years. A and B separate. A asserts that the beneficial interest in the home is owned by her alone. B claims to have a 50% interest. The burden of proof rests on B to show that the common intention of A and B was to own the property 50/50. B points to the fact that this was to be a family home for A and B and their children. B states that, when the parties bought the property, it was registered solely in A’s name, as B had a poor credit history and could not obtain a mortgage. B states that the parties bought the property intending to live in it together indefinitely as a family and did not foresee splitting up. B also points to his financial contribution over the years. The Court accepts B’s evidence and finds that there was a common intention that the property be owned 50/50. B has satisfied the burden of proof of showing that the beneficial ownership is different to the legal ownership.
C and D purchased a property jointly in 2008 as a family home. Each sold their existing property to fund the joint purchase. C contributed 75% of the purchase price and D 25%, as D’s existing property had been worth much less than C’s. C paid the majority of the mortgage payments, whilst D’s income was instead used for joint expenditure on holidays, furniture and home improvements. On separation in 2018 C asserts that he owns at least 75% of the beneficial interest in the property, as he contributed 75% of the purchase price and paid at least 75% of the mortgage. D disputes this, claiming 50/50 ownership. As the property is jointly owned, the burden of proof rests on D to show that the common intention as to ownership was something other than 50/50. The Court finds that financial contribution to the property is not the key factor in determining the parties’ beneficial interests. The correct approach is to look at the common intention of the parties. The Court notes that, whilst C contributed more to the mortgage, C had the benefit of D’s income being used for other joint expenditure. The Court finds C cannot discharge the burden of showing the parties intended anything other than 50/50 ownership.
These are just 2 examples and each case will turn on its own facts. It is important that parties to such a dispute should be wary of starting to unpick the finances in relation to a property on the breakdown of a relationship. Instead they should look back to the purchase of the property and consider what they both intended at that point in time. The simple way to avoid this problem ever arising would be for non-married cohabitees to enter into an express declaration of trust in writing clearly setting out each party’s share.
30 November 2018
Antonia Halker regularly advises and represents parties in TOLATA disputes and proceedings and other property related matters.
To some analysts this is the tip of the iceberg and, as we all know, the largest part of an iceberg is the part that is submerged. If this is true then there are more revelations to come.
The fact remains that personal data is given out by all of us, most of the time unwittingly, on a daily basis. Some examples of this are bracelets or apps that monitor our daily exercise habits or even sleep patterns, maps that plot our routes, concerts, conferences and seminars that we sign up to and even loyalty apps/cards for our coffee purchases and other shopping.
This data, we now know, may be used for reasons that we have not consented to in a number of areas. Some harmless, others not so but the point is that this is our data and it should be responsibly handled.
This is a uniform piece of legislation for all EU states. It remains to be seen whether this will remain following BREXIT; however, data protection will continue to be regulated in some shape or form. There is similar legislation in the United States.
A faster and effective way by which this can be pursued is by way of Arbitration.
This is a non-judicial process for the settlement of disputes where an independent arbitrator makes a binding decision in respect of a dispute. Although just as binding, the process is less formal than the court procedure with the arbitrator’s role being similar to that of a judge.
The procedure is much faster and cheaper than formal legal proceedings and the outcome remains confidential.
How does this apply to a data protection breach? In order for a matter to proceed to arbitration the parties are required to agree to arbitrate the dispute or there must be an arbitration clause in the contract that exists between the parties.
The aggrieved party will need to identify that data of which they are the subject has been used for a purpose that they did not consent to. This is ascertainable by a simple enquiry from the relevant organisation. It was reported that Mark Zuckerberg will apologise to those affected although it is unclear what form and when, if at all, this will take place and whether there will be an acknowledgement to individuals.
Personal data is akin to personal property and should be protected and looked after in the same way as precious possessions are guarded.
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