Law Report: No right to Army report on death: Regina v Secretary of State for Defence, ex parte Sancto: Queen's Bench Division (Mr Justice Rose; 24 July 1992

The parents of a serviceman who had been killed in an accident while stationed in the Falklands had no statutory or other legal right to challenge an official decision not to disclose the Army Board of Inquiry report into their son's death.

Mr Justice Rose dismissed an application for judicial review of the refusal by the Secretary of State for Defence, on 23 May 1990, to disclose to the applicants a copy of a board of inquiry report into the death of their son, Kirk Sancto, on 9 June 1985.

Geoffrey Nice QC and Helen Hobhouse (Redfern & Stigant, Chatham) for the applicants;

Stephen Richards (Treasury Solicitor) for the respondent.

MR JUSTICE ROSE said that Kirk Sancto, a 19-year-old sapper, died when two boats engaged in non-operational duties collided in Stanley Harbour. An Army board of inquiry investigated the matter and a copy of its report was supplied to the coroner who held the inquest at Oxford in July 1986. The verdict was accidental death.

Mr and Mrs Sancto attended the inquest, but the Army report was not shown to them. They wrote to the Ministry asking for a copy but were told such reports 'are confidential and cannot be disclosed outside the Ministry of Defence'. The letter of reply contained a detailed account, taken from the Army's report, of what was said to have occurred.

This attributed the collision to the fact that the smaller of the two boats involved was being manoeuvred dangerously by its two-man crew, one of whom was Mr Sancto, and that they were adversely affected by drink.

The applicants were alarmed at the apparent discrepancies between this account and what they had heard at the inquest. The pathologist's report had disclosed no alcohol in the deceased's body and the evidence at the inquest showed no great speed, lack of control or recklessness at the time, though there was evidence suggesting negligence in control of the harbour.

In subsequent correspondence, while maintaining its refusal to disclose the report, the Army appeared to contradict its earlier account, suggesting the boat had been 'handled in a responsible fashion'.

The court's sympathy was entirely with the applicants in their wish to see the report, but neither sympathy nor the law could bring this about. While there could be little doubt that the proceedings of the board of inquiry itself were susceptible to judicial review, an executive decision not to disclose its report was not. In the absence from English law of any Freedom of Information Act, apart from certain statutory exceptions, such as the Data Protection Act, the public did not have any 'right to know'.

Documentary privacy was only susceptible to intrusion in the carefully restricted circumstances of discovery during litigation. There, the rationale consisted of the public interest in justice being done between the parties, whereas here there was no litigation between the parties.

Although the courts had recently added to the category of bodies which were susceptible to judicial review, it was a remedy which still operated only either to protect legal rights or to enforce legal duties. There was no statutory or other legal duty on the Secretary of State to disclose, or to exercise a discretion in relation to the disclosure of, a board of inquiry report.