R v Ministry of Defence, ex parte Walker
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD,LORD JUSTICE CHADWICK,SIR CHRISTOPHER STAUGHTON |
| Judgment Date | 11 February 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0205-13 |
| Docket Number | No QBCOF 98/0233/4 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 February 1999 |
[1999] EWCA Civ J0205-13
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR JUSTICE LATHAM
Royal Courts of Justice
Strand
London WC2
Lord Justice Auld
Lord Justice Chadwick
Sir Christopher Staughton
No QBCOF 98/0233/4
MR D PANNICK QC and MR M FORDHAM (Instructed by Leigh Day & Co of London) appeared on behalf of the Appellant
MR P SALES (Instructed by Treasury Solicitor) appeared on behalf of the Respondent
This is an appeal by Sergeant Trevor Walker from the order of Latham J on 9th February 1998 dismissing his application for judicial review of the Ministry of Defence's refusal to grant him compensation under its Criminal Injuries Compensation (Overseas) Scheme ("the Scheme") for serious injuries which he suffered whilst serving as a United Nations peacekeeper in Bosnia.
On 1st December 1979 the Ministry of Defence introduced the Scheme, a discretionary, ex gratia, arrangement to compensate members of the Armed Forces who, through no fault of their own, were injured abroad as a result of crimes of violence. Its purpose was to provide comparable levels of compensation to those which would have been awarded by the Criminal Injuries Compensation Board had the injury been caused by a crime committed in Great Britain.
The Scheme, as originally formulated, was described as follows in a commanded letter of 9th January 1980 distributed within the Ministry of Defence:
"1. … it has been decided to introduce a scheme of compensation for members of the Armed Forces who are the victims of crimes of violence while serving overseas, so as to give them, as nearly as possible, compensation equivalent to that for which they would have been eligible if the criminal act had been committed in Great Britain. The scheme will also apply to the dependants of members of the Forces living with them in their overseas station.
2. Although all the details of the scheme have not yet been finally decided, it will be operative from 1 December 1979. It will not apply, however, where the act of violence which resulted in the injury to, or death of, a Serviceman is committed by an enemy where a state of war exists or a warlike situation is declared to exist." (my emphasis)
The first publication of the Scheme in the Army General and Administrative Instructions appears to have been in its Issue 97 in May 1990. I say "publication" because the Instructions, though marked "Restricted", had a wide distribution within the Services and were available to all personnel. Paragraph 89.033 of the Instructions described the coverage of the Scheme in the briefest terms, and did not mention the exclusion from it of injuries caused by an enemy where there was a state of war. It stated:
" When military personnel, and their eligible dependants outside the United Kingdom by reason of service, sustain personal injury (or death) attributable to a crime of violence, they may be paid, ex gratia, a lump sum payment. Whether or not to make such a payment, and if so, the amount, shall be wholly within the discretion of the Army Board … or within the discretion of the Secretary of State for Defence as appropriate."
According to an affidavit sworn in these proceedings on behalf of the Ministry by Mr. John Robbs, by the end of 1994 it had changed its policy to take account of the peacekeeping operations in Bosnia. Sir Nicholas Soames, then Minister of State for the Armed Forces, made the first public statement of the new policy in a Parliamentary statement on 5th December 1994 (Hansard, p. 122) (four days before the United Kingdom signed the UN Convention on the Safety of UN Personnel):
" The purpose of … [the] Scheme is to give comparable levels of compensation to that [sic] which would have been awarded by the Criminal Injuries Compensation Board had the incident occurred in Great Britain. However, criminal injury compensation is not payable where injury to, or death of, service men and women occurs as a result of war operations or military activity by warring factions. Current operations in Bosnia obviously fall into that category. In those circumstances, members of the armed forces who are invalided from service receive for life the tax free and index-linked benefits of the armed forces pensions scheme and the Department of Social Security war pension …"
In making that statement the Minister distinguished the position in Northern Ireland where the Government did not deem terrorist operations to be war operations or military activity by warring factions:
" … members of the armed forces in Northern Ireland provide military support to the Royal Ulster Constabulary in the fight against terrorism, so they are not deemed to be involved in war operations while serving there. As terrorist acts are a criminal offence, soldiers and civilians injured in such attacks would be entitled to apply to the Northern Ireland compensation agency, which funds awards of criminal injury compensation in Northern Ireland."
In early 1995 Sergeant Walker, then a corporal in 21 Engineer Regiment, was sent to Bosnia as part of the United Nations peacekeeping force ("UNPROFOR"), pursuant to a number of UN Security Council Resolutions. His duty there was to assist in the construction of a road as part of an attempt to rebuild the civilian economy. His unit was armed, but it was only permitted to use force in self-defence. His base was an observation and accommodation centre at Maglaj School in Magla.
On 3rd May 1995, while so engaged and having just taken a shower in the accommodation block, Sergeant Walker suffered very serious injuries from a single round fired into the block by a Serbian tank. It is not known whether the tank aimed its fire at the accommodation block or whether it was an accident while it was shooting at something else. However, nearby British and Canadian forces immediately responded with rocket and high explosive fire, clearly treating it as a warlike act. For the purpose of this appeal the Ministry has regarded it as a deliberately aimed shot at the peacekeeping unit's base. As a result of his injuries Sergeant Walker, after undergoing 13 operations, has had his right leg amputated above the knee. Although he has remained in the Army and has been promoted to Sergeant, his future military prospects are limited.
Sergeant Walker indicated his wish to seek compensation under the Scheme. The Ministry, by letters of 4th July and 2nd August 1995, applying its new policy announced in Parliament in December of the previous year, explained that he was not entitled to an ex gratia payment of compensation because:
"… compensation is not payable where the injury to, or death of, a Serviceman or woman was as a result of war operations or, as in Bosnia, military activity by warring factions." (my emphases)
In a further letter in October 1995 the Ministry repeated that explanation and added that in October 1992 it had decided that warlike operations were in preparation in Yugoslavia and that the Scheme should not apply to those injured "in that theatre of operation". It contrasted the position for members of the Armed Forces serving in Northern Ireland:
" Service personnel in Northern Ireland provide military support to the Royal Ulster Constabulary in the fight against terrorism and are not, therefore, involved in war operations whilst serving there. As terrorist acts are a criminal offence, British soldiers and civilians injured in such attacks would be entitled to apply for criminal injuries compensation under the scheme run by the Northern Ireland Office."
On 27th February 1996 Sergeant Walker submitted a formal application for compensation under the Scheme, an application in which his commanding officer described his disciplinary record and character in the following terms:
"Exemplary—Sgt. Walker was a soldier of almost unlimited potential to achieve high rank and a full career …
I have no adverse comments to make about Sergeant Walker—he was and is a first class soldier whose amputation has deprived him of a full career, He has borne his pain with enormous fortitude, and has been an example to us all."
By letter of 14th March 1996 the Ministry acknowledged receipt of the application, again referring to its criteria and stating that it was most unlikely that the claim could succeed. After a further exchange of correspondence in which the Ministry gave Sergeant Walker an opportunity to make further representations and repeated its explanation of the criteria, on 31st October 1996 it rejected his claim, giving the same reason as before that:
"… the … Scheme does not apply to Service personnel who are injured or killed where the act of violence, which resulted in the injury or death, was as a result of war operations or military activity by warring factions" (my emphasis)
On 9th February 1998 Latham J. refused Sergeant Walker's application for judicial review in respect of that decision. In this appeal, as before Latham J., Mr David Pannick, QC, on behalf of Sergeant Walker, acknowledged that the Ministry is entitled to determine and formulate the criteria it wishes to govern this ex gratia scheme. However, he maintained that its application of it in this instance is unlawful for one or more of the following three reasons:
1 it has misinterpreted its own criteria;
2 the criteria are, in any event, irrational;
3 it has applied the criteria unfairly.
Lawfulness/Construction
Mr Pannick has submitted that on a proper interpretation of the "new" criteria, Mr Walker's injuries did not result from "war operations or military activity by warring factions", but from an international...
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