Judgments - Regina v. Ministry of Defence Ex Parte Walker

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    Was the application of the policy unfair? Mr. Pannick Q.C., for the appellant, says that it was not fair to make the change by a statement in the House of Commons. It should have been given wider publicity in the army, like the 1980 letter. But I do not think that your Lordships are concerned to decide in general terms whether it would have been better administration to make the announcement in a different way. The question is whether the method in fact adopted was unfair to Sergeant Walker. I do not think it was. He had no idea of what the policy was before the minister's statement. He says that he understood, and believes that his colleagues understood, that they would be entitled to compensation for injuries in Bosnia. But he never saw the 1980 letter and there is no suggestion that he derived his understanding from anything which had been said on behalf of the ministry. This is not a case like Reg. v. North and East Devon Health Authority, Ex parte Coughlan [1999] Lloyd's Rep. (Medical) 306, in which a public authority made a specific promise and then withdrew it. The only legitimate expectation Sergeant Walker could have had was that the ministry would apply whatever its policy was.

    Finally it is said that the Bosnian policy was irrational. The main ground was that the situation in Bosnia could not be rationally distinguished from that in Northern Ireland, in which the ministry paid compensation under the scheme to soldiers injured by terrorist violence. So they were not treating like cases alike. The ministry says, in defence of the distinction, that civil society in Northern Ireland had not broken down. Victims of terrorism could go to the police and expect their cases to be investigated. The army acted only in support of the civil arm. It was therefore reasonable to regard terrorists in Northern Ireland as civilian criminals rather than warring factions engaged in military activity. In Bosnia, on the other hand, civil society had disintegrated. The different ethnic groups were at war with each other.

    Speaking entirely for myself, I find the distinction a fine one. However one might characterise what others were doing, in neither Northern Ireland nor Bosnia were the British soldiers engaged in warfare. The peacekeeping forces in Bosnia were under instructions not to use their weapons except in self-defence. Sergeant Walker was there to help build a road for civilian use. But I cannot say that the distinction drawn by the ministry is irrational. That is too high a hurdle to surmount. I would therefore dismiss the appeal.

LORD SAVILLE OF NEWDIGATE

My Lords,

    I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Slynn of Hadley and Lord Hoffmann. For the reasons they give I too would dismiss the appeal.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

    I have the misfortune to disagree with your Lordships. For myself I would have allowed this appeal and will shortly explain why.

    The extension of the criminal injuries compensation scheme to servicemen and their dependants whilst serving overseas was originally announced in a document dated 9 January 1980 issued by the Ministry of Defence and distributed to a long list of recipients including General Officers Commanding all Commands and Districts, home and abroad, and their secretariats and all commanders of overseas detachments.

This document said:

    "1. I am commanded by the Army Board of the Defence Council to inform you that 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.

..................................

    6. The scheme in its final form will be published as a D.C.I. as soon as possible."

The D.C.I. referred to has not been included in the papers before your Lordships but is believed to have corresponded to the text of the Army General and Administrative Instructions of which the relevant paragraph for present purposes is paragraph 89.033 appearing under the heading Criminal Injuries (Overseas) Compensation -

    "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. Dependants will have the same meaning as in the provisions for forces family pensions. Whether or not to make such a payment, and if so, the amount, shall be wholly within the discretion of the Army Board (or a person authorised by them to exercise that discretion) or within the discretion of the Secretary of State for Defence as appropriate."

These are statements of policy concerning a discretionary ex gratia scheme under the prerogative powers of the Executive and, consequently, decisions of the relevant body charged with carrying out the scheme are amenable to judicial review. (Reg. v. Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 Q.B. 864) If the ministry fails correctly to interpret and apply the terms of the scheme, the decisions it takes are open to judicial review. (Reg. v. Criminal Injuries Compensation Board, Ex parte Schofield [1971] 1 W.L.R. 926)

    The appellant, Sergeant Walker, complains that the ministry has misconstrued the terms of the scheme in refusing to accept his claim to compensation in respect of the injuries which he suffered on 3 May 1995 whilst serving as non-combatant as part of the British contribution to the United Nations Peace Keeping Force in Bosnia. The ministry has stated that the circumstances in which he came to be injured did not come within the scope of the scheme. He contends that they did.

    Your Lordships have been shown an affidavit sworn in these proceedings by Mr. Robbs, the Head of Service Personnel Policy (Pensions) at the ministry. He states that by May 1995 the applicable policy had developed beyond that stated in 1980 and he referred to what the minister (Mr. Soames) had said during an adjournment debate in the House of Commons on 5 December 1994 concerning a Corporal Stott who had been wounded in Bosnia by a mortar shell. Corporal Stott was at the time engaged on peace keeping duties seconded to the United Nations. Chadwick L.J. was right (at [1999] 1 W.L.R. 1209, 1229): the speech of the minister does not purport to announce any change to existing policy but appears simply to be applying existing policy to the case of persons caught up in a zone where there were "war operations or military activity by warring factions". He did not suggest that there was anything more than that to the circumstances in which Corporal Stott came to be injured.

    The minister confirmed that the department pays compensation for members of the armed forces who are victims of crimes of violence while serving overseas. He contrasted the situation where a person was injured as a result of war operations or military activity by warring factions with a situation involving some criminal activity, such as terrorist activity in Northern Ireland. He said: (Hansard (H.C. Debates), 5 December 1994, col. 122).

    "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 [for compensation]."

Sergeant Walker contrasts the circumstances under which he came to suffer his injuries with those under which, as he believes, Corporal Stott suffered his. He submits that the same contrast can be found in the statements of policy and that this shows that, applying the Government's own criteria, he falls on the right side of the line and is entitled to be compensated.

    The starting point is that a member of the armed forces is serving overseas. It is not an objection that the purpose may be to provide "military support". Nor, patently, is it is critical what weapon is used to inflict the injuries. In Northern Ireland the terrorists have frequently used military weapons identical to those used in military combat - the armalite - the grenade - the mortar. The contrast between the circumstances which qualify for compensation and those which do not lies in the ability to classify the acts causing the injuries as criminal and as not being between belligerents.

    Thus the phrases used are "crimes of violence", "criminal act" and "criminal offence" in contrast with "act of violence ..... committed by an enemy", "war operations" and "military activity by warring factions". This contrast is further underlined by the phrase "where a state of war exists or a warlike situation is declared to exist" in conjunction with the word "enemy". The clear implication is that in the excluded category the violent act is the act of one belligerent fighting another. Such acts are not ordinarily described as criminal; they are incidents of warfare. Acts of violence against non-combatant civilians who are not part of the resource of either warring faction are not within the recognised ambit of warfare and are generally recognised to be criminal. (Indeed, under the Geneva Conventions any military operation not directed at a military objective is criminal.)

    In the case of Corporal Stott, as your Lordships have been told, he was injured because the U.N. camp in which he was happened to be in the line of fire between the Serb and Muslim forces. It was not the target of the artillery shells which caused his injury; they were directed at the opposing faction. There was no deliberate attack on the U.N. peacekeepers.

    By contrast, the evidence in the present case is that Sergeant Walker was injured as a result of just such a deliberate attack by a Serbian tank upon a U.N. accommodation block. It was not part of any attack on the Muslim forces. Sergeant Walker was not engaged on any combatant activity nor in assisting one side or the other. By accepted norms, the attack on the civilian non-combatant U.N. peacekeepers was criminal. Further it had been declared to be such by the United Nations Convention on the Safety of United Nations and Associated Personnel, of 9 December 1994. (See now the United Nations Personnel Act 1997.) He was injured as the result of a criminal act of violence. He was not injured by an "enemy". He was not injured as a result of a "war" operation or some military activity by a "warring" party.

    My Lords, Sergeant Walker is right to say that applying the Government's own criteria his case falls on the right side of the line and he should be compensated in accordance with the scheme. The fact that he was in Bosnia seconded to the U.N. peace-keeping force does not alter this, nor does the fact that his attacker was a Serb or the fact that the Serbs, but not his attacker at the time, were at war with the Muslims. The attack was a criminal act not an act of war.

    In the Court of Appeal, the leading judgment was that of Auld L.J. He arrived at a different conclusion. His reasoning and the arguments which he accepted sought to strip the act of the Serb attacker of its criminal content. He seemed to view the fact that the Serb was at other times, though not at the relevant time, using his tank to engage in military activity with another warring faction (the Muslims) as requiring the categorisation of Sergeant Walker's injuries as having resulted from military activity of warring factions. This is a non sequitur. What if the Serb had thrown a grenade into the mess or café where Sergeant Walker and other non-combatant civilians were drinking or had waited outside and cut his throat with a knife? The motive would be the same - to attack U.N. peacekeepers, who are not one of the warring factions nor engaged in any warlike operation. With respect, the reasoning involves a confusion between the role of the U.N. and that of the combatants and fails to recognise the truth, as illustrated by events in Northern Ireland and emphasised by the minister, that the deliberate infliction of injuries by any means is on its face unlawful without more and (in the present context) the only exception is an act of war against another warring faction - an enemy.

    To argue that a tank was used to fire the shell therefore it must have been a war operation is again a non sequitur; the sniper's rifle, the bayonet and the grenade are used by combatants in warfare but it does not follow that on a given occasion they were so used. Similarly, to digress into a discussion of the English law on recklessness merely adds to the confusion. To say that the administration of the scheme may require some difficult factual assessments to be made does not justify failing to apply the scheme in accordance with its terms. In any event it is accepted that such a difficulty does not arise in the present case. It is accepted that Sergeant Walker has established the facts which entitle him to compensation if his legal argument is correct. The appeal should be allowed.

 
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