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|Judgments - Regina v. Ministry of Defence Ex Parte Walker
HOUSE OF LORDS
Lord Slynn of Hadley Lord Nicholls of Birkenhead Lord Hoffmann
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
MINISTRY OF DEFENCE
EX PARTE WALKER
ON 6 APRIL 2000
LORD SLYNN OF HADLEY
In May 1995, Sergeant Trevor Walker ("the appellant"), when a Corporal in 21 Engineer Regiment was stationed in Bosnia as part of the United Nations Peace Keeping Force, UNPROFOR. The Regiment was engaged in constructing a road and helping to rebuild the economy of the area; the appellant was ordered not to use weapons except in self-defence.
On 3 May 1995, the accommodation block where he was based was fired on by, as is accepted for the purpose of these proceedings, a Serbian T34 Tank belonging to one of the warring factions in Bosnia. He suffered grave injuries. After 13 operations from May 1995 on, his right leg was amputated above the knee in January 1996. As a result of the incident, he suffered not only pain and loss of amenity, but substantial financial loss which will continue, since although he is still in the army, his activities are restricted and his career limited.
In February 1996, the Commanding Officer wrote of him:
On 27 February 1996, the appellant applied for compensation under the Criminal Injuries Compensation (Overseas) Scheme ("the scheme") introduced by the Ministry of Defence as a discretionary ex-gratia scheme to provide compensation for members of the armed forces injured abroad as a result of crimes of violence. It is accepted that if he is entitled to be paid compensation under the scheme, the United Kingdom would be reimbursed by the United Nations.
His application was rejected on 31 October 1996 as 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." His application for judicial review of that decision was rejected by Latham, J. on 9 February 1998 and his appeal was dismissed by the Court of Appeal (Chadwick, L.J. dissenting) on 5 February 1999.
On this further appeal, he contends that on the proper interpretation of the scheme, he was entitled to compensation; in the alternative that if his case does not fall within the provisions of the scheme, then the criteria adopted by the scheme are "irrational" and were adopted in a manner which was unfair.
By letter of 9 January 1980, the Ministry of Defence gave notice to military commanders and Ministry of Defence officials that it had been decided, although all the details of the scheme had not been finally decided, to introduce a scheme for members of the armed forces who are 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 letter added, however, that the scheme would not apply "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" (emphasis added). The letter required that an incident which might be the subject of a claim should be reported to the local police "unless it is clearly inappropriate to do so" and in any event to the victim's Commanding Officer.
Paragraph 89.033 of the Scheme for Criminal Injuries Compensation set out in the Army General and Administrative Instructions dated May 1990, provided that where military personnel, and their eligible dependants outside theUnited 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."
On 4 July 1995, the ministry told Mr. Roland Boyes, M.P., who had written on behalf of Sgt. Walker's mother, that compensation under the scheme was 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" (emphasis added).
By letter dated October 1995, the Ministry explained to Mr. Boyes, M.P. that in October 1992, the Secretary of State for Defence had decided that warlike operations were in preparation in Yugoslavia and that it followed that payment under the scheme was not appropriate.
When the British Legion put forward Sgt. Walker's application, they were told by letter dated 14 March 1996 from the Ministry of Defence that the scheme did not apply to service personnel injured:
On 5 December 1994, the Minister said that compensation under the Scheme was not payable where injury occurred to servicemen "as a result of war operations or military activity by warring factions. Current operations in Bosnia obviously fall into that category" (Hansard (H.C. Debates), 5 December 1994, col. 122). The minister was in fact asked to comment on Sgt. Walker's case on two occasions. The second was on 20 May 1996 (Hansard (H.C. Debates), 1994, col. 77), when he said:
He explained that if Sgt. Walker was invalided out of the service, he would "be properly provided for" by payment under the armed forces pension scheme and the D.S.S. war pension scheme. It is, however, clear that the lump sum and pension under those schemes would be considerably less than would be paid for the same injury under the Criminal Injuries Compensation Scheme.
It is plainly open to the court on an application for judicial review to consider whether the Ministry of Defence has correctly interpreted the scheme (as originally made, or as subsequently modified) or whether its decision involves an error of law (see e.g. Reg. v. Criminal Injuries Compensation Board, Ex parte Schofield  1 W.L.R. : Reg. v. Criminal Injuries Compensation Board, Ex parte Ince  1 W.L.R. 1334).
The letter of 9 January 1980 excluded claims where "the act of violence was committed by an enemy where a state of war exists or a warlike situation is declared to exist." This seems to mean an enemy of the United Kingdom and probably, though not necessarily, is limited to a case where there is a state of war in which the United Kingdom is engaged or where the United Kingdom had declared a warlike situation to exist. Here it is not suggested that whoever fired the shell was "an enemy" of the United Kingdom. Armed forces of the United Kingdom were not engaged in a war and it has not been suggested that a warlike situation had been declared to exist by the United Kingdom. A claim would not therefore be excluded by these words in the original letter.
Service personnel were, however, at risk when they served as members of the United Nations Peace Keeping Force and it is against that background that the words of exclusion were changed and made more general. No payment was to be made if the injury occurred as a result of "war operations" or "military activity by warring factions." It is not necessary to decide whether "war operations" are limited to operations in a war in which the United Kingdom is engaged (though, prima facie, I think they are not) since the ministry relied on the words "military activity by warring factions."
Mr. Pannick, Q.C. says that what is taken to have happened here has not been shown to constitute military activity by warring factions. If Sgt. Walker had been part of a U.N. Enforcement Unit, he would have been excluded, because his unit would have been engaged in military activity. He accepts for this case that if Sgt. Walker had been injured when one warring faction had attacked another and he had been inadvertently caught in the cross-fire, he would have been excluded because in that situation the factions would have been warring against each other.
He says that in the present case it is different because this was not fire between warring factions or as part of a war operation in which the U.N. forces were engaged, but was a deliberate attack on the building of a U.N. Peace Keeping Force. It might be different if there was room for doubt or difficulty in deciding if this was really a military activity between two warring factions. Here, there is no room for doubt. Moreover, the fact that a military weapon was used by a soldier does not make it "a military activity."
Leaving aside Mr. Pannick's international law arguments, I do not consider that these words are to be construed in the way that he proposes. In the first place, it seems to me plain that if soldiers fire a shell from a tank which is part of a military force acting on behalf of one of two factions which are warring, that is "military activity." Does the activity have to be directed by one faction against the other? I think not. As a matter of interpretation, it is sufficient that the injury results from military activity by one or both of the warring factions, whether directed between the factions, against premises where U.N. troops are or against an individual soldier, even one engaged in peace keeping duties. As a matter of interpretation, I do not feel that it is necessary or right to draw the distinction which Mr. Pannick, Q.C. advocates between a soldier who is in a U.N. building which is deliberately fired on (whom he says should be able to recover) and one who happens to be in the street wearing uniform with U.N. identification and who is caught in cross-fire and who, for the purposes of this case, he accepts would not be able to recover.
Mr. Pannick has, however, laid much stress on the Convention on the Safety of United Nations and Associated Personnel (1994), (Cm. 3363), adopted by Resolution 49/59 of the General Assembly of the United Nations on 9 December 1994.
By article 7, "United Nations and associated personnel, their equipment and premises shall not be made the object of attack. . . . " Article 9 of the Convention required each state party to make a crime under its national law (a) the intentional commission of an attack upon the person of U.N. personnel, and (b) the violent attack upon the official premises of any U.N. personnel likely to endanger his or her person.
By section 1 of the United Nations Personnel Act 1997, it is, inter alia, an offence in the United Kingdom to assault, causing injury, a U.N. worker outside the United Kingdom if the assault would be an offence if done in the United Kingdom. By section 2, it is an offence in the United Kingdom to commit outside the United Kingdom an attack on premises used by a U.N. worker when a U.N. worker is on the premises if that attack would constitute a breach of the Criminal Damage Act 1971. A soldier in the position of Sgt. Walker was a U.N. worker as a member of the military component of a U.N. operation other than an operation constituting authorised enforcement action under Chapter VII of the U.N. Charter to which the law of international armed conflict applies.
What happened here, it is said, was a breach of the Convention and of the United Kingdom statute. It was an international crime and a national crime. The court should assume that the United Kingdom intended to fulfil its international obligations and should construe the words of exclusion as complying with those obligations. It would be incompatible with that obligation to regard criminal conduct in breach of the Convention as being "military activity," so as to exclude a claim by a soldier injured as a result of such a claim.
He submits further that "as a matter of international law, conduct is recognised as 'military' only and precisely at the point when it ceases to be criminal."
In this regard, he relies on a distinction between the legality as a matter of international law of attacks on combatants and military property on the one hand and the illegality of attacks on civilian populations and property on the other. He refers to articles 48 and 51(2) of Additional Protocol I of 8 June 1977 to the Geneva Conventions relating to War of 12 August 1949 and to the Commentary on the Additional Protocols by the International Committee of the Red Cross (1987), para. 1863 where such distinction is recognised.
The question, however, is what the scheme as amended has here provided. I do not consider that there is a necessary incompatibility or mutual exclusiveness between "military activity" and activity which is criminal under international law. What happened was criminal under international law, but it is still "military activity" for the purposes of the exclusion to the scheme.
Accordingly, in my opinion the exclusion from compensation as a matter of interpretation covers the injury to Sgt. Walker.
It is not for the courts to consider whether the scheme with its exclusion is a good scheme or a bad scheme, unless it can be said that the exclusion is irrational or so unreasonable that no reasonable minister could have adopted it. Despite great sympathy for Sgt. Walker and his wife, who has given him so much support, I do not find it possible to say that the aim of the scheme was to provide compensation "as nearly as possible" equivalent to that given for injury resulting from criminal acts committed in Great Britain. It cannot be said to be irrational to limit the compensation to acts which are really analogous and to exclude the sort of injury the risk of which soldiers undertake as such whether they be on duty in a combatant or a peace keeping capacity.
I do not consider that article 20(e) of the Convention of 1994, which has been referred to, helps Sgt. Walker on this point. It provides that nothing in the Convention shall effect "The entitlement to appropriate compensation payable in the event of death, disability, injury or illness attributable to peace keeping service by persons voluntarily contributed by states to United Nations operations." It still leaves open the question of what compensation is paid under national schemes. Nothing paid under the existing war pension schemes is affected and article 20(e) does not say that general criminal injuries compensation must be paid to soldiers on peace keeping duties where warring factions are involved.
Sgt. Walker's feeling that if compensation is paid to soldiers in Northern Ireland, it ought to be paid to peace keeping soldiers in Bosnia is well understandable. But there is a distinction (as explained by Latham, J. and by the Minister of State for Defence Procurement in his letter of October 1995) between war operations and military activity by warring factions on the one hand and support for the police forces dealing with terrorism on the other. In individual cases, the line may be fine, but to adopt it as a general rule cannot be said to have no rational base despite what seemed to me to be common features between the two situations. It is not irrational accordingly not to pay in Bosnia, simply because payments of compensation are made in Northern Ireland where the role of troops was different.
If I had come to the view that this phrase was imprecise enough for several meanings to be adopted, then I would not accept that the minister's interpretation of it was such as to be "so aberrant that it cannot be classed as rational" (Reg. v. Monopolies and Mergers Commission, Ex parte South Yorkshire Transport Ltd.  1 W.L.R. 23, 32H per Lord Mustill).
The question remains whether the criteria were changed in a way which was unfair to Sgt. Walker so that the courts can interfere.
It is common ground that the initial proposal of 9 January 1980 was widely distributed to service commanders and to Ministry of Defence officials; there is no evidence of any similar distribution when the criteria were changed. On the evidence, the first time it was made known generally, was by the minister's statement in the House of Commons on 5 December 1994.
He says, though, that he believed that he would be compensated if he was injured when on U.N. Peace Keeping duties. It is not suggested that he knew or must have known when he went to Bosnia that, as a result of the criteria then in force, he would not be compensated or that if he had known, he would have behaved differently, though I accept that he could have taken out insurance under a scheme available to the armed forces.
It is, however, common ground that the ministry made no express representation to Sgt Walker that he would be paid compensation under the initial criteria, or at all. Although Sgt. Walker said that he believed that he would be compensated, it is not established that he knew the terms of the original criteria, or what he believed to be the circumstances in which he would be compensated, or that he relied on any representation as to compensation in going to Bosnia. Accordingly, it does not seem to me that he can say that any legitimate expectation was frustrated.
Mr. Pannick, Q.C. relied on Reg. v. Inland Revenue Commissioners, Ex parte Unilever Plc.  S.T.C. 681. But that case (where the Revenue suddenly enforced time limits which it had led tax payers to believe would not be insisted on, so that the tax payer lost the relief he had expected) is very different from the present. So also cases have been cited where an individual had been specifically told that a procedure would be followed on which he had relied and which had then been changed without notice (Reg. v. Secretary of State for the Home Department, Ex parte Asif Mahmood Khan  1 W.L.R. 1337), or where a promise had been made and then withdrawn (Reg. v. North and East Devon Health Authority, Ex parte Coughlan  Lloyd's Rep. (Medical) 306) are very different. See also Thames Valley Electric Power Board v. N.Z.F.B. Pulp and Paper Ltd.  2 N.Z.L.R. 641, 652-653 per Cook P.
The scheme as published in 1990 made it plain beyond any doubt that any payment was ex gratia and "wholly within the discretion of the Army Board . . . or of the Secretary of State." It follows that the minister was entitled to reformulate the criteria from time to time and that there was no absolute right to compensation on the basis originally indicated.
If the criteria initially proposed had been laid down expressly in the scheme, there would be a stronger argument that no general change (as opposed to decisions of application in individual cases) could fairly be made without written notice of the change being given, but it seems to me that since Sgt. Walker had not been told that he would be paid on the basis of the original criteria, there was no unfairness to him in the criteria being changed without his being told that individually and without his having the opportunity to know other than by the minister's statement in Parliament on 5 December 1994, i.e. before the incident and it seems before he went to Bosnia (see Auld, L.J. at  1 W.L.R. 1209, 1213).
Sgt. Walker was entitled to have the policy in force at the time of the incident applied to him and to be given the opportunity to make representations that he was in the scheme and outside the exclusion. Both of these he had.
Accordingly, although I consider that it would have been better if the ministry had given a degree of publicity of the change similar to that given to the original proposal, I do not consider that there was here the unfairness which would justify the courts interfering.
It is to be noticed that on 9 January 1997, the United Nations told Mrs. Walker that the U.N. considered that payments had to be made by national governments, who should be reimbursed by the United Nations, but that at the same time the United Nations recognised that the current arrangements had resulted in a situation which had disadvantages to service personnel of some nations, including the United Kingdom, and that, pursuant to a Resolution of the General Assembly, revisions were being considered to ensure equality between Member States. He added, "it is to be hoped, therefore, that agreement on suitable compensation payments can be reached before too long." Whether anything came of this initiative by the United Nations, the House has not been told, but like Latham, J. and the majority of the Court of Appeal, I consider that there are no grounds for setting aside the minister's decision in the present case. The appeal must therefore be dismissed.
LORD NICHOLLS OF BIRKENHEAD
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Slynn of Hadley and Lord Hoffmann. I agree that for the reasons they give this appeal should be dismissed.
On 3 May 1995 the appellant Sergeant Walker, a British soldier serving with the United Nations peacekeeping force in Bosnia, was badly injured by a shell from a Serbian tank. It had deliberately fired upon the building where he and other members of the force were housed. The attack was a crime under international law, being contrary to the United Nations Convention on the Safety of United Nations and Associated Personnel (1994). (Cm. 3363), adopted by the General Assembly of the United Nations on 9 December 1994.
Sergeant Walker made a claim for compensation under the Criminal Injuries Compensation (Overseas) Scheme ("the scheme"). He said that he had been injured by a criminal act which fell within the scheme. The Ministry of Defence rejected the claim. He applied for judicial review but the application was dismissed by Latham J. and his decision was affirmed by the Court of Appeal (Auld L.J. and Sir Christopher Staughton; Chadwick L.J. dissenting). With the leave of the Court of Appeal, Sergeant Walker appeals to your Lordships' House.
The Ministry of Defence introduced the scheme in 1979. The purpose was to give members of the armed forces stationed abroad rights to compensation similar to those which existed in the United Kingdom under the Criminal Injuries Compensation Scheme for victims of criminal violence. Details of the scheme are published in the Army General and Administrative Instructions. Paragraph 89.033 of those instructions says that payments are to be ex gratia and that "whether or not to make such a payment, and if so, the amount, shall be wholly within the discretion of the Army Board." But the discretion may not be exercised arbitrarily. The Ministry of Defence has from time to time stated the policy which it intends to apply and accepts that its decisions must be justifiable within the terms of its own policies.
The ministry made such a statement of policy in a letter given wide circulation within the armed forces in 1980. It contained a general qualification that the scheme would not apply "where the act of violence . . . is committed by an enemy where a state of war exists or a warlike situation is declared to exist." So the scheme did not apply to injuries suffered as a result of military operations by Argentinean forces in the Falkland Islands in 1982. On the other hand, the form of words used in the 1980 letter was not very suitable, one way or the other, to the injuries which might be suffered by British forces which were sent as part of the peace-keeping force to Bosnia in 1994. It could certainly be said that a "warlike situation" existed there. But none of the factions involved in the hostilities was technically an "enemy" of the United Kingdom. Clarification was needed.
The Minister of State for the Armed Forces therefore announced a specifically Bosnian policy in the House of Commons on 5 December 1994. He said, (Hansard (H.C. Debates), 5 December 1994, col. 122) that "compensation is not payable where injury . . . occurs as a result of war operations or military activity by warring factions. Current operations in Bosnia obviously fall into that category."
It may be that the Bosnian policy thus declared could be viewed as an application or interpretation of the 1980 policy. Or it may be said to represent a change in the 1980 policy to cover the new situation in Bosnia. I do not think that it matters. The ministry was entitled to change its policy: see In re Findlay  A.C. 318. I do not think it is legitimate to argue that because the minister thought (as he may have done) that he was merely interpreting the old policy, he could not give effect to the stated Bosnian policy except insofar as it falls within the court's interpretation of the 1980 letter. The minister clearly intended his statement to apply to injuries sustained by servicemen in Bosnia, whether it strictly fell within the language of the old policy or not.
The next question is whether the injury to Sergeant Walker fell within the terms of the exclusion announced by the minister. I think it plainly did. He was fired upon by a Serbian tank. I do not see how it can be said that the ministry could not reasonably take the view that this was military activity by a warring faction. The fact that it was a criminal act under international law does not mean that it cannot have been a military activity within the meaning of the policy. It was a criminal military activity. As the scheme only applies to criminal acts, there would be no point in an exclusion which applied only to activities which were not criminal. It seems to me highly unlikely that the minister was intending only to exclude injuries caused by the accidental effects of crossfire between the warring factions.