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IN THE SUPREME COURT OF JUDICATURE No QBCOF 98/0233/4

Royal Courts of Justice

Strand

London WC2

Friday, 5th February 1999

B e f o r e:

LORD JUSTICE AULD

LORD JUSTICE CHADWICK

SIR CHRISTOPHER STAUGHTON

R E G I N A

- v -

MINISTRY OF DEFENCE Ex parte TREVOR WALKER

(Handed down judgment

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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

J U D G M E N T

(As Approved by the Court)

(Crown Copyright)

LORD JUSTICE AULD: 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 crime. Mr. Philip Sales, for the Ministry, distinguishing between "war operations" and "military activity by warring factions", contended that Sergeant Walker's injuries resulted from the latter and, therefore, came within the exclusion.

Latham J. rejected Mr Pannick's distinction between war operations or military activity by warring factions on the one hand and an international crime on the other. He said, at 14E-15B:

" ... The Scheme only has application where a crime has been committed. The question which has to be answered is whether the actions which constituted the crime amounted to 'military activity' in the ordinary sense of that phrase. I readily accept that the mere fact that, for example, a member of one of the warring factions in uniform shot at and killed or injured a peacekeeping soldier would not of itself lead to the inference that that person was engaged in 'military activity'. An individual act of violence may not, without more, have the necessary qualities of planning or cohesive action which would justify that description. But it seems to me that an attack by a tank on an observation post and accommodation such as the attack on the Maglaj School in the present case, does have those qualities. It follows that the Respondent was, in my judgment, entitled to conclude that the injuries sustained by the Applicant, albeit that they were sustained as a result of a crime of violence, fell within the exception set out in the policy."

Mr Pannick's submission on the appeal was that the Judge, in that passage, ignored the distinction between "war operations or military activities by warring factions" and conduct amounting to an international crime, here the deliberate firing, whatever the motive, at a United Nations peacekeeping base. He said that, for the purpose of identifying the scope of the Scheme, criminal conduct and military activity are mutually exclusive and that an attack on a peacekeeping force is a crime, not a military activity. He added that the fact that a criminal act could be carried out with a tank or other military equipment did not in itself make it a military activity.

In support of his submission, Mr Pannick referred to the distinction drawn between peacekeeping and aggressive UN forces in the UN Convention on the Safety of United Nations Personnel, adopted by the General Assembly on 9th December 1994. This Convention, which, since 27th April 1997, has been given effect in the United Kingdom by the United Nations Personnel Act 1997, is designed to codify and develop international law so as to prevent and punish attacks on UN personnel. It prohibits (Article 7) attack on such personnel engaged on an operation "for the purpose of maintaining or restoring international peace and security" (Articles l(c)(i) and 2.1), and requires (Article 9) each State Party to make such an attack a crime under its national law. It expressly excludes (Article 2.2) from that protection UN personnel engaged in enforcement operations under Chapter VII of the Charter in which any of the personnel are "engaged as combatants against organized armed forces and to which the law of international armed conflict applies". He submitted that the Convention stated a principle already established in a number of Security Council Resolutions that attacks on UN peacekeeping forces are crimes in violation of international law.

Thus, Mr Pannick maintained that a deliberate attack, as is assumed here, by a warring faction on a member of a peacekeeping force is, by virtue of it being an international crime, outside the exclusion from the Scheme of injuries resulting from "war operations or military activity by warring factions". He said that it would have been different if Sergeant Walker's unit had been engaged in enforcement action under Chapter VII of the United Nations Charter or, if, as a member of peace keeping operation, he had been injured accidentally in the course of an attack by one warring faction against another. He submitted that the Court, unless compelled to do otherwise, should construe the Scheme consistently with the United Kingdom's international obligations, with the result that a deliberate attack on a peacekeeping force is an international crime and, therefore, not "legitimate" military activity.

Mr Pannick also drew attention to The United Nations willingness, as indicated by a letter of 14th November 1996 to Mrs Walker, to reimburse troop contributing countries to a peace keeping operation in respect of payments for

"claims for compensation for death, injury or illness incurred by members of national military contingents while performing official duties with a United Nations peace keeping force ..."

Mr. Sales submitted that the term "military activity", as used in the exclusionary provision in the Scheme, and an international crime of violence are not mutually exclusive and that the distinction on which Mr Pannick relied does not arise. He said that that must be so because the Scheme only applies where a crime of violence has been committed and that the Scheme's express exclusion from its protection of "war operations" and "military activities by warring factions" can only refer to conduct, in particular "military activity", which may amount to a crime. If it were not peacekeeping, the attack would not have been an international crime and thus not within the Scheme anyway. He said that the only question for decision is whether the undoubted criminal action was a "military activity by a warring faction".

Mr Sales submitted that such a construction plainly accorded with the circumstances giving rise to and the terms of the Minister's statement of the new policy in December 1994. In short, he said that the main purpose of the Scheme was to provide compensation where there were no war operations or military activities taking place, or, where there were, to compensate for criminal injuries of the non-military sort for which the domestic criminal injuries scheme made provision.

Subject to what I shall say in a moment, the true meaning of the policy is a matter for the Court to decide. Misinterpretation by the Ministry of its own policy may render its decision defective in the same way as would ignoring it. See R v. CICB, ex p. Schofield [1971] 1 WLR 926, DC; R v. CICB, ex p. Ince [1973] 1 WLR 1334, CA; E.C. Gransden & Co. Ltd. Secretary of State for the Environment [1986] JPL 519 and Horsham District Council v. Secretary of State for the Environment [1992] 1 PLR 81, CA. However, as Mr Sales submitted, if the policy is not as clearly or fully expressed as it might be, there is nevertheless a spectrum of meaning as to what might constitute "military activity", and the Court should respect the Ministry's evaluation of it unless it is irrational. He cited Lord Mustill, with whom the other Members of the Appellate Committee agreed, in R v. MMC ex p. South Yorkshire Transport [1993] 1 WLR 23, HL, at G-H:

"... the criterion so established may itself be so imprecise that different decision makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational: Edwards v. Bairstow [1956] AC 14."

The starting point for determination of the issue of construction is that the Scheme is intended, as originally introduced and as announced by the Minister in Parliament in December 1994, to provide compensation for members of the Armed Forces who are the victims of crimes of violence while serving abroad, so as to give them equivalent or comparable compensation to that for which they would have been eligible if the criminal act causing them injury had occurred in Great Britain. As the Minister, in announcing the change, went on to indicate, its discretionary provision for compensation was intended to mirror that of the domestic scheme and scene, and did not extend to violence, criminal or otherwise, resulting from war operations or military activity to which servicemen might become subject while on duty abroad.

The second point of importance is that to which Mr Sales gave prominence in his argument, namely that the exclusion of compensation for injuries resulting from war operations or military activities by warring factions from a scheme intended to compensate for criminal conduct necessarily contemplated that criminal conduct could take one of those forms; otherwise there was no need for its exclusion. It follows that the fact that Sergeant Walker was engaged in a peacekeeping operation rendering an attack by a warring faction on him or his colleagues an international crime is nothing to the point. The two are not mutually exclusive and the question of the exclusion of an injury resulting from a military activity arises only because it is a crime that would otherwise attract compensation under the Scheme.

Third, any other construction of the Scheme would cause great difficulties in its application. As I have said, it is agreed for the purpose of this appeal that the tank fired deliberately at the peacekeeping force's base. But if the round had been fired at an opposing enemy faction and had only hit the base by a mistake short of criminal recklessness, Mr Pannick accepted that it would come within the exclusion of "military activity by [a] warring faction ..". He was unwilling to commit himself on the question of a criminally recklessly mis-aimed shot at an enemy which strikes peacekeepers by mistake, as it does not arise in this case. However, consistency with his approach and his reliance on the 1994 Convention, Article 7 of which refers only to the "intentional" commission of crimes against UN peace keeping personnel, would seem to demand that criminally reckless injury of that sort would not have qualified for compensation by virtue of the exclusion. However, in the domestic scheme as it then was, entitlement to compensation for criminally reckless conduct was specifically included; see Criminal Justice Act 1988, s. 109 (1)(a)(ii).

This somewhat laboured digression serves to illustrate the practical difficulties in the application of the criteria that could arise on Mr Pannick's approach, where issues arise as to whether enemy fire or other military activity was intentional, reckless or just careless. As Mr Sales put it, such an approach would introduce fine distinctions inappropriate for the strife and confusion of a battlefield, requiring the Ministry to determine, say, whether a particular bullet was deliberately fired at a UN peace keeping unit or at some opposed warring faction. There are also broader difficulties in the application of Mr. Pannick's claimed distinction between military activities and crime for this purpose, for example, where a warring faction attacks or overruns UN peacekeepers in the course of, and/or as a means of driving home, its attack on an enemy warring faction.

Finally, even if there is some lack of precision in the formulation of the exclusionary criteria, it seems to me that the Ministry's interpretation of it in the circumstances of this claim satisfies Lord Mustill's test in the South Yorkshire Transport case; it is not so aberrant that it can be classed as irrational.

I would, therefore, reject the first ground of appeal.

Rationality

Mr Pannick's second and alternative submission is that if the Scheme on a proper construction excludes Sergeant Walker's claim, it is irrational. He argued that, as the claimed intention of the Scheme is to give members of the Armed Forces who are the victims of crimes of violence while serving abroad comparable compensation to that for which they would have been eligible if the criminal act had been committed in this country, there is no rational basis for depriving a peacekeeper of compensation for injury caused by an international crime. He contrasted the position for members of the Armed Forces serving in Northern Ireland and commented that the policy appeared to have been developed for and only to apply to service in Bosnia. He added that such an exclusion could not be justified by a claim of lack of resources, because the United Nations is prepared to reimburse troop contributing countries for such payments.

Mr Sales' reply to this submission was that the rational basis for the exclusion is that it is an overseas scheme intended to provide for the sort of circumstances covered by the domestic scheme, not for those of war or military activity where the rule of domestic law has broken down. Other provision is made for the latter in the form of war pensions and Armed Forces disability ("attributable") pension on discharge from service. The circumstances in Bosnia were wholly different from those in Great Britain and, for that matter, Northern Ireland, and the United Kingdom Government was entitled to reflect that difference in its formulation of the Scheme. Though the present form of the Scheme was prompted by the Bosnian troubles, it had always excluded compensation for injuries caused in warlike situations. It is not confined in its application to Bosnia or to UN peacekeeping operations. Finally, he said that the fact that the UN may reimburse the payments made in respect of its peacekeeping operations does not make it unreasonable to have such a policy, which is one of general application and may cover operations not the responsibility of the UN and thus not qualifying for such indemnity.

Latham J said, at 15F-16C:

" I have already referred to what are, in my judgment, proper distinctions to be made between the situation in Northern Ireland and the situation in Bosnia. It seems to me that these provide a sufficient distinction to justify the Respondent in making different provision for these two areas of service. As to the second argument, ... the United Nations will be asked to reimburse the United Kingdom government for any additional costs incurred by the government by reason of the Applicant's disabilities. I have considerable sympathy with the argument that, in view of the indemnity provided by the United Nations, and in view of the avowed policy of the United Nations, it is surprising that the Respondent did not feel that it was appropriate to extend the Scheme to those who were peacekeepers, and not combatants. But the policy is not defined with reference to Bosnia alone. British soldiers may be required to act as peacekeepers in areas other than Bosnia, and in circumstances in which the United Kingdom Government may not be entitled to, or able in practice to enforce, any indemnity from any other country or institution. In these circumstances I cannot categorise the policy as irrational or perverse."

I agree with Latham J. In my view, there is no irrationality in the Ministry's adoption of the Scheme in its original or amended form. The purpose of the exclusion is to produce as nearly as possible some parity in the recovery of compensation for crime by military personnel abroad with that available to those injured by crime at home. To achieve that, it seeks to remove from the Scheme a feature peculiar to the life of a member of the armed services abroad in a theatre of war or where there is military activity between warring factions, but not present at home, the risk of injury from warlike behaviour. In my view also, the Ministry was entitled to develop the Scheme with the problems of the type posed by Bosnia particularly in mind, just as it was entitled to take the view that the circumstances in Northern Ireland were materially different from those in Bosnia so as to warrant different policies for the two territories. Finally, under this head, the availability of an indemnity for payments made to UN personnel injured by warring factions does not make irrational a general policy of the Ministry not to make such payments. And that is so whether a claim is made, as it is here, by servicemen acting as UN personnel or say, by soldiers acting under the authority of NATO, as in Kosovo, to whom no such indemnity would apply.

It follows from my rejection of this argument that I do not need to deal with the issue of delay raised by the Ministry in its Respondent's Notice, which we have given it leave to amend.

Fairness

Mr. Pannick submitted finally, and in the further alternative, that the wording and manner of the reformulation of the Scheme in late 1994 operated unfairly against Sergeant Walker because he was not made aware of its implications before embarking on his service in Bosnia. Mr Pannick maintained that such unfairness on its own, and whether or not it amounted to a breach of his legitimate expectation, was sufficient to vitiate the decision to refuse him compensation. He said that the new form of the exclusion is wider than it was before and that there is no evidence that servicemen were informed of it other than through the publication of the Minister's statement in Hansard. More particularly, Mr Pannick said that, on the evidence filed on behalf of Sergeant Walker in the application, he was never told of the new form, and he and his fellow soldiers had believed they would be entitled to compensation if injured in Bosnia. The evidence consisted of the following passage in an affirmation of Sergeant Walker's solicitor and was verified by Sergeant Walker in a short affidavit:

" I am informed that Sgt. Walker and, he believes, his colleagues in his regiment understood that in the event of injury in Bosnia he would be entitled to compensation over and above the armed forces pension scheme and war pension scheme. It was understood that if he was actively engaged as a combatant, for example in the Falklands or Gulf war if serious injury was sustained there would be no compensation. He believed that compensation would be available as it is in Northern Ireland where a policing and peace-keeping role is also carried out by the armed forces. Neither he nor his colleagues were ever made aware that, unlike in Northern Ireland, although not on combat service, he would not be entitled to compensation."

In short, Mr Pannick submitted that, given the risk of serious injury or worse to which soldiers going to Bosnia were subjected, fairness demanded that the Ministry should have informed them in some coherent way before they went there of any exclusionary provision in the Scheme upon which it would rely, particularly if it intended to distinguish between service in Northern Ireland and in Bosnia.

Mr Sales did not suggest that Sergeant Walker knew of the December 1994 reformulation of the exclusion before he was sent to Bosnia in 1995. He said, however, that there is no evidence that when he went there he was aware of any of the details of the Scheme or that he relied on any representation as to what it involved. The only representation or statement that he could have seen, though he did not claim to have seen it, was that in the May 1990 Army General and Administrative Instructions. That document said nothing about any exclusion and little about the terms of the Scheme other than that it provided for "wholly" discretionary payment of compensation for personal injury or death "attributable to a crime of violence". Any military personnel wishing to know the detailed criteria for payment under the Scheme would have had to inquire. Mr. Sales contrasted the facts here with the exceptional nature of the circumstances in R v. IRC, ex p. Unilever PLc [1996] STC 681, CA, where there had been a practice of or understanding with the Revenue which had caused the taxpayer applicant in that case to act to its potential disadvantage.

Mr Sales added that Sergeant Walker was not misled; all that fairness required was that the terms of the Scheme, as they stood at the material time, should be properly applied to his case; and that he had no legitimate expectation which was not met by the Ministry's treatment of his claim.

Latham J. was of the view that there was no unfairness in the broadest sense of that test. He said, at 11E-12E:

" I do not consider that the facts in this case disclose unfairness either in the sense of a departure from an express or implied promise, or in the sense of a departure from accepted moral standards ... There was clearly a change of policy after 1980 about which members of the armed services were not told. But the evidence goes no where near establishing that the Applicant or any of his fellow soldiers were aware of what that policy had been, other than in the relatively anecdotal form set out in his solicitor's affirmation. The most, it seems to me, that the Applicant can say is that in some way the fact that compensation is payable to soldiers injured or killed in Northern Ireland is conduct which entitled him to conclude that it would equally be payable for injury or death sustained in Bosnia. There is a superficial similarity between the two situations, in that the soldier's task could be said to be that of keeping the peace. But the situations in the two countries are wholly different. In Northern Ireland the soldier's task is to deal with terrorism in what is otherwise a country where law and order is maintained. In Bosnia the soldier is required to carry out his task in a country where law and order has broken down, and where sections of the population had been at war with each other in a sense wholly different from the sectarian violence in Northern Ireland. Whilst I find it difficult to understand why members of the armed services were not informed of the policy, I cannot see how the change could be said to be unfair other than in the sense that it was a change which was to the detriment of the Applicant, which is not of itself, unfairness which entitles this court to interfere. The Applicant was undoubtedly entitled to fair treatment in accordance with the policy for the time being in force. He was not entitled, in my judgment, to more than that."

Within the bounds of rationality, the Ministry is entitled to formulate and apply its own criteria in the administration of the Scheme, and it may change those criteria from time to time. As Mr Sales observed, in the absence of any earlier official notification of the precise terms of the Scheme, the entitlements or legitimate expectations of a claimant under it are simply:

- to have the Scheme, as it stands at the time of the injury the subject of his claim, properly applied to his case; see R v. Secretary of State for the Home Department, ex p. Khan [1984] 1 WLR 1337, CA and R v. Secretary of State for the Home Department, ex p. Hargreaves [19 97] 1 WLR 906, CA.; and

- to be notified at the time of making the claim of the relevant criteria so as to give him an opportunity to make representations to the Ministry as to their application; see R v. Criminal Injuries Compensation Board, ex p. Ince [1973] 1 WLR 1334, per Megaw LJ at 1345C-E, with whom Lord Denning MR and Scarman LJ agreed.

Both those entitlements or legitimate expectations were clearly met in this case. As I have said, the Ministry properly applied its current criteria and, as the correspondence in evidence before the Court shows, fully identified and explained them to Sergeant Walker and those acting for him before he made his formal claim.

There is high authority for Mr Pannick's proposition that the Court can intervene on the general ground of unfairness, whether or not it takes the form of a breach of legitimate expectations or some other jurisprudential notion, where a change in a policy or practice occurs without adequate or clear advance notification to those likely to be affected by it. See e.g. R v. Secretary of State for the Home Department, ex p. Khan [1984] 1 WLR 1337, CA, per Parker LJ at 1347C-F and per Dunn LJ at 1352A; Unilever, CA, per Sir Thomas Bingham MR at 690f and 691g-h, and per Simon Brown LJ at 693b-695j; and Thames Valley Electric Power Board v. NZFP Pulp & Paper Ltd. [1994] 2 NZLR 641, CA, per Cooke P at 652-3.

However, the suggestion of unfairness here, in the failure to notify Sergeant Walker before he went to Bosnia of the precise terms of the Scheme as amended in 1994 and its implications for him, is unfounded. Such knowledge as he may have had of the original Scheme was sketchy and, as Latham J said, "anecdotal", no doubt derived from casual discussion with fellow soldiers. Moreover, it is difficult to see what Sergeant Walker, if he had appreciated the precise effect of the Scheme before going to Bosnia, could and would have done to ameliorate its consequences for him in the event of injury from military activity while there. As a serving soldier, he had to go and take the risks of a peacekeeper in a war torn country. The suggestion, albeit made softly by Mr Pannick, that he might have made some insurance provision to meet the shortfall in the Scheme for injuries from military activity, is, sadly and with respect, fanciful.

It gives me no pleasure to find against Sergeant Walker on all three grounds of his appeal. He was a very brave soldier in the performance of his hazardous duties in Bosnia, and is a very courageous and resolute man in the face of the terrible injuries that he has suffered in consequence. However, the Scheme was designed to compensate for injuries resulting from action akin to domestic crime not from warlike or military conduct while peacekeeping in some foreign battlefield.

Accordingly, I would dismiss the appeal.

LORD JUSTICE CHADWICK: In May 1995 the appellant, then a corporal in 21 Engineer Regiment, Royal Engineers, was serving in Bosnia with the United Nations Protection Force. His unit was accommodated in the former school at Maglaj. It had been given the task of assisting in the construction of a road as part of the effort to rebuild the civilian economy.

On the evening of 3 May 1995 Maglaj School was hit by a single shell, believed to have been fired by a Serbian T34 tank. It has been common ground on this appeal that the school, which was used both as accommodation and as an observation post, was the intended target of an unprovoked attack. The appellant, who was off-duty at the time, was seriously injured by the blast. As a result of the injuries which he suffered it was necessary for his right leg to be amputated above the knee.

On 29 February 1996, the appellant (who had remained in the Army and had been promoted to Sergeant) made application for compensation under the Criminal Injuries Compensation (Overseas) scheme. On 31 October 1996, Sergeant Walker was informed by Mr J C Robbs, Head of Service Personnel Policy (Pensions), that:

. . . your application for payment of compensation in respect of the injuries which you sustained in Bosnia on 4 May 1995 (sic) has been considered by the Army Board and it has been decided that your claim should be rejected as the Criminal Injuries Compensation (Overseas) 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.

On 18 February 1997 Sergeant Walker was granted leave to move for judicial review of the decision conveyed by that letter of 31 October 1996. His motion for judicial review came before Mr Justice Latham and was dismissed by an order dated 9 February 1998. Sergeant Walker now appeals to this Court against that order.

It is, I think, necessary to have some understanding of the nature of the operations on which Sergeant Walker and his unit were engaged in Bosnia in order to evaluate a refusal based on the ground that his injury was the result of “war operations or military activity by warring factions”.

The United Nations Protection Force (UNPROFOR), with which Sergeant Walker and his unit were serving at the relevant time, was established by a resolution of the Security Council (Resolution 743 of 21 March 1992) for deployment in Croatia. The mandate was to create conditions of peace and security required for the negotiation of an overall settlement to the crisis in the former Yugoslavia. The mandate was extended to deployment in Bosnia by Resolution 776 of 14 September 1992. The Protection Force in Bosnia was given the task of supporting the humanitarian aid efforts of the United Nations High Commission for Refugees (UNHCR), including the provision of military protection to aid convoys and the movements of wounded and refugees. The mandate was further extended by a series of Security Council Resolutions over the next three years - that is to say, until it ceased to operate in Bosnia following the Dayton Peace Accord of November 1995.

The situation in Bosnia between 1993 and 1995 is described in the section entitled “United Nations Protection Force (UNPROFOR)” which appears in the HMSO publication “Wider Peacekeeping”. The same report is reproduced in The Army Field Manual Volume 5, “Operations other than war, Part 2”. The following paragraphs contain an account of a deteriorating situation during 1993:

The situation in central Bosnia continued to deteriorate as the fighting intensified between the Bosnian Serbs and the isolated pockets of other parties, despite efforts of UNPROFOR to push humanitarian aid through both by ground convoys and helicopter sorties, the latter however being aborted on a number of occasions by artillery fire directed against the landing zones.

In April 1993 under Resolution 819(93) the Security Council decided to send a mission to check the situation within Bosnia & Herzogovina which in due course recommended the creation of ‘safe areas’ for ethnic minorities. Subsequently under Resolution 824(93) of 6.5.93 certain towns . . . , all in the Bosnian Serb dominated region, were so designated with an UNPROFOR presence provided by 50 UN Military Observers to monitor their safety.

Subsequently under Resolution 836(93) of 4 June 1993 UNPROFOR’s mandate, was extended to enable it to deter attacks against Safe Areas and to occupy some key points on the ground in efforts to monitor the conflict and promote the withdrawal of the rival military and para-military factions. As a result of this increased commitment Resolution 844(93) of 18 June authorised the reinforcement of UNPROFOR to permit the deployment to the Safe Areas of some 6,500 troops consisting of 4 mechanised infantry battalions for the Safe Areas and 1 for route control supported by an armoured reconnaissance battalion and commensurate logistic support units. . . .

However there was naturally a time-lag between the decision to deploy these additional forces and their arrival on the ground. In the interim the fighting in central Bosnia continued with a more offensive posture from the Bosnian Government forces as the autumn wore on. In spite of a call from the UN Security Council on 9 November 1993 for all parties to assist the humanitarian aid distribution and to avoid actions exacerbating the situation, the fighting continued and this had a detrimental effect on the delivery of humanitarian supplies by road. Of particular concern to the UN were incidents such as that of early November when an attack apparently by Bosnian Government forces on two convoys under UNHCR and UNPROFOR auspices respectively led to 1 fatality and 10 wounded among the UN associated personnel . . .

It can be seen that Maglaj was included within the UN Safe Areas by late March 1994:

In March [1994] discussions were also underway as to whether the UN “Safe Areas” should be extended to include three further towns Mostar, Vitez and Maglaj. Initial assessments by UNPROFOR revealed that it already had a presence in the areas of Mostar and Vitez but to provide UNPROFOR support for Maglaj would require a considerable enhancement of UNPROFOR in the form of a heavy mechanised infantry battalion plus engineer & Logistic support - a total of some 1,500 additional troops. However provision by UN members including the UK who made a further infantry battalion available, enabled redeployment of UNPROFOR resources in late March to cover these new areas. . . .

The situation during 1994 showed no improvement. It is described in the following paragraph:

Nevertheless the continued fighting in central and southern areas undermined the humanitarian effort. In spite of higher level agreements and even factional regional commander’s approval, UN Forces escorting humanitarian convoys have faced physical obstructions to their movement thought the use of mines and road-blocks usually manned by small groups of combatants who sometimes refuse to accept orders from their own higher commanders. . . . In addition the deliberate destruction of routes and instances of deliberate targeting of UN vehicles and personnel have further restricted the movement of UN elements.

The concern at the increasing number of attacks on United Nations and associated personnel led to the establishment, by a resolution of the General Assembly of the United Nations of 9 December 1993, of an Ad Hoc Committee on the Elaboration of an International Convention Dealing with the Safety and Security of United Nations and Associated Personnel, with particular reference to responsibility for attacks on such personnel. The report of that committee led to the preparation of a Convention on the Safety of United Nations and Associated Personnel, which was adopted by a resolution of the General Assembly on 9 December 1994. For the purposes of that Convention “United Nations personnel” are persons engaged or deployed by the Secretary-General as members of (inter alia) the military component of a United Nations operation; and “Associated personnel” are persons assigned by a Government to carry out activities in support of the fulfilment of the mandate of a United Nations operation. A “United Nations operation” means an operation established by the competent organ of the United Nations in accordance with the Charter of the United Nations and conducted under United Nations authority and control, where (inter alia) the operation is for the purpose of maintaining or restoring international peace and security. It is expressly provided, in Article 2.2, that the Convention does not apply to a United Nations operation authorised by the Security Council as an enforcement action under Chapter VII of the Charter in which any of the personnel are engaged as combatants against organised armed forces and to which the law of international armed conflict applies. It is not, I think, in doubt that members of the British armed forces serving with UNPROFOR in Bosnia between 1993 and 1995 were persons who were within the scope of the Convention.

Article 7.1 of the Convention requires that United Nations and associated personnel, their equipment and premises shall not be made the object of attack or of any action that prevents them from discharging their mandate. Article 9.1 requires that each State party to the Convention shall make it a crime under its national law to commit, intentionally, a violent attack upon the official premises, the private accommodation or the means of transportation of any United Nations or associated personnel likely to endanger his or her person or liberty. Again, it is not, I think, in doubt that an unprovoked attack on the Maglaj school - in the form of an aimed shot from a T34 tank - falls within Article 9.1 of the Convention.

The United Kingdom has given effect to the Convention by the enactment of the United Nations Personnel Act 1997. Sections 1 and 2 of the Act are in these terms, so far as material:

1(1) If a person does outside the United Kingdom any act to or in relation to a UN worker which, if he had done it in any part of the United Kingdom, would have made him guilty of any of the offences mentioned in subsection (2), he shall in that part of the United Kingdom be guilty of that offence.

(2) The offences referred to in subsection (1) are -

(a) murder, manslaughter, culpable homicide, rape, assault causing injury . . .

(b) an offence against section 18, [etc] . . . of the Offences against the Person Act 1861.

. . .

2(1) If a person does outside the United Kingdom any act, in connection with an attack on relevant premises . . which is made when a UN worker is on . . . the premises . . ., which if he had done it in any part of the United Kingdom, would have made him guilty of any of the offences mentioned in subsection (2), he shall in that part of the United Kingdom be guilty of that offence.

(2) The offences referred to in subsection (1) are - . . .

(b) an offence under section 1 of the Criminal Damage Act 1971

. . .

(3) In this section -

“relevant premises” means premises at which a UN worker resides or is staying or which a UN worker uses for the purpose of carrying out his functions as such a worker; . . .

For the purposes of the Act, the expressions “UN worker” and “UN operation” are defined, by section 4, in terms which reflect the comparable expressions in the Convention. In particular, the expressions exclude circumstances in which a person is engaged as a combatant against organised armed forces or to which the law of armed conflict applies.

It is against the background of UNPROFOR operations in Bosnia and the United Nations Convention that I turn to consider the decision to refuse Sergeant Walker’s claim to compensation under the Criminal Injuries Compensation (Overseas) scheme, as conveyed by Mr Robbs’ letter of 31 October 1996.

The claim was first made on 26 February 1996. It was acknowledged by the Ministry of Defence in a letter dated 14 March 1996 addressed to the Royal British Legion. Mrs J Robb, who was employed by the Ministry in Service Personnel Policy (Pensions) 3b, wrote:

However, I should point out that the CIC(O) Scheme does not apply to Service personnel injured where the act of violence, which resulted in the injury, was as a result of war operations or military activity by warring factions. This policy was confirmed by the Minister of State for the Armed Forces, Nicholas Soames, on 5 December 1994. The Royal Military Police Initial Case Report supplied with the application form indicates that Sgt Walker was injured as a result of being fired on by a Serbian tank. Rocket and high explosive fire was returned by British and Canadian forces, presumably on the basis that the Serbian action was a warlike act. In these circumstances it would seem most unlikely that his claim under the CIC(O) Scheme could succeed.

Mrs Robb wrote again on 22 May 1996, in response to the Legion’s request for particulars of the scheme and the criteria to be applied in determining claims She explained that:

The MOD’s discretionary ex gratia scheme for Criminal Injuries Compensation (Overseas) (CIC(O)) for members of the Armed Forces and their dependants who are the blameless victims of crimes of violence while serving overseas was introduced on 1 December 1979. The scheme is designed to give comparable levels of compensation to those which would have been awarded by the Criminal Injuries Compensation Board had the incident occurred in Great Britain.

. . .

The CIC(O) Scheme does not apply to Service personnel 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.

On 20 August 1996, following the intervention of solicitors, Messrs Leigh Day & Co, on behalf of Sergeant Walker, Mrs Robb confirmed that the claimant’s eligibility for compensation under the scheme was under consideration by the Army awards panel. Eventually, on 31 October 1996, Sergeant Walker was informed by Mr J C Robbs, Head of Service Personnel Policy (Pensions), in the terms which I have already set out, that his claim had been rejected. The basis for that rejection was stated to be that:

. . . the Criminal Injuries Compensation (Overseas) 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.

On the face of the letter the decision to reject Sergeant Walker’s claim was a decision of the Army Board. There is no indication in that letter when the decision was taken by the Army Board or what material (other than the claim form which had been completed by Sergeant Walker) was considered by the Army Board before that decision was taken. Nor, more pertinently, is there any indication whether the Army Board drew any distinction between “war operations” and “military activity by warring factions”.

The latter point is of importance because counsel for the Ministry of Defence, the respondent to this appeal, has not sought to contend that a decision to refuse compensation to Sergeant Walker on the ground that his injury was the result of “war operations” could be supported. This is made clear in his skeleton argument:

13. It is not contended that the Appellant’s injuries were received as a result of war operations, but that they were received as a result of military activity by a warring faction, namely the Bosnian Serbs.

In the result, much of the argument on this appeal has been directed to the question whether Sergeant Walker’s injury - sustained from an unprovoked (and, it might be thought, unplanned and uncoordinated) attack on an observation post and accommodation unit occupied by an international peace-keeping force - was properly to be regarded as the result of “military activity by warring factions”. On reflection, I have reached the view that that is not the relevant question.

The first question, as it seems to me, is whether the decision-maker did draw any distinction between “war operations” and “military activity by warring factions”. If he did not, then it follows from the concession that a decision to refuse compensation on the ground that Sergeant Walker’s injury was the result of “war operations” could not be supported that the decision must be taken to be flawed and this appeal must be allowed. If the decision-maker did draw some distinction between “war operations” and “military activity by warring factions” then the next question, as it seems to me, is whether, on a true analysis, that distinction is enshrined in the policy which (as the respondent contends) is applied to claims under the Criminal Injuries Compensation (Overseas) scheme. If the distinction is not a feature of the applicable policy, then, if the decision-maker drew that distinction, he must be taken to have applied the wrong test and, again, his decision must be taken to be flawed. If, but only if, the applicable policy requires, or permits, some distinction to be drawn between “war operations” and “military activity by warring factions”, does the question arise whether the relevant criteria for determining what is properly to be regarded as “an injury received as a result of military activity by warring factions” can be identified with sufficient certainty to enable the policy to be applied rationally. It is only if that question does arise, and is to be answered in the affirmative, that it becomes relevant to consider whether Sergeant Walker’s injury falls within or without the criteria.

Mr Robbs had the opportunity to clarify the basis upon which the decision to refuse compensation had been taken when he swore an affidavit in response to the application for judicial review. He did not take that opportunity. In his affidavit, sworn on 23 April 1997, Mr Robbs deposed that he was one of the two members of the Army Board awards panel which considered Sergeant Walker’s eligibility for payment under the CIC(O) scheme. The other was an army officer in the rank of Colonel. Mr Robbs explained in his affidavit that the scheme was embodied in Regulations. In context that is a reference to paragraph 89.033 (and following paragraphs) of the Army General and Administrative Instructions (Issue 97) (May 1990). He referred to a sentence in that paragraph which is in these terms:

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 authorized by them to exercise that discretion) or within the discretion of the Secretary of State for Defence as appropriate.

He pointed out, as is the case, that there is no statement in the Regulations as to the basis on which the discretion to make or withhold a payment under the scheme will be exercised. He went on:

2. . . . The discretion is in fact exercised in accordance with policy announced from time to time.

3. At the time it was decided to introduce a Scheme of compensation for members of the Armed Forces who were the victims of crimes of violence while serving overseas, the policy in relation to the exercise of the Army Board’s discretion was as set out in the letter of 9 January 1980 . . . At this time the policy was stated to be that the scheme would not apply:

4. By the date of the Applicant’s injury on 3 May 1995, and his subsequent claim to an ex gratia payment, the policy relating to the application of the Scheme had developed to take account of the peace-keeping operations in Bosnia. By the end of 1994 the policy applicable to the operation of the scheme was as stated by the Minister of State for the Armed Forces in Parliament on 5 December 1994. . . . :

It is possible to identify, from Mr Robbs’ affidavit, the following matters relevant to the decision to refuse compensation in this case: (i) that, although the decision whether or not to make a compensation payment under the CIC(O) scheme is wholly within the discretion of the Army Board, that discretion is exercised (as might be expected) in accordance with a policy; (ii) that the policy is as “announced from time to time”; (iii) that the policy announced in the letter of 9 January 1980 had, by 1995, “developed to take account of the peace-keeping operations in Bosnia”; and (iv) that the policy in force at the relevant time was that announced by the Minister of State in Parliament on 5 December 1994. But it is not possible to identify, from Mr Robbs’ affidavit, whether there is a distinction, under the policy in force, between “war operations” and “military activity by warring factions”, what that distinction is or into which category the attack on the Maglaj School was thought by the awards panel to fall. In those respects his affidavit does not go beyond his letter of 31 October 1996. Nor is it possible to ascertain from Mr Robbs’ affidavit whether the policy, as “developed to take account of the peace-keeping operations in Bosnia”, takes any account of three distinct factual situations in which injuries to members of a peace-keeping force might be expected to occur: that is to say, (1) where the injury is suffered in the course of an engagement between the peace-keepers and one warring faction, into which the peace-keepers have been drawn while carrying out some active operation which has brought them into contact with that faction, (2) where the injury is suffered from a random mine or as a result of fire not directed at the peace-keepers - for example, a stray bullet or a stray shell in an exchange between rival warring factions, and (3) where the injury is suffered in the course of an unprovoked, but deliberate, attack by one warring faction on the peace-keepers at a time when the peace-keepers were not engaged in contact operations.

The announcement of the policy by the Minister of State on 5 December 1994, to which both Mr Robbs (in his affidavit) and Mrs J Robb (in her letter of 14 March 1996) make reference, was made in the context of an adjournment debate in which there had been raised the case of Corporal Stott, who had been injured on 26 March 1994 while serving with UNPROFOR in Bosnia. It is, I think, of assistance to set out the relevant passage of the Minister’s reply in full:

My hon. Friend also referred to what he considered to be an anomaly between payments made to service men injured in Bosnia and other war-like operations and those injured in Northern Ireland. I am afraid that the fact remains that Corporal Stott is not entitled to an ex gratia payment under my Department’s discretionary scheme, which pays criminal injury compensation for members of the armed forces and their dependants who are victims of crimes of violence while serving overseas.

The purpose of that particular scheme is to give comparable levels of compensation to that which would have been awarded by the Criminal Injuries Compensation Board had the injury 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 pension scheme and the Department of Social Security war pension, to which I referred earlier.

As my hon. Friend knows well, 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.

There is nothing in that statement which suggests that the Minister thought that he was announcing any new policy. He was, after all, stating a policy which was said to be applicable to Corporal Stott, who had been injured some eight and a half months before the statement was made. The reference in the first paragraph of the extract which I have set out to “war-like operations” is a reflection of the phrase “warlike situation” which had first appeared in the letter of 9 January 1980. The explanation in the second paragraph begins by pointing out that the purpose of the scheme is to give to those serving abroad a level of compensation for criminal injury comparable to that which would have been awarded by the Criminal Injuries Compensation Board “had the incident occurred in Great Britain”. It goes on “However, criminal injury compensation is not payable where injury . . . occurs as a result of war operations . . .” But the reason for that is that injury which occurs as a result of war operations will not, or not usually, be “criminal injury” - at least in any sense relevant to the scheme for compensation in respect of criminal injuries sustained within the United Kingdom. The thrust of the explanation, as it seems to me on a fair reading of the Minister’s statement, is that compensation is not payable in respect of injuries suffered as a result of war operations because those will not be “criminal injuries” in the accepted sense. That this is the point which the Minister was seeking to make is born out by the explanation in the third paragraph. Members of the armed forces serving in Northern Ireland were not deemed “to be involved in war operations”; terrorist acts are criminal offences; and so soldiers, in common with civilians, are entitled to criminal injuries compensation. The terrorist acts are taken out of the category of “war operations” and put into the category of criminal offences. That is why they are said to give rise to the right to compensation.

The view that the Minister of State for the Armed Forces was announcing no new policy in December 1994 finds support in a letter written, in October 1995, by his colleague, the Minister of State for Defence Procurement, to Mr Roland Boyes MP (the Member of Parliament for Houghton and Washington) who had raised the case on behalf of Sergeant Walker’s family. The Minister wrote:

It has always been a fundamental principle of the Criminal Injuries Compensation (Overseas) (CIC(O)) Scheme that compensation is not payable where the injury to, or death of, a Serviceman or woman was a result of war operations or military activity by warring factions. In October 1992 the Secretary of State for Defence decided that warlike operations were in preparation in Yugoslavia and it followed that payment of Criminal Injuries Compensation would not be appropriate in that theatre of operation.

If, indeed, it has “always been a fundamental principle” of the scheme that compensation is not payable where the injury is the result of war operations or military activity by warring factions, then that principle might have been expected to find recognition in the letter of 9 January 1980, in which the scheme was originally announced. But that letter, as Mr Robbs points out in his affidavit, excludes injuries only:

. . . where the act of violence, which resulted in the injury . . . is committed by an enemy where a state of war exists or a warlike situation is declared to exist. [emphasis added]

Further, there is nothing in the statement of 5 December 1994 which suggests that the Minister was intending to draw a distinction between “war operations” and “military activity by warring factions”. In the first paragraph of the extract he referred to “Bosnia and other war-like operations”. In the second paragraph, after referring to “war operations or military activity by warring factions”, he observed, in the next sentence, that “Current operations in Bosnia obviously fall into that category” [emphasis added]. He did not say that current operations in Bosnia fell into “ those categories” or into “that latter category”. In context, he must be taken to have regarded the two expressions as within a single composite category which may be identified as “war or warlike operations”.

The view that the Minister did not intend to draw any distinction between “war operations” and “military activity by warring factions” is confirmed by the statement which he made to Parliament on 20 May 1996 in the course of an adjournment debate in which Sergeant Walker’s own case had been raised. In his reply the Minister said this:

My hon. Friend has referred to what he rightly considers to be an anomaly between payments made to servicemen injured in Bosnia and other warlike operations, and those injured in Northern Ireland. It may help him if I set out my Department’s policy here, which I realise he already knows but which, for the sake of good order, I am obliged to do.

Members of the armed forces in Northern Ireland provide support to the Royal Ulster Constabulary in the fight against terrorism. They are not deemed to be involved in war operations while serving there, and are subject to normal constraints of civil law. As terrorist acts are a criminal offence, any soldier or civilian injured by such attacks is entitled to apply to the Northern Ireland compensation Agency for the award of criminal injury compensation.

. . .

However, where war operations or warlike operations are in progress as a result of military activity by warring factions, as in Bosnia, the normal process of the civil law will have broken down. Operations may be undertaken resulting in death or injury, which, if committed by someone subject to civil law, would constitute a criminal offence. It would therefore be impractical to try and extend the provisions of the criminal injury compensation scheme to cover the conduct of warlike operations in Bosnia.

It is plain that the Minister thought that he was stating the policy as it applied to Sergeant Walker, who had been injured a year earlier. He was not stating a new policy, adopted in place of the policy applicable to Sergeant Walker’s case. In seeking to explain what, as he conceded, was rightly to be regarded as an anomaly between the treatment of servicemen injured in Northern Ireland and those injured in “Bosnia and other warlike operations” he used language which is indistinguishable from that used in his statement of 5 December 1994. In describing the position in Bosnia, the expression used in December 1994 “war operations or military activity by warring factions [into which category] current operations in Bosnia obviously fall” became, in May 1996, “war operations or warlike operations . . . in progress as a result of military activity by warring factions, as in Bosnia”. The injuries which are excluded from the compensation scheme, on the grounds of practicality, are those sustained as a result of acts done “in the conduct of warlike operations in Bosnia”.

It would be possible to envisage a policy under which criminal injuries compensation was not available to any service personnel in Bosnia; but that is not the policy on which the respondent has sought to rely on this appeal. That is understandable. A policy which excluded all criminal injuries compensation from service personnel in Bosnia would, for example, exclude compensation for crimes committed by those who had nothing to do with the warring factions. It would be possible, also, to envisage a policy under which criminal injuries compensation was not available to any service personnel in Bosnia injured by an act of violence committed by a member of the Serbian forces. But, again, that is not the policy on which the respondent has sought to rely. The policy relied upon links compensation in some way to the particular circumstances in which the injury occurs. The question is what is the link. Is it enough that the person inflicting the injury is engaged in something which may be described as a “military activity”? I am satisfied that that question must be answered in the negative.

In my view the true policy, as it emerges from the Ministerial statements and correspondence, is that compensation under the scheme is not available where the injury occurs as the result of “war or warlike operations”. The respondent disclaims reliance, in the present case, on “war operations”. This, I think, is based on an understandable disinclination to recognise that a state of war existed in Bosnia at the relevant time. It follows that the question which should have been addressed by the awards panel of the Army Board was this: did Sergeant Walker’s injury occur as a result of warlike operations? There is, as it seems to me, a significant difference between that question and the question whether his injury occurred as a result of military activity. The discharge of a single round from a T34 tank may be regarded as a military activity; firing at an accommodation block occupied by a peacekeeping unit may well not be regarded as a warlike operation.

It is clear that the Convention recognises a distinction between peacekeeping operations and operations in which personnel are engaged as combatants against organised armed forces. So, also, does English domestic law - see section 4(3) of the United Nations Personnel Act 1997. I can see no reason why a decision-taker, addressing himself to what I regard as the correct question and taking account of the guidance given by the Convention, should not come to the conclusion that firing at an accommodation block occupied by a peacekeeping unit is not a warlike operation.

I have explained that it is impossible to ascertain whether the awards panel of the Army Board did draw any distinction between “war operations” and “military activity between warring factions”. If they did not, then, in the light of the concession that the respondent does not seek to support the decision on the grounds of “war operations”, the decision cannot be upheld. If they did, then they must have asked themselves whether Sergeant Walker’s injury was the result of military activity. For the reasons which I have sought to explain, I take the view that that was the wrong question. In the absence of any evidence as to the criteria, if any, which were, in fact, adopted in reaching the conclusion that Sergeant Walker’s injury was the result of “military activity by warring factions” I find it impossible to hold that (despite asking the wrong question) they nevertheless reached a decision that can be upheld.

I would have allowed this appeal.

SIR CHRISTOPHER STAUGHTON:

(1) The policy

On the first issue, the complaint is that the Ministry of Defence did not follow their own policy when they refused to consider an award of compensation to Serjeant Walker; either they misinterpreted the policy, or else they declined to follow it for some other reason. That raises two questions: what was the policy, and did the Ministry fail to follow it.

The policy is to be found in one or more of seven places. First there is the letter from the Army Board of the Defence Council to a large number of departments, dated 9th January 1980. There are four points in it to note: (i) it was to introduce a scheme for members of the armed forces giving them, as nearly as possible, compensation equivalent to that for which they would have been eligible in Great Britain; (ii) it applied also to dependants living with them in their overseas station; (iii) the details of the scheme had not yet been finally decided; (iv) it would not apply to an act of violence “committed by an enemy where a state of war exists or a warlike situation is declared to exist”.

Next there are the Army General and Administrative Instructions, of which we have a version dated May 1990. The document is marked RESTRICTED. Latham J. recorded that it, or at any rate the relevant part, was available to all soldiers. It said that military personnel and their dependants who were victims of a crime of violence outside the United Kingdom:

“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 ....”

There is no exception there as to war or a warlike situation.

Thirdly, there was an important answer in Parliament by the Minister of State for the Armed Forces on 5th December 1994, as follows:

“The purpose of that particular scheme is to give comparable levels of compensation to that 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 pension scheme and the Department of Social Security war pension, to which I referred earlier.

As my hon. Friend knows well, 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.”

Different wording is there used from that which appeared in the 1980 letter.

Fourthly, we were shown a minute from Lt. Col. Sullivan, SO 1 Legal, dated 23rd January 1996. This reverted to the earlier wording; it said that injuries caused in a warlike situation do not qualify.

Fifthly, letters from Mrs Robb at the Ministry to Mr Bond of the Royal British Legion dated 14th March and 22nd May 1996 used the same wording as the Minister had used in Parliament.

Sixthly, the decision letter of Mr Robbs at the Ministry of Defence dated 31st October 1996 said that the claim was rejected because it “was as a result of war operations or military activity by warring factions”.

Lastly, Mr Robbs in his affidavit said that the policy:

“had developed to take account of the peace-keeping operations in Bosnia.”

By the end of 1994 the policy, he said, was as stated in the parliamentary answer on 5th December.

I have no hesitation in concluding that, at the time of Serjeant Walker’s injury, the policy was as stated in the parliamentary answer; it excluded the consequences of war operations or military activity by warring factions. But if that were not the policy, and it remained as stated in the Army General and Administrative Instructions, I cannot see that this would be an advantage to Serjeant Walker. It would then have been “wholly within the discretion of the Army Board”, without any defined and relevant exception. The effort to find detailed wording for an exclusion which had evidently been contemplated from the start in 1980, may have been a benefit for claimants rather than a detriment.

Was Serjeant Walker’s injury excluded by the policy? The Ministry do not claim that it resulted from war operations. In view of the extensive volume of precedents on such or similar words, it seems to me that they are wise not to do so; and it is also understandable that a precise and workable wording for the intended exclusion was not readily found: see Arnould on Marine Insurance (16th edn.) paras. 895-904. The question is whether the case comes within military activity by warring factions. It is not disputed, so far as I know, that activity of that description was taking place in Bosnia at the time. But Mr Pannick on behalf of Serjeant Walker argues that the deliberate firing of a shot from a tank at a building occupied by United Nations peace-keepers is not a military activity.

The first step in the argument is that firing such a shot was a criminal act; indeed Mr Pannick describes it as an international crime, by reference to the Convention on the Safety of United Nations and Associated Personnel, and the United Kingdom’s United Nations Personnel Act 1997. I can accept, and indeed it is not disputed, that firing a shot which was deliberately aimed at a building occupied by peace-keepers is a criminal act for the purposes of the compensation scheme.

Secondly it is said that a criminal act cannot be a military activity. That I do not accept. Some weapons of war are prohibited, for example the first use of poisonous gas or weapons involving bacteria under the Geneva Protocol of 1925; and the discharge of weapons as part of a military activity could amount to manslaughter by gross negligence, as Mr Pannick accepts.

However, it is said that the United Nations Convention and the British statute draw an express distinction between attacks on people involved in peace-keeping operations, and attacks on those involved in enforcement action -

“to which the law of international armed conflict applies.”

There is indeed such a distinction. Its effect, I suppose, is that in the former case the attack is declared criminal, whilst in the latter one must look at the law of armed conflict to see whether it is lawful or not. But I do not see that the distinction so drawn is of any assistance in the interpretation of the British army compensation scheme. Under that scheme an act may be criminal but yet part of military activity.

The main object of that scheme, as it seems to me, was to ensure that British soldiers and their families serving in peacetime conditions, for example in Germany, should enjoy the same benefits as they would at home in this country. It was not intended to provide compensation against the hazards of a military career, on active service, for which compensation (in a significantly lesser amount) is payable on discharge from the army. It is evident that some such limitation was inherent in the scheme from the start, although there was some difficulty in arriving at the precise wording. It was extended to injuries in Northern Ireland, perhaps because it was necessary to emphasize that there was no war in the Province in the view of the British Government, merely criminal activity.

In my judgment the firing of a shot from a tank by a Serbian soldier who was presumably in all other respects engaged in military activity between warring factions is still such an activity, even though in this instance it was deliberately aimed at a building occupied by United Nations personnel. Serjeant Walker’s injuries are thus excluded from the scheme, subject to the other two points taken on his behalf.

(2) Rationality

It is said to be irrational of the Ministry of Defence not to have extended the scheme to cover injury or death to peace-keepers, when the United Nations agreed to reimburse states for expenditure pursuant to their national legislation (or, I suppose, the scheme promulgated by the Ministry of Defence). We do not know when the United Nations adopted that policy, but it seems safe to assume that it occurred before the injury to Serjeant Walker.

The main object of the scheme, as I have said, was to provide soldiers and their dependants abroad with the same benefits as they would receive if they had stayed at home. That is what the scheme has done. I do not see that it was irrational not to extend it, merely because the United Nations offered to pay in the case of claims by peace-keepers. As Mr Sales for the Ministry pointed out, there would then be an anomaly in that the ordinary victims of armed conflict (such as soldiers in the Falkland Islands and the Gulf) would not be compensated under the scheme, but peace-keepers would be. True there is already an apparent anomaly in that bombs and mortar or rifle fire are within the scheme in Northern Ireland (and in England, Wales and Scotland too), but not for soldiers taking part in a war. That in itself is said to be another ground of irrationality. But there was clearly a ground upon which it is possible to base a distinction between Northern Ireland and Bosnia. It was not irrational to draw that distinction. And there is anomaly at the heart of a scheme of criminal injury compensation, as I have observed elsewhere. I would reject the argument that the Ministry’s policy is irrational.

(3) Fairness

The argument under this head is that it was unfair of the Ministry to change their policy without informing Serjeant Walker. It is in my view somewhat overstating the case to say that the policy was changed; it developed, as the history shows. But let it be assumed that change is the correct description.

The evidence as to what Serjeant Walker in fact knew about the policy is a passage from his solicitor’s affidavit, which he has adopted:

“Sgt. Walker and, he believes, his colleagues in his regiment understood that in the event of injury in Bosnia he would be entitled to compensation over and above the armed forces pension scheme and war pension scheme. It was understood that if he was actively engaged as a combatant, for example in the Falklands or Gulf war if serious injury was sustained there would be no compensation. He believed that compensation would be available as it is in Northern Ireland where a policing and peace-keeping role is also carried out by the armed forces. Neither he nor his colleagues were ever made aware that, unlike in Northern Ireland, although not on combat service, he would not be entitled to compensation.”

There is no evidence that Serjeant Walker received any information of an official nature before his injury as to the availability of compensation. If he did receive any such information, I am sure that we would have been told. So I conclude that the impression held by him and his colleagues was merely the result of discussion between them. I do not see that the Ministry can be accused of unfairness in changing their policy without informing individual soldiers, if the soldiers were not informed of the policy before it was changed. Or at any rate I would require a much stronger case of reliance before regarding this as a case of unfairness.

In any event I do not regard the change as necessarily adverse to Serjeant Walker. Mr Pannick argues that the previous policy must be garnered by looking both at the Army General and Administrative Instructions (which said that compensation was wholly a matter of discretion), and the letter of 9th January 1980 with its reference to violence “committed by an enemy where a state of war exists or a warlike situation is declared to exist”. Even that letter said that the details had not been finally decided. It seems to me both artificial and wrong to say that there was unfairness in failing to communicate to all soldiers that the details had in some degree changed by 1994.

I say nothing of the Respondents’ notice. I would dismiss this appeal.

Order: Appeal dismissed. No order as to costs. Leave to appeal was granted