R v Ministry of Defence, Ex parte Walker (Walker, Ex parte)

In a discretionary ex gratia compensation scheme, the court determines the true meaning of the published policy. Where its language permits a spectrum of rational meanings, the decision-maker’s evaluation is respected unless irrational. Criminal conduct and military activity are not mutually exclusive: an attack on peacekeeping personnel may be an international crime and still result from military activity or warlike operations within an exclusion. Excluding injuries arising from overseas warlike conduct was rational, despite different treatment in Northern Ireland and possible United Nations reimbursement. A policy may develop or change. Absent an official representation and sufficient reliance, a claimant is entitled to the policy in force when injured and to notification of the relevant criteria when making the claim. The Ministry had properly applied the policy and had not acted unfairly.

Sergeant Trevor Walker was seriously injured in Bosnia while serving with the United Nations Protection Force. A Serbian tank fired on the accommodation and observation post occupied by his unit. The Ministry of Defence refused compensation under its Criminal Injuries Compensation (Overseas) Scheme because the injury resulted from war operations or military activity by warring factions.

Latham J dismissed the application for judicial review on 9 February 1998. On appeal, the issues were whether the Ministry had misinterpreted its policy, whether the exclusion was irrational, and whether applying a policy not communicated before deployment was unfair. The central question was whether the attack was excluded despite also constituting an international crime against United Nations peacekeepers.

The appeal was dismissed by a majority. Auld LJ and Sir Christopher Staughton agreed in the result; Chadwick LJ dissented and would have allowed the appeal.

1. Construction of the policy. Auld LJ held that the court determines the true meaning of a discretionary policy and that misinterpretation or disregard of it may invalidate a decision. The policy’s purpose and exclusionary language permitted criminal conduct to constitute military activity. The fact that the attack on peacekeepers was an international crime did not remove it from the exclusion. The distinction drawn by the Convention between peacekeeping and enforcement operations did not control the meaning of the Ministry’s scheme. Auld LJ applied the rationality approach in R v MMC ex p South Yorkshire Transport [1993] 1 WLR 23. Staughton LJ likewise held that a criminal act could form part of military activity and that the tank attack remained such activity.
2. Rationality. The exclusion rationally maintained approximate parity with domestic criminal-injury compensation while removing the distinctive risk of overseas warlike conduct. The different treatment of Northern Ireland and Bosnia was justified by their materially different conditions. The availability of United Nations reimbursement did not make a general exclusion irrational. The reference to criminally reckless conduct under the Criminal Justice Act 1988, s 109(1)(a)(ii), illustrated the impractical distinctions that the proposed construction would require.
3. Fairness and legitimate expectation. The Ministry could develop or change its criteria within the bounds of rationality. In the absence of an official representation and sufficient reliance, the claimant’s entitlement was to proper application of the policy in force when the injury occurred and notification of the relevant criteria when making the claim, with an opportunity to make representations. The Ministry had explained the criteria before the formal claim was determined. There was therefore no unfairness.
4. Dissent. Chadwick LJ considered that the true policy concerned war or warlike operations, not military activity in the abstract. He considered that firing at a peacekeeping accommodation block might not be a warlike operation and that the decision could not be upheld because the awards panel’s actual approach was unknown.

The appeal was dismissed. There was no order as to costs. Leave to appeal was granted.

1. Court of Appeal (Civil Division): The appeal was dismissed by majority on 5 February 1999. The order below was upheld. [1999] EWCA Civ 726
2. High Court: Latham J dismissed the application for judicial review on 9 February 1998.