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

A discretionary criminal injuries compensation scheme for service personnel must be interpreted and administered according to the public authority’s current published policy. An exclusion for injury resulting from military activity by warring factions covers an attack carried out by the armed forces of a faction, even when the attack is directed at United Nations peacekeepers and is criminal under international law.

A minister may rationally distinguish such activity from terrorism occurring within a functioning civil society. A change of discretionary policy does not frustrate a legitimate expectation where the claimant received no promise or representation about the former policy and did not rely upon it.

A British soldier serving with the United Nations peacekeeping force in Bosnia was gravely injured when a Serbian tank deliberately fired upon his accommodation block. He sought an ex gratia payment under the Ministry of Defence’s Criminal Injuries Compensation (Overseas) Scheme. The Ministry refused the claim because his injury resulted from military activity by a warring faction.

The High Court dismissed his application for judicial review. The Court of Appeal dismissed his appeal by a majority: [1999] 1 WLR 1209. On a further appeal, the soldier contended that the exclusion had been misinterpreted. Alternatively, he alleged that the policy was irrational and that the criteria had been changed unfairly without adequate notice.

The central issues were whether the deliberate attack fell within the exclusion, whether the policy rationally distinguished Bosnia from Northern Ireland, and whether its introduction or application frustrated a legitimate expectation.

1. Appeal dismissed by a majority of four to one. Lord Slynn of Hadley and Lord Hoffmann delivered the principal speeches. Lord Nicholls of Birkenhead and Lord Saville of Newdigate agreed with both. Lord Hobhouse of Woodborough dissented.

2. Per Lord Slynn and Lord Hoffmann, decisions under the ex gratia scheme were amenable to judicial review. Although payments were wholly discretionary, the Ministry could not act arbitrarily and had to justify its decisions under its own policy. The court could determine whether the Ministry had correctly interpreted the scheme or had otherwise erred in law.

3. The applicable exclusion covered injuries resulting from “war operations or military activity by warring factions”. The firing of a shell by a tank forming part of one of the Bosnian factions was military activity. The activity did not have to be directed against another faction. It could be directed against United Nations premises or an individual peacekeeper. Its criminality under international law did not prevent it from being military activity for the policy’s purposes. Criminality and military character were not mutually exclusive.

4. The exclusion was not irrational. The Ministry could rationally distinguish Bosnia, where civil society had disintegrated and ethnic groups were at war, from Northern Ireland, where the armed forces supported the civil authorities against terrorism. The distinction was fine, but irrationality imposed a high threshold. Nor did article 20(e) of the Convention on the Safety of United Nations and Associated Personnel (1994) require national criminal injuries compensation to be paid in addition to existing pension arrangements.

5. The Ministry was entitled to reformulate its discretionary policy. The soldier had received no promise or representation that the original criteria would apply, did not know their terms, and had not relied upon them when going to Bosnia. He therefore had no legitimate expectation of compensation. His legitimate expectation extended only to application of the policy actually in force. He received that benefit and an opportunity to make representations. The limited publicity given to the change caused no legally actionable unfairness.

6. Lord Hobhouse dissented. In his view, the exclusion concerned violence between belligerents. The deliberate attack upon non-combatant United Nations peacekeepers was a criminal act rather than an act of war. Applying the Government’s stated distinction, the claim therefore fell within the scheme and the appeal should have been allowed.

1. House of Lords: Dismissed the appeal by a majority of four to one and upheld the refusal of judicial review: [2000] UKHL 22; [2000] 1 WLR 806.

2. Court of Appeal: Dismissed the soldier’s appeal by a majority, Chadwick LJ dissenting: [1999] 1 WLR 1209.

3. High Court: Latham J dismissed the application for judicial review on 9 February 1998.