Ministry of Defence, Ex Parte Walker, R v.

The House of Lords dismissed Sergeant Walker's appeal against the Ministry of Defence's refusal to award compensation under the Criminal Injuries Compensation (Overseas) Scheme. The court held that the scheme's exclusion for injuries arising from "war operations" or "military activity by warring factions" reasonably covered a deliberate attack by a tank on a United Nations accommodation block in Bosnia. The House rejected arguments that the attack's criminality under international law meant it could not be "military activity" for the purposes of the scheme, and rejected challenges based on irrationality and unfair change of policy (legitimate expectation).

The court applied and relied on the published scheme provision (paragraph 89.033 of the Army General and Administrative Instructions), considered statements made by the Minister in Parliament, and examined whether the Minister's formulation of the Bosnian policy was irrational or unfairly applied to Sgt Walker. It concluded the exclusion was within rational bounds, there was no relevant legitimate expectation or reliance by the appellant, and the change or application of policy did not amount to unfairness justifying judicial interference.

The appellant, Sergeant Trevor Walker, a member of 21 Engineer Regiment serving with UNPROFOR in Bosnia, suffered severe injuries when a Serbian T34 tank deliberately fired upon his accommodation block on 3 May 1995. He applied for ex gratia compensation under the Criminal Injuries Compensation (Overseas) Scheme promulgated by the Ministry of Defence (paragraph 89.033 of the Army General and Administrative Instructions). The Ministry refused payment on the ground that the scheme excludes compensation where injury results from "war operations" or "military activity by warring factions", a policy applied to Bosnia by ministerial statements in 1994 and 1995.

Nature of the application: judicial review of the Ministry's refusal to make an ex gratia payment under the Overseas Criminal Injuries Compensation Scheme; alternatively, challenge to the lawfulness of the exclusion as irrational or unfair (legitimate expectation).

Procedural history: application for judicial review refused by Latham J. (9 February 1998); appeal dismissed by the Court of Appeal on 5 February 1999 ([1999] 1 WLR 1209) (Chadwick L.J. dissenting); leave was given to appeal to the House of Lords.

Issues before the House:

• Whether the ministry's interpretation of the scheme exclusion for "war operations" or "military activity by warring factions" excluded Sgt Walker's claim;
• Whether the attack, criminal under the United Nations Convention on the Safety of United Nations and Associated Personnel and under the United Kingdom's United Nations Personnel Act 1997, could nonetheless be characterised as "military activity" for scheme purposes;
• Whether the ministry's formulation or dissemination of the exclusion gave rise to a legitimate expectation that Sgt Walker would be compensated; and
• Whether the exclusion was irrational or otherwise unlawful.

Court's reasoning: The majority reasoned that the exclusion plainly covered military forces firing a tank as part of the activities of a faction engaged in hostilities; the fact the act was criminal under international and domestic law did not prevent it from being "military activity" within the scheme. The court emphasised the discretionary, ex gratia nature of paragraph 89.033 and held the Minister was entitled to apply or reformulate policy to meet the Bosnian situation. The appellant had not shown specific representations or reliance giving rise to a legitimate expectation; the public statement in Parliament was sufficient notice of the policy applicable to Bosnia. The threshold for irrationality was not met: the distinction between compensation policy in Northern Ireland and Bosnia, though fine, was not so arbitrary as to be unreasonable. One Lord dissented, arguing the attack was criminal and not a war operation and that applying the ministry's own criteria the appellant should have been compensated.

Wider context: the House noted the discretionary and ex gratia nature of the scheme, the relevance of ministerial policy statements, and the high threshold for impugning policy as irrational or for establishing unfairness or legitimate expectation in this administrative context.

Appeal dismissed. The House held that the scheme's exclusion for injuries caused by "war operations" or "military activity by warring factions" reasonably covered a deliberate attack by a faction's tank on UN peacekeepers in Bosnia; the attack's criminality under international law did not prevent it being "military activity" for scheme purposes. The court also held there was no legitimate expectation or unfairness in the change or application of policy and the exclusion was not irrational.

Application for judicial review dismissed by Latham J. (9 February 1998). Appeal to the Court of Appeal dismissed on 5 February 1999 ([1999] 1 WLR 1209) (Chadwick L.J. dissenting). Appeal to the House of Lords allowed leave and dismissed on 6 April 2000 ([2000] UKHL 22).