Thursday Law Report: Forces compensation scheme was lawful

11 February 1999 Regina v Ministry of Defence, ex parte Walker

Court of Appeal (Lord Justice Auld, Lord Justice Chadwick and Sir Christopher Staughton) 5 February 1999

THE APPLICATION by the Ministry of Defence of a discretionary ex gratia scheme to compensate service personnel for criminal injuries suffered abroad, by which an exclusion for injury or death resulting from war operations or military activity by warring factions was applied to UN peacekeeping operations in Bosnia, was not unlawful.

The Court of Appeal dismissed the applicant's appeal against against the dismissal of his application for judicial review of a decision of the Ministry of Defence to refuse him compensation under its Criminal Injuries Compensation (Overseas) Scheme for serious injuries he suffered whilst serving as a United Nations peacekeeper in Bosnia.

The discretionary ex gratia scheme had been introduced in 1979 to compensate members of the armed forces who, through no fault of their own, were injured abroad as a result of crimes of violence. The purpose of the scheme 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.

In a Parliamentary statement in December 1994, the minister of state said that compensation was not payable where injury or death occurred as a result of "war operations or military activity by warring factions", and that current operations in Bosnia obviously fell into that category.

The applicant's injuries were caused by a single round fired into an accommodation block by a Serbian tank. The respondent rejected the applicant's claim for compensation under the scheme.

The applicant appealed against the dismissal of his application for judicial review on the ground that, although the respondent was entitled to determine and formulate the criteria it wished to govern the ex gratia scheme, its application of the scheme in his case was unlawful.

David Pannick QC and Michael Fordham (Leigh, Day & Co) for the applicant; Philip Sales (the Treasury Solicitor) for the respondent.

Lord Justice Auld said 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. The fact that the applicant was engaged in a peacekeeping operation rendering an attack on him by a warring faction an international crime was, thus, nothing to the point. Even if there were some lack of precision in the formulation of the exclusionary criteria, the Ministry's interpretation of it in the circumstances of the applicant's claim was not so aberrant as to be irrational.

There was no irrationality in the Ministry's adoption of the scheme. The purpose of the exclusion was 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. It sought, therefore, to remove from the scheme a feature peculiar to the life of a member of the armed forces abroad in a theatre of war or where there was military activity between warring factions, namely the risk of injury from warlike behaviour.

Moreover, 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.

The suggestion of unfairness in the failure to notify the applicant before he went to Bosnia of the precise terms of the scheme as amended in 1994, and its implications for him, was unfounded. It was difficult to see what action the applicant could and would have taken to ameliorate its possible consequences for him had he appreciated the precise effect of the scheme before going to Bosnia.