Law Report: No compensation for injury caused in Bosnia

Regina v Ministry of Defence, ex parte Walker; Queen's Bench Division, Crown Office List (Latham J) 9 February 1998

The policy of the Ministry of Defence, to exclude injuries suffered as a result of military activity in Bosnia from its scheme to compensate members of the armed forces serving overseas who were victims of crimes of violence, was not unfair or irrational.

The court dismissed the application of the applicant, a serving soldier, for judicial review of the decision of the Ministry of Defence not to grant him compensation under its Criminal Injuries Compensation (Overseas) Scheme for serious injuries sustained whilst he was serving with the United Nations peace supporting force in Bosnia.

The applicant had been stationed at a school which served both as an accommodation unit and an observation post. In May 1995, those premises were hit by a single round from what was believed to be a Serbian tank. A number of soldiers were hurt, the most seriously injured being the applicant, whose right leg had to be amputated.

The applicant had remained in the army, on storeman duties, but he was likely to be invalided out before the end of his career. If he were entitled to compensation under the scheme, he would obtain a very substantial lump sum both for general damages for pain and suffering and loss of amenity, and for lost earning capacity.

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

Mr Justice Latham said that the scheme had first been introduced in 1980 in order to give members of the armed forces serving overseas, as nearly as possible, compensation equivalent to that for which they would have been eligible if they had been the victim of a crime of violence in Great Britain.

In a letter distributed, to, inter alios, Commanders in Chief, Commanders and General Officers commanding all Commands and Districts at home and abroad, the respondent had stated that the scheme would not apply where the act of violence resulting in injury or death was committed by an enemy where a state of war existed or a warlike situation was declared to exist.

In December 1994 the Minister of State for the Armed Forces had stated in Parliament that current operations in Bosnia fell into the category of "war operations or military activity by warring factions". In October 1996 the applicant was informed that his application for compensation had been rejected.

It was submitted for the applicant that the policy which had been applied to him represented a change from that originally promulgated in 1980, and that, apart from the statement by the minister in Parliament it had never been made public. To apply the new criteria amounted to unfairness justifying the intervention of the court.

There had clearly been a change of policy after 1980 about which members of the armed forces had not been told, but the evidence went nowhere near establishing that the applicant or any of his fellow soldiers were aware of what that policy had been, other than in a relatively anecdotal form. The most that the applicant could say was that in some way the fact that compensation was payable to soldiers killed or injured in Northern Ireland entitled him to conclude that it would equally be payable for injury or death sustained in Bosnia.

Although there was a superficial similarity between the two situations, in that the soldier's task could be said to be that of keeping the peace, conditions in the two countries were wholly different. In Northern Ireland the soldier's task was to deal with terrorism in what was otherwise a country where law and order was maintained. In Bosnia the soldier was required to carry out his task in a country where law and order had 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.

The applicant was undoubtedly entitled to fair treament in accordance with the policy for the time being in force, but to no more than that. The respondent had been entitled to conclude that albeit the applicant's injury had been sustained as a result of a crime of violence, the tank had been engaged in "military activity" and thus came within the exception set out in the policy. The policy itself, which was not defined with reference to Bosnia alone, could not be said to be irrational or perverse.