Court of Appeal

Published May 9, 2007

Regina (Dost Mohammed) v Secretary of State for Defence

Before Lord Justice Ward, Lord Justice Latham and Sir Peter Gibson

Judgment May 1, 2007

Discrimination on the ground of nationality was not race discrimination.

The British Government’s scheme in 2000 for making ex gratia single payments of £10,000 to each surviving member of five specified categories of persons who had been imprisoned by the Japanese during the Second World War, or their surviving spouses, did not unlawfully discriminate against a Pakistani citizen, captured and imprisoned while serving in the Indian Army, who could not meet the criteria set out in the scheme.

The Court of Appeal so held in a reserved judgment dismissing an appeal by the applicant, Dost Mohammed, from the refusal by Mr Justice Langstaff ([2006] EWHC 2098 (Ad-min)) of an application for judicial review against the dismissal by the Secretary of State for Defence of his case that the scheme unlawfully discriminated against him contrary to the Race Relations Act 1976.

Mr Rabinder Singh, QC and Ms Aileen McColgan for the applicant; Mr Clive Lewis, QC, Mr Martin Chamberlain and Ms Victoria Wakefield for the Defence Secretary.

LORD JUSTICE LATHAM said that those entitled to payments included former members of the British Armed Forces, members of the Merchant Navy, British civilians who were interned and certain other former military personnel in the colonial forces, the Indian Army and the Burmese Armed Forces who had received compensation in the 1950s after the San Francisco Treaty of Peace with Japan in September 1951.

The applicant, a citizen of Pakistan, accepted that he did not meet the criteria set out in the scheme but submitted they were racially discriminatory because they included only the small proportion, mainly Europeans, of those who served in the Indian Army and who had received payments in the 1950s.

In R (Gurung) v Ministry of Defence( The TimesDecember 28, 2002) Mr Justice McCombe held that the 2000 scheme was discriminatory and unlawful in relation to Gurkhas who were citizens of Nepal. Consequently, in 2003 a House of Commons statement formally extended the scheme to Gurkhas who had been captives.

Here, the judge, having considered Gurung held, not without hesitation: (i) the ground for excluding the applicant was one of nationality, not race or colour and (ii) even if wrong about that, the defence in section 41(2) of the 1976 Act 1976, whereby a discriminatory act was not to be unlawful if made in pursuance of any arrangements approved by a minister of the Crown, applied.

The judge had properly applied the authorities: see Nagarajan v London Regional Transport ([2000] 1 AC 501) and Chief Constable of West Yorkshire Police v Khan ([2001] 1 WLR 1947). He had to be taken to have found on the balance of probabilities that the discrimination was not on the ground of race.

The real question was whether, although directing himself correctly, he came to the wrong conclusion. The view in 2000 was that Indian nationals who had been in the Indian Army should not be included because India was not one of the Allied Powers and had concluded its own separate treaty and that Pakistan, which was an Allied Power, had been responsible for making claims on behalf of its own nationals.

The vice in Gurung had been to exclude the Ghurkas by equating them with Indian nationals when the reason for excluding Indian nationals had not applied to the Ghurkas.

The 2000 scheme was based on the premise that those who were to obtain ex gratia payments should be British. The criteria were intended to make a distinction on the basis of nationality.

The judge came to the right conclusion; one that accorded with the reasoning in Gurung. Further, he was correct in holding that the scheme amounted to arrangements made by or with the approval of a minister of the Crown within section 41(2)(d) of the 1976 Act.

Lord Justice Ward and Sir Peter Gibson agreed.

Solicitors: Public Interest Lawyers, Birmingham; Treasury Solicitor.

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