CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 novembre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF        Application No. 21825/93       Application No. 23414/94      by Kenneth McGINLEY            by Edward EGAN      against the United Kingdom     against the United Kingdom        The European Commission of Human Rights sitting in private on 28 November 1995, the following members being present:             MM.   S. TRECHSEL, President                H. DANELIUS                C.L. ROZAKIS                E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H.G. SCHERMERS           Mrs. G.H. THUNE           Mr.   F. MARTINEZ           Mrs. J. LIDDY           MM.   L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                E. KONSTANTINOV                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL             Mr.   H.C. KRÜGER, Secretary to the Commission      Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 20 April 1993 by Kenneth McGINLEY against the United Kingdom and registered on 12 May 1993 under file No. 21825/93 and the application introduced on 31 December 1993 by   Edward EGAN against the United Kingdom and registered on 7 February 1994 under file No. 23414/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the joint observations submitted by the respondent Government on      7 September 1994, the joint observations in reply submitted on      behalf of both applicants on 19 January 1995 and the further      joint observations of the Government received on 10 and 11      May 1995;   -     the Commission's decision of 15 May 1995 to join the      applications, to request further information and observations and      to adjourn further consideration of the applications;   -     the joint observations received from the Government on      20 July 1995 and those of the applicants received on 26 July and      26 August 1995.        Having deliberated;        Decides as follows:   THE FACTS        The facts as submitted by the parties may be summarised as follows.        The applicants are United Kingdom citizens. The first applicant was born in 1938 and he resides in Paisley. The second applicant was born in 1939 and he resides in Glasgow. Both applicants are represented before the Commission by Mr. Ian Anderson, an advocate and attorney at law practising both in Scotland and the United States of America.   A.    Particular circumstances of the case : the first applicant        On 23 October 1956 the applicant's medical examination for entrance into the army took place and the clinical examination was normal. The applicant was enlisted fit for full combat service in any part of the world.        In December 1957 the applicant was posted to Christmas Island.        The applicant claims that in 1958, pursuant to an identified need      for testing the effects of nuclear detonations on, inter alia,      men, he together with other troops were deliberately exposed to      five separate nuclear detonations as outlined below:        1. On 28 April 1958, the applicant was lined up with other men      on the beach of Christmas Island without protective clothing.      They were ordered to stand, with their eyes closed and hands over      their eyes, with their backs to the air detonation, approximately      eleven miles (18 kilometres) away, of a megaton nuclear bomb.      After the detonation, the men were ordered to turn and face the      explosion. On doing so, the applicant experienced searing heat      and air blast.        2. On 22 August 1958, the applicant who was stripped to the waist      operating a bulldozer, was ordered to continue working while      another device was detonated in the vicinity.        3. On 2 September 1958, the applicant and other men were ordered      onto the beach to line up for exposure to a third air detonation      of a megaton nuclear device. He was wearing only a shirt and      shorts.        4. On 11 September 1958 the applicant and other men were lined      up again and exposed, on the beach of Christmas Island, to a      fourth air detonation.        5. On 23 September 1958, the applicant was ordered to continue      operating a bulldozer during the explosion in the vicinity of a      fifth air detonation device.        The applicant also submits that, three days after the detonation      on 28 April 1958, he suffered from diarrhoea, nausea and sickness      together with severe blistering of the skin on his face, arms and      hands. His face was so badly blistered that his eyes were closed.           The applicant claims that he received medical treatment at           the military tent hospital for approximately 10 days           consisting of various applications of medications to the           skin and tablets for the nausea.        Thereafter his condition improved with the exception of numbness      and paralysis of his right leg, which the applicant experienced      1-2 weeks after the detonation and for which the applicant was      re-admitted to the tent hospital for approximately two weeks      where he received a plaster cast for his leg and a walking stick      (the applicant has submitted a photograph of himself taken on      Christmas Island with a plaster cast on his leg and a walking      aid).        After the detonation on 2 September 1958 the applicant specifies      that tablets were administered to him by the tent hospital      personnel over a seven day period for his diarrhoea and nausea.      He was also ordered to take a series of decontamination showers      following each of which he was passed through a radiation      monitoring machine.        After the detonation on 11 September 1958 the applicant received      further treatment at the tent hospital for nausea and fever and      required a daily administration of tablets over a four to five      day period.        The applicant recalls the relevant orderlies who administered his      treatment completing medical notes for the above-described      treatment and while the applicant was in hospital for the      numbness in his leg he remembers entries being made on his      medical chart.        The Government do not dispute that the applicant was posted on      Christmas Island nor the fact that test detonations took place.      However, it is denied that the applicant was the subject of the      tests - rather the applicant participated in the testing of      nuclear devices by way of support activities. Furthermore, the      Government dispute that the applicant was ill as he claims.        The applicant was subsequently treated on Christmas Island between 15 September and 23 September 1958 for a throat infection, on 28 October 1958 for tonsillitis and between 14 and 21 November 1958 with a splint for "facial palsy". The applicant was subsequently hospitalised at the military hospital in Honolulu for influenza. This treatment is reflected in his service medical records. The applicant also claims that he was hospitalised, on his return home, in Otterburn for spasms and internal haemorrhaging. However, this latter treatment is not reflected in the service medical records which have been disclosed to the applicant (though a coinciding hospitalisation for influenza is).        On 10 November 1959 the applicant was given a medical discharge from service. In his statement on discharge the applicant confirmed that he had suffered a broken ankle on Christmas Island in May 1958 and that he had been treated for eight weeks for this as an out-patient of a hospital on Christmas Island. No contemporary medical record of this treatment has been submitted.        In April 1960 the applicant was awarded a 20% war pension in relation to a duodenal ulcer attributable to army service.        In 1962 he had to undergo an operation to remove part of his stomach. In 1965 he broke out in boils all over his body and began to suffer constant pain. In 1967 he was diagnosed as being sterile and in 1973 he began to experience severe kidney problems. Because of his health problems, the applicant was unable to retain employment for prolonged periods.        The applicant's disability was re-assessed at 30 % disability in respect of his ulcer in June 1980. On 8 June 1982, his disability was reduced again to 20% but restored to 30% on 13 December 1982 following the applicant's appeal to the Pensions Appeals Tribunal ("the Pensions Tribunal"). In seeking to substantiate his claim he obtained copies of his military records.        Following a series of articles in the press in 1982 about the potential effects of the Christmas Island explosions on those exposed to them, the applicant came to attribute his history of illness to his service on the island and sought an increase in his pension to reflect this.        On 1 April 1984, the applicant made a claim for an increase in his pension in relation to the health problems which he alleged resulted from exposure to radiation during his army service. Following the applicant's claim that his medical records from the Military Hospital on Christmas Island were missing from the military medical file supplied to him, on 16 May 1984 the Department of Social Security ("DSS") made a departmental inquiry to the Ministry of Defence to ascertain whether the applicant had been exposed to ionizing radiation and whether or not he had been issued with a "film badge" on Christmas Island to record radiation levels.        On 11 June 1984, the Ministry of Defence replied that from their records the applicant had been 40 kilometres from the epicentre, was therefore exposed to zero radiation and therefore it would not have been necessary to issue him with a film badge.        On 30 November 1984, the applicant's claimed increase, based on the conditions of reduced fertility, osteoarthritis, skin problems and renal colic arising out of radiation, was refused by the Secretary of State for Social Security pursuant to the deliberations of the war pensions branch of the DSS, as it was found that these conditions were not attributable to his military service. The applicant's parallel application, to reassess his pension based on the duodenal ulcer, was also refused.        On 21 January 1985 the applicant appealed to the Pensions Tribunal against both these decisions of the DSS, claiming that his service medical records had been doctored.        On 11 February 1985 the DSS initiated a departmental enquiry to obtain all available medical records of the applicant between December 1957 and December 1958 together with extracts from the admission and discharge books or, in the alternative, a declaration confirming the medical treatment described by the applicant during that period.        Two days later, on 13 February 1985, the Ministry of Defence responded by confirming that "No A <admission> & D <discharge> books held under particulars quoted. N/T <not traced> medical records."        The DSS obtained evidence including hospital case notes, together with reports from the applicant's own doctor, a DSS psychiatrist, a rheumatologist, a dermatologist and a urologist.        The psychiatrist stated that he "would not consider that Mr. McGinley is suffering from a psychiatric condition". The rheumatologist concluded that the condition complained of related to normal wear and tear and added that he could "find nothing to connect it with radiation exposure".        On 3 March 1986, the dermatologist gave a detailed report of the applicant's skin problems, which had included the development of 12 to 14 painful and inflamed cutaneous crusts one of which required surgical excision and two of which were lanced by a medical practitioner. He noted scattered open comedones and multiple ice pick scars over the applicant's face and neck. The doctor indicated that he had no professional competence to determine whether this condition had been induced by radiation exposure and recommended that an expert opinion be sought from someone familiar with the effects of ionizing radiation on the skin. The DSS declined to follow this recommendation. In a report by the Chief Medical Officer on 19 January 1987, two reasons were given. Firstly, the evidence from the military medical records showed no record of skin problems during the applicant's service. Secondly, on the basis of the report from the Ministry of Defence, the Secretary of State did not accept that the applicant was exposed to ionizing radiation and therefore the point was irrelevant.        In his report of 24 June 1987, the urologist found that he could come to no conclusion regarding the effect of ionizing radiation on the applicant's infertility and renal problems. The DSS had previously stated to the urologist that "We have been assured by the Atomic Weapons Establishment that <the applicant> was too far away from the test sites to have been contaminated with any kind of ionizing radiation".        The applicant's own doctor reported on the applicant's illnesses and conditions and concluded that, though individually they might not have been significant, taken as a whole they could be consistent with radiation exposure.        Based on this information the DSS prepared a Statement of Case and sent an edited copy to the applicant (in accordance with Rule 22 of the Pension Appeals Tribunal Rules (Scotland) 1981), omitting information on the basis that it was "undesirable in the interests of the applicant to disclose to him". The applicant initially argued that an unedited version of his Statement of Case was not sent to his then legal representatives but those representatives have now confirmed that this unedited version has been found in the applicant's old files. The Government confirm that the dispatch of the applicant's unedited Statement of Case to his representatives (complete with a standard explanatory form) was noted in a Pensions Tribunal Action Sheet as having taken place on 5 May 1987.        The applicant's appeal to the Pensions Tribunal was rejected on 25 February 1988.        Subsequently the applicant's previous assessment in relation to his duodenal ulcer was again reduced to 20 % and the applicant's subsequent appeal against this assessment was rejected.        On 9 July 1991 the applicant again requested a claim form in relation to exposure to nuclear radiation resulting in acne vulgaris, sterility and severe arthritis in his leg, arms and spine. The Ministry of Defence were again consulted by the DSS and confirmed zero exposure. It does not appear that the applicant has pursued this claim after he was reminded by the DSS of the rejection of his previous claim in 1988.        In 1992 the applicant applied for and received an added assessment of 1-5% for hearing loss.        The applicant contacted other veterans who had similar experiences and together they formed the British Nuclear Test Veterans Association ("BNTVA") in 1983. He alleges that since the formation of the BNTVA he has been subjected to a campaign of surveillance and harassment by the United Kingdom authorities. He complains in particular of two incidents of sabotage to his car in 1985, during his involvement in co-ordinating witnesses to appear before an Australian Royal Commission on nuclear testing, of being watched and followed, of interference with correspondence between him and third parties (one of whom has apparently received an admission of such interference from the Ministry of Defence) and of tapping of his telephone.        In support of these allegations the applicant relies, inter alia, on evidence that letters and parcels have been opened and re-sealed, on a series of unexplained noises and problems with his telephone line, on a warning from a British Telecom engineer not to use his telephone for confidential calls and on one specific incident where a Ministry of Defence official attending the said Australian Royal Commission hearings appeared to have specific knowledge of a confidential telephone conversation which the applicant had with a third party.   He also refers to a number of instances of individuals seeking his telephone number in connection with the BNTVA being told, incorrectly, that he is ex-directory.   B.    Particular circumstances of the case : the second applicant        In October 1956, the applicant enlisted in the Royal Navy at age 17. He was passed as fit with no medical problems and, in particular, his respiratory system was recorded as normal. He was enrolled fit for full combat duty in any part of the world.        In April 1958 the applicant was serving on board HMS Ulysses which was positioned off Christmas Island.        The applicant claims that, on 23 April 1958, he and other members      of the crew were ordered on deck to witness a megaton nuclear           detonation in the atmosphere which detonation was at a           distance of 12 to 20 miles (19-32 kilometres). The men were           ordered to turn their backs to the initial detonation and           to face the ensuing blast. The applicant suffered from skin           burns, nausea, exhaustion and breathlessness, for which he           was treated in April, May and June 1958.        The Government submit that the detonation was at a distance of      60 to 70 miles (96-112 kilometres) and that subsequently the      applicant did not complain of any symptoms.        However, it is not disputed that the applicant had a number of chest x-rays (mass miniature radiography on 70 mm film) on 8 March 1958, 30 April 1959, 30 May 1960 and 1 February 1961. He had a follow-up full plate x-ray on 2 February 1961 in Portsmouth, England.        The Government claim that the x-rays were part of a routine      screening operation and that the results were all negative. The      applicant claims that the reason the x-rays were taken was      because of his complaints of exhaustion and breathlessness and      that the full plate x-ray was taken on 2 February 1961 because      of a "pick up" found after the x-ray on 1 February 1961.        On 8 February 1961 the applicant was discharged from the navy on compassionate grounds by purchase.        The applicant continued to suffer from exhaustion and breathlessness. An x-ray taken in June 1965 indicated extensive modular infiltration of both lungs, which condition was diagnosed as sarcoidosis.        On 10 July 1970 the applicant applied for a disablement pension alleging that his condition was attributable to his exposure to the nuclear test off Christmas Island.        On 14 July 1970 the DSS requested "all available medical records", including "extracts from the admission and discharge books if necessary" from the Medical Records Section of the naval archives registry. The reply, which was received on the same day, stated that there was "no trace" of the medical records.        On 28 July 1970 DSS requested the Ministry of Defence to confirm the applicant's service and his proximity to the detonation. The Ministry of Defence confirmed that the applicant was 70 miles (112 kilometres) from the detonation and supplied a trace of the applicant's service showing no period of sick leave, on or subsequent to the detonation date, until 30 November 1958.        On 12 August 1970 the DSS requested the applicant's x-ray of 2 February 1961. The response, dated 18 September 1970, was as follows:        "A thorough search of our large film records for 1961 has been      made and no trace of a large film for <the applicant> can be      found."        On 5 October 1970 the DSS made another enquiry of the Ministry of Defence requesting details as to the proximity of the applicant's ship to any detonation and querying whether the applicant was likely to have been in the open at the time of the blast, whether there were any bed tickets in relation to the applicant's sick leave and whether there were any relevant entries in the Medical Officer's Journal. The x-rays taken on 70 mm film were also requested.        The response, dated 16 October and 17 November 1970, read as follows:        "It is regretted that no bed tickets are held for <the      applicant>; there is no entry in the Civil Register nor is there      any trace in the Medical Officer's Journal... All available      medical documents were sent to you on 20th July 1970. ... The      records of operation Grapple are held by war historical branch      and an examination of these and the logbook for <the applicant's      ship> show that the ship was approximately 70 miles from the      explosion on 23 April 1958. ... The Naval plan contains the      following instruction:             'Precautions to be taken by ships in target areas - all           exposed personnel are to be completely covered, anti-flash           hats, gloves and goggles are to be worn, and long trousers           tucked into socks'."        On 1 January 1971 the applicant's pension claim was refused.        On 4 March 1971, further to representations received on the applicant's behalf, an enquiry was made by the DSS of the Ministry of Defence for any service records including hospital records and x-rays. The response, dated 17 March 1971, stated that "this enquiry has already been thoroughly dealt with and to date we cannot provide further service documents".        On 5 April 1971 the applicant lodged an entitlement appeal to the Pensions Tribunal.        A medical report, dated 2 August 1971 and completed by a senior chest physician retained by the DSS, concluded that:        "In summary, it is, in my opinion, virtually certain that the      correct diagnosis in this case is sarcoidosis and that the      disease had no relationship to proximity to an atomic explosion      in April 1958."        However, that physician suggested that the applicant might be suffering from chronic berylliosis caused by exposure to beryllium, an alloy used in the nuclear tests. His report indicated that the clinical effects of berylliosis and sarcoidosis were similar and that it was important to ascertain the precise nature of the applicant's medical treatment from 24 May 1958 to 9 June 1958 in order to exclude this possibility. The Ministry of Defence subsequently confirmed that the applicant was on loan to another ship during that time and that no sickness was documented during that period. The opinion was expressed that the applicant's exposure to beryllium compounds was unlikely in the course of his work as a stoker.        On 7 December 1971 an edited Statement of Case was sent to the applicant, which statement excluded information on the basis of its "potential to distress or harm the applicant". The applicant initially argued that an unedited version of his Statement of Case was not sent to his then legal representatives but those representatives have now confirmed that they are not sure whether this unedited version was received by them at the time. The Government confirm that the dispatch of the applicant's unedited Statement of Case to his representatives (complete with a standard explanatory form) was noted in a Pensions Tribunal Action Sheet as having taken place on 7 December 1971.        The applicant disputed the Statement of Case on the basis that it lacked full medical records and his x-ray films. He also contended that he was 15 to 20 miles (24-32 kilometres) from the detonation and not 70 miles (112 kilometres). Following further enquiries, the Ministry of Defence confirmed that no further medical records existed, that no x-ray films were held by the Ministry of Defence before 1960, and that a recalculation of the position of the applicant's ship showed that he was 60 miles (96 kilometres) from the blast.        The DSS therefore issued the supplementary opinion that the applicant's hospitalisation (in April 1958) predated the blast, that the results of the x-rays were normal and that there was no evidence that exposure to radiation could have caused the applicant's condition.        On 29 August 1972 the Pensions Tribunal rejected the applicant's appeal confirming that:        "The Tribunal have carefully considered all the evidence. They      feel obliged to accept the opinion of the Medical Division of the      DSS and for the reasons stated therein regret that they must      disallow the appeal."        On 21 October 1982 the applicant submitted another claim for a war pension due to radiation related sarcoidosis of the lung. The DSS responded to the applicant by reminding him of the decision of the Pensions Tribunal taken in 1972 and informing him that it was legally binding unless set aside by the Court of Session in Scotland on a point of law.        On 11 July 1991 the DSS received another war pension claim (lodged by the BNTVA on the applicant's behalf), which was similar to that in respect of which the Pensions Tribunal issued its decision in 1972 and to the further war pension claim made in 1982. The applicant was again reminded of the Pensions Tribunal's decision of 1972 and the applicant responded, by letter dated 30 October 1991, stating that he was not happy with that decision.   The DSS replied by referring the applicant to the fact that the Pensions Tribunal had sight of his service records in considering the applicant's case.        On 25 April 1992 the applicant made a further claim for a war pension due to deafness. The claim was rejected by the Secretary of State and the applicant did not appeal the decision to the Pensions Tribunal.   C.    Relevant background   1. Atmospheric Nuclear testing        A document headed "Atomic Weapon Trials", marked "Top Secret" and dated 20 May 1953, of the Defence Research Policy Sub-Committee of the Chiefs of Staff Committee states:        "... Many of these tests are of the highest importance to      Departments... The army must discover the detailed effects of      various types of explosion on equipment, stores and men with and      without various types of protection...".        Although it had been established as early as 1947 that such exposure would inevitably have genetic effects on the relevant individuals, this did not deter the Government from pursuing the testing, and in 1955 Sir Anthony Eden, the then Prime Minister, is quoted as referring to such a consequence as being "a pity but we cannot help it".        For twelve years commencing in 1952 the United Kingdom Government carried out a number of atmospheric nuclear weapon tests in Australia. In 1958 tests were also carried out, with weapons having a greater yield, off-shore and over the south-eastern peninsula of Christmas Island. Approximately 20,000 servicemen participated in the Christmas Island tests ("the test veterans").   2. Classified Documents        Certain documents have been classified and thus withheld from public scrutiny for a 30 year period under the Public Records Acts and this period has been recently extended for another 20 years for "national security and personal sensitivity reasons". The Government confirm that these documents do not contain any contemporaneously recorded radiation levels, personal monitoring or personal medical records. An attempt by way of motion in the House of Commons in January 1993, to urge the Government to, inter alia, appoint an independent assessor to assess the national security reasons for the continued retention of the documents, failed.   3. The Royal Commission into British Nuclear Testing in Australia        The Australian Royal Commission was appointed in July 1984 by the Queen to enquire into the conduct of the Australian tests. That Commission was furnished with documentation including statements, plans and reports covering the planning, execution and results of some of the test activity in Australia, which documents were also transferred at the same time (mid-1980s) to the United Kingdom Public Records Office under reference number DEFE16. The report of the Australian Royal Commission published in 1985 noted, inter alia, the following:   (a)   The United Kingdom was misleading in supplying information to the Australian Government about the tests.   (b)   Various specific tests and projects were criticised as being carried out in an inappropriate and negligent manner causing danger to both civilian populations and military personnel. For example, the Royal Commission found that the safety precautions against radiation exposure employed at Maralinga, South Australia, demonstrated, "ignorance, incompetence and cynicism" by the United Kingdom for the safety of persons in the vicinity of those tests.   (c)   There were some serious departures from the contemporary radiation protection policies and standards during the test programme.   (d)   Exposure to radiation at certain dose levels is associated with increased risk of cancer and genetic effects. While increased frequency of genetic effect has not been demonstrated in any irradiated human population (and noting that such a study would not be practicable), it is accepted that such effects do occur. By reason of the major detonations and the deposition of fallout across Australia, it is probable that cancers, which would not otherwise have occurred, have been caused in the Australian population.        The Royal Commission recommended that the United Kingdom Government clean up certain test areas and that the benefits of certain compensation legislation be extended to include not only military personnel but also civilians who were at the test sites at the relevant time. By agreement dated 10 December 1993 the United Kingdom agreed to pay £20 million to the Government of Australia in settlement of all claims made by any persons (excluding United Kingdom test participants) for injuries connected with the test programme.   4. Reports of the National Radiological Protection Board ("NRPB"), the British Nuclear Test Veterans Association ("BNTVA") and personnel from the Atomic Weapons Establishment ("AWE")   (a)   The 1988 NRPB report        Due to increasing concern expressed in the media about early deaths of test veterans, the Ministry of Defence commissioned the NRPB (in conjunction with the Imperial Cancer Research Fund) to carry out a study into mortality and cancer rates amongst the test veterans. The NRPB compared the mortality and cancer rates of a body of test veterans (22,247 persons) with a control group (army personnel who passed similar medical tests on entry into service but who did not participate in the testing).        The NRPB report concluded that participation in the nuclear weapon testing programme did not have a detectable effect on the test veterans' overall expectation of life, nor on their total risk of developing cancer. However, the test veterans demonstrated a higher rate of leukaemia and multiple myeloma than the control group.        As a result, the DSS, which administers the war pensions legislation, subsequently awarded war pensions to those presenting these two conditions.   (b)   The 1993 NRPB report        In order to clarify the situation, a follow up report was completed extending the period of review over seven more years so that almost double the number of deaths were available for analysis.        The NRPB again concluded that there had been no detectable difference in the veterans' expectation of life nor as regards their risk of developing cancer or other fatal diseases. The suggestion from the previous report that participants may have experienced small hazards of leukaemia and multiple myeloma, was found not to be supported by the additional data used for the second report and the excesses observed in the first report were reported as being a chance finding, although the possibility that test participation may have caused an additional risk could not be completely ruled out.   (c)   The BNTVA report        In 1992 the British Nuclear Test Veterans Association ("BNTVA"), a group founded by the first applicant to campaign for recognition and compensation for those exposed to the same or similar explosions, conducted its own survey of its members and this report concluded that 1 in 5 of its members suffered from cancer and that 1 in 4 veterans had children who suffered from defects attributable to genetic origin.   (d)   The AWE report        In 1993 personnel with the AWE produced a report which described and summarised the environmental monitoring undertaken at Christmas Island during the series of test detonations in 1958. It concluded that there was no detectable increase in radioactivity on land, in the sea or in the air pursuant to the Christmas Island testing. It also concluded that there was therefore no danger to personnel from external radiation nor from inhalation and ingestion of radioactivity. The report is stated not to necessarily represent the official views of the AWE. The Government claim that the records of environmental radiation monitoring are contained in this report and the applicant submits that this report is merely descriptive and a summary of such information.   D. Relevant domestic law and practice   1. Civil action for compensation        It was accepted by the Secretary of State for Defence in the House of Commons on 12 April 1994 that the Ministry of Defence "would consider compensation for any British test veteran whose death or illness had been caused by radiation from the atmospheric tests".        The right to compensation under common law is enforceable through the civil courts once the applicant proves that, given the state of knowledge at the relevant time, his illness or injury was reasonably foreseeable and, on the balance of probability, was in fact caused by the action or inaction of the person against whom he is claiming.        However, armed forces personnel, whose cause of action arose on duty before 1987, are barred from suing the Crown from compensation by section 10 of the Crown Proceedings Act 1947. (The repeal of section 10 in 1987 was not applicable to those claiming in respect of pre-1987 actions.)        It is disputed between the parties whether that immunity from suit is applicable in relation to veterans such as the applicant.        The Government claim that the case of Pearce v. The Secretary of      State for Defence and Ministry of Defence [1988] 2 WLR 145 allows      veterans such as the applicant to take a case against the      Secretary of State despite the immunity from prosecution set down      in section 10 of the 1947 Act.        The applicant disputes the availability of such a civil action,      submitting that the above-mentioned Pearce case arose out of very      particular and different facts.        To date no one has been able to successfully demonstrate in a civil action for damages that an illness was, on the balance of probability, caused by radiation from the nuclear tests.   2. War Pensions        Claims for an award of a pension are made to the Secretary of State for Social Security ("the Secretary of State"), and The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 ("the Order") provides for the payment of a benefit in respect of disablement or death arising from service. The Secretary of State decides whether a claimant is entitled to benefit and the way the benefit should be paid depending on the claimant's assessed disability. An award of a pension is made where the claimant raises reliable evidence to demonstrate a reasonable doubt in his favour that the injury or disease is attributable to service after 2 September 1939.        The level of pensions awarded is governed by the Naval Military and Air Forces, etc. (Disablement and Death) Service Pensions Order 1983 as amended.        The procedure for claiming a war pension commences with the receipt of a claim by the DSS and the obtaining of the claimant's service records (including service medical records) from the Ministry of Defence. Once the factual questions as to, for example, dates of service are established, the claim is passed to the DSS doctor who forms a view as to whether the claimant is suffering from the disability and whether the disability is attributable to service. In order to assist in the decision, that doctor may obtain further medical evidence and reports including civilian medical records. Once this assessment is completed the Secretary of State will give the final decision.        A claimant who is refused a war pension can appeal to the Pensions Tribunal and this entitlement appeal is governed by the Appeal Tribunals Acts 1943-1949. The Pensions Tribunal consists of a legally qualified chairperson, a medical member and a lay member (a member of the service in an entitlement claim). In order to assist the Pensions Tribunal, the DSS provides the Pensions Tribunal with a Statement of Case which is a typed version of the claimant's service records including:   -     service medical records; -     subsequent medical reports and medical reports obtained at the      request of the DSS doctor; -     a statement outlining the reasons of the Secretary of State for      the decision to refuse a pension; and -     possibly a statement of the DSS doctor of the evidence      considered, the conclusions reached and the reasons for the      conclusions.        The Statement of Case is sent to the claimant's representative for comment and, in light of the claimant's representative's comments, further enquiries may be made by the Ministry of Defence, specialist consultants and the DSS doctor. The evidence thus gathered is incorporated into a supplemental Statement of Case which is sent to the claimant's representatives and to the Pensions Tribunal office for hearing.        Rule 22(1) of the Pensions Appeal Tribunal (Scotland) Rules 1981 permits the Secretary of State to omit from the claimant's copy of the Statement of Case medical evidence which, in the opinion of the Secretary of State, "would be undesirable in the interests of the appellant to disclose". However, where this rule applies, the claimant's representative must be sent an unedited version of the Statement of Case, which version is also before the members of the Pensions Tribunal. If information is omitted under Rule 22(1), the Pensions Tribunal when hearing the case may disclose the information to the claimant or may, in his interests, hear the appeal without disclosing this information.        A further appeal lies on a point of law to the Court of Session in Scotland, either with the leave of the Pensions Tribunal or of the Court of Session itself. Such an appeal could be made on the basis that the Pensions Tribunal had erred in law by "acting upon an incorrect basis of fact" (Secretary of State for Education and Science v. Tameside MBC [1977] AC 1014).   3. Provision of records        Pursuant to Rule 6(1) of the Pensions Appeal Tribunal (Scotland) Rules 1981, a claimant may apply to the Pensions Tribunal to give a direction to a government department for disclosure of official documents and information. It is also possible to apply under the Administration of Justice (Scotland) Act 1972 for an order requiring production of medical records in anticipation of litigation. In addition, it is possible to obtain an order for Specification (production) of Documents, in the context of Scottish court proceedings to recover damages, in order to require government departments to produce records.        A Writ of Subpoena Duces Tecum can also be applied for, in the context of an action for damages, which writ requires the production to court of documents held by a third party.   4. Interceptions of communications and surveillance        The Interception of Communications Act 1985 and the Security Services Act 1989 regulate and supervise such interceptions and surveillance. Both statutes provide for complaints tribunals.        The jurisdiction of the Interception of Communications Tribunal is limited to investigating whether there has been a relevant warrant for interception and, where there is or has been, whether the reason for and manner of issuing the warrant was in accordance with the 1985 Act. Where the Tribunal finds that there has been a contravention of the provisions of the 1985 Act, it can, inter alia, order the quashing of the warrant, the destruction of material intercepted and direct the Secretary of State to pay compensation.        The Securities Services Tribunal can investigate whether a complainant has been the subject of enquiries by the Security Services. If so, it can investigate whether the Security Services had reasonable grounds for instituting and continuing such enquiries and if not it indicates to the complainant that no determination has been made in his favour. In the event of a decision in favour of the complainant, the Tribunal can order, inter alia, the cessation of surveillance, the destruction of records and it can also order the Secretary of State to pay compensation.   COMPLAINTS OF THE APPLICANTS        The applicants complain about certain matters arising out of their allegedly deliberate exposure to atmospheric nuclear testing conducted by the United Kingdom in 1958 over Christmas Island and its surrounding waters. It is acknowledged by the applicants that their exposure to the nuclear detonations in 1958 is outside the scope of the Commission's examination since the United Kingdom had not, at that stage, accepted the right of individual petition.        They complain that contemporaneous records were compiled of their medical treatment and