CEDH · CASELAW;REPORTS;ENG — 26 novembre 1996

.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 }                     EUROPEAN COMMISSION OF HUMAN RIGHTS                Application Nos. 21825/93 and 23414/94                      Kenneth McGinley and E. E.                                against                          the United Kingdom                       REPORT OF THE COMMISSION                     (adopted on 26 November 1996)                           TABLE OF CONTENTS                                                                Page   I.    INTRODUCTION      (paras. 1-12). . . . . . . . . . . . . . . . . . . . . . . 1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . . . 1        B.    The proceedings           (paras. 5-7). . . . . . . . . . . . . . . . . . . . . 1        C.    The present Report           (paras. 8-12) . . . . . . . . . . . . . . . . . . . . 2   II.   ESTABLISHMENT OF THE FACTS      (paras. 13-75) . . . . . . . . . . . . . . . . . . . . . . 4        A.    Relevant Background           (paras. 14-36)   . . . . . . . . . . . . . . . . . . . 4        B.    The particular circumstances of the first applicant's case           (paras. 37-48). . . . . . . . . . . . . . . . . . . . 9        C.    The particular circumstances of the second applicant's case           (paras. 49-61). . . . . . . . . . . . . . . . . . . .11        D.    Relevant domestic law and practice           (paras. 62-75). . . . . . . . . . . . . . . . . . . .14   III. OPINION OF THE COMMISSION      (paras. 76-139). . . . . . . . . . . . . . . . . . . . . .18        A.    Complaints declared admissible           (para. 76). . . . . . . . . . . . . . . . . . . . . .18        B.    Points at issue           (para. 77). . . . . . . . . . . . . . . . . . . . . .18        C.    The evaluation of the evidence           (paras. 78-102) . . . . . . . . . . . . . . . . . . .18        D.    As regards Article 6 para. 1 of the Convention           (paras. 103-119). . . . . . . . . . . . . . . . . . .24             CONCLUSION           (para. 120) . . . . . . . . . . . . . . . . . . . . .28                           TABLE OF CONTENTS                                                                Page        E.    As regards Article 8 of the Convention           (paras. 121-131). . . . . . . . . . . . . . . . . . .28             CONCLUSION           (para. 132) . . . . . . . . . . . . . . . . . . . . .31        F.    As regards Article 13 of the Convention           (paras. 133-135). . . . . . . . . . . . . . . . . . .31             CONCLUSION           (para. 136) . . . . . . . . . . . . . . . . . . . . .32        G.    Recapitulation           (paras. 137-139). . . . . . . . . . . . . . . . . . .32   PARTLY DISSENTING OPINION OF MM. S. TRECHSEL, F. MARTINEZ AND N. BRATZA AS REGARDS ARTICLE 8 OF THE CONVENTION. . . . . .33   APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION   . . . . . . . . . .34   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights and of the procedure before the Commission.   A.    The application   2.    The applicants are British citizens, born in 1938 and 1939 and resident in Paisley and Glasgow, respectively. They were represented before the Commission by Mr. Ian Anderson, an advocate and attorney at law practising both in Scotland and the United States of America.   3.    The application is directed against the United Kingdom. The respondent Government were represented by Ms. Susan Dickson, Agent, Foreign and Commonwealth Office.   4.    The case concerns the applicants' allegations of non-disclosure of records concerning their participation in the United Kingdom's nuclear test programme at Christmas Island in 1958 and they invoke Articles 6, 8 and 13 of the Convention.   B.    The proceedings   5.    The applications were introduced on 20 April 1993 and 31 December 1993 and registered on 12 May 1993 and 7 February 1994, respectively. On 5 April 1994 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the applications to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicants' complaints under Articles 6, 8 and 13 of the Convention.   6.    The Government's observations were submitted by letter dated 7 September 1994 after two extensions of the time-limit fixed for this purpose. The applicants replied on 19 January 1995 after three extensions of the time-limit. Further observations of the Government were submitted on 10 and 11 May 1995. On 15 May 1995 the Commission decided to join the applications, request further observations from the parties and adjourn the application in the meantime. The Government submitted the further observations on 20 July 1995 after one extension of the time-limit and the applicants submitted their observations on 17 July and 29 August 1995 also after one extension of the time-limit. On 7 July 1995 the Commission granted the applicants legal aid. On 28 November 1995 the Commission declared the applicants' complaints under Articles 6, 8 and 13 of the Convention admissible, declared inadmissible the remainder of the application and requested further observations of the parties. The text of the admissibility decision was sent to the parties on 30 November 1995. The observations of the Government were received on 15 February, 12 June, 27 August and 24 October 1996. Observations of the applicants were received on 29 January, 12 February, 1 April, 10 April, 3 May, 17 June, 8 and 12 August and 24 September 1996.   7.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   8.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mr.   S. TRECHSEL, President           Mrs. G.H. THUNE           Mrs. J. LIDDY           MM.   E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                J.-C. GEUS                M.P. PELLONPÄÄ                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL                E. BIELIUNAS                E.A. ALKEMA                M. VILA AMIGÓ   9.    The text of this Report was adopted on 26 November 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   10.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose a           breach by the State concerned of its obligations under the           Convention.   11.   The Commission's decision on the admissibility of the application is annexed hereto.   12.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   13.   The Commission has set out in this part of the report the facts that are not disputed by the parties and has set out its evaluation of the evidence on the disputed facts at part III below.   A.    Relevant background   1.    Atmospheric Nuclear testing programmes   14.   Between 1952 and 1967 the United Kingdom Government carried out a number of atmospheric tests of nuclear weapons in the Pacific Ocean and Australia.   15.   Over 20,000 servicemen participated in these tests. The tests included seven detonations at Maralinga, south Australia in 1956 and 1957 and six detonations at Christmas Island on 8 November 1957, 28 April 1958, 22 August 1958, 2 September 1958, 11 September 1958 and 23 September 1958. The weapons detonated in 1958 at Christmas Island were more powerful than those detonated at Maralinga and many times more powerful than those detonated at Hiroshima and Nagasaki. All devices in the megaton range (Operations Grapple X, Grapple Y and two in the Grapple Z series) were detonated over the sea off the south-eastern peninsula of Christmas Island and the two Grapple Z devices in the kiloton range were detonated over the south-eastern peninsula. Many of the servicemen who participated in the tests were lined-up in the open air in light clothing at the moment of the detonations, ordered to look away from the direction of the initial flash and then ordered to turn around in the direction of the blast.   16.   The United States also ran a test programme in the Pacific which included the detonation of a hydrogen bomb at Bikini Island in 1954.   2.    Documents submitted in support of the applicants' submission as to      one of the reasons for the United Kingdom's nuclear test programme   17.   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...".   18.   On 12 March 1984 a debate took place in the House of Commons on the United Kingdom's nuclear test programme. The content of the above document was raised and the Minister for Defence Procurement responded by stating that what happened was that the blast and thermal and radiation consequences of a nuclear explosion on man were determined by taking measurements of the flux level of various protected and unprotected positions using instruments. The consequences of those flux levels for man would then be calculated. The Minister also confirmed that, during the tests in Maralinga and in order to allow servicemen to experience the effects of nuclear explosions at ranges closer than previously allowed, 200 United Kingdom servicemen were stationed at about eight kilometres from the epicentres of the detonations.   19.   A memorandum headed "Atomic Weapons Trials and Training" and dated 29 November 1955 noted that during the 1957 trials the Royal Air Force "will gain invaluable experience in handling the weapons and demonstrating at first hand the effects of nuclear explosions on personnel and equipment". On 22 December 1955 the Director of the Atomic Weapons Research Establishment wrote to the Ministry of Defence in relation to the supply to a similar Australian body of filter pieces which measured the fallout from the tests in Australia and he recommended, if Australia asked to examine the filters, that pieces of the filters be supplied but "that we wait a few days so that some of the key isotopes have decayed a good deal".   20.   A War Office memorandum dated 19 November 1957 and headed "UK personnel for duty at Maralinga" began by stating that "All personnel selected for duty at Maralinga may be exposed to radiation in the course of their military duties". The memorandum continued by referring to initial medical examinations including detailed blood count analysis to determine suitability for duty prior to duty in Maralinga together with blood analysis on return from duty. It concluded that "A steady and progressive fall in successive blood counts or a fall below the warning level indicates that the individual must be removed from all contact with radioactivity until he has been found fit to return to duties involving exposure to radioactivity".   21.   On 15 July 1958, during a meeting of the Atomic Weapons Research Establishment to discuss the issue of blood monitoring for leukaemia in 4500 servicemen about to depart for Christmas Island, it was agreed that only civilian personnel would be tested prior to departure since a serviceman found to be healthy before the test who contracted leukaemia afterwards "may have a case for arguing that the test was a cause".   22.   A Ministry of Defence file, dealing with prospective blast effects of the Grapple Y detonation (at Christmas Island), gave details of the positions of certain categories of servicemen, blast effects, thermal radiation, radiation effects and radiation fallout and stated that personnel in the main camp should be paraded as during a previous detonation in late 1957 with the addition of protective clothing bearing in mind that "thermal radiation may be expected from all angles due to scatter". It was emphasised that in the event of the expected yield being obtained or increased there "will almost certainly be, in addition to considerable material damage, casualties to individuals and this should be taken into account."   3.    Medical Research Council   23.   A report headed "Genetic effects of radiation with reference to man" of the Medical Research Council ("MRC") dated 6 February 1947 stated that "all quantitative experiments show that even the smallest doses of radiation produce a genetic effect, there being no threshold dose below which no genetic effect is induced".   24.   In March 1955 the then Prime Minister (Sir Anthony Eden) requested the MRC to appoint an independent committee to report to Parliament on the medical and genetic effects of radiation. In June 1956 the MRC committee so reported and commented that exposure to ionising radiation, however small, could increase the frequency risk of gene mutation in the reproductive cells, noting that from the film badges of employees of the Atomic Energy Authority it was possible to calculate accurately "the doses received by such employees in relation to their expectation of parenthood" and commenting that the changes in the sex ratio in the children of those exposed to radiation might be due to genetic damage. Subsequent to a progress report of the MRC committee being shown to the Prime Minister, a letter was sent from Downing Street dated 16 November 1955 reporting the Prime Minister as having commented on such consequences as being "a pity but we cannot help it".   25.   A telex dated July 1956 discussed the brief of the Director of the Atomic Weapons Research Establishment on a recent MRC committee (see below) report pending his arrival on Christmas Island and stated as follows:        "We do not want to release any statement on genetic effects or on      radioactivity or strontium pending the arrival of <the Director>.      If you have to, a safer interpretation of the MRC report in the last      sentence of paragraph 4 would be, `has not shown an increase' rather      than `shows an increase'." (emphasis added)   26.   The MRC committee submitted an updated report in 1960 emphasising that the research conducted gave no grounds for believing that there was a threshold below which no increase in mutation occurs.   4.    The Royal Commission into British Nuclear Testing in Australia   27.   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-1980's) to the United Kingdom Public Records Office under reference number DEFE16.   28.   The Commission's report was published in 1985. It concluded that in many respects the information furnished by the United Kingdom Government to the Australian Government in relation to the test programme was inadequate. 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. It was also concluded that there had been some serious departures from the contemporary radiation protection policies and standards during the test programme. It was accepted that exposure to radiation at certain dose levels is associated with increased risk of cancer and genetic effects. While increased frequency of genetic effect had not been demonstrated in any irradiated human population (and noting that such a study would not be practicable), it was accepted that such effects do occur. By reason of the major detonations and the deposition of fallout across Australia, it was thought probable that cancers, which would not otherwise have occurred, had been caused in the Australian population.   29.   The Commission, accordingly, recommended, inter alia, 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.   5.    Marshall Islands Nuclear Claims Tribunal   30.   This tribunal was set up in 1987 to consider claims from residents of the Marshall Islands about the United States trial detonations at Bikini Island. By 31 December 1993 the tribunal had admitted 676 claims in respect of cancer related illnesses suffered by the inhabitants of the Marshal Islands. The closest of the Marshal Islands was 120 miles (192 kilometres) from Bikini (Rongelap), four of the relevant islands were over 300 miles (580 kilometres) from Bikini and two were 500 miles or over (800 kilometres) from Bikini. The total gross compensation awarded by the tribunal as at 31 December 1993 was $25,225,500.00.   6.    Reports of the National Radiological Protection Board ("NRPB"), of      personnel from the Atomic Weapons Establishment ("AWE") and of the      British Nuclear Test Veterans Association ("BNTVA").   (a)   The 1988 and 1993 NRPB reports   31.   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 (21,358 persons) with a control group (army personnel who passed similar medical tests on entry into service but who did not participate in the testing).   32.   During the House of Commons debate on 12 March 1984 on the United Kingdom nuclear test programme, a Member of Parliament read a letter received that day from the Joint Committee on the Medical Effects of Nuclear Weapons which confirmed that the National Radiological Protection Board's expertise was in monitoring radiation exposure not in carrying out epidemiological health surveys and, furthermore, expressing surprise that the Government entrusted the investigation into its own liability to a Government body when other bodies, whose impartiality could not be reasonably questioned, were available to do the work. The Minister for Defence Procurement responded by referring to a previous discussion in the House of Commons about the independence and suitability of the NRPB and indicating that he had hoped that the relevant Members of Parliament who had raised the questions would be prepared to accept a body with the experience of the NRPB as an acceptable assessment source.   33.   The NRPB report concluded that participation in the nuclear test 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 Department of Social security ("the DSS") subsequently awarded war pensions to those presenting these two conditions.   34.   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.   (b)   Report by personnel of the AWE   35.   Personnel with the AWE produced a report which described the environmental monitoring programme at Christmas Island during the test detonations and the results obtained. The report, which is stated to not necessarily represent the official views of the AWE, is marked "unclassified" and is dated October 1993. 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.   (c)   The BNTVA report   36.   The BNTVA is a voluntary group founded in 1983 by the first applicant to campaign for recognition and compensation for those who participated in the United Kingdom's nuclear test programme and who as a consequence were allegedly exposed to radiation. Its members number approximately 3000 and include British ex-servicemen, who claim that they were deliberately exposed to ionising radiation, and their children who claim to be genetically impaired. Further to a request by an adviser of the Defence Select Committee, a statistical report entitled "Radiation Exposure and Subsequent Health History of Veterans and their Children" was published by the BNTVA in or about February 1992. It was based on a survey of the members of the BNTVA and it 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. The BNTVA engaged a researcher in order to obtain available contemporaneous records in relation to the nuclear test programme in Australia and the Pacific.   B.    The particular circumstances of the first applicant's case   37.   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 and was present on Christmas Island for the test detonations of 28 April 1958, 22 August 1958, 2 September 1958, 11 September 1958 and 23 September 1958. The applicant was lined-up in the open air in light clothing at the moment of certain detonations, ordered to look away from the direction of the initial flash and then ordered to turn around in the direction of the blast.   38.   The only entry during the detonation period in the applicant's service medical records refers to medical treatment on Christmas Island between 15 September and 23 September 1958 for a throat infection. Those records continue on 28 October 1958 with treatment for tonsillitis and between 14 and 21 November 1958 with the provision of a splint for "facial palsy". The applicant was subsequently hospitalised at the military hospital in Honolulu for influenza. This latter treatment is also reflected in his service medical records.   39.   On 10 November 1959 the applicant was given a medical discharge from service. His statement on discharge records that the applicant 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 service hospital on Christmas Island. His service medical records do not reflect this treatment. 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. His 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 PAT").   40.   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 his health problems which he alleged resulted from exposure to radiation on Christmas Island. On 16 May 1984 the DSS made a departmental inquiry to the Ministry of Defence. The DSS noted that the applicant was claiming a war pension for radiation related illnesses and that he was stationed in Christmas Island. The DSS asked for confirmation that the applicant was directly involved in the tests and that the applicant was in the vicinity of the tests either before or after the tests and further asked what the applicant's duties were, whether the area in which he served was subject to any radiation and, if so, to how much radiation. The DSS also queried whether the applicant was wearing a film badge, what the readings from that badge were and what instructions about safety precautions and the wearing of film badges were recorded. It was finally noted that in the event of an appeal to the PAT the information would be made available to the claimant.   41.   On 11 June 1984 the Ministry of Defence confirmed that, from the "information available and reviewed up to now", the applicant was on the island during the detonations. His duties were outlined and it was stated that he was no closer than 40 kilometres from the epicentres of the detonations, that the areas in which he served were not subject to fallout and that the initial ionising radiations from the detonations in the area in which he served were not "sensibly different from ZERO". Accordingly, the applicant was not exposed to such initial radiations at any level "sensibly differing from ZERO". It was also confirmed that no film badges were issued to the applicant, that there were general radiological safety regulations and specific unit orders issued including instructions on hazards, safety precautions and on the issue and wearing of film badges where necessary. The response repeated that the radiation exposure was zero and the radiation effective dose from the ever present background radiation was no more and probably less than he would have received had he remained in the United Kingdom. It concluded that therefore his medical condition would not have been caused by ionising radiations from the test programme.   42.   On 30 November 1984 the applicant's claim, 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 re- assess his pension based on the duodenal ulcer, was also refused. On 21 January 1985 the applicant appealed to the PAT against both decisions of the DSS, claiming that his service medical records had been doctored.   43.   On 11 February 1985 the DSS again initiated a departmental enquiry to obtain all available medical records of the applicant between December 1957 and December 1958 or to confirm, using if necessary Admission and Discharge Books, the applicant's hospital treatment on Christmas Island during that period relating to "Disablement rash on body and face". 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."   44.   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".   45.   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 ionising radiation on the skin. The DSS declined to follow this recommendation for two reasons (noted in a report by the Chief Medical Officer dated 19 January 1987). The evidence from the military medical records showed no record of skin problems during the applicant's service and, on the basis of the report from the Ministry of Defence, the Secretary of State did not accept that the applicant was exposed to ionising radiation and therefore the point was irrelevant.   46.   In his report of 24 June 1987 the urologist found that he could come to no conclusion regarding the effect of ionising radiation on the applicant's infertility and renal problems. The DSS had previously stated to the urologist that "We have been assured by the AWE that <the applicant> was too far away from the test sites to have been contaminated with any kind of ionising 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.   47.   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's representative received an unedited version. On 25 February 1988 the PAT disallowed the appeal.   48.   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 DSS again sought a report from the Ministry of Defence regarding the applicant's service related ionising radiation exposure. The reply confirmed zero exposure. The applicant did not pursue 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.   C.    The particular circumstances of the second applicant's case   49.   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 at the time of the detonation on 28 April 1958. He was lined-up in the open air in light clothing at the moment of the detonations, ordered to look away from the direction of the initial flash and then ordered to turn around in the direction of the blast.   50.   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 follow-up full plate x-rays on 2 February 1961 in Portsmouth, England. The applicant's statement, made on 2 February 1961 in connection with his discharge from the navy, only referred to a fractured clavicle. 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.   51.   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, read "No trace medical records". On 28 July 1970 the DSS again raised a departmental enquiry with the Ministry of Defence stating that the applicant was claiming a pension for a chest condition which he attributed to his exposure to a detonation at Christmas Island and requesting the Ministry to confirm the applicant's service at Christmas Island and whether he was in close proximity to any explosions. 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 record.   52.   On 12 August 1970 the DSS asked the Ministry of Defence for the applicant's x-ray of 2 February 1961. The response, dated 18 September   1970, noted that a thorough search of the large film records for 1961 had been made and that no trace of a large film for the applicant could be found. On 5 October 1970 the DSS made another enquiry of the Ministry of Defence noting that it appeared, from the case notes regarding the applicant's post-service treatment previously submitted to the DSS, that the applicant had been admitted to hospital for two weeks in 1958 and that the applicant claimed that his lung ailment had been caused by his exposure to radiation during the test programme in 1958. The DSS, accordingly, requested confirmation as to whether any type of atomic device exploded whilst the applicant's ship was stationed off Christmas Island and, if so, requesting confirmation of the distance of the ship from the epicentre of the blast. Confirmation was also requested as to whether the ship was stationed sufficiently close for any crew members to have accidentally sustained radiation burns, whether the applicant was likely to have cause to be in the open (given the type of ship on which he served) and thereby subjected to blast and, if so, what protective clothing was issued. The DSS also requested the medical records in relation to a particular entry in the service record previously sent to the DSS relating to, inter alia, the period between 24 May 1958 and 9 June 1958. The x-rays taken on 70 mm film of the applicant during service were also requested.   53.   The response, dated 16 October and 17 November 1970, noted that no bed tickets were held for the applicant, that there was "no entry in the Civil Register nor is there any trace in the Medical Officer's Journal" and that "all available medical documents" had been sent to the DSS on 20 July 1970. It was also noted that the applicant served on the relevant ship from 30 April 1957 until 2 November 1958, that the records of the detonation on 28 April 1958 were held by the War Historical Branch and that an examination of these and the logbook for the applicant's ship showed that the ship was approximately 70 miles from the explosion in April 1958. It was further noted that the Naval Plan for the ship required "precautions to be taken by ships in target areas". All exposed personnel were to be completely covered, anti-flash hats, gloves and goggles were to be worn and long trousers were to be tucked into socks.   54.   On 12 January 1971 the DSS medical board found against the applicant. 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 documents which the Ministry of Defence may have been holding including hospital records and x-rays report and films. The DSS indicated that the reason they were asking again was because of the applicant's recent representations and that the DSS wanted to confirm that no further in-service documents are available. The response from the Ministry of Defence was dated 12 March 1971 and was to the effect that the case had been thoroughly dealt with and that "to date" further service documents could not be provided.   55.   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 it was virtually certain that the correct diagnosis was sarcoidosis and that the disease had no relationship of 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.)   56.   Further to another DSS enquiry dated 26 August 1971 to the Ministry of Defence in relation to beryllium exposure, the Ministry of Defence expressed the opinion that the applicant's exposure to beryllium compounds was unlikely in the course of his work as a stoker. It was also noted that the log of the relevant ship had been "scrutinised in relation to the periods at Christmas Island in 1958 and there is certainly no record to substantiate the story of atomic bomb blast. Certainly had he been ashore there would have been no significant exposure".   57.   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". An unedited version was sent to the applicant's representative. The applicant disputed the Statement of Case on the basis that it lacked full medical records in relation to his illness after the April 1958 detonation 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) and he disputed that the log of his ship contained no evidence that the crew was exposed to an atomic blast.   58.   Following a further enquiry by the DSS in relation to medical reports and x-rays in light of the applicant's mentioning of "missing records", the Archives section of Medical Records confirmed, in December 1971, that no further medical records had been traced. Two further enquiries to the Ministry of Defence were made by the DSS for a special trace for case notes, x-rays or any other details relating to the applicant's hospitalisation in April 1958 and for confirmation of the distance of the applicant's ship from the detonation of April 1958. The responses dated 12 January and 7 March 1972 noted, inter alia, that no further medical records could be traced, 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.   59.   On 29 August 1972 the PAT rejected the applicant's appeal.   60.   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 PAT 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.   61.   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 PAT issued its decision in 1972 and to the further war pension claim made in 1982. The applicant was again reminded of the PAT'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 PAT had sight of his service documents in considering his 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 PAT.   D.    Relevant domestic law and practice   1.    Civil action for compensation by servicemen against the Crown   62.   The right to compensation under common law is enforceable through the civil courts once the plaintiff proves that, given the state of knowledge at the relevant time, the 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.   63.   However, armed forces personnel, whose cause of action arose on duty before 1987, are barred from taking civil proceedings for compensation against the Crown by section 10 of the Crown Proceedings Act 1947. It was specifically provided that the repeal of section 10 by legislation in 1987 was not applicable to those claiming in respect of pre-1987 occurrences. It is disputed between the parties as to whether the Crown's immunity from suit survived the judgment in the case of Pearce v. The Secretary of State for Defence and Ministry of Defence [1988] 2 WLR 145. However, it is not disputed that to date no one (including Mr. Pearce) has been able to successfully demonstrate in a civil action for compensation that an illness was, on the balance of probability, caused by radiation from the Christmas Island nuclear test programme.   2.    Wa