CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 juin 1998

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text-align:center; page-break-after:avoid; font-size:14pt } .sE04D62DC { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:12pt } .s719459F8 { width:11.09pt; text-indent:0pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s3133A7C8 { font-family:Arial; color:#0069d6 }         CASE OF McGINLEY AND EGAN v. THE UNITED KINGDOM   (10/1997/794/995-996)                       JUDGMENT   STRASBOURG     9 June 1998       In the case of McGinley and Egan v. the United Kingdom [1] , The European Court of Human Rights, sitting, in accordance with Article   43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules   of Court A [2] , as a Chamber composed of the following judges:   Mr   R. Bernhardt , President ,   Mr   J. De Meyer ,   Mr   N. Valticos ,   Mr   R. Pekkanen ,   Mr   J.M. Morenilla ,   Sir   John Freeland ,   Mr   A.B. Baka ,   Mr   G. Mifsud Bonnici ,   Mr   V. Butkevych , and also of Mr   H. Petzold , Registrar , and Mr   P.J. Mahoney , Deputy Registrar , Having deliberated in private on 28 November 1997, 3 February and 21   May 1998, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 22   January 1997, within the three-month period laid down by Article   32 §   1 and Article   47 of the Convention. It originated in two applications (nos. 21825/93 and 23414/94) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article   25 by Mr Kenneth McGinley on 20   April 1993 and Mr Edward Egan on 31 December 1993 respectively. Both the applicants are British nationals. The Commission’s request referred to Articles   44 and 48 and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article   46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6, 8 and 13 of the Convention. 2.     In response to the enquiry made in accordance with Rule   33 §   3 (d) of Rules   of Court A, the applicants stated that they wished to take part in the proceedings and designated the lawyer who would represent them. On 27   February 1997 the President of the Court, Mr R. Ryssdal, authorised this lawyer to represent the applicants despite the fact that he was not resident in one of the Contracting States (Rule 30 § 1). 3.     The Chamber to be constituted included ex officio Sir John Freeland, the elected judge of British nationality (Article   43 of the Convention), and the President of the Court (Rule 21 § 4 (b)). On 21   February 1997, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr J. De Meyer, Mr N. Valticos, Mr R. Pekkanen, Mr   J.M. Morenilla, Mr A.B. Baka, Mr G. Mifsud Bonnici and Mr   V.   Butkevych (Article   43 in fine of the Convention and Rule   21 §   5). 4.     As President of the Chamber (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the United Kingdom Government (“the Government”), the applicants’ lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and   38). Pursuant to the order made in consequence on 25   March 1997, the Registrar received the applicants’ and the Government’s memorials on 2   October 1997. 5.     On 24   April 1997 the President decided to grant Liberty and the Campaign for Freedom of Information, two non-governmental human rights organisations based in London, leave to submit joint written comments on specified issues in the case (Rule   37 §   2). On the same date he refused such leave to the New Zealand Nuclear Test Veterans’ Association. The comments of Liberty and the Campaign for Freedom of Information were received by the Registrar on 1   July 1997. 6.     On 31 October 1997 the President granted leave to the applicants to submit supplementary written observations. These were received by the Registrar on 18 November 1997. 7.     On 21 November 1997, Mr R. Bernhardt, Vice-President of the Court, replaced, as President of the Chamber, Mr Ryssdal, who was unable to take part in the further consideration of the case (Rule 21 § 5). 8.     In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 26   November 1997. The Court had held a preparatory meeting beforehand.   There appeared before the Court: (a)   for the Government Mr   M. Eaton , Foreign and Commonwealth Office,   Agent , Mr   J. Eadie , Barrister-at-Law, Mr   N. Lavender , Barrister-at-Law,   Counsel , Mrs   J. Alexander , Ministry of Defence, Mr   T. Wilson , Ministry of Defence, Mr   D. Smith , Department of Social Security, Dr   C. Sharp , National Radiological Protection Board,   Advisers ; (b)   for the Commission Mrs   J. Liddy ,   Delegate ; (c)   for the applicants Mr   I. Anderson , Advocate,   Counsel . The Court heard addresses by Mrs Liddy, Mr Anderson and Mr Eadie. AS TO THE FACTS I.   the circumstances of the case A.   The Christmas Island nuclear tests 9.     Between 1952 and 1967 the United Kingdom carried out a number of atmospheric tests of nuclear weapons in the Pacific Ocean and at Maralinga, Australia, involving over 20,000 servicemen. Among these tests were the “Grapple Y” and “Grapple Z” series of six detonations at Christmas Island in the Pacific Ocean (November 1957–September 1958), of weapons many times more powerful than those discharged at Hiroshima and Nagasaki. 1.   The line-up procedure 10.     During the Christmas Island tests, service personnel were ordered to line up in the open and to face away from the explosions with their eyes closed and covered until twenty seconds after the blast. The applicants alleged that the purpose of this procedure was deliberately to expose servicemen to radiation for experimental purposes. The Government denied this and stated that it was believed at the time of the tests, and was the case, that personnel were sufficiently far from the centre of the detonations to avoid being exposed to radiation at any harmful level and that the purpose of the line-up procedure was to ensure that they avoided eye damage and other physical injury caused by material blown about by the blast. 2.   Radiation levels records 11.     No record exists of the degree of exposure to radiation, if any, of servicemen such as the applicants, since film badges (which turn black if exposed to radiation) were issued only to the approximately 1,000 predominantly non-service personnel on Christmas Island who were working in identified, controlled and active areas. According to the applicants (see paragraph 78 below), this decision was taken to avoid future liability for radiation-caused harm. According to the Government, however, experience of earlier nuclear test explosions in Maralinga, Australia, where film badges had been issued to all personnel, had shown that personnel with duties such as the applicants’ were not exposed to measurable levels of radiation. 12.     Documents containing the original contemporaneous recordings of environmental radiation levels in the vicinity of Christmas Island following the tests were stored at the Atomic Weapons Research Establishment (“AWRE”) at Aldermaston, England. Although these documents were not available for inspection by members of the public, the Government claimed that since the information contained in them would not have given rise to security concerns, they could have been produced if required for the purposes of proceedings before the Pensions Appeal Tribunal (“PAT” – see paragraph 59 below). 13.     In 1993 a summary of “all the surviving data” gathered by the environmental monitoring programme was published as Technical Note   no.   16/93, “Environmental Monitoring at Christmas Island 1957 ‑ 1958”. This, inter alia, described the environmental monitoring programme set up for the tests and included sample measurements of radiation in the air, sea water and deposited on the ground. The sources of the information upon which the technical note was based were also listed. 14.     The Government annexed to their memorial to the Court in the present case a number of documents, not hitherto in the public domain, including a report by the AWRE of the measurements made of radioactive fall-out on various Pacific islands, including Christmas Island, during April ‑ May 1958 (Grapple Y) and of the concurrent programme of fish sampling; a report by Major J.T. McLean describing measurements of fallout on various Pacific Islands between 1 July and 30 November 1958 (Grapple Z); a report of residual radiation measurements following the Grapple Y explosion on Christmas Island; a summary statement of environment radiation measurements following the Grapple Y explosion, by AWRE, dated May 1958; and interim reports on radiological measurements following the Grapple Y and Grapple Z detonations. B.     The particular circumstances of the first applicant’s case 1.   Mr McGinley’s presence during the Christmas Island tests 15.     Mr Kenneth McGinley was born in 1938 and lives in Paisley, Scotland. 16.     In 1956, following a medical examination which found him fit for full combat service in any part of the world, he was enlisted into the army as a sapper with the Royal Engineers. In December 1957 he was posted to Christmas Island where he worked as a plant operator at Port London and in the quarries at the northern end of the island. According to information supplied by the Ministry of Defence (“MOD”) for the purposes of his pension application (see paragraph 22 below), he was present at a distance of approximately 25 miles (40 kilometres) from the following test detonations: Grapple Y on 28 April 1958, Grapple Z on 22 August 1958, Grapple Z2 on 2 September 1958, Grapple Z3 on 11 September 1958 and Grapple Z4 on 23 September 1958, in which three nuclear explosive devices in the megaton range were detonated as high air bursts over the sea to the south of Christmas Island and two balloon-borne nuclear explosive devices in the kiloton range were detonated over the south-east corner of the island.   2.   Mr McGinley’s medical records 17.     Mr McGinley stated in his pension application (see paragraph 21 below) that four days after the test explosion on 28 April 1958 he attended his medical officer on Christmas Island because he had developed nausea, diarrhoea and itchy blisters on the backs of his hands, neck and cheeks. He stated that he was treated for the blisters with a plastic spray twice a day for ten to twelve days. No contemporaneous record of this treatment has been produced. The transcripts of his medical records set out in his Statement of Case to the PAT (see paragraph 28 below) contained the following entries. 18.     He was treated on Christmas Island between 15 and 23 September 1958 for a throat infection and in the United States’ Tripler Army Hospital and on Christmas Island for tonsillitis in October and November 1958. In February 1959 he was admitted to the Catterick Military Hospital, England, suffering from influenza. In August 1959 he was admitted to the Cowglen Military Hospital in Scotland suffering from a duodenal ulcer, which led to a recommendation that he be discharged from the army as unfit for further military service. This was effected on 10 November 1959 and he was awarded a 20% pension in relation to the ulcer since it was considered to be attributable to military service. 19.     In his statement on discharge, in response to the question “If you are suffering from any diseases, wound, or injuries, state what they are, and also when and where they first started…”, he referred to out-patient treatment which he had received in Germany in June 1957 for a torn cartilage and on Christmas Island in May 1958 for a broken ankle; this latter treatment had not been recorded elsewhere in the service medical records contained in the Statement of Case. In response to the question “Give details … of any incidents during your service which you think caused or made worse your disability”, he referred to his service in May 1959 as a plant operator in Northumberland, England, and the fact that “the food consisted of compound rations three meals per day”. He made no mention of the conditions he allegedly developed following the test explosion on 28 April 1958 (see paragraph 17 above). 20.     Subsequent to his discharge, the medical records show that Mr   McGinley continued to suffer stomach pain and in August 1962 he underwent an operation to remove the duodenal ulcer. In June 1968 he was admitted to hospital for a week suffering from renal colic. In July 1976 he had a sebaceous cyst removed from his right cheek. In December 1976 he was diagnosed as infertile. 21.     In June 1980 he applied for his pension to be reviewed on the ground that the condition of his ulcer had deteriorated. The pension was increased to 30%, reduced again to 20% in June 1982 and restored to 30% on 13   December 1982 following an appeal to the PAT. 3.   Mr McGinley’s application for a pension based on complaints allegedly related to exposure to radiation 22.     Following a series of articles in the press in 1982 about the potential effects of the Christmas Island explosions on those exposed to them, Mr   McGinley came to attribute his health problems to his service on the island and became chairman of the British Nuclear Tests Veterans’ Association (“BNTVA”), an organisation which campaigned for compensation for the servicemen present during the tests. 23.     On 1   April 1984 he made a claim for an increase in his pension, complaining of depression, sterility and severe arthritis. In his application he described the line-up procedure followed during the tests and the rash he had allegedly developed subsequently (see paragraphs 10 and 17 above), and continued: “I consider that my problems are directly linked with radiation exposure. Since leaving the service I have experienced bouts of moodiness and at time [ sic ] unexplained attacks of very quick tempered actions. Then later regret them. I have been examined at the Western Infirmary in 1976 and diagnosed as sub-sterile. My own doctor … believes there is a direct link. I have also suffered from mysterious paralysis of legs and arms and have been for the past four years been [ sic ] in extreme pain sometimes 24 hours per day.” 24.     In response to this application, the Department of Social Security (“DSS”) made enquiries of Mr McGinley’s general practitioner (“GP”) and the MOD. His GP reported that the applicant’s records showed treatment for a duodenal ulcer in 1960 and a stomach ulcer in 1980, and an investigation of fertility in 1977. In 1983 the applicant had complained of arthritis, but the specialist who had given him a full medical examination could find no evidence of any organic disease. The GP also stated that Mr McGinley suffered from an acneiform skin condition and also reported “one positive finding – of which he is unaware – is a polycythaemia (haemoglobin level 17.6%) [a disorder whereby an abnormally high number of red blood cells are produced]”. 25.     The MOD responded to the DSS’s enquiries by stating that the areas on Christmas Island in which the applicant had served were not subject to fall-out, and therefore: “His radiation exposure from the UK nuclear tests was ZERO and the radiation effective dose equivalent which it represents was ZERO. His overall radiation dose from the ever present background radiations was no more and probably less than he would have received had he remained in UK instead of seeing service in the South Pacific area in 1958. As his radiation effective dose was ZERO, ex-Spr [sapper] McGinley’s medical condition would not have been caused by ionising radiations from the UK nuclear test programmes.” 26.     On 30 November 1984 Mr McGinley’s claim was refused, on the grounds that there was no evidence that the condition of his ulcer had deteriorated or that his reduced fertility, facial acne, right renal colic or arthritis had been either attributable to or aggravated by his service in the armed forces. 4.   Mr McGinley’s appeal to the Pensions Appeal Tribunal 27.     On 21 January 1985 the applicant appealed to the PAT, stating: “I was deliberately exposed to unknown hazards i.e. THREE HYDROGEN BOMB TESTS in 1958 for the Government’s Scientific Curiosity Programme… My own Military Medical Records have been ‘doctored’ along with many other members of the BNTVA. I have been victimised by the Ministry of Defence in that they have admitted that they advise the DSS on Medical matters of Nuclear Tests Participants…” 28.     On receipt of the notice of appeal, the DSS prepared a Statement of Case for the PAT (see paragraph 57 below). Thus, on 11 February 1985, an enquiry was sent to the Medical Records Section of the MOD, asking for all the available medical records relating to the applicant between December 1957 and December 1958 and/or confirmation that he had been treated for a rash on his body and face on Christmas Island at some time during this period. On 13 February 1985, the MOD replied: “No A & D [admission and discharge] books held under particulars quoted. N/T [no trace] medical records. “   29.     The DSS also sought further medical evidence, including hospital case notes and the following reports from the applicant’s GP and a number of specialists who examined him for the purposes of his appeal. Mr McGinley’s GP stated that he considered him to be “fit within limits”, although he had some reservations, namely the polycythaemia and sterility. The psychiatrist who saw Mr McGinley did not consider that he was suffering from any psychiatric condition. The consultant rheumatologist concluded that the pain and stiffness in his hands, arms, shoulders and neck of which the applicant complained related to normal wear and tear and could “find nothing to connect it with radiation exposure”. The dermatologist reported that the appearance of the applicant’s skin was consistent with the long-term effects of untreated constitutional acne vulgaris, concluding however that since he had no competence to give an opinion as to whether this condition might have been linked to exposure to radiation, the opinion of an expert familiar with the effects of ionising radiation should be sought. The DSS declined to follow this advice since they were satisfied by the MOD’s statement that Mr McGinley had not been exposed to radiation. The consultant urologist found that Mr McGinley was not suffering from any kidney disease. In relation to his infertility he stated: “… it is impossible to be certain of its cause as there is no indication of the patient having had a normal seminal analysis prior to his alleged exposure to ionising radiation in 1957. His seminal analysis was performed in 1976 at which time he was 38 years of age and to which age many men are beginning to show a reduction in sperm count. The incidence of oligospermia in the normal male population at this age is probably not less than 10%. In all, it is impossible to incriminate exposure to ionising radiation as a primary cause of the patient’s subfertility problem…” 30.     Also included in the Statement of Case to the PAT was the opinion of a DSS medical officer, who explained that, in the light of the medical evidence and the MOD’s statement that Mr McGinley had not been exposed to ionising radiation, it was not considered that the disablement from acne vulgaris, generalised osteoarthritis or reduced fertility with associated nervous symptoms were attributable to or had been aggravated by service in the armed forces. In view of the consultant urologist’s report, the applicant was found not to be suffering from right renal colic. 31.     An edited version of the Statement of Case, omitting information that it was “undesirable in the interests of the applicant to disclose to him”, was sent to Mr McGinley (in accordance with Rule 22 of the Pensions Appeal Tribunals (Scotland) Rules 1981). His representatives, the British Royal Legion, received an unedited version. The applicant then had the opportunity to make written submissions to the PAT, adduce additional evidence or request the production of documents in accordance with the procedure under Rule   6 of the Tribunal Rules (see paragraph 59 below), none of which he did. Together with his representative, he attended the hearing before the PAT where he made oral submissions. 32.     On 25 February 1988, the PAT dismissed the appeal. 5.   Mr McGinley’s further pension claims 33.     On 9 July 1991 the applicant submitted another claim based on alleged radiation-linked acne vulgaris, sterility and arthritis, but he did not pursue it after the DSS reminded him of his previous claim’s rejection in 1988. In 1992 he applied for and received an added assessment to his pension of 1.5% for hearing loss. C.     The particular circumstances of the second applicant’s case 1.   Mr Egan’s presence during the nuclear tests 34.     Mr   Edward Egan was born in 1939 and lives in Glasgow, Scotland. 35.     In October 1956, following a medical examination, he was enlisted into the Royal Navy, fit for full combat duty in any part of the world. On 28   April 1958 he was serving as a stoker on board Her Majesty’s Ship Ulysses which, according to information provided by the MOD, was positioned off Christmas Island at a distance of approximately 60 miles (97   kilometres) from the detonation of the Grapple Y test (15–20 miles according to the applicant: see paragraph 47 below). 2.   Mr Egan’s medical records 36.     Mr Egan’s medical records, as set out in his Statement of Case to the PAT, show, inter alia , that on 8 March 1958 he had an X-ray at a naval hospital in Auckland, New Zealand. From 2 to 10 April 1958 he was admitted to the War Memorial Hospital, Fiji. Subsequent to the test explosion on 28 April 1958, he was treated (in November 1958 and February–March 1959) for a common cold and influenza respectively and   he was given another X-ray on 30 April 1959. In March 1960 he fractured his right clavicle, in connection with which he was X-rayed on 30 May 1960. 37.     In early 1961 he applied to be discharged from the navy. In his statement on discharge, in response to the question “If you are suffering from any diseases, wound, or injuries, state what they are, and also when and where they first started …”, he referred only to the fractured clavicle, and he made no response to the question “Have you suffered from any diseases or injuries other than those mentioned above?” His medical report on discharge stated that his clavicle was badly deformed, but apart from this noted no problems. With regard to his respiratory system, it stated that he had had a full plate X-ray on 2 February 1961 which had detected nothing abnormal. On 8 February 1961, Mr Egan was discharged from the navy on compassionate grounds. 38.     In June 1965, following a chest X-ray, he was diagnosed as suffering from sarcoidosis, a chronic disease one of the symptoms of which is the formation of small nodules, or granulomas, in the lungs and/or other organs and tissues. His medical records show that in July 1965 he told the consultant chest physician to whom he had been referred that he had “had a normal X-ray in 1961 when in the navy, but was in hospital for two weeks in 1958 for investigation following a routine X-ray in New Zealand”. 3.   Mr Egan’s application for a war pension 39.     On 10 July 1970 the applicant applied for a pension in respect of his sarcoidosis, alleging that he had suffered from the disease since the date of his discharge from the navy and that it was attributable to the fact that “while serving at Christmas Island I was exposed to the blast from atomic bomb resulting in the burning of skin tissues”. 40.     On 14 July 1970 the DSS requested from the MOD all the available medical records relating to Mr Egan. The reply, which was received on the same day, read “No trace medical records”. On 12 August 1970 the applicant’s X-ray of 2 February 1961 was requested. 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. 41.     On 5 October 1970 the DSS made another enquiry of the MOD, asking whether any type of atomic device had been detonated whilst the applicant’s ship was stationed off Christmas Island and, if so, the distance of the ship from the epicentre of the blast; whether the ship was stationed sufficiently close for any crew members to have sustained radiation burns; whether the applicant was likely to have had cause to be in the open and thereby subjected to blast and, if so, what protective clothing had been issued. Finally, the DSS noted that there was reference in Mr Egan’s medical records to a two-week stay in hospital following a routine chest   X ‑ ray in 1958 (see paragraph 38 above), and asked the MOD whether there was any trace of his medical records for 1958 or of any X-rays taken for him during his service. The reply, dated 16 October and 17 November 1970, stated that all available medical documents had already been sent to the DSS, and that an examination of the records of the detonation on 28 April 1958 (held by the War Historical Branch) and of the ship’s log-book showed that HMS Ulysses was approximately 70 miles (113 kilometres) from the epicentre. The Naval Plan for Operation Grapple had required “Precautions to be taken by ships in target area – all exposed personnel are to be completely covered, anti-flash hats, gloves and goggles are to be worn, and long trousers tucked into socks”. 42.     On 12 January 1971 the DSS medical board found against the applicant. 43.     On 4 March 1971, following further representations by the applicant, the DSS again requested the MOD to trace his service medical records. The MOD replied that: “This case has been thoroughly dealt with and to date we cannot provide any further service documents.” 4.   Mr Egan’s appeal to the Pensions Appeal Tribunal 44.     On 5 April 1971 the applicant lodged an appeal with the PAT. For the purposes of the appeal the DSS obtained a medical report from a senior chest physician, who stated: “It is my opinion, that, from the initial radiographic appearances, the investigations carried out and the course of the disease, the diagnosis of the condition was correctly assessed as sarcoidosis. I think that the respiratory symptoms of cough and occasionally blood-stained sputum were associated with intercurrent respiratory infection. One possible alternative diagnosis is considered below… I think it is true to say that there is no reference in the international literature to any case of sarcoidosis specifically related to the effects of atomic explosion. The only possible aetiological factor which could be incriminated is exposure to beryllium copper alloy. I do not know whether this alloy was in use in April 1958. The features of chronic berylliosis … are very similar to those which occur in chronic sarcoidosis… 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.” The Government subsequently confirmed, in response to a parliamentary question, that beryllium is commonly used in nuclear test devices, although for security reasons it was not possible to disclose the materials used in specific devices. 45.     In response to an enquiry, the MOD informed the DSS that: “It is most unlikely that this man was ever exposed to beryllium copper alloy or other beryllium compounds in his work as a stoker. The log of HMS Ulysses has been carefully scrutinised especially with relation to the periods at Christmas Island in 1958 and there is no record to substantiate the story of atomic bomb blast. Certainly had he been ashore there would have been no significant exposure.” 46.     Also included in Mr Egan’s Statement of Case was the opinion of the Medical Division of the DSS, which stated, inter alia: “… In the first place we would explain that in the absence of evidence in favour of a diagnosis of chronic berylliosis and in the absence of any evidence that Mr Egan was ever exposed to beryllium copper alloy during service, we are satisfied that his lung condition has been correctly diagnosed as sarcoidosis… Mr Egan has based his claim on the ground that he was exposed to atomic radiation, which he says burned his skin tissues, while in the vicinity of Christmas Island in 1958 and instancing that he was in hospital for two weeks in 1958 following a routine X-ray taken in New Zealand. Dealing with the question of radiation, we would stress that … there is no evidence to suggest that exposure to atomic radiation – even a heavy dosage – can be a cause of sarcoidosis… There is no evidence that Mr Egan sustained burns of his skin as a result of atomic blast. Had such an event occurred, he would have required medical attention and we consider it to be inconceivable that such a sequence of events could have happened without some mention in his service documentation. In view of this and having regard to the recorded history, we are satisfied beyond reasonable doubt that there is no evidence at all to relate his sarcoidosis to the incident in question or to any other factor of his service. As regards Mr Egan’s contention that following a routine mass X-ray taken in New Zealand in 1958, he was admitted to hospital for investigation, it is pointed out that the routine X-ray in question was taken on 8 March 1958, more than six weeks before the atomic explosion. We do not consider it in any event likely that a further routine X-ray would have been taken during the same year and there is no evidence of an admission to hospital after the X-ray mentioned although we note he had treatment for a common cold in November that year… Also, … on clinical examination prior to discharge, apart from the after-effects of the fractured clavicle sustained off-duty, no disabilities were found…” 47.     On 7 December 1971 an edited Statement of Case was sent to the applicant and an unedited version was sent to his representatives, the Royal British Legion. Mr Egan then had the opportunity to make written submissions, adduce additional evidence or request the production of documents in accordance with the procedure under Rule 6 of the Tribunal Rules (see paragraph 59 below). He chose to make a supplementary statement in response, in which he disputed the fact that there was no medical record concerning the treatment he received in the hospital in Fiji (see paragraph 36 above), where he alleged to have been given a number of X-rays. He also disputed that there was no evidence in the log of HMS Ulysses that the crew was exposed to the atomic blast, contending that he was 15–20 miles (24–32 kilometres), rather than 70 miles (113 kilometres), from the explosion, that during it he had been made to stand on the upper deck wearing protective clothing and dark glasses and that he had felt ill with a cold and “dampness through my body” after it. 48.     The DSS then contacted the Medical Records Section of the MOD and the MOD’s Liaison Officer in Bath, requesting special searches for any medical records or X-rays relating to Mr Egan’s hospitalisation in Fiji between 2 and 10 April 1958 and confirmation of the distance of HMS Ulysses from the blast. No further medical records could be traced, but the MOD recalculated the ship’s position as 60 miles (97 kilometres) from the blast. 49.     On 29 August 1972 the PAT dismissed Mr Egan’s appeal. 5.   Mr Egan’s further pension claims 50.     On 21 October 1982 the applicant submitted another claim for a war pension based on allegedly 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 (see paragraph   58 below). 51.     On 11 July 1991 the DSS received another, similar, war pension claim, lodged by the BNTVA on Mr Egan’s behalf. He was again reminded of the PAT’s decision of 1972 and he replied, by letter dated 30 October 1991, that he was not happy with that decision. The DSS replied by referring the applicant to the fact that the PAT had looked at his service documents while considering his case. 52.     On 25 April 1992 the applicant made a further claim for a war pension based on deafness. The claim was rejected by the Secretary of State and Mr Egan did not appeal the decision. ii.   relevant domestic law and practice A.   Entitlement to war pensions   53.     The scheme for the payment of war pensions in the United Kingdom is currently contained in the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (“the Pensions Order”), the terms of which are in all material respects identical to the legislation in force at the time of Mr Egan’s application. 54.     The basic condition for the award of a pension is where “the disablement or death of a member of the armed forces is due to service”. “Disablement” is defined as “physical or mental injury or damage, or loss of physical or mental capacity”. For claims made more than seven years after the termination of service, the disablement or death is to be treated as “due to service” if it is due to an injury which is either attributable to service after 2   September 1939 or existed before or arose during such service and was and remains aggravated by it. The Pensions Order provides that where, upon reliable evidence, a reasonable doubt exists whether the above conditions are fulfilled, the benefit of that doubt must be given to the claimant (Pensions Order, Articles   3–5). 55.     According to the Government, pensions have been awarded in respect of radiation-linked claims to at least twenty-eight servicemen, or widows of servicemen, stationed on or in the vicinity of Christmas Island or other nuclear test sites in 1957–58. B.     The procedure for claims and appeals 56.     The scheme for the payment of pensions is administered in the first instance by the DSS. On receipt of an application, the DSS, inter alia , obtains the claimant’s service records (including service medical records) from the MOD and, with the assistance of additional medical evidence if required, assesses whether the claimant is suffering from a disability attributable to service. The Secretary of State for Social Security gives the final decision, based on this assessment. 57.     A claimant who is refused a war pension by the Secretary of State may appeal to the PAT (see the Pensions Appeal Tribunals Act 1943 and the Pensions Appeal Tribunals (Scotland) Rules 1981: “the Tribunal Rules”). This body is composed of a lawyer, a doctor and a serviceman or ex-serviceman of the same sex and rank as the claimant. The DSS provides the PAT with a “Statement of Case”, which includes, inter alia , a transcript of the claimant’s service records including service medical records, subsequent medical records and reports including those prepared at the request of the DSS doctor and a statement outlining the Secretary of State’s reasons for refusing the application. The claimant may submit an answer to the statement and/or adduce further evidence. There is then a hearing, which may not take place in the absence of the claimant without his consent, and at which the claimant may be legally or otherwise represented. 58.     A further appeal from the PAT lies on a point of law to the Court of Session in Scotland, with the leave of either the PAT or the court. C.   Disclosure of documents in proceedings before the PAT   59.     Rule 6 of the Tribunal Rules provides as follows: “ Disclosure of official documents and information 6(1)     Where for the purposes of his appeal an appellant desires to have disclosed any document, or part of any document, which he has reason to believe is in the possession of a government department, he may, at any time not later than six weeks after the Statement of Case was sent to him, apply to the President for the disclosure of the document or part and, if the President considers that the document or part is likely to be relevant to any issue to be determined on the appeal, he may give a direction to the department concerned requiring its disclosure (if in the possession of the department) in such manner and upon such terms and conditions as the President thinks fit… (2)     On receipt of a direction given by the President under this rule, the Secretary of State or Minister in charge of the government department concerned, or any person authorised by him in that behalf, may certify to the President – (a)     that it would be contrary to the public interest for the whole or part of the document to which the direction relates to be disclosed publicly; or (b)     that the whole or part of the document ought not, for reasons of security, to be disclosed in any manner whatsoever; and where a certificate is given under sub-paragraph (a), the President shall give such directions to the tribunal as may be requisite for prohibiting or restricting the disclosure in public of the document, or part thereof, as the case may be, and where a certificate is given under sub-paragraph (b) the President shall direct the tribunal to consider whether the appellant’s case will be prejudiced if the appeal proceeds without such disclosure, and, where the tribunal are of the opinion that the appellant would be prejudiced if the appeal were to proceed without such disclosure, they shall adjourn the hearing of the appeal until such time as the necessity for non-disclosure on the ground of security no longer exists.” D.   Public records 60.     “Public records” are defined by section 2 of the Schedule to the Public Records Act 1958 (“the 1958 Act”) as administrative and departmental records belonging to the Crown, including records of, or held by, any government department. The administration of the public records system is the responsibility of the Lord Chancellor. Public records which have been selected for permanent preservation are not usually transferred to the Public Records Office or other approved location in the public domain until thirty years after their creation, although a longer or shorter period may be fixed by the Lord Chancellor with the approval or at the request of the Minister or other person primarily concerned. E.     Civil actions by servicemen against the Crown 61.     The right to compensation under common law is enforceable through the civil courts if the plaintiff is able to prove on the balance of probability that, given the state of knowledge at the relevant time, the injury complained of was reasonably foreseeable and caused by the action or inaction of the defendant. 62.     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 sec