AS TO THE ADMISSIBILITY OF
Application no. 32555/96
by Thomas Michael ROCHE
against the United Kingdom
The European Court of Human Rights (Third Section), sitting on 23 May 2002 as a Chamber composed of
Mr G. Ress, President,
Mr I. Cabral Barreto,
Sir Nicolas Bratza,
Mr P. Kūris,
Mr B. Zupančič,
Mr J. Hedigan,
Mr K. Traja, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 31 January 1996,
Having regard to the Commission’s decision to communicate the application on 23 October 1997,
Having regard to the observations of the Government dated 9 March 1998,
Having regard to the Commission’s decision to adjourn the application on 15 September 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the Court’s decision to continue the adjournment of its examination of the application on 5 September 2000 and its decision to resume its examination of the case of 30 January 2001 and, in this later respect, to request further observations of the Government together with the applicant’s observations in response,
Having regard to the observations submitted by the respondent Government and those submitted in reply by the applicant,
Having deliberated, decides as follows:
The applicant, Thomas Michael Roche, is a United Kingdom national, who was born in 1938. He is currently resident in Lancashire and is represented by Mr J. Welch, a solicitor with Liberty, a civil liberties non-governmental organisation in London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows. In 1953 the applicant, then 15 years old, joined the British army. He was discharged in 1968, for reasons unrelated to the present application.
1. The Porton Down tests
The Chemical and Biological Defence Establishment (“CBDE”) at Porton Down was established during the First World War in order to conduct research into chemical weapons with a view to advancing the protection of the United Kingdom’s armed forces against such weapons. The research included tests of the gases on humans as well as on animals.
(a) Alleged tests in 1962
The applicant alleges as follows. In 1962 he was invited to Porton Down; he was medically examined on arrival; he was asked on three or four occasions to enter a sealed and unventilated room where he was seated and strapped to a chair; over a period of about 6 hours, drops of mustard gas were applied to patches of tissue which patches were taped to his skin; and he was told that, if he was unlucky, he might suffer temporary pain or discomfort. The Government argue that the records do not indicate that the applicant took part in any tests in 1962.
(b) Tests in 1963
It is not disputed that between 13 and 19 July 1963 the applicant participated in two tests in Porton Down. One involved a nerve gas (an organophosphorous compound known as G-agent or “GF”): the test is described in the relevant records as “exposure to single breath GF” and is likely to have taken place on 16-17 July 1963. The second test involved mustard gas, is described in the relevant records as “H sensitivity and penetration” and it probably took place on 16 July 1963.
The applicant alleges that the test took place as follows. He was told before the test that the experiment “could not harm a mouse”, he was placed in an air-tight glass-partitioned cubicle containing a face mask, the mask was placed over his mouth and nose, the fitting was checked and the chamber was sealed. A loudspeaker informed him that the test was about to begin and to inhale normally. The applicant recalls an immediate tightening of the chest muscles and lungs which wore off after the end of the test. For the following 24 hours blood samples were taken at regular intervals.
The Government submit, as regards the GF test, that diluted gas vapours were put into a gas chamber and volunteers took a single breath of air through a tube connected to that chamber. The mustard gas test was carried out in two parts: the first involved a sensitivity test (placement of a dilute solution of the gas on the participant’s upper arm) and, if the participant was not demonstrably sensitive to that test, the second part consisted of putting a drop of dilute mustard gas solution on protective clothing left in place on the participant’s body for 12-24 hours. The participants were monitored before and after the tests. The rooms were properly ventilated, the dosages were small and safe and the tests were safely and carefully planned and controlled.
2. The applicant’s search for relevant records
In 1987 the applicant developed high blood pressure and now suffers from hypertension and bronchitis. He has not worked since 1988 and is registered as an invalid.
During his doctor’s initial investigation into these illnesses, the applicant told his doctor about the Porton Down tests. While the applicant claims that his doctor investigated no further, a letter (submitted by the applicant) dated 14 November 1989 from Porton Down refers to the fact that copies of the applicant’s service medical records (excluding the Porton Down records) were supplied on a “medical in confidence” basis to his doctor in response to that doctor’s query in late 1987.
Following a further enquiry from the applicant’s doctor, Porton Down confirmed, in that letter dated 14 November 1989, the applicant’s participation in a GF gas test in the week beginning in July 1963. That test was preceded and succeeded by medical tests which had not revealed any abnormality. The letter also referred to five blood tests conducted after the GF test and to their results, and confirmed that the applicant had also taken “Peak Flowmeter measurements” and “breath holding tests”, a clothing penetration study and a battery of personality tests. The results did not show any need for medical reference. The letter was marked “medical in confidence”. The applicant’s doctor’s stamp on the letter indicates that his doctor decided to tell the patient that all was normal. Consequently, the applicant did not see the letter until he persuaded his doctor to show it to him in 1994.
In January 1994 the applicant formed the Porton Down Volunteers’ Association with the object of seeking recognition and redress for test participants. The association has over 300 members to date.
On 2 February 1994 the applicant wrote to the Minister of Defence requesting copies of his medical records and of the reports on the tests carried out on him. The reply from the CBDE at Porton Down noted that, while the Health Records Act 1990 did not apply to records compiled before November 1991, it had long been Ministry of Defence policy to release medical records to a doctor on a “medical in confidence” basis “when they are needed for management of a particular case”. It was on that basis that the applicant’s doctor had been provided with information in 1989. The letter went on to point out that it was “entirely up to your own doctor how much or how little of <this information> he conveys to you”. The CBDE wrote to the applicant in similar terms in its letter of 20 April 1994.
On 2 December 1997 a Member of Parliament wrote to the applicant following their meeting. He referred to the applicant’s (and other test participants’) concerns that information about their participation was being withheld. He confirmed that this was not the case, but rather reflected record-keeping at a lower standard than that which pertained in 1997. Copies of the records noted at 4(a)-(c) below were provided as these documents were available to any participant who requested records in respect of their test participation. Much GF related research work had already been published in open literature or was in the public records’ office. The review of files to be disclosed would continue and the applicant was given a list of all relevant research papers already published between 1957 and 1987. A full independent and long-term study of the health impacts of test participation was not, however, considered feasible or practical.
3. The applicant’s domestic proceedings prior to his application
(a) Application for a service pension – the Secretary of State
On 10 June 1991 the applicant submitted a claim for a service pension based on hypertension and breathing problems. The Department of Social Security (“DSS”) obtained copies of his service and civilian medical records together with a report from the applicant’s doctor which report confirmed that he suffered from hypertension, chronic obstructive airways disease (bronchitis) and late onset of bronchial asthma. His records revealed that his present condition had first manifested itself was 1981 and that he was examined by a consultant in 1989 who doubted that the applicant’s bronchial asthma was caused by exposure to nerve gas. On 28 January 1992 the Secretary of State rejected his claim for a service pension. Appeal forms were sent to the applicant but he did not then pursue an appeal.
(b) Judicial review proceedings
The applicant consulted solicitors in 1994 and obtained legal aid for proceedings. By letter dated 14 November 1994 to the Secretary of State, his solicitors threatened proceedings, inter alia, alleging negligence on the part of the Ministry of Defence and demanding all medical and laboratory records in the possession of the Secretary of State or of the CBDE at Porton Down during the period of the experimentation in 1962 and 1963, failing which, the applicant would apply to the High Court for pre-action discovery. On 3 August 1995 the Secretary of State issued a certificate pursuant to section 10 of the Crown Proceedings Act 1947 (“the 1947 Act”), which certificate read as follows:
“Insofar as the personal injury of <the applicant> is due to anything suffered as a result of his service in the Army between 16 February 1954 and 2 April 1968, I hereby certify that his suffering that thing has been treated as attributable to service for the purpose of entitlement to an award under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983, which relates to disablement or death of members of the Army.”
The applicant’s legal aid certificate was consequently discharged.
(c) The applicant’s appeal to the Pensions Appeals Tribunal (“PAT”)
Following the judgment of the Court in the case of McGinley and Egan v. the United Kingdom (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III), the applicant requested an adjournment of the present application pending his pursuit of an appeal to the PAT and, in particular, a remedy under Rule 6 of the Pensions Appeal Tribunals (England and Wales) Rules 1980 (“the Tribunal Rules”). The present application to this Court was adjourned as noted above.
On 6 November 1998 the War Pensions Agency (“WPA”) sent an information booklet on the PAT to the applicant apologising for the delay in responding to his request. On 8 November 1998 the applicant lodged an appeal to the PAT. On 6 January 1999 the applicant asked the WPA to inform him of progress in his appeal and, in particular, in the preparation of the Statement of Case by the Secretary of State. On 3 February 1999 he asked the WPA to respond to his previous letter.
In February 1999 the applicant received the Statement of Case and, on 2 March 1999, he requested the WPA to grant an extension of the time-limit for the submission of his “Answer” to the Statement of Case. On 21 May 1999 the applicant asked the WPA for a further extension (56 days) in light of new information (the Government’s observations in the present application). On 17 July 1999 the WPA granted the extension.
On 30 July 1999 the applicant’s Answer to the Statement of Case was submitted to the WPA along with a letter which noted that the Answer included “an application for disclosure of official documents and information pursuant to Rule 6(1) of the [Tribunal Rules]”. A list of 20 categories of documents and records (mainly relating to his service medical history and the tests in Porton-Down) were requested.
On 10 August 1999 the WPA responded by pointing out that:
“Enquiries are now being made to obtain all the information requested under Rule 6(1) of the [Tribunal Rules]. Upon receipt of this information, I will ask for the agreement of the President of the PAT to disclose it.”
On 13 December 1999 the applicant asked for a reply to his letter of 30 July 1999 or to his “application for disclosure of official information under Rule 6(1)”. On 28 January 2000 he sent a further reminder to the WPA.
On 2 February 2000 the WPA told the applicant orally that a doctor was reviewing the material but that the PAT should then be able to hand it over.
On 4 February 2000 the WPA confirmed to the applicant that it was:
“able to incorporate all the medical evidence held by ourselves into a Supplementary Statement of Case and this will be actioned and issued to all interested parties as soon as our medical branch have commented on the further information held on file”
On 13 April 2000 the Supplementary Statement of Case was sent to the PAT and to the applicant by the Secretary of State. On 25 April 2000 the applicant’s representative telephoned the WPA and the WPA informed him that a date could be fixed for the appeal. On 11 July 2000 that representative spoke to a clerk of the PAT who said that the papers were with the President of the PAT
On 11 July 2000 the applicant requested information concerning the progress of his application under Rule 6(1) of the Tribunal Rules from the President of the PAT. On 3 August 2000 the President of the PAT responded as follows:
“Your letter of 11 July asked for arrangements to be made to list the appeal. I can see no difficulty in doing this so far as the [PAT’s] administration is concerned: I gather from the file that the reason for withholding this case from listing was because we had been asked not to list it in view of the production of further documentary evidence and the need to await the Secretary’s of State’s response.
However, in reading through the papers there is one matter which may raise a potential difficulty in listing. I refer to the “Appellant’s Answer to the Statement of Case” ... Page 6 of that “Answer” contains a paragraph which is headed “Documents required by the Appellant pursuant to Rule 6(1) of the [Tribunal Rules]“ ... Under the terms of Rule 6 of the Tribunal’s Rules, an application for the relevant disclosure should be made to the President. Unfortunately, setting out a Rule 6 matter in an “Answer” is not the same thing, because the Answer is directed to the Secretary of State and will form part of the Statement of Case documents which would normally only be judicially considered when the appeal is listed. Accordingly, the possibility that you wish to pursue an application under Rule 6 of the Tribunal’s Rules has only now come to light. I will, of course, consider such an application if it is made. I would therefore, in the first instance, like to know whether you do, indeed, intend paragraph 18 of the “Answer” to be an application to me under Rule 6 of the Tribunal’s Rules. You will obviously have considered the terms of Rule 6 and, in particular, the phrase “and, if the President considers that the document or part is likely to be relevant to any issue to be determined on the Appeal ...”. If you do intend paragraph 18 to be an application under Rule 6, I would therefore be grateful for any observations that would assist my consideration of whether the documents mentioned are likely to be relevant to any issue to be determined on the Appeal. A further consideration is the identification of the Department of State which you consider should be addressed in any direction I might give concerning disclosure of any documents mentioned in paragraph 18 of your “Answer”.”
On 9 November 2000 the applicant confirmed to the President of the PAT that paragraph 18 of his Answer (submitted in July 1999) was a Rule 6 request. As to the relevance of the requested documents, the applicant pointed out that the PAT had to decide whether the chronic obstructive airways disease was attributable to, or aggravated by, service. His case was that his illness was attributable to the Porton Down tests. The applicant submitted that the President should not limit himself to the documentation which he had been able to produce or which the Secretary of State had voluntarily disclosed, as otherwise Rule 6 would be redundant. He submitted that the PAT had to take into account documentation which was not available at the time the service pension was originally refused by the Secretary of State. Since it is the aetiology of the applicant’s illness which was at issue, any documents which could shed light on this or which could support or undermine the Secretary of State’s decision would be relevant to the PAT appeal. Any documents evidencing an alternative aetiology would also be relevant. The documents already listed in the applicant’s “Answer” would, according to the applicant, confirm (either on their own or in conjunction with other documents) the substances to which the applicant was exposed at Porton Down and should reveal how they were administered and in what dosages, which information should shed some light on the aetiology of his illness.
On 13 November 2000 the President of the PAT wrote:
“Thank you for your explanation of the general potential relevance of the documentary information mentioned, in respect of issues raised in the Appeal. I accept that submission in principle. What, however, I would like to clarify are the exact terms of any direction to be made under Rule 6. For that purpose I would propose two steps: (1) that you submit a draft direction order to me which deals with the documentary information listed in paragraph 18 of the “Appellant’s Answer to the Statement of Case”; (2) An oral hearing of the application at which the draft can be considered further. It may help if I say that in proposing this procedure I am concerned that the wording of some of your heads of information appear to be ambiguous and/or lack clarity so that they may be ineffective, lead to delay or be otherwise counter productive to the purposes of a direction order under the Rule.”
The President went on to agree that an early hearing date would be desirable and requested the applicant to contact him to agree a date. The applicant therefore submitted a draft direction which listed essentially those documents already requested by the applicant in his Answer. By order dated 13 February 2001 the President of the PAT directed that those documents be disclosed by the Secretary of State.
The Secretary of State’s response to the direction of the President of the PAT (marked “medical in confidence”) is dated 6 July 2001. It referred to the documents submitted by the Government to this Court (4 and 5 below). He was unable to give a definitive response to the request for scientific and medical reports (whether published or prepared for internal use by Porton Down, the Ministry of Defence or other Governmental departments or agencies) on volunteer studies or experiments in Porton Down between 1957 and 1968, similar or related to the studies or experiments in which the applicant participated. A full and careful review had been undertaken and was a time-consuming process. Many of the documents identified as being possibly relevant to the request were classified. The Secretary of State had asked for an urgent review of the classification to be undertaken and, once the review was completed, the Secretary of State would let the PAT have his full response. Otherwise the Secretary of State provided various explanations of the documents already submitted in the Government’s observations to this Court, and details of the precise dates the applicant would have participated in the tests, of the levels of exposure to gases and of various headings and abbreviations in the disclosed documents.
4. Relevant records submitted by the Government to the Court (observations 9 March 1998)
(a) The alphabetical record book which records the applicant’s attendance at Porton Down between 13 and 19 July 1993;
(b) The summary record book which refers to the two tests carried out on the applicant involving GF and mustard gas and lists the monitoring procedures that were to be carried out on the applicant (chest x-rays, peak flowmeter tests, Quiz x 3x alcohol, breath holding tests and blood tests);
(c) A report entitled “Effects of Inhaled GF on Man” describes the single breath GF test and contains an analysis of the results of the tests carried out on 56 participants, believed to include the applicant’s test;
(d) Monitoring by blood tests. The Government submit that the results of the monitoring procedures would have been recorded but later destroyed once the relevant analytical report was prepared (see, for example, the report at (c) above). Accordingly, no monitoring records in respect of the mustard test can be traced. As to the GF test, the blood test results were retained (seven blood samples were taken from the applicant: one sample on 13 July 1963, one sample was taken immediately prior to his GF test and a series of five sample was taken after the GF test; and
(e) Explanation of the blood test results.
5. Relevant records submitted by the Government to the Court (observations dated 5 April 2001)
(a) The report card on the applicant’s pre-exposure x-ray;
(b) A report which describes the manner in which the sensitivity tests to mustard gas were performed dated August 1942; and
(c) A laboratory notebook entitled “Overgarment Tests. Mustard on Men” which provides information on the mustard gas test on the applicant. A copy of the front cover and of the three pages concerning the relevant test period were submitted.
6. “Porton Down Volunteers’ Information Services”
The armed forces have, since 1998, put in place services to deal with persons’ enquiries about their participation in the Porton Down tests. The information leaflets note that participants can request their test records, that a search would be carried out for references to the person and for additional evidence of actual procedures, that such information or copies could be made available, that reasonably comprehensive Porton Down records exist since 1942 and that participants could also request their service medical records.
7. Evidence submitted by the applicant as to the causal link between the tests and his illness
(a) A report dated 12 August 1953 containing the advice and recommendations of the special confidential committee set up following the death of a soldier during GF tests at Porton Down. The Public Records’ Office appears to be the source of this report;
(b) A report dated 12 November 1954 entitled “Vomiting and GB Poisoning” and headed “Secret”. It also appears to have been obtained from the Public Records’ Office;
(c) A document from the Public Records Office, marked “Secret”, headed “Porton Down No. 119”, dated 27 November 1959, entitled “History of the Service Volunteer Observer Scheme” and prepared by Wing Commander Bramwell of the Royal Air Force. It deals mainly with the difficulties experienced by the military authorities in obtaining sufficient human volunteers for the tests. It notes that as far back as 1922 the Physiological Sub-committee of the Chemical Warfare Committee commented on the fact that repeated tests on individuals of the staff produced general debility and that an investigation had been undertaken into the matter with a view to relieving the staff of this “duty”. The document recounts part of the history of chemical testing on servicemen (including mustard gas testing) and details part of the on-going discussion on compensation for servicemen (which question was noted as having been obscured by the fact that the relevant file at the war office had been mislaid). Reference is also made to an “incident” in 1953 (the death of a soldier during GF tests) which caused an investigation into the system of testing. No further GF tests had been carried out until the approval was given in January 1954 in line with the recommendations of a special confidential committee which had been set up (and which advice and recommendations are referred to at 8(a) above).
It is also noted that the War Office had decided in 1942 that no court of enquiry was necessary into a case where a serviceman had been burned by mustard gas “provided full records were kept in the individual Medical History Sheet”.
There are eight appendices attached to this document which mainly contain detailed regulations as regards the organisation and conduct of the tests on servicemen. Appendix III is entitled “Regulations for the Protection of Observers who are Submitted to Gas Tests for Experimental Purposes” and it reads, insofar as relevant, as follows:
“By the term “gas tests” is meant the exposure of the unprotected body, eyes, lungs or skin to the action of any toxic substances for experimental purposes. If a substance is not known to be toxic the same precautions must be observed until it is shown to be harmless.
A breathing test to determine the efficiency of the respirators in the gas chamber against very high concentrations of gas where breakdown of the respirator is anticipated will also be considered to be a gas test. ...
The Medical Officer will satisfy himself that all volunteers are fit and, by periodical examination, remain fit. ...
The Superintendent, Physiological Department will keep a careful and descriptive record of all gas tests on personnel. He will send this list to the Medical Officer of the station each week for his inspection. ...”
The chart at appendix VIII outlines the number of servicemen involved in the Porton Down tests between April 1945 and October 1959. In total it appears that 7130 servicemen were involved in the tests and that 2644 servicemen were exposed to GF;
(d) A paper entitled “Medical Effects of Chemical Warfare Agents” published in 1991 by the Working Party on Chemical and Biological Warfare (United Kingdom). This concentrates on the effects of exposure to chemical agents which might have been used during the Gulf War. It notes that the delayed and long-term effects of nerve agents depend on the degree of exposure although it concludes that even slight exposure to mustard gas can cause (among many other possible chronic and delayed effects) injuries to the respiratory tract including severe emphysematous bronchitis together with recurrent pneumonia and bronchiectasis;
(e) A letter from a Chemical Pathologist (University of Leeds) to the applicant’s representatives dated 5 December 1994 states that the applicant would require a full record of the relevant period of his life to support his claim that his health has been damaged by the tests including details of the exact agents to which he was exposed, the concentrations of those agents, records of the symptoms he experienced at the time, the health checks that were carried out on him and the time the tests were performed;
(f) A report entitled “Possible Long-Term Effects of Short-Term Exposure to Chemical Weapons” (published in 1984 by the US Committee on Toxicology of the National Research Council). This committee was appointed by the US Army in 1980 to conduct a study of the possible chronic adverse health effects on servicemen of experimental exposure to various chemicals at the US Army Laboratories in Maryland. The section on mustard gas lists chronic bronchitis among the possible long-term effects. In 1991 the US Government officially recognised that human subjects may have suffered adverse long-term health consequences as a result of their exposure to, inter alia, mustard agents during tests.
Consequently, a committee was set up by the Institute of Medicine in response to a request by the Department of Veterans’ Affairs to survey, inter alia, the links between mustard gas and specific illnesses and diseases. The voluminous report, published in 1993 and entitled “Veterans at Risk; the Health Effects of Mustard Gas and Lewisite”, notes that one of its major challenges was the lack of quantitative exposure data for the veterans who had served as human test subjects. However, it notes that knowledge was available by 1933 that mustard agents could produce long-term health problems and it concludes that there was evidence indicating a causal link between exposure to mustard case and many illnesses including chronic bronchitis. The recommendations mainly relate to an immediate notification process and to follow-up treatment for tests participants;
(g) In February 1993 the General Accounting Office of the United States published a report completed at the request of the Committee on Veterans’ Affairs of the United States Senate. The brief was, inter alia, to review the Department of Veterans’ Affairs’ handling of disability claims associated with chemical and biological warfare experiments (including mustard agents). The report notes that making decisions on such claims had proven difficult due to the lack of data available and that, consequently, only 13 of the 145 such claims for benefits had been approved by the Department of Veterans’ Affairs by July 1992. Accordingly, in July 1992 the Department for Veterans’ Affairs had revised its adjudicating procedure. To receive compensation, veterans with health problems known to be associated with exposure to mustard gas only needed to show that they participated in mustard gas testing - however, the report notes that the lack of available data meant that many persons had difficulty even in proving such participation. The report recommends, inter alia, that the relevant records on mustard gas testing be collected and provided to the Department of Veterans’ Affairs;
(h) A report entitled “Delayed Toxic Effects of Chemical Warfare Agents” (published in 1975 by the Stockholm International Peace Research Institute) emphasised the need for a physician to know, in the cases of delayed lesions, as many verifiable factors as possible as regards exposure to toxic compounds such as mustard gas. Noting that this information process is rendered more difficult in the case of military personnel due to the difficulty in obtaining information, the report points out that as long as complete health records with full information on the contact with toxic products are not provided, it would be difficult to establish any causal link between the relevant exposure and any sequelae; and
(i) An article entitled “The Unfought War” in the Bulletin of Atomic Scientists, December 1991 notes that the onus is on the Australian Department of Veterans to disprove a claim that a person is disabled because of established participation in chemical warfare tests.
8. The applicant’s submissions as to the policy of the Government as regards opening an investigation into the tests
The applicant refers in detail to the responses of Members of Parliament and of the House of Lords to questions put on the subject of chemical weapons’ testing on servicemen pointing out that the Government (unlike other Governments) refuse to conduct an investigation into the matter. He refers, inter alia, to the following responses:
(a) On 26 January 1994 the Director General of Porton Down described the procedure in respect of the participation of “service volunteers” in the tests. He stated that such volunteers were given a medical examination before and after the tests and recalled for check-ups “from time to time”. He pointed out that there was no evidence that service volunteers had had any deterioration in their health as a result of their participation in the tests. On 22 June 1994 that Director General also confirmed that it had long been the policy of the Ministry of Defence to release service medical records to a patient’s doctor on a “medical in confidence” basis when they were required for the management of a particular case;
(b) On 12 December 1994 Lord Henley stated that the Ministry of Defence would continue to release medical records as appropriate and the information provided to doctors would be released, if necessary. He repeated that there was no evidence over the previous 40 years that test participants had suffered harm to their health;
(c) In response to a question put to the Secretary of State as to the necessity for a public enquiry, the Government’s representative replied on 28 February 1995 that there was no evidence that any test participants had suffered any long-term damage to their health in the past four decades.
Similar responses as to the lack of evidence as to any harm to the test participants’ health were given by the Minister of State for the Armed Forces on 4 April 1995 and on 2 May 1995 in response to questions concerning the instigation of a study into the long-term health effects of exposure to chemical and biological substances; and
(d) On 27 June 1995 that same Minister of State stated that, while service medical records could be released if compiled after the date of entry into force of the Health Records Act 1990, no right of individual access existed for records compiled prior to that date and release could only be made to an individual’s doctor or solicitor when required for the management of a particular case.
B. Relevant domestic law and practice
1. Civil actions by servicemen against the Crown
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 defendant.
Until the end of the Second World War, legal proceedings could not be brought against the Crown. The enactment of the Crown Proceedings Act 1947 (“the 1947 Act”) changed this, section 2 of the 1947 Act providing that, subject to the provisions of the 1947 Act, the Crown would be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject in respect of torts committed by its servants or agents and in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer.
Members of the armed forces were to be treated exceptionally. If they died or were injured in the course of their duties, the Crown could not be sued in tort if the Secretary of State certified that the death or injury would be treated as attributable to service for the purposes of entitlement to a war pension. More particularly, section 10 of the 1947 Act provided as follows:
“Nothing done or omitted to be done by a member of the armed forces of the Crown while on duty as such shall subject him or the Crown to liability in tort for causing the death of another person, or for causing personal injury to another person, insofar as the death or personal injury is due to anything suffered by that other person while he is a member of the armed forces of the Crown if
(a) at the time when that thing is suffered by that other person, he is either on duty as a member of the armed forces of the Crown or is, though not on duty as such, on any land, premises, ship aircraft or vehicle for the time being used for the purposes of the armed forces of the Crown; and
(b) [the Secretary of State] certifies that his suffering that thing has been or will be treated as attributable to service for the purposes of entitlement to an award under the [Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983];
Provided that this subsection shall not exempt a member of the said forces from liability in tort in any case in which the court is satisfied that the act or omission was not connected with the execution of his duties as a member of those forces.”
A certificate issued under section 10 relates to the “casualty or other event” said to give rise to personal injury, rather than the personal injury itself (Pearce v. Secretary of State for Defence  A.C. 755, 804D-805). The 1947 Act was divided into four parts entitled substantive law, jurisdiction and procedure, judgments and execution and miscellaneous. Sections 2 and 10 were in part I of the 1947 Act.
The exception contained in section 10 of the 1947 Act was removed by the Crown Proceedings (Armed Forces) Act 1987. However, its removal was not retrospective. Accordingly, even after 1987, claims in tort by members of the armed forces (or their estates) who had died or been injured as a result of conduct which took place prior to 1987 could not proceed if the Secretary of State issued the relevant certificate.
On 22 January 2002 the High Court, in an action taken by a former member of the armed forces, declared section 10 of the 1947 Act incompatible with Article 6 § 1 of the Convention (Matthews v. the Ministry of Defence  EWHC 13 (QB)(22 January 2002).
In finding that section 10 amounted to a procedural bar to an existing right of action in tort and in thus finding Article 6 applicable, the High Court relied on the Tinnelly and McElduff judgment (Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom judgment of 10 July 1998, Reports 1998-IV), and on the Fogarty judgment (Fogarty v. the United Kingdom [GC], no. 37112/97, § 26, ECHR 2001-XI). The legitimate aim identified was efficiency and discipline in the armed forces.
As to whether the “blanket ban” imposed by a certificate under section 10 of the 1947 Act combined with an entitlement to apply for a service pension was a proportionate response to that aim, the High Court noted that section 10 may have been considered important immediately after the second world war but it was no longer so considered in light of its repeal (non-retroactively) in 1987.
However, while it noted that the section 10 certificate replaced the “vagaries and heavy litigation costs” of a fault-based system with the certainty and relative efficiency of the non-fault scheme of compensation (the service pension scheme), the latter scheme provided for the payment of comparatively modest benefits; where the injury was minor an individual would not obtain a service pension, whereas he would have been entitled to at least some damages, and a service pension was payable only on retirement from the armed forces.
The High Court concluded that this was an exceptionally and unacceptable high price to pay for not having to prove fault, an advantage only applicable in cases where such fault might be difficult to prove. Indeed, under the current scheme, the Secretary of State could withhold, cancel or reduce the service pension on the basis that the injury was caused or contributed to by the serious negligence or misconduct of the claimant. Neither was the High Court convinced that the choice to repeal the 1947 Act without retrospective effect was proportionate, considering, inter alia, that the finding of liability for conduct that was not a basis for liability when it took place, was far less pernicious than denying proper damages to persons injured as a result of negligence.
2. Service Pensions
(a) Entitlement to service pensions
The scheme for the payment of a service pension in respect of, inter alia, illnesses and injuries attributable to service is currently contained in the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (“the Pensions Order”).
The basic condition for the award of a pension is that “the disablement or death of a member of the armed forces is due to service” (Article 3 of the Pensions Order). “Disablement” is defined as “physical or mental injury or damage, or loss of physical or mental capacity” (Schedule 4 to the Pensions Order. Where claims are made more than seven years after the termination of service, Article 5(1)(a) provides that 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 continues to be 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 (Articles 5(4)).
Accordingly, negligence does not need to be established, the applicant must adduce reasonable evidence to establish a reasonable doubt that a causal link exists between his service and disablement and there is no limitation period.
(b) The procedure for claims and appeals
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. On the basis of this assessment, the Secretary of State (for Social Security) then decides on the award of a service pension.
A claimant who is refused a war pension by the Secretary of State may appeal to the Pensions’ Appeal Tribunal (“PAT” and see the Pensions Appeal Tribunals Act 1943 and the Pensions Appeal Tribunals (England and Wales) Rules 1980: “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, civilian 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. A hearing then takes place: it may not take place in the absence of the claimant without his consent and a claimant may be legally or otherwise represented. The PAT examination is de novo so that the appellant does not have to show that the Secretary of State’s decision was wrong. 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
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.”
3. Public records
“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. Pursuant to section 3 of the 1958 Act, 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. Those not so selected shall be destroyed or disposed of in another way.
Section 5 of the 1958 Act provides that public records (other than those to which the members of the public had access before their transfer to the Public Records Office) shall not be available for public inspection until thirty years after the creation of the records or such longer or shorter period as the Lord Chancellor may, with the approval or at the request of the Minister or other person who appears to the Lord Chancellor to be primarily concerned, consider.
4. Access to Health Records Act 1990 (“the 1990 Act”)
Prior to 1991 all medical records (civilian or service) were only disclosed on a “medical in confidence” basis. The 1990 Act came into force on 1 November 1991 and it sets down the rights of persons to access to, inter alia, their service and civilian medical records. It applies only to records compiled after the date of its entry into force and to records compiled “in connection with the care of the applicant”.
The applicant submits that he suffers from the effects of his exposure to toxic chemicals during the tests carried out on him in Porton Down in 1962 and 1963.
He complains that inadequate access to information about the tests which were performed on him in Porton Down constitutes a violation of Articles 8 and 10 of the Convention read alone or in conjunction with Article 14 of the Convention.
He also complains that the immunity accorded to the Ministry of Defence by a “section 10 certificate” constitutes a violation of his right of access to Court guaranteed by Article 6 § 1 and a violation of his rights guaranteed by Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention. He alternatively invokes Article 13 in relation to the section 10 certificate in the event that Article 6 § 1 is held not to apply arguing that that certificate meant that he had no effective remedy.
A. Article 35 § 1 of the Convention
1. Exhaustion of domestic remedies
The Government initially argued that the applicant’s failure to pursue the appeal to the PAT amounted to a failure to exhaust effective domestic remedies. Since the above-noted adjournment of the present application, the applicant has pursued that appeal process, including the application to the President of the PAT for a direction pursuant to Rule 6 of the Tribunal Rules. The Government maintain their position that the PAT appeal process, including the Rule 6 procedure, complies with the requirements of Article 6 so that until the entire PAT appeal process is completed the applicant’s case is inadmissible for failure to exhaust that domestic remedy.
The applicant argued that the adequacy and effectiveness of the PAT appeal and of the Rule 6 procedure should be joined to the merits of the application, given the relevance of those procedures to the merits of his complaints concerning access to information and to court.
The Court notes that the Secretary of State’s response of 6 July 2001 pointed out that further investigations were required before a definitive answer on disclosure could be given and that the appeal to the PAT has not terminated. It is further noted that the parties’ submissions on each of the applicant’s complaints refer to the adequacy and effectiveness of the appeal proceedings before the PAT and of an application pursuant to Rule 6 of the Tribunal Rules. The Court considers therefore that the question of the applicant’s completion of those procedures should be joined to the merits of his complaints (Kremzow v. Austria judgment of 21 September 1993, Series A no. 268-B, § 42, and the above-cited McGinley and Egan judgment, § 75).
It is true that the High Court has found, in the above-cited Matthews’ case, that section 10 of the 1947 Act is incompatible with Article 6 § 1 of the Convention. However, the present applicant’s complaints relate to a search for information prior to the entry into force, on 1 October 2000, of the Human Rights Act 1998.
Accordingly, the Court rejects the Government’s objection to the admissibility of the case on the basis of the applicant’s failure to exhaust domestic remedies.
2. Six months
The Court notes that, while the applicant’s complaints under Articles 8 and 10 concerning access to information refer to a continuing situation, his complaint under Article 14 (in conjunction with those Articles) specifically relates to an alleged discriminatory difference in treatment brought about by the Access to Health Records Act 1990.
However, any such difference in treatment would have arisen on 1 November 1991 when the 1990 Act came into force, from which date the six-month period started to run on the applicant’s complaint under Article 14 of the Convention. Since that complaint was introduced in January 1996, the Court finds that the applicant’s complaint under Article 14, in conjunction with Articles 8 and 10 of the Convention, concerning the 1990 Act has been submitted outside the time-limit set down in Article 35 § 1 of the Convention and is, as such, inadmissible within the meaning of Article 35 § 4 of the Convention.
3. Other admissibility issues
(a) The Government remark that, if a service pension is awarded to the applicant by the PAT, it would be difficult for him to maintain that he has been a victim of any violation of the Convention. However, this objection ratione personae was conditional on the award of a service pension to the applicant which award has not, at least as yet, been made. This objection to admissibility is also therefore rejected.
(b) The Government further argue that, since the applicant has obtained his “medical records”, his complaints about access to information should be struck out in so far as they relate to those records. The Court notes that the applicant’s complaints directly concern his access to information about his participation in tests in Porton Down in the 1960s and the means for obtaining access to such information. As noted above, the question of the information which has and has not been furnished to the applicant together with the means available to him to obtain such information constitute matters to be considered on the merits of the application.
(c) Finally, the Government note that certain results of the monitoring procedures ancillary to the GF and mustard gas tests (referred to in the alphabetical record book as chest x-rays, peak flowmeter tests, Quiz x 3x alcohol, breath holding tests and blood tests) were probably no longer retained once the relevant analytical reports on such procedures were completed (see “The Facts” at 4(d) above). They submit that, as regards the GF monitoring procedures, only the x-ray report card and the blood test results have been retained (and these have been submitted) but that no monitoring records in respect of the mustard gas test can be traced.
The Court notes that no submissions have been made as to when any such monitoring records would have been destroyed and, in particular, whether they would have been retained until after the date of the lodging of the Government’s declarations under former Articles 25 and 46 of the Convention on 14 January 1966.
Accordingly, the Court considers that the only complaints of the applicant’s which can be considered compatible ratione temporis with the provisions of the Convention are those which concern or relate to information or documents relevant to his participation in the GF and mustard gas tests in Proton Down which continued to exist after 14 January 1966.
B. Merits of the applicant’s complaints
The applicant maintains that he suffers from the effects of his exposure to toxic chemicals during tests carried out on him in Porton Down in 1962 and 1963 and, consequently, he has two complaints.
1. Articles 8 and 10 of the Convention – access to information
He complains that inadequate access to information concerning those tests constitutes a violation of Articles 8 and 10 of the Convention.
Article 8, in so far as relevant, reads as follows:
“1. Everyone has the right to respect for his private ... life, ... .
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 10, in so far as relevant, reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom ... to receive ... information and ideas without interference by public authority ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Government note that the applicant obtained his service medical records in 1987, and that his doctor obtained information as regards the Porton Down tests in 1989. If the applicant did not receive this information, it was because his own doctor did not give it to him and that doctor did not consider it necessary to request further information from Porton Down thereafter. By letter dated 2 December 1997 he received further documents (listed in “The Facts” at 4(a)-(c) above) and additional documents have been submitted with the Government’s observations in the present application (see “The Facts” at 4(d) and 5 above).
As to his complaint under Article 8, the Government maintain that Article 8 does not apply: it does not confer a general right of access to information and the principles underlining the access of Mr Gaskin to his childhood care documents, are not applicable in the present case (Gaskin v. the United Kingdom judgment of 7 July 1989, Series A no. 160).
Alternatively, any limitation of access to records was justified. The compilation of medical records prior to the coming into force of the 1990 Act was on the basis that any access to those records would be regulated by those best placed to decide on that access, namely the health professionals. Accordingly, those contributing to those records could express their opinions openly and fully, without fear of later actions, leading to records better capable of contributing to the continued care and treatment of the individual. Further, those contributing to those records have a legitimate right to the confidentiality of their contributions. Moreover, the interests of the individual were always weighed in the balance, by the possibility of disclosure on a “medical in confidence” basis, namely if the health professional determined this to be appropriate in the context of the individual’s continuing treatment.
As to the Porton Down records, there was an obvious national security interest in restricting the availability of such information. Nevertheless, information relating to the applicant’s participation in the Porton Down tests has been made available to the applicant as outlined above.
As to Article 10, the Government point out that there is no right of access to information guaranteed by that Article (Leander v. Sweden judgment of 26 March 1987, Series A no. 116) and, even if there has been an interference with the applicant’s Article 10 rights, it was justifiable for the reasons outlined above in relation to Article 8 of the Convention.
The applicant maintains his submissions outlined in his application to the Court. As to the continuing PAT appeal and, in particular the Rule 6(1) direction of the President of the PAT, he points out that over two and a half years have passed and neither the Rule 6 direction nor, consequently, the appeal process has yet been completed. The process has shown itself to be wholly inadequate and ineffective. Otherwise the merits of his complaints have not been answered by the Government adequately or, in certain respects, at all.
The Court considers, in the light of the parties’ submissions, that these complaints under Articles 8 and 10 of the Convention raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
2. The certificate issued pursuant to section 10 of the 1947 Act
The applicant also complains that the certificate issued by the Secretary of State pursuant to section 10 the 1947 Act constitutes a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention. He also invokes Article 13 of the Convention in the alternative, should Article 6 be found by the Court not to apply.
Article 6 § 1, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Article 1 of Protocol No. 1, in so far as relevant, reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law ...
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ... .”
Article 13, in so far as relevant, reads as follows:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ... .”
Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Government maintain that Article 6 § 1 is inapplicable as the applicant has no civil right to claim for damages for personal injury caused by matters attributable to his service: section 10 of the 1947 Act is part of the substantive law of the United Kingdom.
Alternatively, even if Article 6 applies, the applicant has access to an independent tribunal in order to determine his entitlement to compensation for the injuries he claims to have suffered as a result of the Porton Down tests. It is not disputed that he suffers from chronic bronchitis and bronchial asthma or that he participated in GF and mustard gas testing in Porton Down when he was in the armed forces. The only matter at issue therefore was whether that that participation caused those illnesses and this is precisely the matter which can be determined by the PAT.
Alternatively, any limitation on access to court consequent on section 10 of the 1947 Act was justified. Accordingly, and even assuming that section 10 of the 1947 Act so limits access, that limitation pursued a legitimate aim: the position and requirements of the armed forces are unique as are the demands on members of those forces. The armed forces require a system of compensation that does not depend on the courts’ decisions on questions of negligence which would only serve to allow considerations, other than those purely military, to impinge on operational decision-making.
The system provided a proportionate response to that aim in that servicemen injured in the course of service remained entitled to compensation in the form of a service pension; it was available without proof of fault; a service pension could be awarded in respect of disablement caused by any injury attributable to service unless the causal link was so weak that there was not even a reasonable doubt as to its existence; and there was no limitation period applicable. Account must also be taken, according to the Government, of the margin of appreciation accorded to States in respect of limitations imposed by it on access to court.
As regards Article 1 of Protocol No. 1, the Government argue that section 10 of the 1947 Act did not deprive the applicant of any possession as a threat of civil action against the Crown was incapable of constituting a possession. The Government maintain that, even if civil proceedings can be considered as having been commenced, they would have failed as they had been initiated outside the relevant domestic time-limit for such proceedings, since he had no right of action against the Crown and since establishing negligence was, at best, an uncertain prospect. Even assuming that there had been a deprivation of a possession, that deprivation was provided for by law (section 10 of the 1947 Act), pursued a legitimate aim and was proportionate for the reasons outlined above in the context of Article 6 of the Convention.
In respect of Article 14 and the complaint that the amendment of section 10 of the 1947 Act discriminated against those claiming to have been injured prior to the entry into force of the 1987 Act, the Government submit that there is nothing discriminatory in dealing with alleged wrongs by reference to the law in force at the time of the alleged offence. In any event, any difference in treatment of the applicant as a result of the 1987 Act does not give rise to any issue separate to that raised under Article 6 or under Article 1 of Protocol No. 1 given that it would be justified for the same reasons as any restriction falling within the scope of Article 6 and/or Article 1 of Protocol No. 1 to the Convention.
The applicant maintains the submissions made in his application. He also argues that the service pension scheme, suggested by the Government to be an adequate alternative to an action in tort against the Crown, is inadequate and ineffective. In addition, the Government’s submissions fail to address adequately, or at all, the applicant’s complaints.
The Court considers, in the light of the parties’ submissions, that these complaints concerning the certificate issued pursuant to section 10 of the 1947 Act raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints under Articles 8 and 10 of the Convention, concerning the adequacy of the applicant’s access to information which was retained by the State on or after 14 January 1966, together with his complaints under Articles 6, 13, 14 of the Convention and under Article 1 of Protocol No. 1 concerning the certificate issued by the Secretary of State pursuant to section 10 of the Crown Proceedings Act 1947;
Declares inadmissible the remainder of the application.
Vincent Berger Georg Ress
ROCHE v. THE UNITED KINGDOM DECISION
ROCHE v. THE UNITED KINGDOM DECISION