ITEMID: 001-70662
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2005
DOCNAME: CASE OF ROCHE v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1;No violation of P1-1;No violation of Art. 14+6 or 14+P1-1;No violation of Art. 13+6 or 13+P1-1;Violation of Art. 8;No violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Luzius Wildhaber;Nicolas Bratza
TEXT: 9. The applicant was born in 1938 and currently lives in Lancashire.
10. In 1953 he joined the British army at 15 years of age. He served with the Royal Engineers between February 1954 and April 1968, when he was discharged for reasons unrelated to the present application.
In 1981 he was diagnosed as suffering from hypertension and late onset bronchial asthma and in 1989 he was found to have high blood pressure and chronic obstructive airways disease (bronchitis – COAD). He has not worked since 1992 or thereabouts and is registered as an invalid.
11. The Chemical and Biological Defence Establishment at Porton Down (“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 gases on humans as well as on animals. Servicemen who participated in the tests were paid extra wages.
12. The applicant participated in such tests at Porton Down. While there was some debate as to whether he attended in 1962, it was not disputed that he did so in July 1963. His service medical records contained no record of any tests at Porton Down.
13. The applicant alleged as follows. In the spring of 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 six hours, drops of mustard gas were applied to patches of tissue which were then taped to his skin; he was told that, if he was unlucky, he might suffer temporary pain or discomfort but otherwise he was not given any, or any proper, warning about the possible consequences of the tests for his health; once the tests were finished he returned to his unit; there was no further medical examination after he left Porton Down. He relied on a memorandum and file note of 13 November 1989 (see paragraph 24 below) and on the conclusions in this respect of 14 January 2004 of the Pensions Appeal Tribunal (“the PAT” – see paragraph 63 below) to substantiate his participation in tests in 1962.
14. While the Government did not deny that participation, they pointed to a number of matters that appeared to militate against such a conclusion: the summary and alphabetical record books did not refer to his attendance in 1962 but only to his attendance in 1963; there was no documentary evidence at all of the 1962 tests whereas certain records existed of his 1963 tests; and if the PAT had accepted his participation in the 1962 tests, this was based solely on his recollections.
15. The nerve gas (known as “G-agent” or “GF”) test is described in the relevant records as “exposure to single-breath GF”. The applicant alleged that he was told before the test that the experiment “could not harm a mouse”; that 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; that a loudspeaker informed him that the test was about to begin and to inhale normally; that he felt an immediate tightening of the chest muscles and lungs which wore off after the end of the test; and that blood samples were taken at regular intervals during the following twenty-four hours. The Government submitted that diluted GF vapours were put into a gas chamber and, as the name of the test suggested, volunteers took a single breath of air with calculated doses of GF gas through a tube connected to that chamber, they held their breath for two seconds and then exhaled.
16. The other test involved mustard gas and was described in the records as “H sensitivity and penetration”. According to the applicant, it followed the same format as that in 1962.
The Government added the following detail: the mustard gas test was designed to test the performance of protective clothing and was carried out in two parts. The first was a sensitivity test to determine an individual's sensitivity to mustard gas and it involved the placement of a dilute solution of the gas on the participant's upper arm. If after twenty-four hours the test subject had a small red mark, he or she was deemed too sensitive and did not participate any further in the tests. On the other hand, if the participant was not demonstrably sensitive, the second part consisted of putting a drop of dilute mustard gas solution on three samples of protective clothing left in place on the participant's body and the skin under the clothing was examined after six and then twenty-four 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 carefully planned and controlled.
17. From 1981 the applicant was medically treated for breathlessness and high blood pressure and by 1987 these problems had significantly worsened. He began to search for his Porton Down records through what he described as “medical” and “political” channels.
18. In response to his doctor's enquiry, in late 1987 the Ministry of Defence (MOD) supplied his doctor with his service medical records on a “medical in confidence” basis. Those records did not refer to the applicant's Porton Down tests.
19. In a letter of 14 November 1989, Porton Down responded to another enquiry from his doctor. The letter was sent on a “medical in confidence” basis and confirmed the applicant's participation in a GF gas test in July 1963. That GF test had been preceded and succeeded by a full medical examination which revealed no abnormality. The letter also referred (inaccurately, as it later emerged – see paragraph 36 below) to seven blood tests conducted after the GF test and to their results and confirmed that “peak flow meter measurements” had also been taken from the applicant and that “breath-holding tests”, a clothing penetration study (apparently, although not expressly noted, the mustard gas tests) and a battery of personality tests were performed. The results of these tests were not included in the letter and no other records supporting the statements made in the letter were enclosed. His doctor's stamp on it indicates that he decided to tell the applicant that all was normal. The applicant persuaded his doctor to show him the letter in 1994.
20. By a letter dated 14 December 1989, a consultant informed the applicant's doctor that he doubted that the applicant's bronchial asthma was caused by his exposure to nerve gas. Further tests were to be carried out.
21. A letter from Dr H. (a professor of environmental toxicology at the University of Leeds and later the court-appointed expert witness in the PAT proceedings – see paragraphs 42-68 below) dated 5 December 1994 to the applicant stated that full and detailed records were required to judge the long-term effects of his participation in the tests and that a long-term epidemiological study would have been useful either to establish that there were long-term effects or to reassure test participants that there were none. His letter of 10 July 1996 repeated his view as to the need for such a study.
22. An internal Porton Down memorandum of 24 November 1997 noted that certain blood-test figures given in the letter to the applicant's doctor of 14 November 1989 were inaccurate. In addition, it was considered that the applicant's description of the tests was roughly consistent with the procedures in the 1960s. While there were no obvious gaps in the 1960s records, it could not be said that the records were complete: the applicant could have attended in 1962 and his name could have been omitted or incorrectly recorded due to a clerical error.
23. Inter alia, the applicant carried out a sit-in hunger strike at Porton Down, held a press conference in the House of Commons and requested members of parliament to put parliamentary questions.
24. Between 11 and 14 November 1989, the applicant went on hunger strike outside Porton Down. On 13 November 1989 he spoke with the Secretary of Porton Down. The latter noted in a memorandum of that date that the applicant's description of the tests was strong enough to indicate that he had been there and he recommended a further search of the records. He also recorded in a file note (of the same date) that the applicant's description of his visits to Porton Down in 1962 and 1963 left him with a level of confidence that he had been a volunteer there on both occasions. This led to the letter of 14 November 1989 to the applicant's doctor (see paragraph 19 above).
25. 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.
26. By a letter dated 26 January 1994, the Chief Executive of Porton Down answered, at the request of the Secretary of State for Defence, a series of questions raised by a member of parliament about chemical and biological warfare testing. The Chief Executive's letter described the test procedure, stating that participants were given a medical examination before and after the tests and recalled for check-ups “from time to time”. It was pointed out that there was no evidence that the health of participants had deteriorated because of their test participation. On 22 June 1994 the Chief Executive confirmed the well-established policy of the MOD of releasing service medical records to a veteran's doctor on a “medical in confidence” basis. The Chief Executive's letter of 7 March 1995 (in response to a parliamentary question to the Minister of State for Defence) noted that the tests did not include any plan for long-term systematic monitoring of participants: any monitoring thereafter was purely ad hoc and sporadic.
27. On 2 February 1994 the applicant wrote to the MOD requesting copies of his medical records and of reports on the relevant tests. The reply of 9 March 1994 from Porton Down recalled the MOD policy of release on a “medical in confidence” basis. The applicant's doctor had been provided with information in 1989 on this basis. It was “entirely up to your own doctor how much or how little of this information he conveys to you”. Further queries from the applicant led to a similar response from Porton Down by letter dated 20 April 1994.
28. On 12 December 1994 Lord Henley stated in the House of Lords that the MOD would continue to send veterans to their doctors and would release medical records as appropriate. Information was provided to doctors to allow proper diagnosis and “would be released, if necessary”. He repeated that there was no evidence over the previous forty years that test participants had suffered harm to their health.
29. In response to a series of parliamentary questions put to the Secretary of State for Defence as to the necessity for a public inquiry, 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 of harm to the test participants were given by the Minister of State for Defence in Parliament on 4 April and 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.
30. On 25 April 1995 the applicant and the Labour Party defence spokesman took part in a press conference on the question of Porton Down volunteers and their requirements.
31. Following a meeting between them, on 2 December 1997 the Minister of State for Defence wrote to the applicant. He referred to the concerns of the applicant (and other test participants) that information about the tests was being withheld. He confirmed that this was not the case but rather reflected “less than thorough” record-keeping than would be currently expected. Henceforth all volunteers would be able to obtain access to all the information held on them at Porton Down and steps would be taken to declassify reports so as to make that information more accessible.
Certain copies of test documents were enclosed: (a) the alphabetical record book which recorded the applicant's attendance at Porton Down between 13 and 19 July 1963; (b) the summary record book which referred to the two tests carried out on the applicant involving GF and mustard gas and listed the monitoring procedures that were to be carried out on the applicant (chest X-rays, peak flow meter tests, “x 3 x alcohol” quiz, breath-holding tests and blood tests); and (c) a report entitled “Effects of Inhaled GF on Man” which described the single breath GF test and contained an analysis of the results of the tests carried out on fifty-six participants, believed to include the applicant's test. It was indicated that these documents were available to any test participant who requested them.
This was the first material obtained by the applicant about his participation in the tests.
The letter went on to note that much GF-related research work had already been published in open literature or was in the Public Record 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. There was no evidence to date to suggest that any volunteer had suffered long-term adverse effects. A full independent and long-term study of the health impacts of test participation was not, however, considered feasible or practical so none had been or would be carried out.
32. In a letter dated 31 August 1999 to the PAT, Porton Down indicated that it was well acquainted with the applicant, having received numerous communications from him and from members of parliament.
33. By a letter dated 3 May 2001, Porton Down informed the applicant that it had discovered some old laboratory notebooks that included information about the 1963 tests: one book included some previously unavailable details of the mustard patch tests. A pre-exposure chest X-ray and the associated report card were also now available. The applicant was to contact Porton Down if he wanted to see this material or obtain copies.
34. As well as those disclosed with the Minister of State's letter of 2 December 1997, the following documents were also submitted to the Court.
35. The Government indicated that these were all the relevant records that could be traced: (a) an extract from a laboratory record of results of personality and intelligence tests; (b) extracts from laboratory records of GF blood tests – seven blood samples were taken from the applicant; and (c) an explanation of the GF blood-test results.
36. The Government corrected their previous explanations of the seven blood samples (see paragraph 19 above): one was taken on 13 July 1963, a second one prior to the applicant's exposure to GF and the remaining five were taken later. They also corrected other errors relating to information provided in their earlier observations about those tests including the following: “the reference to '25 milligrams of GF [vapour per kilogram of body weight]' appears to have been a typographical error. In fact, calculated doses of GF ranged from 0.16 to 2.84 microgrammes per kilogramme of body weight.” They also disclosed documents recently discovered following a further search: (a) the applicant's pre-exposure X-ray and its associated report card (see paragraph 33 above); (b) a report dated August 1942 which described the manner in which the sensitivity tests to mustard gas were performed and entitled “Technique of the Physiological Experiments Carried Out on the Human Subjects at [Porton Down]”; and (c) extracts from a laboratory notebook entitled “Overgarment Tests. Mustard on Men”, relating to mid-July 1963 and referring to the applicant.
37. On 10 June 1991 the applicant claimed a service pension on the grounds of “hypertension/breathing problems” resulting from the Porton Down tests (and, in addition, from his radiation exposure on Christmas Island during the relevant nuclear tests there). The Department of Social Security (DSS) obtained copies of his service and civilian medical records together with a report from his doctor, which confirmed that he suffered from hypertension, COAD and late onset bronchial asthma. On 28 January 1992 the Secretary of State rejected his claim for a service pension as there was no causal link demonstrated between the tests and those medical conditions. The applicant did not pursue an appeal at that stage.
38. The applicant consulted solicitors in 1994 and obtained legal aid for proceedings. By a letter dated 14 November 1994 to the Secretary of State, his solicitors threatened proceedings, alleging, inter alia, negligence, assault and breach of statutory duty on the part of the MOD, and demanding the release of all medical and laboratory records in the possession of the Secretary of State or of Porton Down as regards the test periods in 1962 and 1963, failing which the applicant would apply to the High Court for pre-action discovery. The applicant's representatives met with MOD representatives in early January 1995 on a “without prejudice” basis and by a letter dated 5 June 1995 requested confirmation from the MOD as to whether a certificate would be issued under section 10 of the 1947 Act (“a section 10 certificate”).
39. By a letter dated 4 July 1995 to the applicant's solicitors, the claims section of the MOD wrote as follows:
“War Pensions Agency has informed me that a section 10 certificate in respect of acute bronchitis (1963), a bruised knee and loss of hearing will be regarded as attributable to service and a section 10 certificate will be issued. The other ailments for which [the applicant] claimed a war pension have not been regarded as attributable to service.”
40. On 3 August 1995 a section 10 certificate was signed by the Secretary of State:
“In so far 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.”
41. By a letter dated 8 August 1995, the Treasury Solicitor provided a copy of the section 10 certificate to the applicant's representatives.
42. Following the judgment of this Court in McGinley and Egan v. the United Kingdom (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III) and the Government's disclosure of certain documents in their observations in the present case (on 9 March 1998), the applicant requested an adjournment of the present application in order to pursue an appeal to the PAT and, in particular, disclosure of documents under Rule 6 of the Pensions Appeal Tribunals (England and Wales) Rules 1980 (“the PAT Rules”). The present application was adjourned.
43. On 1 June 1998 he lodged his PAT appeal. Since the War Pensions Agency (“the WPA” – a specialised agency of the Department of Social Security) clarified that a further form was required, on 8 November 1998 the applicant re-lodged the appeal.
44. In February 1999 the applicant received his “Statement of Case”. He obtained two extensions of the time-limit for the submission of his “answer” to the Statement of Case (to take advice from an expert chemical pathologist on the documents already disclosed and on those which were also to be requested during the PAT appeal and to consider the intervening observations of the Government in the present application) and he indicated that he would be making an application under Rule 6(1) of the PAT Rules.
45. On 30 July 1999 his answer was submitted to the WPA along with a letter which noted that the answer included an application for disclosure of documents under Rule 6(1) of the PAT Rules: paragraph 18 of the answer set out a list of seventeen categories of document required by him under that rule.
46. On 10 August 1999 the WPA responded by pointing out that enquiries were being made to obtain all the information requested under Rule 6(1) of the PAT Rules. Once received, the WPA would ask for the agreement of the President of the PAT to disclose it.
47. On the same day the WPA wrote to Porton Down enclosing a copy of the applicant's Rule 6 request and asking for the information as soon as possible so that the agreement of the President of the PAT could be obtained.
48. On 14 March and 13 April 2000 the WPA sent the supplementary Statement of Case (now incorporating the supplemental medical evidence) to the applicant and to the PAT, respectively.
49. On 3 August 2000 the President of the PAT responded to the applicant's enquiry, indicating that his case had not been listed as it awaited production of further documentary evidence and the Secretary of State's response. However, since the Rule 6 request should not have been made in the applicant's answer to the Statement of Case, that request had just come to light. The applicant was to confirm to the President if he intended paragraph 18 of his answer to constitute his Rule 6 request and, if so, the President would be grateful to receive any observations that would assist his consideration of the relevance of the documents to the appeal issues. The applicant was also to identify the State department to which a Rule 6 direction should be addressed.
50. On 9 November 2000 the applicant confirmed to the President of the PAT that paragraph 18 of his answer did indeed constitute his Rule 6 request and he made detailed submissions on the matters requested by the President.
51. By a letter dated 13 November 2000, the President of the PAT requested the applicant to submit a draft direction and attend a hearing on it since he was concerned that the wording of some parts of the Rule 6 request appeared to be ambiguous and lacking in clarity. The applicant submitted a draft direction (essentially listing those documents already included in paragraph 18 of his answer).
52. By an order dated 1 February 2001, the President of the PAT directed, pursuant to Rule 6(1) of the PAT Rules, disclosure of the scheduled documents by the Secretary of State since the documents “were likely to be relevant to the issues to be determined in the appeal”.
53. On 6 July 2001 the Secretary of State responded to the direction of the President of the PAT. It was marked “medical in confidence”. It referred to the documents already submitted by the Government to this Court (see paragraphs 34-36 above). The Secretary of State was unable to give a definitive response to the request for the fifth category of document required (namely, “any scientific or medical reports, whether published or prepared for internal use by Porton Down, the [MOD] or other government departments or agencies of the volunteer studies or experiments in Porton Down between 1957 and 1968 which were similar or related to the studies or experiments in which [the applicant] was involved”). 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, he would let the PAT have his full response. Otherwise the Secretary of State provided various explanations of the documents already submitted by the Government to this Court and details of the precise dates on which 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. The only documents (additional to those already submitted to this Court) disclosed to the PAT were the applicant's service and payment records, the latter of which included a payment for attendance for a week at Porton Down in July 1963.
54. The MOD's letter was passed to the applicant on 25 July 2001. By a letter dated 19 July 2002, the applicant wrote to the PAT apologising for not having responded and explaining the reasons for the delay.
55. By a letter dated 23 August 2002, the MOD disclosed documents concerning the above-described fifth category: two reports entitled “The feasibility of performing follow-up studies of the health of volunteers attending [Porton Down]” and “The single-breath administration of Sarin”, from which individual names had been blanked out. The feasibility report acknowledged that the records held at Porton Down prior to the late 1970s generally consisted of the name, service number and age of participants at the date of testing but were not “sufficient to allow either a comprehensive morbidity study or mortality study to proceed”. While a study could be carried out on post-1976 test participants, “such a study would be of very limited value and may only serve to draw attention to [Porton Down's] interest in possible long-term health problems experienced by volunteers”. The feasibility report concluded that a comprehensive follow-up study of all volunteers was “impractical”. Porton Down's library catalogue had also mentioned a document entitled “Unique papers relating to early exposure of volunteers to GD [O-Pinacolyl methylphosphonoflouidate, commonly known as Soman] and GF and DM [diphenylaminearsine chloride, commonly known as Adamsite]”. However, a copy of this document could not be located. A letter of 20 August 2002 was also enclosed which certified that nine of the requested documents were “in the nature of departmental minutes or records” and would not therefore be disclosed (Rule 6(1) of the PAT Rules).
56. A hearing was fixed for 3 October 2002. On 27 September 2002 the applicant was obliged to request an adjournment since his counsel had advised that further questions needed to be put to Dr H. On 30 September 2002 the PAT declined to adjourn, indicating that it was unlikely Dr H. could or would prepare a report.
57. On 2 October 2002 the MOD wrote to the PAT and the applicant. While nine documents had been previously certified as non-disclosable, (letter of 23 August 2002 – see paragraph 55 above), seven of those nine documents could now be disclosed. The MOD had “had the opportunity of re-examining the documents ... with a view to assessing whether [they] could be the subject of voluntary disclosure ... in an effort to ensure that everything that can be disclosed has been disclosed and so as to ensure the maximum openness and the maximum assistance to the [PAT]”. Certain blocking out had been done on some disclosed documents to protect the identities of staff involved and to excise irrelevant material. Two documents could still not be disclosed: the first did not appear “to contain anything of relevance” to the applicant's tests and, in any event, “contained information which remains security sensitive and is not properly subject to voluntary disclosure on security grounds”; and the second required permission from the United States before it could be disclosed.
58. The appeal was scheduled for 3 October 2002. The applicant applied for an adjournment supported by the Veterans Agency (the successor of the WPA – “the VA”). The PAT decision (delivered on 7 October 2002) recorded as follows:
“The [PAT] are deeply disturbed that this application has proved necessary as a result of the [applicant's] advisers' failure to consider documents disclosed over a year ago, in a timely fashion.
However, since the [VA] also appear to be without documentation and there is confusion by the [applicant] as to whether he also wishes to appeal for hypertension, we have reluctantly decided to allow the adjournment.
It is highly unsatisfactory that Court resources have been wasted in this way. To prevent this happening in the future the Tribunal intend to exercise some control over the ongoing progress of the appeal.”
The PAT was to clarify with the MOD the status of certain classified documents and the extent to which they could be released to the public, and directed the MOD to provide, by 21 October 2002, disclosure of further documents. The MOD, the VA and the applicant were to notify the PAT by 18 November 2002 of the questions and documents it wanted Dr H. to examine. It was intended that the PAT would add its own questions and submit a composite questionnaire to Dr H. who would report in response to the PAT. The applicant was also to confirm his position as regards the hypertension appeal by 28 October 2002.
59. On 21 October 2002, the MOD disclosed to the PAT three declassified documents. These were forwarded by the PAT to the applicant by a letter dated 8 November 2002, accompanied by a warning that the MOD had released the documents for the purpose of the appeal and that no information in them was to be used for any other purpose without the consent of the MOD. By a letter dated 25 October 2002, the applicant confirmed that his appeal had been intended to cover hypertension also, he explained the reasons for his confusion and he requested an extension of time to so appeal. A hypertension appeal form was lodged with the PAT on 5 December 2002.
60. By a letter dated 3 December 2002, the PAT wrote to Dr H. enclosing the documents disclosed by the MOD (at that point) with two sets of questions (prepared by the applicant and the medical member of the PAT). By a letter dated 19 February 2003, Dr H. provided the PAT with a report. The applicant having noted that Dr H. had omitted to respond to the PAT questions, Dr H. did so in a supplemental report sent to the PAT under cover of a letter dated 14 May 2003.
61. In a document dated 14 October 2003, the MOD submitted its comments on Dr H.'s reports. On 16 October 2003 the VA submitted a supplementary Statement of Case.
62. The PAT appeal hearing took place on 23 October 2003. It allowed the hypertension appeal to be heard out of time but, once it became clear that the VA had not processed the appeal documentation filed by the applicant, the PAT reluctantly granted the MOD an adjournment to allow the VA time to “properly consider all the evidential material and prepare a reasoned medical opinion”. The COAD appeal was, however, dismissed.
63. On 14 January 2004 the PAT delivered its written decision. As to the facts, the PAT accepted that the applicant had undergone tests for mustard gas “some time in 1962 as well as the documented tests in July 1963” despite the fact that there was no reference in his service records or in other research records to the 1962 test. The PAT also found “disquieting” the “difficulties” experienced by the applicant in obtaining the records which were produced to the PAT. The PAT also established the following facts:
“1. We find that [the applicant] suffered no long-term respiratory effect from skin contact with mustard gas following both tests in 1962 and 1963.
2. We find that [the applicant] was administered only small doses of mustard gas and GF gas which would have resulted in minimal exposure to mustard gas by off-gassing and a limited and transitory reaction to the GF gas. Although no records relating to doses exist, the mustard gas tests were designed to test the suitability of military clothing to exposure and were not a gas test per se. Furthermore, after a fatality at Porton Down in 1953, safeguards were put in place to ensure that volunteers were only exposed to safe dosages.
3. The compelling weight of the evidence is that [the applicant] did not receive, in any of the tests, dosages likely to have long-term effects as described in the research papers. In particular, the [PAT expert], although accepting the possibility that given further research through a long-term follow-up study a link might be found, concludes that there is no evidence to link [the applicant's] exposure to either gases with his present condition. We accept [the PAT expert's] conclusion that, given the limited doses and [the applicant's] minimal immediate reactions, this would rule out a link between the tests and the claimed conditions.
4. We particularly rely on [Dr H.'s] expert report. He has analysed the specific data relevant to [the applicant's] case and considered the conditions for which he is claiming in relation to that specific data. The research papers relied on by the [applicant], although of some evidential value, are very general and speculative. We therefore prefer the evidence, and the conclusions reached by [Dr H.] in his reports.”
The PAT also accepted, as a matter of law, that it was sufficient to show that the proved service event was only one of the causes of the condition even if there were other contributory factors. However, it stated:
“2. We do not accept that the lack of possible evidence of other follow-up tests is sufficient to constitute reliable evidence.
3. We find that there is some reliable evidence surrounding the Porton Down tests for which [the applicant] volunteered. However, this evidence tends, if anything, to support the view that there is in fact no link between those tests and [the applicant's] current conditions. The test of reasonable doubt is not therefore met.
4. There is no reliable evidence to suggest a causal link between the tests for either mustard gas or GF gas and the claimed condition.
5. [The PAT expert's] views that 'he cannot exclude the possibility' of a link between exposure to GF and/or mustard gas and the claimed condition, does not meet the 'reasonable doubt' test. Furthermore, he 'rules out' exposure to GF as a cause and deems it 'unlikely' that mustard gas is a cause.
6. Finally, [the applicant's counsel] invites us to allow the appeal for reasons which can be summarised as 'general fairness'. The [PAT] does not have legislative or discretionary power to do so. The decision of the [PAT] is to disallow the appeal for [COAD].”
64. On 4 February 2004 the applicant applied to the PAT for leave to appeal to the High Court (on the COAD matter) and for a stay of the hypertension appeal then pending before the PAT. On 26 April 2004 leave was refused, the PAT's reserved decision being delivered on 28 April 2004.
65. On 11 May 2004 the applicant applied for leave to appeal to the High Court. On 13 July 2004 leave was granted.
66. The applicant's appeal notice and supporting skeleton argument were submitted on 10 August 2004. The appeal was listed to be heard on 7 October 2004.
67. On 8 October 2004 the High Court allowed the appeal and referred the matter back to the PAT for a further hearing.
68. On 7 March 2005 a directions hearing was held before the PAT. It ordered the hypertension and COAD appeals to be heard together and mutual disclosure of any further documents relevant to the appeal by 18 April 2005. On the latter date the Treasury Solicitor produced a “schedule of disclosure” listing and disclosing eleven documents: apart from three items, the applicant had not seen them before. The Treasury Solicitor maintained that disclosure of most of the documents (including two sets of minutes of meetings which Rule 6 specifies can be withheld) was not obligatory as they were of marginal relevance, noted that all documents had been downgraded to “unclassified” and indicated that the MOD would endeavour to produce the annexes referred to in certain documents.
69. The armed forces have, since 1998, put in place a service to deal with enquiries from Porton Down test participants (“the 1998 Scheme”). The relevant information pamphlet noted that participants could request their test records, that a search would be carried out for references to that person and for additional evidence of actual procedures, that a summary would be provided and that, if the person wanted to go to Porton Down, he or she could obtain the actual records. While the pamphlet noted that reasonably comprehensive records had existed since 1942, individuals had to accept that old records in some cases were very sparse, that record keeping in years gone by was not up to current standards and that in certain cases a person's attendance might not even have been marked. The pamphlet claimed that no participant was worse off after the Porton Down tests.
70. In 2001 the Porton Down Volunteers Medical Assessment Programme was established by the MOD to investigate health concerns of Porton Down test participants. The study involved 111 participants but no control group. The report, published in April 2004, was entitled “Clinical Findings in 111 Ex-Porton Down Volunteers”. It noted that over 20,000 had participated in the tests since Porton Down's establishment in 1916 and that 3,000 had participated in nerve gas tests and 6,000 in mustard gas tests, with some servicemen having been exposed to both. It concluded that:
“On a clinical basis, no evidence was found to support the hypothesis that participation in Porton Down trials produced any long-term adverse health effects or unusual patterns of disease compared to those of the general population of the same age.”
71. From July 2002 the MOD funded “an initial pilot research project” on mortality and cancer incidence among Porton Down test participants. It compared 500 participants with a control group of 500 other servicemen and the decision was taken that a full-scale epidemiological study should be undertaken. By mid-2003 this had begun and it was expected to take about two years to complete.
72. Further to the death of Aircraftsman Maddison in May 1953 after being exposed to Sarin gas (also referred to as GB gas, a nerve agent related to GF), a coroner's inquest was held and recorded “death by misadventure”. An application was brought for a fresh inquest alleging, inter alia, that incomplete evidence had been brought before the coroner and in November 2002 the Court of Appeal ordered a fresh inquest. It concluded on 15 November 2004 with the jury finding that the cause of Mr Maddison's death was the “application of a nerve agent in a non-therapeutic experiment”. Judicial review proceedings appear to be pending.
In or around 2004-05 a non-governmental organisation (“Porton Down Veterans”) discovered during searches in the Public Record Office two letters of May and August 1953 containing legal advice from the Treasury Solicitor to the MOD about Mr Maddison's case and about section 10 of the 1947 Act. That organisation sent this material to the Veterans Policy Unit – Legacy Health Issues of the MOD on 7 February 2005. The Treasury Solicitor's letter of August 1953 noted as follows:
“When the case was referred to me previously I did consider the relevance of section 10 of the Crown Proceedings Act 1947 but I came to the conclusion that it had no application. On the information before me I am still of that opinion. Subsection (1) of that section, which deals with injuries caused by acts of members of the Armed Forces, can have no application since the administration of the GB gas to ... Maddison was (so I understand) carried out by [civilian] personnel and not by any member of the Armed Forces. Subsection (2) also seems inapplicable. [It] provides that no proceedings in tort are to lie against the Crown for death or personal injury due to anything suffered by a member of the Armed Forces if that thing is suffered by him 'in consequence of the nature or condition of any equipment or supplies used for the purposes of the Armed Forces of the Crown'. As I understand the facts of this case, GB gas cannot be said to be a 'supply used for the purposes of the Armed Forces' at all, it being purely an experimental substance and one which has never been used for the purposes of the Armed Forces. If this is correct, then section 10 of the 1947 Act cannot protect the Crown or the Minister from liability.”
73. It was a well-established and unqualified common-law rule that the Crown was neither directly nor vicariously liable in tort.
74. The rule was counterbalanced in several ways. Actions against the errant serviceman would be permitted in which case the Crown would invariably (if the defendant was acting in the course of his duty) accept responsibility for any damages awarded. In cases where the individual author of the injury could not be identified, a nominee defendant would be appointed to enable the claim to proceed. In addition, from 1919 a serviceman injured in the course of war service was entitled to a disability pension and his spouse to a pension. The scope of these entitlements later widened to include disability or death caused by injury attributable to any service in the armed forces (war service or not). A feature of these successive schemes was that entitlement to a pension did not depend on proof of fault against the Crown.
75. Further to strong criticism of the Crown's position as litigant, in the 1920s legislation was envisaged that would make the Crown liable in tort. The 1924 terms of reference of the drafting committee were to prepare a bill to provide, inter alia, that the Crown should become liable to be sued in tort. Clause 11 of the draft bill produced in 1927 (and never adopted) provided, under the heading “Substantive Rights”, that: “Subject to the provisions of this Act, the Crown shall, notwithstanding any rule of law to the contrary, be liable in tort.” This provision was made subject to clause 29(1)(g) which read:
“Except as therein otherwise expressly provided, nothing in this Act shall–
...
(g) entitle any member of the armed forces of the Crown to make a claim against the Crown in respect of any matter relating to or arising out of or in connection with the discipline or duties of those forces or the regulations relating thereto, or the performance or enforcement or purported performance or enforcement thereof by any member of those forces, or other matters connected with or ancillary to any of the matters aforesaid ...”
76. The 1947 Act made far-reaching changes, both substantive and procedural, to the Crown's liability to be sued.
77. The 1947 Act was divided into four parts: Part I “Substantive law” (sections 1-12 of the Act); Part II “Jurisdiction and procedure”; Part III “Judgments and execution”; and Part IV “Miscellaneous”.
78. Section 1 provides for the Crown to be sued as of right rather than by a petition of right sanctioned by Royal fiat.
79. Section 2 of the 1947 Act provides:
“Liability of the Crown in tort
(1) Subject to the provisions of this Act, the Crown shall 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:–
(a) in respect of torts committed by its servants or agents;
(b) 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; and
(c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property:
Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would, apart from the provisions of this Act, have given rise to a cause of action in tort against that servant or agent or his estate.”
80. Members of the armed forces were to be treated differently. If they died or were injured in the course of their duties, the Crown could not be sued in tort once 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. In particular, section 10 of the 1947 Act was entitled “Provisions relating to the armed forces” and provided as follows:
“(1) Nothing done or omitted to be done by a member of the armed forces of the Crown while on duty as such shall subject either him or the Crown to liability in tort for causing the death of another person, or for causing personal injury to another person, in so far 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 Royal Warrant, Order in Council or Order of His Majesty relating to the disablement or death of members of the force of which he is a member:
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.
(2) No proceedings in tort shall lie against the Crown for death or personal injury due to anything suffered by a member of the armed forces of the Crown if–
(a) that thing is suffered by him in consequence of the nature or condition of any such land, premises, ship, aircraft or vehicle as aforesaid, or in consequence of the nature or condition of any equipment or supplies used for the purposes of those forces; and
(b) the [Secretary of State] certifies as mentioned in the preceding subsection;
nor shall any act or omission of an officer of the Crown subject him to liability in tort for death or personal injury, in so far as the death or personal injury is due to anything suffered by a member of the armed forces of the Crown being a thing as to which the conditions aforesaid are satisfied.
(3) ... a Secretary of State, if satisfied that it is the fact:–
(a) that a person was or was not on any particular occasion on duty as a member of the armed forces of the Crown; or
(b) that at any particular time any land, premises, ship, aircraft, vehicle, equipment or supplies was or was not, or were or were not, used for the purposes of the said forces;
may issue a certificate certifying that to be the fact; and any such certificate shall, for the purpose of this section, be conclusive as to the fact which it certifies.”
The words in section 2 of the 1947 Act “subject to the provisions of this Act” rendered section 2 subject to the provisions of section 10 of the 1947 Act.
81. The exception contained in section 10 of the 1947 Act was removed by the 1987 Act. This removal was not retrospective. Accordingly, 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 that took place prior to 1987 could not proceed if the Secretary of State issued the relevant certificate. The reasons the law was prospective only were explained by the member of parliament introducing the bill as follows (Hansard, HC, 13 February 1987, col. 572):
“Successive Governments have resisted retrospective legislation as a basic concept, especially where such legislation imposes a retrospective liability on others. Secondly, it would be clearly wrong to impose retrospective liability on a serviceman for past actions, even if the Crown, his employer, were to stand behind him. That would involve individuals who are alleged to be guilty of negligence over the years being brought to book in a court of law for actions [for] which, at the time they were committed, they were not liable under the law. That is a strong argument against retrospective legislation. Thirdly, ... where should the line be drawn in dealing with past claims so as to be fair and just towards all claimants? How could there be a logical cut-off point for considering claims either by the [MOD] or the courts. How could those whose claims which fell on the wrong side of the arbitrary line be satisfied? How could the [MOD], and ultimately the courts, be expected to assess old cases where the necessary documentary evidence or witnesses are no longer available?
Those are practical questions to which, sadly, there are no ready answers. For that reason, I believe that the only reasonable course of action is to legislate for the repeal of section 10 from the date of enactment.”
82. Section 11 of this Act provides that any action for damages for personal injury must be brought within three years of the cause of action arising.
83. Mr Matthews served in the Royal Navy between 1955 and 1968. In 2001 he brought proceedings in negligence against the MOD (alleging the MOD's negligence and breach of statutory duty and its vicarious liability for the negligence and breach of duty of his fellow servicemen) claiming that he had suffered personal injury as a result of his exposure to asbestos fibres and dust while performing his duties as a serviceman.
84. On the preliminary issue of whether the MOD could be sued under section 10 of the 1947 Act, the High Court found that provision to be incompatible with Article 6 § 1 of the Convention.
85. In deciding whether section 10 amounted to a procedural or substantive limitation on his rights, the High Court considered that the issue turned on whether a section 10 certificate extinguished not only Mr Matthews' right to sue for damages but also his primary right arising from the Crown's duty of care:
“If, after the passing of the 1947 Act, he had the primary right not to be exposed to asbestos in circumstances amounting to negligence or breach of statutory duty, section 10 merely extinguished his secondary right to claim damages for its breach, and that would amount merely to a procedural bar on his secondary right to claim his preferred remedy for breach of his primary right.”
In concluding 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, in particular, on Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (judgment of 10 July 1998, Reports 1998-IV) and Fogarty v. the United Kingdom ([GC], no. 37112/97, ECHR 2001-XI).
86. The limitation therefore had to be subjected to a proportionality test. In this respect, the High Court concluded that the disadvantages of a pension scheme were such that access to it was an “exceptionally, indeed an unacceptably” high price to pay for the advantage of not having to prove fault, an advantage that would only apply when the question of the fault of the other party was in doubt. Neither was the High Court convinced that the choice to repeal the 1947 Act prospectively 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 a solution than denying proper damages to persons injured as a result of negligence.
87. The Court of Appeal allowed the MOD's appeal. Section 10 had a substantive and not procedural effect and the High Court's reliance on Fogarty, cited above, was mistaken. The Master of the Rolls stated that:
“The requirement in section 10 for a certificate from the Secretary of State as a precondition to defeating a claimant's cause of action is an unusual one and not easily analysed, and it cannot be treated simply as an option to impose a procedural bar on the claim.”
88. In so finding, the Court of Appeal rejected the MOD's objection, based on Pellegrin v. France ([GC], no. 28541/95, ECHR 1999VIII) and, more recently, R. v. Belgium (no. 33919/96, 27 February 2001), to the applicability of Article 6 § 1, the Court of Appeal finding that Pellegrin was concerned solely with “disputes raised by servants of the State over their conditions of service” whereas the proceedings before the Court of Appeal concerned the nature and effect of section 10 of the 1947 Act on a claim in tort against the MOD.
89. The applicant appealed, arguing that the Court of Appeal had ignored a clear principle established by Fogarty. The MOD did not pursue the Pellegrin argument.
90. The House of Lords (Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Millett and Lord Walker of Gestingthorpe) unanimously rejected the appeal. The House of Lords considered the maintenance of the distinction between procedural and substantive limitations on access to a court to be a necessary one since Article 6 was concerned with procedural fairness and the integrity of a State's judicial system rather than with the substantive content of its national law. However, the House of Lords acknowledged the difficulty in tracing the borderline between the substantive and procedural, considering the Convention jurisprudence to be indicative of some difficulty in this respect. Drawing on the text, historical context, legislative intent and the actual operation of section 10 of the 1947 Act and, further, on a comprehensive analysis of the Convention jurisprudence and applicable principles, the House of Lords concluded that section 10 of the 1947 Act maintained the existing lack of liability in tort of the Crown to service personnel for injury suffered that was attributable to service and served to ease servicemen towards the no-fault pension option by taking away the need to prove attributability. It amounted therefore to a substantive limitation on the liability of the Crown in tort to servicemen for service injury to which Article 6 § 1 did not apply.
91. Having reviewed the Convention jurisprudence, Lord Bingham noted that, whatever the difficulty in tracing the dividing line between procedural and substantive limitations of a given entitlement under domestic law, an accurate analysis of a claimant's substantive rights in domestic law was, nonetheless, an essential first step towards deciding whether he had, for the purposes of the autonomous meaning given to the expression by the Convention, a “civil right” such as would engage Article 6.
Lord Bingham went on to outline the historical evolution of section 10, considering it clear that there was no parliamentary intention to confer any substantive right to claim damages. “Few common-law rules were better-established or more unqualified”, he began, “than that which precluded any claim in tort against the Crown” and because “there was no wrong of which a claimant could complain (because the King could do no wrong) relief by petition of right was not available”. Claims referred to as “exempted claims” against the Crown for damages for, inter alia, injury sustained by armed forces personnel while on duty were “absolutely barred”. When proposals for reform were put forward in the 1920s, “no cause of action was proposed in relation to the exempted claims”. When the Crown Proceedings Bill was introduced into Parliament in 1947 it again provided that the exempted claims should be “absolutely barred”, but those fulfilling the qualifying condition would be compensated by the award of a pension on a no-fault basis.
When what was to become section 10(1) was amended uncontentiously in the House of Commons, the intention was not to alter the “essential thrust of the provision as previously drafted”. The object of the new certification procedure was to “ease the path of those denied any right to a common-law claim towards obtaining a pension, by obviating the need to prove attributability, an essential qualifying condition for the award of a pension”. Whereas the issue of a certificate under section 10(3) of the 1947 Act was discretionary as shown by the permissive “may”, no such permissive language applied to the issuance of a certificate under section 10(1)(b). “It was plainly intended that, where the conditions were met, the Secretary of State should issue a certificate as was the invariable practice of successive Secretaries of State over the next forty years.” Although different language had been used over the years, “the English courts had consistently regarded section 10(1) as precluding any claim at common law”. It was in fact the “absolute nature of the exclusion imposed by section 10(1)” (coupled with the discrepancy, by 1987, between the value of a pension and of a claim for common-law damages) which fuelled the demand for the revocation of section 10 and led to the 1987 Act. In deciding whether section 10(1) imposed a procedural bar or denied any substantive right, regard had to be had to the practical realities and, in that respect, the Secretary of State's practice had been “uniform and unvarying” so that any practitioner would have advised Mr Matthews that a section 10 certificate was “bound to be issued”. Lord Bingham found Fogarty to be “categorically different” from Matthews and concluded, for reasons closely reflecting those of the Court of Appeal and of Lord Walker (see below), that the appeal was to be rejected.
92. As regards the distinction between substantive and procedural bars to a judicial remedy, Lord Walker conducted a comprehensive analysis of the Convention jurisprudence, highlighting what he considered to be inconsistencies and the difficulties in applying it:
“127. The distinction between substantive and procedural bars to a judicial remedy has often been referred to in the Strasbourg jurisprudence on Article 6 § 1, but the cases do not speak with a single clear voice. That is hardly surprising. The distinction, although easy to grasp in extreme cases, becomes much more debatable close to the borderline, especially as different legal systems draw the line in different places ...
...
130. I have already referred to several of the most important Strasbourg cases, but it is useful to see how two contrasting themes have developed since the seminal Golder decision in 1975. Some cases emphasise the importance of avoiding any arbitrary or disproportionate restriction on a litigant's access to the court, whether or not the restriction should be classified as procedural in nature. Others attach importance to the distinction between substance and procedure.
131. The first case to note is Ashingdane v. the United Kingdom ... Section 141(1) [of the Mental Health Act 1959] imposed substantive restrictions on his rights of action (requiring bad faith or negligence) and subsection (2) imposed a procedural restriction (the need for the Court's permission for the commencement of proceedings). The Commission ... agreed with the parties that 'it is immaterial whether the measure is of a substantive or procedural character. It suffices to say that section 141 acted as an unwaivable bar, which effectively restricted the applicant's claim in tort'. But the Commission considered that the restrictions were not arbitrary or unreasonable, being intended to protect hospital staff from ill-founded or vexatious litigation. The Court ... took a similar view.
132. In Pinder v. the United Kingdom ... (from which Ketterick and Dyer are not significantly different) the Commission took the view ... that section 10 of the 1947 Act brought about the substitution of a no-fault system of pension entitlement for the right to sue for damages, and that that removed the claimant's civil right: 'It follows, therefore, that the State does not bear the burden of justifying an immunity from liability which forms part of its civil law with reference to “a pressing social need” as contended by the applicant.' However the Commission then ... referred to its report in Ashingdane and stated: 'These principles apply not only in respect of procedural limitations such as the removal of the jurisdiction of the court, as in the Ashingdane case, but also in respect of a substantive immunity from liability as in the present case. The question, therefore, arises in the present context, whether section 10 of the 1947 Act constitutes an arbitrary limitation of the applicant's substantive civil claims.'
133. The Commission held that section 10 was not arbitrary or disproportionate ...
134. Powell and Rayner v. the United Kingdom ... was concerned with the effect of section 76(1) of the Civil Aviation Act 1982 on persons complaining of noise from aircraft travelling to and from Heathrow Airport. Section 76(1) excludes liability for any action in trespass or nuisance so long as the height of the aircraft was reasonable in all the circumstances, and its flight was not in breach of the provisions of the Act or any order made under it. In unanimously rejecting the claimants' claim under Article 6 § 1 the European Court of Human Rights simply relied on the fact that the applicants had no substantive right to relief under English law. It rejected a subsidiary argument that the claimants' residuary entitlement to sue (in cases not excluded by section 6(1)) was illusory.
135. The Court's approach in Fayed v. the United Kingdom ... was much less straightforward. ... The Court's discussion of the relevant principles contained ... the following passage ...: 'Whether a person has an actionable domestic claim may depend not only on the substantive content, properly speaking, of the relevant civil right as defined under national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court. In the latter kind of case Article 6 § 1 may have a degree of applicability. Certainly the Convention enforcement bodies may not create by way of interpretation of Article 6 § 1 a substantive civil right which has no legal basis in the State concerned. However, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons.'
136. It is hard to tell how far the last sentence of this passage goes. The Court then referred ... to the distinction between substantive and procedural restrictions: 'It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law. It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy.' The Court did not go any further in attempting to resolve this problem on the ground that it might in any case have had to consider issues of legitimate aim and proportionality for the purposes of Article 8 (respect for private life), even though there was in fact no complaint under Article 8.
137. In Stubbings v. the United Kingdom ... and Tinnelly & Sons Ltd v. the United Kingdom ..., the Court considered whether restrictions on access to the court (in section 2 of the Limitation Act 1980 and section 42 of the Fair Employment (Northern Ireland) Act 1976 respectively) were justifiable without adverting expressly to the distinction between substantive and procedural bars. In Waite and Kennedy v. Germany ..., the Commission ... described the immunity as merely a procedural bar, and as such requiring justification. The Court took the same view, regarding ... the claimants' access to some unspecified procedures for alternative dispute resolution as being a material factor.
138. The two most recent cases are of particular importance. In Z [and Others] v. the United Kingdom ..., the Court ... held that there had been no breach of Article 6 § 1 in your Lordships' decision in X v. Bedfordshire County Council [1995] 2 AC 633 as to the responsibility of a local authority for children who had suffered neglect and abuse over a period of five years while their suffering was known to the local authority (but they were not the subject of any care order). ... The whole of the Court's judgment on Article 6 § 1 ... merits careful study, but its essence appears from the following passages ...: ... 'The Court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law. There was no restriction on access to court of the kind contemplated in the Ashingdane judgment.' In reaching these conclusions the majority of the Court stated in plain terms that its decision in Osman had been based on a misunderstanding of the English law of negligence.
139. Finally there is Fogarty v. the United Kingdom ... That case was decided about six months after Z and by a constitution of the Court several of whose members had sat (and some of whom had dissented) in Z. In Fogarty the Court repeated verbatim ... the passage from Fayed which I have already quoted. It rejected ... the United Kingdom's argument that because of the operation of State immunity the claimant did not have a substantive right under domestic law. The Court attached importance to the United States' ability to waive (in fact the judgment said 'not choose to claim') immunity as indicating that the bar was procedural. Nevertheless, the Court concluded ... that: 'measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 § 1. Just as the right of access to court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity.'
140. In trying to reconcile the inconsistencies in the Strasbourg jurisprudence it might be tempting to suppose that the Court's wide and rather speculative observations in Fayed (which were not its grounds for decision) marked a diversion which proved, in Z, to be a blind alley. But that explanation immediately runs into the difficulty that in Fogarty, six months after Z, the Court (constituted by many of the same judges) chose to repeat, word for word, the observations made in Fayed. The uncertain shadow of Osman still lies over this area of the law.
141. Nevertheless [Mr Matthews' counsel] conceded that in order to succeed on the appeal, he had to satisfy your Lordships that section 10 of the 1947 Act constituted a procedural bar. He equated this task with satisfying your Lordships that Mr Matthews had at the commencement of his proceedings a cause of action against the [MOD], and that that cause of action was cut off (or defeated) by the [MOD's] invocation of the section 10 procedure. He treated this event as indistinguishable from the United States government's invocation, in Fogarty, of the defence of State immunity (to be precise, its decision not to waive State immunity). In each case, [Mr Matthews' counsel] argued, the defendant was relying on a procedural bar to defeat a substantive claim which was valid when proceedings were commenced.
142. In my view, [Mr Matthews' counsel's] concession was rightly made. Although there are difficulties in defining the borderline between substance and procedure, the general nature of the distinction is clear in principle, and it is also clear that Article 6 is, in principle, concerned with the procedural fairness and integrity of a State's judicial system, not with the substantive content of its national law. The notion that a State should decide to substitute a no-fault system of compensation for some injuries which might otherwise lead to claims in tort is not inimical to Article 6 § 1, as the Commission said in Dyer ... (in a report, specifically dealing with section 10 of the 1947 Act, which has been referred to with approval by the Court in several later cases).
143. In the circumstances [Mr Matthews'] argument clings ever more closely to the bare fact that Mr Matthews had a cause of action when he issued his claim form, and that his claim could not be struck out as hopeless unless and until the Secretary of State issued a certificate under section 10. But European human rights law is concerned, not with superficial appearances or verbal formulae, but with the realities of the situation (Van Droogenbroeck v. Belgium ...). [Mr Matthews'] argument does, with respect, ignore the realities of the situation. It is common ground that the Secretary of State does in practice issue a certificate whenever it is (in legal and practical terms) appropriate to do so. He does not have a wide discretion comparable to that of a foreign government in deciding whether or not to waive State immunity (which may be by no means a foregone conclusion, especially in politically sensitive employment cases). The decision whether or not to waive immunity in Fogarty really was a decision about a procedural bar, but I am quite unpersuaded that it provides a parallel with this case. The fact is that section 10 of the 1947 Act did in very many cases before 1987, and still does in cases of latent injury sustained before 1987, substitute a no-fault system of compensation for a claim for damages. This was and is a matter of substantive law and the provision for an official certificate (in order to avoid or at least minimise the risk of inconsistent decisions on causation) does not alter that. Section 10(1)(b), taken on its own, is a provision for the protection of persons with claims against the [MOD]. I respectfully agree with Lord Bingham's analysis of the legislative history of the 1947 Act and with the conclusions which he draws from it.
144. In these circumstances I do not consider it necessary or desirable to attempt to assess whether section 10, if tested as a procedural bar, would meet the test of proportionality. There would be serious arguments either way and as it is not necessary to express a view I prefer not to do so.”
93. Lord Hoffmann agreed with Lord Walker's reasoning and conclusions and made certain additional observations. He noted that Mr Matthews' counsel (also counsel for the present applicant) had conceded that, if the 1947 Act simply said that servicemen had no right of action, it would not have infringed Article 6. Mr Matthews argued, however, that the structure of the 1947 Act was such that he had a civil right (a cause of action in tort) until a section 10 certificate was issued; if no certificate had been issued he would have been able to prosecute his action before the courts; and section 10 therefore gave the Secretary of State a power at his discretion to cut off the applicant's action and prevent him from bringing it before the courts. Lord Hoffmann pointed out that, if the purpose of section 10(1)(b) and (2)(b) had been to give the Secretary of State a discretionary power “to swoop down and prevent people with claims against the Crown from bringing them before the courts”, he would have agreed since such executive interference would run counter to the rule of law and the principle of the separation of powers. However, referring to the historical analysis of Lord Bingham, he considered it clear that section 10 delimited the substantive cause of action and the section 10 certificate was no more than a binding acknowledgment by the Secretary of State of the “attributable to service” requirement for an award of a pension, the quid pro quo for the inability to sue in tort. He too considered distinguishable Tinnelly & Sons Ltd and Others and McElduff and Others (Matthews did not involve any encroachment by the executive upon the functions of the judicial branch) and Fogarty (having regard to the discretion available to the foreign government to submit or not to jurisdiction).
94. Lord Hope analysed in some detail the Convention jurisprudence and principles, the history of the 1947 Act, the text and operation of section 10 and the section 10 certification process. He noted:
“72. The overall context is provided by the fact that section 10 falls within the same Part [I] of the Act as section 2. Section 2, by which the basic rules for the Crown's liability in tort are laid down, is expressed to be 'subject to the provisions of this Act'. Section 10 is an integral part of the overall scheme of liability which is described in Part I of the Act. This was all new law. None of the provisions in this Part which preserved the Crown's immunity from suit in particular cases could be said, when the legislation was enacted, to be removing from anybody a right to claim which he previously enjoyed.
73. As for section 10 itself, ... [i]t proceeds on the assumption that if a claim is made under section 2 of the Act the Secretary of State will have to form a view, on the facts, as to whether or not the case is covered by the immunity. The Secretary of State is told that he cannot have it both ways. He is not allowed to assert the immunity without making a statement in the form of a certificate in the terms which the condition lays down. This has the effect of preventing him, as the minister responsible for the administration of the war pension scheme, from contesting the issue whether the suffering of the thing was attributable to service for the purposes of entitlement to an award under that scheme. This is a matter of substantive law. It is an essential part of the overall scheme for the reform of the law which the 1947 Act laid down. It does not take anything away from the claimant which he had before. On the contrary, it has been inserted into the scheme of the Act for his benefit.”
Lord Hope concluded, in full agreement with the reasons expressed by Lord Walker, that section 10 amounted to a substantive limitation on the right to sue the Crown in tort.
95. Lord Millett's judgment also contained a comprehensive assessment of the Court's jurisprudence, the historical context and text of section 10 and the consequent purpose of the section 10 certificate. He noted:
“If the serviceman brought proceedings against the Crown for damages, the question at once arose whether his injury was sustained in circumstances which qualified him for a pension, for if it was the Crown was not liable in damages. Sometimes the Secretary of State had already conceded, or the Tribunal had already found, that whatever the serviceman claimed to be the cause of his injury was attributable to service in the armed forces of the Crown. If so he would grant a certificate to that effect and the action would be struck out on the ground that it disclosed no cause of action.
... In such circumstances the Secretary of State had no discretion whether to grant or withhold a certificate. He was called on to certify an existing state of facts which prevented the proceedings from having any chance of success. It was his duty as a public servant to ascertain the facts and certify or not accordingly.”
Lord Millett considered it plain that the section 10 certificate did not operate as a procedural bar to prevent the serviceman from having his civil right judicially determined. As regards Fogarty, and unlike the other Law Lords, he considered that immunities claimed by a State which conformed to generally accepted norms of international law fell outside Article 6 entirely. For the reasons outlined by each of their Lordships with which he agreed, he would also dismiss the appeal.
96. The scheme currently in force for the payment of a service pension in respect of, inter alia, illnesses and injuries attributable to service is contained in the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (“the Pensions Order”).
97. 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.
98. 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 (Article 5(4)).
99. The scheme for the payment of pensions is administered by a specialised agency of the DSS, formerly the War Pensions Agency (“WPA”) and now the Veterans Agency (“VA”). On receipt of an application, the VA, 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 decides on the basis of this assessment whether to award a service pension.
100. 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) in accordance with the PAT 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.
101. The VA 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 VA and a statement outlining the Secretary of State's reasons for refusing the application. The claimant may submit an answer to the Statement of Case and/or adduce further evidence. A hearing then takes place. 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 lies to the High Court on a point of law with leave from the PAT or the High Court.
102. Rule 6 of the PAT Rules (“the Rule 6 procedure”) is entitled “Disclosure of official documents and information” and provides as follows:
“(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 may think 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.”
103. Prior to 1991 all medical records (civilian or service) were only disclosed on a “medical in confidence” basis. It was a matter for the doctor to decide if it was in the patient's best interests to see his or her records. The 1990 Act came into force on 1 November 1991 and it sets down the rights of persons to access, 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”.
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 10
13
14
6
NON_VIOLATED_PARAGRAPHS: 6-1