• Invisible Enemy

Mr Justice Foskett (Part three)

High Court Of Justice - Queens Bench Division

Benjamin Browne QC and Catherine Foster & Mark James (instructed by Rosenblatt Solicitors) for the Claimants

Charles Gibson QC and Leigh-Ann Mulcahy QC, David Evans & Adam Heppinstall (instructed by Treasury Solicitors) for the Defendants

Full details of the Judgment.

Case No: TLQ/08/0023

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 05/06/2009

Continuing on from part two, we pick up the report discussing "core participants"

A huge amount of industry has gone into demonstrating that a very significant proportion of all the “core participants” in each of the tests would not be available to give evidence. These people, who number “about 100 or so” according to Mr Crossley’s statement, represent, it is said, the key individuals “who would be required to give evidence” in relation to the allegations made in the Master Particulars of Claim.

By way of example, in relation to the GRAPPLE Z tests it is said that there are 43 “core participants” who include –

(i) Harold Macmillan, who was Prime Minister during the GRAPPLE tests, who died in 1986;

(ii) Lord Penney, Director of AWRE during the relevant period and who was responsible for all the tests (who died in March 1991);

(iii) a number of “policy makers” including Sir Ernest Rock Carling (who died in 1960), Professor William Mayneord (who died in 1988), Professor J. S. Mitchell (who died in 1987), Dr John Loutit (who died in 1992) and Professor Sir Ernest Titterton, Chairman of Atomic Weapons Tests Safety Committee (Australia) from 1957 (who died in 1990);

(iv) various individuals involved in “health physics” and/or were “senior scientists” including Sir William Cook (who died in 1987), Mr R. Pilgrim (who died in 1992), Dr David Barnes (who died in 1991), Mr Geoffrey Dale (who died in 1995), Mr William Saxby (who died in 1991) and Mr W. S. Long (who died in 2007);

(v) various military personnel including Lt. Col. Robert Clutterbuck (who died in 1998), Sir John Grandy, Task Force Commander (who died in 2004), Captain Roger Hicks (who died in 1987) and Captain James Western (who died in 1988).

I have taken GRAPPLE Z merely as an example. Several of those named, of course, had been involved in other tests – indeed, in some cases, all of them – and some gave evidence to the Australian Royal Commission

In order to give a slightly fuller picture it needs to be noted that two individuals who might have been able to contribute to issues concerning arrangements made for decontamination and radiological protection died before anyone could reasonably have thought of pursuing a civil claim: Mr A.E. Oldbury, who was a senior scientist and a member of the GRAPPLE Z Decontamination Group, died at the age of 51 in 1965 and Air Vice Marshal Cecil Weir, GRAPPLE Air Task Commander, died aged 52 in 1965.

What does this say about the testing program, when these people both died in their 50's!

Much is also made of the “guinea pig” allegation. Not surprisingly, there is a strong emotive quality about the general allegation and it provokes a strong response on behalf of the Defendant and the allegation is denied with vigour.

“… at no stage were test participants or other humans used as test subjects for the purpose of discovering the biological effects of radiation, radioactive residue and fall-out products … No human beings were ever used, or considered for use, as targets, test-subjects or “guinea-pigs” in any of the tests.”

Mr Crossley sets out the Defendant’s position on the prejudice it faces in this way:

“It is starkly suggested by the Claimants that those in political and military power in the UK at the time of these tests deliberately exposed the Claimants to doses of radiation which they knew would cause them harm in order to experiment upon them as “Guinea pigs”. This is the case that the Defendant is expected to meet 50 years later.”

The nuclear tests carried out were of enormous significance to the security of the UK and to the perceived need to arm the country with an independent nuclear capability. It would be unthinkable that the tests and all the arrangements surrounding them, both before and after each and indeed more generally, were not documented fully and meticulously: given that the tests did involve experimentation, they are likely to have been as well, if not better, documented than almost any other significant event in UK history.

As I understand it, about 12,000 documents have been disclosed (comprising about 225,000 pages), those documents, in the Ministry’s estimation on the basis of legal advice, relating to, or being potentially relevant to, the limitation issues. It appears from an answer that Mr Crossley gave to a written question put to him by the Claimants’ legal team during the proceedings that there are “over 190,000 documents in the AWE files alone” which may be potentially relevant to the claim overall, though not necessarily relevant to the limitation issue.

There is a report running to some 260 pages concerning the role of HMS Diana and the effect of fall-out upon it and another report dated September 1957 detailing the measurements taken in relation to fall-out. HMS Diana was present (and Mr Hart, one of the Lead Claimants, was upon it: see paragraphs 766-791) to observe and record the fall-out and indeed to sail through it. There is a further detailed report entitled “Effect of fall out on machinery spaces” running to about 100 pages that records the observations and draws conclusions.

One conclusion that might, one supposes, arguably be characterised as an admission of fact for the purposes of any future proceedings is expressed in two paragraphs that are as follows:

“Of the contamination deposited, the majority is “loose” in the sense that it can easily be inhaled as dust, or ingested via the hands and mouth. This can be a serious hazard even though the quantity is minute, far too little to show an appreciable gamma dose-rate externally. For this type of contamination there is neither adequate detection equipment nor doctrine as to acceptable risks in service.”

On the basis of the way that the Claimants seek to put their case, that might well be relevant, but the point, for present purposes, is that there is a great deal of material about Operation MOSAIC and the role of HMS Diana that could, in my view, be evaluated appropriately by the trial judge.

One of those who played a significant role in the GRAPPLE tests, having been Deputy Trial Director on the MOSAIC tests, was Mr W R J Cook (as he then was), who died in 1987. On GRAPPLE Z he was deputy to the Director AWRE, Lord Penney. Another was Captain Roger Hicks, who was Commodore Operation GRAPPLE Naval Task and who would have played a role in relation to decontamination procedures. He too died in 1987.

Whilst I consider that the position in relation to these tests can be deployed adequately by reference to the contemporaneous documentation, it does have to be observed that these two men died before most of the relevant documents became declassified. Given that the Pearce case had been begun in 1985, it is arguably surprising that no efforts were made to obtain statements from people who would have been able to answer the allegations about Christmas Island at the time.

One issue that has been raised for a number of years about GRAPPLE Y is whether the bomb detonated lower than had been intended and claimed, the assertion being made on the basis of observations of, and calculations based on, time-lapsed photographs of the explosion by a Mechanical Engineer, Mr John Large, in 1997 for the purposes of the McGinley v UK litigation in the European Court of Human Rights. I do not see why an issue such as this cannot be debated on the basis of all the written materials available. If the issue of fact is important, the burden of proving it will lie on the Claimants.

The choice

The choice is, in a sense, a simple and stark one. Is it to be said that there is now no way in which there can be a fair trial in this case because most of those who planned and played a leading role in the test programme are no longer available to give evidence? Or is it to be said that a trial can take place because of the availability of the quite overwhelming amount of written material evidencing what took place which the trial judge will be able to evaluate in a way that is entirely consistent with trying fairly the issues?

Bearing in mind that, as in any piece of civil litigation, the burden of proof will lie upon the Claimants, I do not see why it should be said that there is now no reasonable prospect of a fair trial. In many respects this is a claim against an institution, now identified as “The Ministry of Defence”, and relates to the systems put in place by that institution at the time of the tests to secure the safety of the participants and their protection from the effects of ionising radiation. The views and positions of the institution that the Defendant now represents will be clear from the voluminous documentation available for consideration and the systems put in place are clearly and fully recorded.

Indeed the views and positions of many of the significant individuals within that institution will also be clear from the same sources. Indeed some, as I have observed above, have had to defend their position before the Australian Royal Commission. What they said is on the record.

It is possible that in respect of a number of the issues some expert assistance will be required by the trial judge; but I do not see the assistance from contemporary experts as being invalidated merely because the papers containing scientific material, or plans based upon scientific material, were composed over 50 years ago. What was known scientifically at the time can doubtless be deduced from other contemporary sources if necessary and the practice of the day in relation, for example, to safety procedures and so on can also be derived from contemporaneous documentation. Merely because a present-day expert was not there at the time will not necessarily undermine what he or she can contribute to the trial judge’s understanding of the issues.

It should also be tolerably easy to discern the true meaning of the documents from the documents themselves. Why should it be necessary for the individual who composed them to be there to explain? Whilst it will, of course, be a matter for the trial judge, but if a material part of the documentation upon which the Claimants rely is ambiguous and the ambiguity cannot be resolved by expert or other evidence, it may be that the relevant fact will not be found proved on the balance of probabilities bearing in mind where the burden of proof lies.

In my view, the existence of the “guinea pig” allegation, upon which the Defendant relies as a major factor in relation to the alleged prejudice of dealing with the trial without witnesses, does not undermine the general conclusion at which I have arrived. As a matter of fairness to a number amongst the Claimants, it should be noted that not all of them subscribe to the allegation in any event. Furthermore, it seems to me quite possible for the claims to be presented without having to put the case as high as suggesting a wholesale deliberate Governmental policy to expose thousands of young conscripts to unknown levels of radiation just to see what happened.

As will be apparent from the earlier parts of this judgment, the case being advanced is more subtle than that and, in effect, amounts to an allegation that insufficient steps were taken to prevent exposure to ionising radiation from the effects of ingesting or inhaling materials affected by fall-out. That could, one supposes, be made part of the “guinea pig” allegation, but it does not appear to have the hallmarks of such a suggestion and Mr Browne did not seek to put it in that way in the current proceedings.

It may be that there are those who consider that they were “guinea pigs”, but the claims can be tried without seeking to make the case on that basis. If the case is put that way, the trial judge will potentially have available the flexibility of the civil standard of proof that exists in relation to serious allegations in civil cases: cf. Re B [2009] 1 AC 11.

All those considerations go largely to evidence about the issue of the arrangements made for the safety of the participants in the tests. To what extent might consideration at trial of the issue of exposure or lack of exposure to ionising radiation be compromised by the passage of time?

Exposure or lack of exposure to radiation will be a matter that can be addressed in relation to most if not all Claimants by reference to the scientific evidence now in existence. Doubtless the Rowland Report and any advances upon it if any become available will play a significant part in that issue if a trial takes place. If the scientific evidence establishes that the participants were probably exposed to ionising radiation at a level above background level then, as Mr Browne has submitted, it is difficult to see why accurate and precise reconstruction of any participant’s involvement or location will be necessary.

The essential allegation is that the material exposure, if it occurred, arose from the effects of fall-out over the period that the men were in the areas affected by fall-out from the tests. If the Defendant’s records confirm that the relevant Claimant was in one of those areas then little further inquiry would seem necessary. If the records indicated differently or there were no records, then the trial

judge would have to decide where the evidence that does exist leads. Again, it has to be remembered that the burden of proof will be on the individual Claimant.

Subject, therefore, to any particular consideration in an individual case, I do not see why from the Defendant’s perspective a fair trial cannot take place in this case by reference substantially to the documentation created at or about the time of the tests and by reference to any statements or accounts that those involved have given subsequently. I do not see why the cogency of the evidence from the Defendant’s point of view will be substantially diminished by the absence of live witnesses.

It is said on behalf of the Claimants that “[the] substantial public anxiety surrounding the tests and the public interest in these proceedings are also relevant considerations.” In support of this general assertion witness statements from a prominent Member of Parliament and a well-known journalist are in the papers submitted to me.

That kind of assertion is always difficult to assess and Mr Browne did not make much, if anything, of it in his oral submissions. However, it is an issue that needs to be addressed.

Any review of the background to the issues raised in this case will demonstrate that there is ample scope for sensationalist reporting in the context of the consequences of events of the nature with which this case is concerned. There is also undeniably some scope for those with agendas other than simply wishing to see redress for veterans who believe they have suffered because of their presence at the tests to distort what happened for their own purposes.

There is also a fertile ground for simple misunderstandings of the effects that presence at the tests can bring and a great deal of material upon which suspicion and conspiracy theories can be founded. It is no part of my task to try to see a way through all of this if it has occurred, merely for the moment to draw attention to how public perceptions could be distorted by these matters if a full and balanced picture is not available.

However, what shines through clearly and with no ambiguity on the evidence before me is that there is a large number of veterans (and their descendants) who genuinely believe that various illnesses and conditions that have beset them have arisen from their exposure to radiation at or in consequence of the tests. Many (including some of those constituting the ten Lead Cases) have suspected or believed this for a long time and have wanted the opportunity for their suspicions or beliefs to be tested independently, not necessarily with compensation as their objective.

Their concerns, on the evidence of what has happened in other countries, have been mirrored by the beliefs of others who either took part in the tests with which this case is concerned or who took part in similar tests carried out by their own countries.

The full 215 page report can be found here.

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