ECHR judgment in Roche v UK (only violation of article 8 in former serviceman's inability to sue for for ill-health he believed to have been caused by Porton Down research facility)

October 20, 2005

Strasbourg, 19 October 2005

The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment in the case of Roche v. the United Kingdom (application no. 32555/96).

The Court held:

* by nine votes to eight, that there had been no violation of Article 6 § 1 (access to court) of the European Convention on Human Rights;

* by 16 votes to one, that there had been no violation of Article 1 of Protocol No. 1 (protection of property) to the Convention;

* unanimously, that there had been no violation of Article 14 (prohibition of discrimination);

* by 16 votes to one, that there had been no violation of Article 13 (right to an effective remedy);

* unanimously, that there had been a violation of Article 8 (right to respect for private and family life); and

* unanimously, that there had been no violation of Article 10 (freedom of expression).

Under Article 41 (just satisfaction), the Court awarded the applicant 8,000 euros (EUR) for non-pecuniary damage and EUR 47,000 (less the legal aid amounts already paid by the Council of Europe of EUR 3,228.72) for costs and expenses. (The judgment is available in English and French.)

1. Principal facts

The case concerns an application brought by a United Kingdom national, Thomas Michael Roche, who was born in 1938 and lives in Lancashire (United Kingdom).

In 1953 the applicant joined the British Army and was discharged in 1968 for reasons unrelated to his case before the European Court of Human Rights.

In 1987 he developed high blood pressure and now suffers from hypertension, chronic obstructive airways disease (bronchitis) and bronchial asthma. He has not worked since 1988 and is registered as an invalid. He maintains that his health problems are the result of his participation in mustard and nerve gas tests conducted under the auspices of the British Armed Forces at the Chemical and Biological Defence Establishment (CBDE) at Porton Down Barracks (England) in 1962 and 1963.

From 1987 the applicant actively sought access to his service records via medical and political channels, with limited success. On 10 June 1991 he submitted a claim for a service pension. On 28 January 1992 the Secretary of State rejected his pension claim as he had not demonstrated a causal link between the tests and his medical condition.

In 1994 he threatened to bring judicial review proceedings alleging, among other things, negligence on the part of the Ministry of Defence. On 3 August 1995 the Secretary of State issued a certificate under section 10 of the Crown Proceedings Act 1947, which effectively blocks any such proceedings concerning events prior to 1987, while allowing the person concerned to apply for a service pension.

In November 1998 - following the European Court of Human Right's judgment of 9 June 1998 in the case of McGinley and Egan v. the United Kingdom - the applicant appealed to the Pensions Appeal Tribunal (PAT). He applied for the disclosure of official information under Rule 6 (1) of the PAT Rules to enable the PAT to decide whether his illness was caused or aggravated by the Porton Down gas tests. In February 2001 the PAT ordered the Ministry of Defence to disclose certain categories of records and certain documents were disclosed in 2001 and 2002.

On 14 January 2004 the PAT concluded, relying on an expert report, that there was "no evidence to link [the applicant's] exposure to either gas with his present condition". The mustard gas tests had been designed to test the suitability of military clothing to exposure and were not a gas test per se. Furthermore, after a man died at Porton Down in 1953, safeguards had been put in place to ensure that volunteers were only exposed to safe doses. However, the PAT also considered the "difficulties" experienced by the applicant in obtaining the records which were produced to the PAT to be "disquieting".

On 11 May 2004 the applicant applied for leave to appeal to the High Court. On 8 October 2004 the High Court allowed the appeal and referred the matter back to the PAT for a further hearing, before which the case is still pending.

On 18 April 2005 the Government disclosed a further 11 documents, eight of which had not been seen before by the applicant.

Since 1998 a scheme has existed allowing Porton Down test participants to be given a summary of their test records and to see the actual documents at Porton Down. In addition, the Porton Down Volunteers Medical Assessment Programme was established in 2001 to investigate the health concerns of participants. The study involved 111 people, but no control group. Its report, published in April 2004, 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". A further pilot study on mortality and cancer incidence among Porton Down test participants is still underway.

2. Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 31 January 1996 and transmitted to the European Court of Human Rights on 1 November 1998. The case was declared partly admissible on 23 May 2002 and on 25 March 2004 the Chamber dealing with the case relinquished jurisdiction in favour of the Grand Chamber. A public hearing took place in the Human Rights building, Strasbourg on 20 October 2004.

Judgment was given by the Grand Chamber of 17 judges, composed as follows: Luzius Wildhaber (Swiss), President, Christos Rozakis (Greek), Georg Ress (German), Nicolas Bratza (British), Lucius Caflisch (Swiss)3[3], Loukis Loucaides (Cypriot), Ireneu Cabral Barreto (Portuguese) Viera Strážnická (Slovakian), Peer Lorenzen (Danish), Josep Casadevall (Andorran), Boštjan M. Zupancic (Slovenian), John Hedigan (Irish), Wilhelmina Thomassen (Netherlands), András Baka (Hungarian), Rait Maruste (Estonian), Kristaq Traja (Albanian), Stanislav Pavlovschi (Moldovan), judges, and also, Lawrence Early, Grand Chamber Deputy Registrar.

3. Summary of the judgment

Complaints

The applicant complained that he was denied adequate access to information concerning the tests he underwent at Porton Down, in violation of Articles 8 and 10 of the Convention. He also complained that the certificate issued by the Secretary of State under section 10 of the 1947 Act constituted a violation of his right of access to court, guaranteed by Article 6 § 1, and of Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14. He further relied on Article 13.

Decision of the Court

Article 6 § 1

The Court accepted the reasoning of the United Kingdom Court of Appeal and the House of Lords as to the effect of section 10 of the 1947 Act in domestic law.

The House of Lords had found that section 10 did not intend to confer on servicemen any substantive right to claim damages against the Crown. It simply maintained the existing (and undisputed) absence of liability in tort of the Crown to servicemen in the circumstances covered by that section. The Lords made it clear that, prior to 1947, no right of action in tort lay against the Crown on the part of anyone. Section 2 of the 1947 Act granted a right of action in tort for the first time against the Crown but the section was made expressly subject to the provisions of section 10 of the Act. Section 10 provided that no act or omission of a member of the armed forces of the Crown while on duty should subject either that person or the Crown to liability in tort for causing personal injury to another member of the armed forces while on duty. Section 10 did not therefore remove a class of claim from the domestic courts' jurisdiction or confer an immunity from liability which had been previously recognised; such a class of claim had never existed and was not created by the 1947 Act. Section 10 was found therefore to be a provision of substantive law which delimited the rights of servicemen as regards damages' claims against the Crown and which provided instead, as a matter of substantive law, a no-fault pension scheme for injuries sustained in the course of service.

The Court found that section 10 had to be interpreted in its context, bearing in mind the purpose of the legislation; to facilitate the grant of a pension to injured service personnel by obviating the need to prove that the injury was attributable to service. It was also intended that the section 10 certificate would issue where the relevant conditions had been fulfilled, which had been the practice for 40 years, to the extent that any lawyer would have advised that a section 10 certificate was bound to issue.

Section 10 did not involve encroachment by the executive into the judicial realm but rather concerned a decision by Parliament in 1947 that, in a case where injuries were sustained by service personnel which were attributable to service, no right of action would be created but rather, a no-fault pension scheme be put in place, the certificate of the Secretary of State serving only to confirm that the injuries were attributable to service and thereby to facilitate access to that scheme.

Accordingly, the Court found that the applicant had no (civil) "right" recognised under domestic law which would attract the application of Article 6 § 1. It was therefore not necessary to examine the parties' submissions as to the proportionality of that restriction or the Government's argument that Article 6 was inapplicable for other reasons.

The Court concluded that Article 6 was not applicable and that there had been no violation of that provision.

Article 1 of Protocol No. 1

The Court noted that the applicant argued that he had a "possession" on the same grounds as he maintained that he had a "civil right" within the meaning of Article 6 § 1. The Court considered that there was no basis in domestic law for any such claim. As the applicant had no "possession" within the meaning of Article 1 of Protocol No. 1, it did not apply. There had therefore been no violation of Article 1 of Protocol No. 1.

Article 14

Given its findings that the applicant had no "civil right" or "possession" within the meaning of Article 6 § 1 and Article 1 of Protocol No. 1 and that neither article was applicable, the Court considered that Article 14 read in conjunction with Article 6 § 1 or Article 1 of Protocol No. 1 was therefore also inapplicable. There had therefore been no violation of Article 14.

Article 13 The Court reiterated that Article 13 did not go so far as to guarantee a remedy allowing the primary legislation of a State which had ratified the European Convention on Human Rights to be challenged before a national authority on the grounds that it was contrary to the Convention. Accordingly, there had been no violation of Article 13.

Article 8 The Court found that the applicant's uncertainty, as to whether or not he had been put at risk through his participation in the tests carried out in Porton Down, could reasonably be accepted to have caused him substantial anxiety and stress. And, the evidence was that it did. From the onset of his medical problems in 1987, he single-mindedly pursued through various means any information relevant to his test participation.

While the PAT found that there was no reliable evidence to suggest a causal link between the tests and the applicant's claimed medical conditions, that was not until 2004 and the High Court has since allowed his appeal and sent the matter back to the PAT, before which the matter is pending.

A significant number of "relevant records" of the 1963 tests were still in existence in 1966. However, the Government had not asserted that there was any pressing reason for withholding those records. Following certain revisions of their position and de-classification of documents, they also submitted that, "nothing of significance" had been withheld on national security grounds.

In such circumstances, the Court considered that a positive obligation arose to provide an "effective and accessible procedure" enabling the applicant to have access to "all relevant and appropriate information" which would allow him to assess any risk to which he had been exposed during his participation in the tests. An individual, such as the applicant, who had consistently pursued such disclosure independently of any litigation, should not be required to litigate to obtain disclosure. A structured disclosure process was required.

However, the various "medical" and "political" means available in the applicant's case had resulted only in partial disclosure. In addition, information services and health studies had only been started almost 10 years after the applicant had begun his search for records and after he had lodged his application with the Court.

As to the 1998 Scheme, the Court recalled the difficulties experienced by the authorities, even in a judicial context before the PAT, in providing records under the Rule 6 order of the President of the PAT. Even taking into account only the period following the making of the Rule 6 order by the President in February 2001, the disclosure has been piecemeal and, over four years later, disclosure remained unfinished. Indeed, the PAT described as "disquieting" the difficulties experienced by the applicant in obtaining records. Those demonstrated difficulties in making comprehensive and structured disclosure to date undermined any suggestion that an individual's attendance at Porton Down to review records retained there could lead to the provision of all relevant and appropriate information to that person. It was undoubtedly the case that certain records were, given their age and nature, somewhat dispersed so that the location of all relevant records was, and could still be, difficult. However, it was equally the case that the absence of any obligation to disclose and inform facilitated this dispersal of records and undermined an individual's right to obtain the relevant and appropriate disclosure.

Finally, the Porton Down Volunteers Medical Assessment Programme involved only 111 participants and no control group, whereas 3000 service personnel had participated in nerve gas tests and 6000 in mustard gas tests, with some having been involved in both types of test. The full-scale epidemiological study did not begin until 2003 and had not yet been completed.

In such circumstances, the Court considered that the United Kingdom had not fulfilled its positive obligation to provide an effective and accessible procedure enabling the applicant to have access to all relevant and appropriate information which would allow him to assess any risk to which he had been exposed during his participation in the tests. There had therefore been a violation of Article 8.

Article 10 The Court recalled that the freedom to receive information prohibited a Government from restricting a person from receiving information that others wished or might be willing to impart and that that freedom could not be construed as imposing on a State, in circumstances such as those of the applicant's case, positive obligations to disseminate information. There had therefore been no interference with the applicant's right to receive information as protected by Article 10.

Judges Caflisch and Ress expressed a concurring opinion; Judge Loucaides joined by Judges Rozakis, Zupancic, Strážnická, Casadevall, Thomassen, Maruste and Traja expressed a dissenting opinion and Judge Zupancic expressed a dissenting opinion, which are annexed to the judgment.

European Court of Human Rights
Press release issued by the Registrar, No. 551
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