Mr Justice Foskett (Part two)

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 one, we pick up the report discussing chromosomes.

Professor Brenner said in his report of 6 November 2008:

“There is independent evidence from large-scale epidemiological studies (in particular Japanese Atomic Bomb survivors, but also nuclear workers (Cardis et al. 2007)) that individuals exposed to radiation doses in this dose range have an increased lifetime risk of both cancer incidence and cancer mortality. For example, atomic bomb survivors exposed in 1945 in the dose range from 5 to 150 mSv (and followed up for many decades) show statistically-significant increased risks of both cancer incidence and cancer mortality (Preston et al. 2003, 2004, 2007). Atomic bomb survivors who received higher

doses have proportionately higher lifetime cancer risks (Preston et al. 2003, 2004, 2007).

In addition to the relevance of chromosome aberrations as biomarkers of past exposure to radiation, there is a well established mechanistic link between chromosome aberrations and cancer. In particular, the majority of all human cancers contain one or more of the same chromosomal aberrations in virtually all the tumour cells, implying that this/these chromosome aberrations must have been present in the original damaged cell(s) from which the tumour originated. This link between chromosome aberrations and cancer has been extensively catalogued, for example by Mitelman et al (1997, 2008).

Finally, I will comment on the issue of the latency period between radiation exposure and the appearance of an associated cancer. A great deal is known about this issue, largely from the detailed follow-up studies of the Japanese atomic bomb survivors, whose cancer risk have been carefully monitored for more than half a century (Preston et al. 2003, 2007). What is well established from these studies is that, for solid tumours (as opposed to haematological cancers), the latency period is long, ranging from about 10 to at least 50 years.

More precisely, the increased relative risk of cancer produced by radiation exposure is generally maintained throughout the lifetime of the exposed individual. Whilst a complete mechanistic understanding of radiation-induced cancer is not yet established, the reasons for this prolonged period of increased radiation-associated risk are qualitatively understood: radiation-induced cancers originate with radiation-induced damage to stem cells, which can be passed on to progeny stem cells when they divide. Thus the radiation-induced damage can remain latent in stem cells for many years until the damaged stem cell or one of its progeny starts to divide inappropriately as a result of the damage.”

Christmas Island

Dr Lindahl broadly accepts this mechanism of injury in relation to cancers. In his report of 23 July 2008 he said this:

“Cancer usually results from inactivation of tumour suppressor genes. There are probably 20-50 major such genes. Cancer can also occur by activation of smaller numbers of specific oncogenes. In both the cases of tumour suppressor genes and oncogenes, the critical alteration is malfunction in the cellular signal transduction processes that results in uncontrolled cellular proliferation.

Single site mutations with alteration of a single residue is one cause of a specific rare transformation of a normal cell to a malignant cell. Alternatively, this can occur by chain breaks in DNA with perturbations or rearrangements locally of the DNA sequence. This is triggered by chain breaks in DNA…. Because ionising radiation can generate a track of reactive hydroxyl radicals, such radiation can damage DNA locally at multiple sites, including damage to both strands of DNA with a short region, and this may well result in a double strand break.”

The essential question is whether the Rowland Report has so changed the scientific evidential landscape that it is an inescapable conclusion that the “knowledge threshold” within the Limitation Act has never (and could never) have been crossed until its promulgation or, if it has (or could have) been crossed at any earlier stage, whether the emergence of the report is a factor to which weight should be given in this exercise.

It would be convenient to refer at this stage to the views of Professor Mothersill to which I have made oblique reference thus far. The Defendant has characterised her views which support the proposition “that virtually any illness can be caused by any dose of radiation” as “highly controversial”. She is described by the Defendant as merely a “radiobiologist” who is “not medically qualified”, nor “an immunologist”, whose theories on the “biological mechanisms by which injury might be caused (genomic instability/bystander effects and immune system compromise)” are not supported by current scientific understanding.

The suggestion is, in effect, that her views are so far off received wisdom that they should be discarded. The principal source of this scepticism is undoubtedly Dr Lindahl who is very dismissive of her views. (Dr Tomas Lindahl FRS is a Swedish radiobiologist who joined in 1981 what was then the Imperial Cancer Research Fund, now Cancer Research UK, and is renowned for matters relating to DNA repair.

Professor Mothersill, BSc, PhD, is a Professor of Radiobiology in the Department of Medical Physics and Applied Radiation Sciences, McMaster University, Hamilton, Ontario, who for 20 years prior to 2003 had been, firstly, a lecturer in medical physics and radiation biology at the Dublin Institute of Technology and thereafter Scientific Director of the Radiation and Environmental Science Centre there.

From 2003 onwards she has been based at McMaster University.

Professor Mothersill’s summary of what “genomic instability” means in this context is as follows:

“…Any disease could be caused by an exposure [to a low dose of ionising radiation] as ultimately our genes determine which proteins are expressed in ourselves and thus control our responses to disease situations. Genomic instability is turned on by extremely low doses of radiation and can be triggered in bystander cells as well. Bystander cells received signals from irradiated cells but do not experience the ionising tract. A further important fact is that genomic instability is a delayed effect of radiation which may not be immediately apparent.

The LNT [Linear Non Threshold] model which is used by all radiation protection authorities predicts that any dose no matter how small has a finite probability of causing a cancer due to the ability of radiation to cause DNA damage. The finding of excess chromosome translocation frequencies in the veterans is consistent with this and also with the presence of genomic instability in these individuals. What genomic instability theory does is that it widens the spectrum of diseases inducible by radiation and the time over which these might appear.”

Professor Mothersill goes on to say this:

“It was well established (long before Dr Rowland’s report) that ionising radiation can cause certain illnesses, including (but not limited to) cancers. It follows that, if, as Dr Rowland found, the veterans were exposed to ionising radiation, then this materially increased the risk of the veterans suffering the illnesses from which they have actually suffered.”

Against that background, Professor Mothersill has lent her support to the causal link between their exposure to ionising radiation and certain conditions from which they have suffered on the part of some, but not all, of the Lead Claimants in this case. Her support is expressed on the basis that their exposure to ionising radiation materially increased the risk of their developing the conditions specified.

It follows from all this that, as things stand and without the evidence being fully tested, there is expert support for an explicable link between exposure to ionising radiation and most, if not all, of the conditions sought to be relied upon by the Claimants, either by virtue of (i) the direct effect upon DNA and potential cancerous growth as a result or (ii) the indirect effects by way of bystander effects and consequent genomic instability. Whether that support would translate into a finding that causation had been established in any case would, of course, depend upon the view taken about such evidence at the trial of the substantive cases if such a trial takes place. But, on the evidence as it stands, the necessary link is established for most, if not all, of the conditions relied upon.

The MoD Response

What is the basis for the Defendant’s contention that causation is unarguable in each of the Lead Cases?

In essence what is said is that the claims fall to be assessed by reference to the approach in Wilsher v Essex Area Health Authority [1988] AC 1074 and that the exception to the general rule articulated in Fairchild v Glenhaven Funeral Services Ltd and others [2003] 1 AC 32 cannot apply in these cases.

The reason for so submitting is based upon a concession made on behalf of the Claimants in the Opening in the following terms:

“All of these illnesses also occur when there is no known history of exposure to ionising radiation and in all cases there are known to be other identifiable risk factors, such as smoking. In the event that it is possible to identify more than one risk factor medical science is not able to say which of those risk factors as a matter of probability caused the development of the condition. All that can be said is that the condition has developed and that there are a number of risk factors each of which is likely to have played a material part in the causation of the ill-health.”

Significant Areas of Evidence and Argument

(i) What was in the public domain about the effects of ionising radiation?

(ii) The role of the British Nuclear Test Veterans Association (BNTVA).

(iii) The Pearce case.

(iv) The funding issues.

(v) The National Radiological Protection Board (NRPB) reports.

(vi) Monitoring.

(vii) The essential position taken by successive Governments over the years.

(viii) The Australian Royal Commission.

(ix) The Rowland Report.

(i) What was in the public domain about the effects of radiation?

The Defendant has asserted that there has been a welter of publicity over the years that should have put those who were present near the nuclear tests, or who played a part in their aftermath, on notice of a possible link to any illness, particularly cancerous, which they developed. The Treasury Solicitor commissioned a search of the available archives for newspaper articles relevant to the issues in this case (for example, radiation-linked injuries, veterans’ claims, scientific reports and media coverage) since the tests. The result was to discover about 600 articles in all which fill 6 lever arch files in the material before the Court. That ‘headline’ statistic is, of course, not to be ignored, but as with every headline the subtext needs consideration to reach an informed view.

The Guardian on 13 June 1956 carried a front-page article entitled “Warning on H-Bomb Tests – Long-Term Risks if Rate of Firing Continues – THE STRONTIUM DANGER”. It was reporting the result of an inquiry carried out by the Medical Research Council entitled “The hazards to man of nuclear and allied radiation” (Cmnd. 9780) said in the article to have been commissioned the previous year by Sir Winston Churchill because of “public unrest about the genetic effects of the nuclear explosions carried out by the Americans in the Pacific.” This plainly referred to the Bikini Atoll test referred to in paragraphs 26 and 27 above.

The Defendant draws attention to the following paragraph in the article:

“There are certain constituents of fall-out, of which strontium 90 is the most important, which retain their radio-activity for long periods, and which are deposited on the ground over a very wide area where they may contaminate drinking water and crops. If strontium 90 enters the body it concentrates in bone and may cause cancer.”

(ii) The British Nuclear Test Veterans’ Association (BNTVA)

Because of its involvement in the process of bringing into public awareness the concerns of test veterans and raising general awareness of issues concerning the tests and the alleged health consequences the BNTVA must be mentioned in this report.

I would, perhaps, add also that it is self-evident from the numbers who have, over the years, been recorded as members of the BNTVA, that not all nuclear test veterans have been members of the Association.

To that extent it cannot be said (nor has it ever been claimed, so far as I understand it) that the BNTVA represents the interests of all 20,000 or so who attended, or had some dealings with the aftermath of, the tests.

By 1997 Dr Sue Rabbitt Roff (Ms Susanne Roff, PhD, of the Centre for Medical Education at Dundee University Medical School) had become Research Adviser to the BNTVA. She was the Cookson Senior Research Fellow at Dundee University, a position, as I understand it, funded by the late Dame Catherine Cookson following an approach by Mrs Sheila Gray, the Secretary of the BNTVA.

Dr Rabbitt Roff, who grew up in Australia, has described herself as having “represented human rights organisations at the United Nations in New York throughout the 1980s, with particular reference to peace and security issues in small states and territories.” From 1991 she had taught Social Sciences and Medical Sociology at Dundee University Medical School, one of the courses dealing with the health hazards of ionising radiation. She had published a number of books including, in 1995, “Hotspots: The Legacy of Hiroshima and Nagasaki”.

From about 1995 she had been assisting veterans (presumably through the BNTVA) with applications to The War Pensions Agency. As a result of that collaboration the BNTVA commissioned a health study of BNTVA members and their families to be undertaken by Dr Rabbitt Roff. A detailed questionnaire was prepared by Dr Rabbitt Roff and sent to all members of the Association in December 1997.

A little earlier in the year, in July, with the assistance of information provided to her by the Association, Dr Rabbitt Roff began a study of the causes of death of the members of the Association of whose death notification had been received by the Association between 1983 and July 1997. Although the results of these two separate surveys became public earlier, they were published in “Medicine, Conflict and Survival” (Vol. 15, Supplement 1, July-September 1999) and entitled “Mortality and Morbidity of

Members of the British Nuclear Tests Veterans Association and the New Zealand Nuclear Tests Veterans Association and their Families”.

The results of Dr Rabbitt Roff’s work did receive some publicity. On 13 December 1998 The Mail on Sunday, under the headline “End A-test injustice”, carried a report of the survey. On 12 January 1999 The Daily Record, under the headline “A-bomb test veterans in case breakthrough”, reported that Dr Rabbitt Roff “who has studied 2,500 cases during the past 18 months, found 45 nuclear veterans had died or had been diagnosed with multiple myeloma - cancer known to be caused by radioactivity.” In January both The Guardian and The Lancet carried reports that the Australian and UK Governments had announced separate inquiries into the results of her work. I deal with that at paragraphs 310-315 and

Before moving on in time, it is also to be noted that in the period 1996-1997 the BNTVA had contact with the NRPB in relation to what became known as the ‘Phelps-Brown study’, an NRPB-funded study (in which, amongst others, Mr N.A. Phelps-Brown, Consultant Opthalmologist, and Dr Darroudi were involved) looking at whether elevated levels of chromosome translocations could be responsible for cataracts in UK Veterans. I deal with the study in paragraphs 304-305 and 371, but it is convenient to record here the exchange of correspondence between the NRPB and the BNTVA in late 1996 and early 1997 because the Defendant places some reliance upon it.

In a letter to the Vice Chairman of the BNTVA, Mr Peter Fletcher, dated 17 December 1996, the Head of the NRPB’s Biomedical Effects Department, Mr Roger Cox, explained the nature of the study in these terms:

“... NRPB have been funding and co-ordinating a study on the possible relationship between the presence of eye cataracts in UK Test Veteran volunteers and the frequency of stable chromosomal aberrations (translocations) in their blood cells. The principal aim was to determine whether volunteers with posterior-subcapsular cataract (PSC), which is known to be inducible by radiation, had levels of chromosome translocations that were elevated sufficiently to suggest that unrecorded high doses of radiation were responsible for their specific eye disorder. ”

This prompted a request by Mrs Sheila Gray, communicated to Mr Cox in a letter of 30 December 1996, for more information about the study. It appears that the study was initiated in 1994 with the blood sampling of volunteers who were recruited with the BNTVA and the BAVA (the British Atomic Veterans Association, an association set up by Mr Tom Armstrong, one of those featured in the first Nationwide programmes. The aim of the study was described in these terms:

“The hypothesis to be tested in the study was whether the presence of posterior-subcapsular cataract in test veterans might be associated with unrecorded high doses (greater than around 1.3 Gy) of radiation. A chromosomal technique believed to be capable of assessing, in blood cells, historical radiation doses of this magnitude was employed in the methodology.”

Tthe Defendant relies upon this exchange of correspondence (plus the knowledge that would have been gained by those actively involved in the BNTVA) to show that in 1996/1997 the BNTVA and the veterans associated with it were aware of the possible association between translocations and disabilities arising from exposure to ionising radiation and the existence of technology designed to reveal the existence of the such translocations.

(iii) The Pearce case

Mr Melvyn Pearce was a former Lance-Corporal in the Royal Engineers who was present during Operation GRAPPLE between December 1957 and 28 October 1958 and, he claimed, witnessed nuclear explosions taking place. He also said that he ate locally-grown fruit and produce and that he swam in the sea around Christmas Island. Later in life he developed lymphoma. From the judgment of Ralph Gibson LJ in the Court of Appeal, the following is to be deduced concerning his health problems as they were alleged to have been:

“The nature of the injuries alleged is that in 1966, some eight years after his service on Christmas Island, the plaintiff suffered a rash which became a severe skin condition in 1970. By 1978 the plaintiff was suffering from a soft tissue tumour and lymphoma. By 1981, as a result of treatment of the plaintiff's condition, his thyroid gland had been rendered inoperative.”

(iv) The funding issues

As appears from paragraph 434, at least some of the initial investigations in the present case were carried out with the benefit of public funding from the Legal Services Commission and that funding enabled the institution of the proceedings in late 2004. Following service of proceedings on 21 April 2005 the Treasury Solicitor agreed an extension of time for service of the Particulars of Claim which was subsequently further extended due to difficulties with the Legal Service Commission funding certificate.

However, on 17 August 2005 the Legal Services Commission withdrew public funding. I have seen no official documentation evidencing the reasons for this, but Messrs Alexander Harris wrote to the Treasury Solicitor on 26 August 2005 in these terms:

“We can confirm that the basis for the Legal Services Commission’s recent decision to cancel public funding for this litigation is primarily centred around a cost/benefit analysis.

In essence, the Legal Services Commission stated that the legal merit of the case was insufficient to justify the case being pursued at the public expense. Further, the cost benefit ratio of the case, in the view of the Legal Service Commission was insufficient to justify continued public funding and that if there was such continued funding, the Legal Services Commission felt that it was unlikely that we would be in a position to serve proceedings within the agreed stayed period of 4 months.”

v) The National Radiation Protection Board (NRPB) reports and other studies - summary

The circumstances in which the NRPB first came to be involved in assessing the impact of the tests. Of the three studies completed (1988, 1993 and 2003) the first two were conducted by Sir Richard Doll, Dr Sarah Darby (both of whom are described by Professor Louise Parker as “highly respected UK epidemiologists”) and others. The third was conducted by some members of the original teams plus others. The studies are said by the Defendant to have been independent large scale epidemiological studies of 85% of UK test participants, the conclusions from which are consistent with other studies carried out in New Zealand, Australia and the USA.

The effect, it is said, on the basis of Professor Kaldor’s analysis, is to demonstrate that the vast majority of participants were exposed to very low levels of radiation based on the available means of determining exposure and that there is no substantial difference between the incidence of the diseases complained of by the veterans (and alleged to be due to radiation) and that of those in the control group save possibly for a small increase in the incidence of leukaemia. The Claimant challenge the validity of the conclusions reached by reference to the levels of exposure upon which the studies were based and upon aspects of the methodology.

Because of what was said by the NRPB to have been the generally inconclusive nature of the study, taken with the surprising finding of a lower mortality from smoking-related diseases in the participants than in the control group, it was felt that further observations would need to be made and it was recommended that the observations should be continued for 10 years. The reasons for suggesting this were set out fully in the recommendations and the recommendations concluded with this paragraph:

“It should be noted … that any new evidence relating to the incidence of leukaemia in the participants will be of limited value as the risk of leukaemia following exposure to ionising radiation diminishes appreciably more than 10 years after the exposure has occurred, unless any of the exposure was due to the ingestion or inhalation of long lived radionuclides. This qualification does not apply to the risk of multiple myeloma nor, in all probability, to the risk of many other cancers.”

Dr Sue Rabbitt Roff considered the death notifications received by the BNTVA over a 14-year period from 1983 to 1997. The Report became available during 1999. It is difficult to do justice to it in a sentence, but her conclusion following this study can be deduced from the following extract of the Abstract:

“The Ministry of Defence still routinely issues a document to nuclear veterans who feel that their illnesses were caused by the radiation they encountered when they were young men which states:

‘The background [radiation] dose received by civilians and members of HM Forces serving at or off Christmas Island in the years 1956 to 1964 was only about 35% of that which they would have received on average had they remained, for that period of their lives, in the United Kingdom - that is, some 100 microsieverts per calendar month less at Christmas Island than in the United Kingdom.’

This sanguine view of the health burden borne by nuclear veterans and their families is not borne out by the data reported in this study of the health outcomes of the 2,500 men (2,200 UK, 238 New Zealand and 62 Fijian) on whom data are available to the present researcher. Thirty per cent of the men in this sample have already died, mostly in their fifties. Two-thirds of them died from cancers that are pensionable in the United States as presumptively radiogenic among nuclear veterans. About one in seven of the men in the sample of 1,014 who responded to the questionnaire circulated in late 1997 did not father any children after they returned from the weapons tests. Among the nearly 5,000 children and grandchildren of this group of more than a thousand veterans, there are 26 cases of spina bifida alone - more than five times the usual rate for live births in the UK.”

The report concluded with

“The data in this study point to an accelerated rate of death for the UK nuclear veterans at precisely the moment the NRPB studies terminated, and the UK Ministry of Defence acknowledged in late 1998 that the finding in relation to multiple myeloma alone compels a re-analysis and updating of the NRPB studies. But radiobiological tests are now available which can detect evidence of past radiation exposure. It is a major recommendation of this study that research henceforth proceed beyond the epidemiological to the clinical and pathological levels. Then at least medical science can learn from this 40-year-old tragedy with its cast of thousands.”

(vi) Monitoring

If any or all of these cases proceed to trial, the accuracy and reliability of the monitoring of those present at or in the region of the tests will loom large as an issue. It would go to the question of breach of duty and to the general causation issue given that the NRPB studies and many Government pronouncements have been based upon the presumed accuracy and reliability of the monitoring.

In order to make good that case the Defendant relies upon the provision of film badges and dosimeters to participants which were designed to measure exposure to gamma radiation, the essential case being that any person who was or might be exposed to gamma radiation was provided with one or other monitoring devices and the results were then recorded eventually in what were known as “the Blue Books”. Mr Crossley describes these as comprising a series of paper documents within blue covers containing the Atomic Weapons Establishment’s (AWE) lists of test participants’ recorded dose levels at the tests.

They were produced in 1981-2 at the Atomic Weapons Research Establishment (AWRE, the forerunner of the AWE) largely from the contemporary Health Physics dose record sheets and covered the Armed Services, UK civilians and other participants. Mr Crossley confirms that the Blue Books were “transcriptions of information from other sources” and so were marked with the caveat ‘Provisional’. That was because some of the sources included only surnames, rendering unique identification of individuals with common surnames impossible in many cases.

This caveat was communicated to the NRPB by AWE and was indeed acknowledged in the first NRPB study in the following terms:

“This document contains in confidence a summary provisional listing of names and relevant associated data, obtained from available UK information sources which were accessible to and reviewed by AWRE staff up to 26th April 1982, for persons who the information indicates were or may have been citizens of the UK and civilians taking part in programmes of UK overseas field experiments, associated with UK defence (nuclear weapons) research and development projects, carried out in Australia, in the Pacific Ocean zone or elsewhere.

The listing is not claimed to be free from errors, incorrect assertions or omissions and the attribution or non-attribution of UK citizenship or employer to a particular name may not, in some circumstances, be correct: the information available was sparse, of varied quality, and often ambiguous or indeterminate.

This document and any entry of information or lack of entry or of information therein, is not and does not constitute and may not be construed or implied to be a formal summary record, a mandatory record or other recordf individual doses of or exposures to ionising radiations.”

(vii) The essential position taken by successive governments over the years

The first NRPB report in 1988 records the following in its introduction:

“The Ministry of Defence … has always believed that only a small proportion of the UK participants could have been exposed specifically to ionising radiations by virtue of the participation and that those who were exposed received only a small radiation dose.”

This indeed sets out accurately the view which was articulated by the then Prime Minister, Mrs Margaret Thatcher, in a letter to Mr Frank Cook MP dated 11 July 1986 when she said this:

“The Government's view is that exposure to radiation from the tests had not been shown to be the cause [of certain illnesses suffered by veterans]. Firstly, very few were exposed to radiation at all in excess of natural background. Secondly, the exposures of those who did receive measurable excess (with a few known exceptions) were small. Thirdly, the risks associated with these exposures are known to be very low indeed.”

(viii) The Royal Commission into British Nuclear Tests in Australia

In 1981 a television documentary in Australia entitled “Backs to the Blast, an Australian Nuclear Story” gave an account of the British nuclear tests carried out in Australia and of the effects the tests had had upon the participants, the indigenous population and the land concerned. As Mr Crossley’s Generic witness statement says, it “led to considerable publicity and political repercussions in Australia” and to the setting up of the Australian Royal Commission, chaired by Justice James McClelland.

The Terms of Reference of the Commission were to inquire into the British nuclear tests conducted in Australia during the 12 years commencing January 1952 including the nature and adequacy of measures taken to protect against exposure to ionising radiation, radioactive substances and toxic materials, the management and conduct of the tests, the monitoring of fall-out and the health effects of the tests. It was to look also at the measures taken, both at the time of the tests and afterwards, to manage the test sites.

Mr Crossley indicates that oral evidence was taken in various locations in Australia and in London between September 1984 and July 1985. In all, the proceedings lasted 118 sitting days, heard 311 witnesses and generated a transcript of 10,424 pages. A further 210 statements were tendered on behalf of persons not called to give evidence. Of those who gave evidence, 8 were UK advisers/specialists, 33 were UK scientists/technicians, 53 were UK servicemen, 241 were Australian servicemen and 48 were Aborigines.

The eventual consequence of the Royal Commission and further negotiations between the UK and Australian Governments was a formal Exchange of Notes in November/December 1993 whereby the UK Government agreed to pay (on an ex gratia basis) the total sum of £20 million by instalments on certain specified dates between January 1994 and October 1998. The precise terms of the agreement do not matter greatly for the purposes of the issues that I have to consider, but the Defendant relies to some extent on the perception that may have been created that this was in some way payment by the UK Government to Australian individuals allegedly affected by the tests.

I should, perhaps, refer to one matter that was considered by the Royal Commission, namely, the ‘guinea pig’ allegation. The Commission considered some of the documentary material upon which this allegation has come to be founded, including the report of the Chiefs of Staff of 20 May 1953 which spoke of the need to discover “the detailed effects of the various types of explosion on equipment, stores and men with and without various forms of protection” and heard evidence from former members of the BUFFALO Indoctrinee Force.

In its report the Commission recorded that the allegation that the troops were being used as human guinea pigs was first raised during the planning stages of the tests and was denied by both the UK and Australian authorities at the time. The Commission rejected the allegation and concluded that report of the Chiefs of Staff had been quoted out of context and that the “men” were in fact “dummies in service uniforms”. (I should add that there is reference in some of the documentation before me of consideration being given to “guinea pigs” in that form – in other words, plainly not human “guinea pigs”.)

(ix) The Rowland Report

The study carried out by Professor ‘Al’ Rowland and his colleagues at Massey University in New Zealand has assumed considerable significance in this case. It was seen by Mr McGinley as “an extremely big breakthrough” and reference was made to an aspect of the study in the article in the Mail on Sunday on 7 May 2006 which was headlined ‘Damning new evidence that could finally win justice for 1,000 nuclear bomb test veterans of Christmas Island’

The main study took about three years to complete. A parallel study was carried out, using the same cohort of veterans and controls, to determine whether there was any difference between the SCE frequency in the two groups. The SCE assay that forms the subject of that study, and which was the subject of a report in 2005, detected a small but nonetheless significantly higher frequency of SCE in the veterans compared with those in the control group. The report was accepted for publication in ‘Cytogenetic and Genome Research’ in 2007.

Professor Rowland says that the M-FISH technique was not available until the late 1990s and was, accordingly, “new science” when he and his team came to deploy it. He emphasises that the type of study undertaken by his team “would simply not have been feasible at an earlier stage in the absence of the more sophisticated tools at our disposal for the purpose of testing and in light of our developing knowledge in this area of science.” He said that once the M-FISH technique became available “any organisation wanting to carry out a similar survey would have needed access to a considerable amount of funding and the expertise of a University research department.”

The assertion that the Rowland study “was funded by the New Zealand Nuclear Test Veterans Association” is not wholly accurate. The study carried out by Professor Rowland and his team was at least partially funded by Governmental money. The BNTVA came close to securing the kind of assistance needed when the late Dame Catherine Cookson provided the means for Dr Rabbitt Roff’s research, but the M-FISH technique was not available then and, judged by reference to the money needed some years later for the New Zealand research, would probably not have been sufficient to support the more extended research required. Indeed in 1999 Dr Rabbitt Roff said that £250,000 was needed to fund a programme of more sophisticated research (see paragraph 311). Her original research was, of course, of a statistical nature rather than involving any scientific analysis as such.

Returning to the Rowland study, as a result of the M-FISH assay it emerged that the group of New Zealand veterans exhibited a frequency of total chromosome translocation (see paragraphs 154-157 above) at a rate of approximately three times that of the control group. It also emerged that a high number of cells within the veterans had complex chromosomal rearrangements (CCRs) which was taken by the authors of the report to be “an additional indicator of past radiation exposure.”

In relation to the conclusions to be drawn from the main results of the research (the higher translocation figures in the veterans), the authors of the report (which was accepted for publication in February 2008 in ‘Cytogenic and Genome Research’) said this:

“The significantly higher translocation frequencies in the group of veterans compared to the controls suggests that this may be a consequence of their participation in Operation GRAPPLE …. However, since statistical association is not necessarily proof of a cause or relation, possible confounders need to be considered.”

They considered potential confounding factors and, having done so, put forward the following as their final conclusion:

“Our analysis of potential confounding factors leads us to the view that this highly elevated frequency [i.e. total chromosome translocations] is most likely attributable to radiation exposure. Further clarification might be attained by a similar study on British and Fijian participants in Operation GRAPPLE.”

On reviewing the Rowland Report. Professor Brenner said:

“Measured excess chromosome aberrations are used … as biomarkers of past exposure to radiation. Thus the link from the Rowland results to conclusions about human health has two steps:

1. The excess chromosome aberrations measured by Rowland … provide evidence that the individuals have, in the past, been exposed to ionising radiation, over and above natural background ….

2. There is independent evidence from large-scale epidemiological studies (in particular Japanese Atomic Bomb survivors, but also nuclear workers (Cardis et al. 2007)) that individuals exposed to radiation doses in this dose range have an increased lifetime risk of both cancer incidence and cancer mortality. For example, atomic bomb survivors exposed in 1945 in the dose range from 5 to 150 mSv (and followed up for many decades) show statistically-significant increased risks of both cancer incidence and cancer mortality (Preston et al. 2003, 2004, 2007). Atomic bomb survivors who received higher doses have proportionately higher lifetime cancer risks (Preston et al. 2003, 2004, 2007).

In addition to the relevance of chromosome aberrations as biomarkers of past exposure to radiation, there is a well established mechanistic link between chromosome aberrations and cancer. In particular, the majority of all human cancers contain one or more of the same chromosomal aberrations in virtually all the tumour cells, implying that this/these chromosome aberrations must have been present in the original damaged cell(s) from which the tumour originated. This link between chromosome aberrations and cancer has been extensively catalogued ….

It is important to emphasise here that there is no claim that the actual chromosome aberrations measured by Rowland and colleagues are themselves likely to be the originator(s) of a tumour – they are not, as they are measured in human lymphocytes, as opposed to stem cells which are likely to be the parental cells for a malignancy. Rather the chromosomal aberrations measured by Rowland and colleagues are biomarkers of past radiation exposure ….”

The Defendant’s position, of course, initially was that it did not merit particularly serious attention until it had been peer-reviewed. Indeed in a letter dated 18 June 2007 (some 9 days before he left office) the then Prime Minister, Tony Blair, said this to Dr Ian Gibson MP:

"It is too early yet to give a view on this. The evidence contained in the New Zealand study has yet to be peer-reviewed and published in the main scientific literature. We shall also wish to make our own evaluation. Until this process is complete, it will not be possible to take an informed view on whether the study has implications for the claims by nuclear test veterans for additional compensation. Indeed, the authors are at pains to stress that their study, which is about chromosomal changes, makes no claims on the health status of the veterans.

I would like to add that the Government is open to new evidence and will give very careful consideration to the study, its implications for the health of UK test veterans and our responsibilities towards them. Once the Government has formed a considered view on the New Zealand study, the Veterans Minister will write to the BNTVA on the conclusion reached."

On 6 November 2008 Mr Kevan Jones MP, the Minister for Veterans (the Parliamentary Under-Secretary of State for Defence), wrote to Mr John Lowe, Chairman of the BNTVA, in the following terms after a meeting:

"Turning to the Rowland cytogenetic study of a small group of New Zealand test veterans, I was pleased that everyone in the meeting was generally in agreement with me. There is no point replicating this piece of research in the UK. The Rowland Report is already on the table and any new work is not anticipated to tell us anything further about any possible link between participation in nuclear tests and subsequent ill health."

Concealment of documents by the MoD

The European Commission of Human Rights, in a ruling adopted on 26 November 1996, had declared as admissible the complaints made by Mr McGinley and Mr Egan about “non-disclosure of contemporaneous records in relation to test detonations at Christmas Island in 1958” and had said the following in its reasoning:

The Commission considers the observations of the Government … in response to a claim question in relation to the whereabouts and date of release of the radiation level records to be reluctant and lacking in candour. The question as to when the records were released into the public domain was effectively responded to by noting that the AWE report was released in late 1993.

However, the AWE report is a summary report and does not constitute or contain the original radiation level records. In light of this conclusion as to the Government’s conduct in the context of this application and in view of the matters outlined above under the heading “Relevant Background”… the Commission considers that there is a “co-existence of sufficiently strong, clear and concordant inferences” allowing it to establish that radiation level records were created, are stored at the AWE Aldermaston and have not yet been released as yet into the public domain…”

Part three next week

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