Information Note on the Court’s case-law 79

October 2005

Roche v. the United Kingdom [GC] - 32555/96

Judgment 19.10.2005 [GC]

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Secretary of State’s certificate blocking judicial review proceedings relating to health deterioration allegedly due to gas tests: no violation

Article 8

Positive obligations

Failure to provide a procedure enabling the applicant to access information allowing him to assess the risk to his health due to his participation in army gas tests: violation

Facts : The applicant was discharged from the British Army in the late 1960s. In the 1980s he developed high blood pressu re and now suffers from hypertension, bronchitis and bronchial asthma. He is registered as an invalid and maintains that his health problems are the result of his participation in mustard and nerve gas tests conducted under the auspices of the British Arme d Forces at Porton Down Barracks in the 1960s.

From 1987 the applicant actively sought access to his service records using medical and political channels, with limited success. In 1992 the Secretary of State rejected his claim for a service pension claim as he had not demonstrated a causal link between the tests and his medical condition. When the applicant threatened to bring judicial review proceedings alleging, among other things, negligence on the part of the Ministry of Defence, the Secretary of State issued a certificate under section 10 of the Cr own Proceedings Act 1947, effectively blocking any such proceedings concerning events prior to 1987, while allowing the person concerned to apply for a service pension.

In 1998 the applicant appealed to the Pensions Appeal Tribunal (“PAT”) and applied for the disclosure of official information under the PAT Rules to enable the PAT to decide whether his illness was caused or aggravated by the gas tests. The PAT ordered the Ministry of Defence to disclose certain categories of records and certain documents we re disclosed in 2001 and 2002. The PAT eventually 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 had died at Porton Down in 1953, safeguards had been put in place to ensure that volunteers were only exposed to safe doses. The PAT nevertheless considered the “diff iculties” experienced by the applicant in obtaining the records which were produced to the PAT to be “disquieting”. In 2004 the High Court allowed the applicant’s appeal and referred the matter back to the PAT for a further hearing. The case is still pendi ng. In 2005 the Government disclosed a further eleven documents, eight of which had not been seen before by the applicant.

Law

Article 6 § 1: The Court accepted the reasoning of the Court of Appeal and the House of Lords as to the effect of section 10 of t he 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. Section 10 did not therefore remove a class of claim from the domestic courts’ jurisdiction or confer any 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 to seek damages from 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. Accordingly, the applicant had no (civil) “right” recognised under domestic law which would attract the application of Article 6 § 1.

Conclusion: no violation (nine votes to eight).

Article 1 of Protocol No. 1: While the applicant had 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 an y such claim.

Conclusion: no violation (sixteen votes to one).

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 applicabl e, Article 14 read in conjunction with Article 6 § 1 or Article 1 of Protocol No. 1 was therefore also inapplicable.

Conclusion: no violation (unanimously).

Article 13: Article 13 did not go so far as to guarantee a remedy allowing the primary legislation of a Contracting State to be challenged before a national authority on the grounds that it was contrary to the Convention.

Conclusion : no violation (sixteen votes to one).

Article 8: 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. While the PAT found that there was no reliable evidence to suggest a causal link between the tests and the a pplicant’s claimed medical conditions, that was not until 2004 and the High Court had since allowed his appeal and sent the matter back to the PAT, before which the matter remained pending. A significant number of “relevant records” of the 1963 tests had s till existed 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 had also submitted that, “nothing of sig nificance” 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 i nformation 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 requir ed to litigate to obtain 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 Sche me, 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 in 2001, the disclosure had been piecemeal and, over four years later, disclosure remained unfinished. Indeed, the PAT had described as “disquieting” the difficulties experienced by the applicant in obtaining records. It was undoubtedly the c ase 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 facili tated this dispersal of records and undermined an individual’s right to obtain the relevant and appropriate disclosure.

In the overall circumstances, the respondent State had not fulfilled its positive obligation to provide an effective and accessible proc edure 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.

Conclusion: violation (unanimously).

Article 10: The freedo m to receive information prohibited a Government from restricting a person from receiving information that others wished or might be willing to impart. That freedom could not be construed as imposing on a State, in circumstances such as those of the applic ant’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.

Conclusion: no violation (unanimously).

Article 41: The Court awarded the ap plicant EUR 8,000 for non-pecuniary damage and a certain amount for costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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