Information Note on the Court’s case-law 43

June 2002

Roche v. the United Kingdom (dec.) - 32555/96

Decision 23.5.2002 [Section III]

Article 8

Article 8-1

Respect for private life

Access to information on tests of toxic gases conducted by army on applicant in 1963: admissible

Article 6

Civil proceedings

Article 6-1

Access to court

Immunity of Ministry of Defence in respect of non-disclosure of information on tests of toxic gases on humans: admissible

In 1963 the applicant, who was in the British army at the time, was subjected to tests consisting of experimental exposure to toxic gases. These tests were conducted by the Chemical and Biological Defence Establishment (“CBDE”) with a view to advancing the protection of the United Kingdom’s armed forces against chemical weapons. In 1987 the applicant developed high blood pressure and now suffers from hypertension and bronchitis. He has not worked since 1988 and is registered as an invalid. In 1989 his docto r, who enquired of the CBDE, received information in a letter marked “medical in confidence”. It was reported in the letter that the applicant had participated in a gas test in 1963, that the test had been preceded and succeeded by medical tests which had revealed no abnormality. The applicant persuaded his doctor to show him the letter in 1994. In February 1994 he wrote to the Minister of Defence requesting copies of his medical records and of the reports on the tests carried out on him. The CBDE’s reply w as that the Health Records Act 1990, which provided for an individual right to disclosure of medical reports, did not apply to records compiled before November 1991. It added, however, that it was Ministry of Defence policy to release medical records to a doctor on a “medical confidence” basis when needed. On that basis the applicant’s doctor had been provided with information in 1989. The CBDE emphasised that it was up to the doctor how much of the information he wanted to convey to his patient. In the mea ntime, in June 1991, the applicant submitted a claim for a service pension based on hypertension and breathing problems. In January 1992 the Secretary of State rejected his claim. In November 1994, in a letter to the Secretary of State, the applicant’s sol icitors threatened to start proceedings, alleging negligence on the part of the Ministry of Defence and demanding all medical and laboratory records in the possession of the Secretary of State or of the CBDE during the period of experimentation, failing wh ich the applicant would apply to the High Court for pre-action discovery. In August 1995 the Secretary of State issued a certificate pursuant to section 10 of the Crown Proceedings Act 1947 (“1947 Act”) whereby the applicant’s injury could be treated as at tributable to service for the purposes of entitlement to a pension with the consequence that, following the 1947 Act, the Crown could not be sued in tort. In November 1998 the applicant lodged an appeal with the Pensions Appeals Tribunal (“PAT”). He later included an application for disclosure of official documents and information pursuant to Rule 6(1) of the Pensions Appeals Tribunal (England and Wales) Rules 1980 (“Tribunal Rules”). By order of February 2001 the President of the PAT directed that those do cuments be disclosed by the Secretary of State. In his response of July 2001, the Secretary of State stated that he was unable to give a definitive answer to the request for scientific and medical reports.

Admissible under Articles 6 § 1 (access to court), 8, 10, 13 and 14 of the Convention as well as Article 1 of Protocol No. 1: As regards the Government’s argument that the applicant’s failure to pursue the appeal to the PAT amounted to a failure to exhaust effective domestic remedies, the Secretary of Sta te’s response of July 2001 indicated that further investigations were required before a definitive answer on disclosure could be given and that the appeal to the PAT had not terminated. It was further noted that the parties’ submissions on each of the appl icant’s complaints refer to the adequacy and effectiveness of the appeal proceedings before the PAT and of an application pursuant to Rule 6 of the Tribunal Rules. Therefore, the question of the applicant’s completion of those procedures should be joined t o the merits of his complaints. Besides, while the High Court found that section 10 of the 1947 Act was incompatible with Article 6 § 1 of the Convention, the present application related to a search for information prior to the entry into force, on 1 Octob er 2000, of the Human Rights Act 1998. Accordingly, the Government’s objection was rejected.

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

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