This case is a historic failure of justice in a situation where the genetic integrity of the human race is at stake, as well as the health damage caused by radiation at the test sites.
In The Ecologist last November I wrote about the Atom Bomb Test Veterans' appeal in the Royal Courts of Justice.
At issue was the Ministry of Defence's refusal to grant war service pensions to men who attended atomic bomb tests in the 1950s.
During three weeks in June 2016 I had represented some of these veterans, arguing before the Tribunal that their many illnesses and early deaths could have been caused by radioactive fallout that they might have inhaled or ingested.
Provided we could establish a 'reasonable doubt' of causation, they or their widows would get their pensions. But - after considerable delay - the presiding judge, Sir Nicholas Blake, denied all the appeals.
His decision was dated October 16th. But - remarkably - it was released nine weeks later. It was also mailed to just one person just when the Christmas post could be trusted to delay it still further. That's the way to bury news.
The Decision is disgraceful and unjust. It's a depressing tale of evidence being mishandled by a High Court judge and by lawyers representing the Secretary of State for Defence (SSD). But, before I go further with that, let me flag up that we are appealing on several points of law.
We have also made a formal complaint to the Bar Standards Board over the stratagems of the SSD's representatives.
Excluding the evidence
Excluding evidence as a way of biasing legal decisions has a long history. A recent example from Belarus, which has a Soviet-style legal system, concerned unacceptable levels of Chernobyl fallout in cheese. The dairy company sued the reporter in the Belarus courts for reputational damage. The judge barred evidence from the State Scientific Laboratory and excluded the reporter's witnesses. He was found guilty.
Blake would feel quite at home in Belarus. In the test veteran's case the main issue is the official radiation risk model advised by the International Commission on Radiological Protection (ICRP). There is massive peer-reviewed published evidence that ICRP's model is wildly incorrect for internal exposures such as the veterans experienced at the test sites. This evidence went into the case.
The judge dismissed it all on the basis that all the eminent scientific experts who presented it were "activists and campaigners". These were men and women with senior University positions, lifetimes of research, and hundreds of peer-reviewed publications. Can you imagine?
From 2004 onward I was the expert witness in several appeals before the late judge Hugh Stubbs. By 2013 six of the appeals had succeeded, purely because I presented evidence of the inadequacy of ICRP's model, evidence accepted by the courts.
But since ICRP advice is applied to all kinds of radioactive discharges, these successes represented a great threat to huge state-sponsored nuclear enterprises - power stations, Trident missiles, nuclear submarines and depleted uranium (DU) weapons.
'Who will rid me of this turbulent Busby?'
So an operation to exclude the evidence was launched and, from 2013, it succeeded at every stage.
First, solicitors Hogan Lovells, appointed in mysterious circumstances to act for a new group of veterans whose appeals were still undecided, threw out my expert evidence a few days before the hearings began in January 2014. The appeals inevitably failed so pensions were refused.
Next I myself was thrown out as an expert witness. Here's how it was done. The veterans whose pensions had just been refused appealed to the Upper Tier asking for my evidence to be included. There were more hearings before Sir William Charles at which I was cross-examined at great length on the science.
This culminated in an Order dated 4th December 2014 which set aside the earlier decisions and ordered a complete rehearing of these appeals. The Order required the veterans' solicitors to send the SSD a Statement of Case setting out "the possibilities and/or certainties" and identifying the evidence they intended to rely on.
The SSD would, in turn, have to identify the evidence he intended to rely on. All this was to be done by no later than 30 April 2015. The sting was in the tail: "Dr Busby may not give expert evidence (whether in writing, orally or otherwise) at the remitted hearings."
This was because the SSD had argued that I was 'biased' because of my activism.
And now for our next trick ...
There was, however, no obstacle to my acting as a 'representative' (normally the job of a barrister).
In this new role I submitted the veterans' Statement of Case. It consisted of evidence from eminent scientists - Professors Vyvyan Howard, Inge Schmitz-Feuerhake, Malcolm Hooper and Shoji Sawada. And it showed in precise detail how the concept of 'absorbed dose', the basis of the ICRP risk model, was a phony construct of the nuclear industry and military, developed in the Cold War to support nuclear bombs.
Charles J's Order, as quoted above, required the SSD's lawyers to respond to the evidence. Throughout the various appeals the SSD has consistently relied on the ICRP risk model, according to which the veterans' doses were far too small to have caused their cancers. In this game we call it the Sellafield Defence.
To maintain the Sellafield Defence there was only one thing the SSD could do - and they did it. They refused to respond. When the SSD's expert reports finally appeared (months later than the 30th November deadline) they made no mention whatever of any of the arguments and supporting evidence we set out in our Statement of Case.
I made a written complaint. Barrister Roger ter Haar QC also complained (he was retained by the solicitors Hogan Lovells who still represent some of the veterans). Mr ter Haar wrote:
"The current stance of the SSD is to arrogantly disregard the orders of Charles J and Blake J. The SSD seemingly wants to conduct these appeals on his own terms, and not in accordance with the orders of the Tribunal, or in light of the judgment of Charles J. Those directions were directed specifically at the unusual test which the FTT (First Tier Tribunal) is required to apply ...
"The inherent risk in the SSD's approach (which is probably deliberate) is that if the FTT's focus is not on the individual stepping stones, it will fall into the error of the previous FTT ... "
Ministry 'experts' instructed to ignore the evidence
SSD barrister Adam Heppinstall QC replied: "As the experts were instructed to consider all the possibilities and certainties advanced in the Hogan Lovells and Battersby and Smith cases, it is submitted there is no need for the Secretary of State to respond line by line to each and every of those possibilities and certainties."
We therefore expected to be able to cross-examine on the issues. But it became obvious that the SSD experts had not been instructed to look at any of what we had submitted. For example, Mr. ter Haar cross-examined Dr. Richard Haylock:
"Now, it's no part of what I want to do to suggest that you were careless or anything of that sort. You were doing it on the basis of what you were instructed to do. But if I understood it right, you were not asked to carry out this exercise, which was in the case of each person that you were considering, to set out for the benefit of the Tribunal if there was an alternative body of scientific evidence with which you might disagree and which could lead to an opposite conclusion? That was not part of what you were asked to do?"
Dr. Haylock: "No."
Mr. ter Haar's cross-examination of Professor Geraldine Thomas revealed that she too had failed to consider the alternative evidence, or had not been instructed to. She said:
"I was asked to do a very specific job, which was to consider whether there was reasonable doubt raised on reliable evidence that exposure to ionising radiation at certain British nuclear tests was the cause of the appellants' claimed condition and I was asked very specifically to only do that and based on the dose, which was assessed by Rick Hallard, who is our expert on that."
The SSD had slipped up by telling the Tribunal in writing that their witnesses had been instructed to consider all the possibilities and certainties when they had not.
This is not a small point. Misdirection perverts the course of justice. So I have taken this issue to the Bar Standards Board as a formal complaint against Adam Heppinstall, the SSD's barrister. We will also consider complaining about the Government Legal Department solicitors who instructed Heppinstall - and perhaps the judge who allowed them to get away with it as well.
The transcripts show that the SSD stratagem was compounded by choosing experts who didn't have the expertise to respond to cross-examination on topics such as epidemiology, biochemistry, microdosimetry and meteorology which were all material to our argument.
Getting away with this required active assistance from the Judge.
The involvement of Judge Blake
Blake J was consistently hard on us in the hearing. He opened fire two days before the hearings began, ordering that we could not refer to any papers published in the peer-review literature if I had written them.
This extended even to papers on which I was named only as a co-author, which was a particular problem with Professor Schmitz-Feuerhake's review of genetic defects after Chernobyl which indicated a 1,000-fold error in the ICRP radiation risk model.
Note the ambush - if Blake had made this decision when the case began more than a year earlier we could have accommodated it and written our plea accordingly.
He also excluded all our meteorological evidence that the wind directions for the UK's big 3-megaton Grapple Y test (the UK's first H-bomb, set off on 28th April 1958) brought the fallout onto the Island - on the basis that we were not meteorologists.
The SSD witnesses avoided tricky questions or gave long irrelevant and rambling answers. They frequently retreated behind the excuse that a question was outside their expertise although they'd go beyond their expertise if they thought doing so would assist the SSD. This was particularly true of Professor Gerry Thomas, picking and choosing which epidemiological matters she would or would not discuss.
She made herself look foolish when she answered a question about a study of the genetic effects of Uranium by saying she would have preferred to see a control population which had been exposed only to "stable Uranium" - something that does not actually exist. All uranium isotopes are radioactive.
She maintained this at length while Blake obligingly made notes on it although the court room was buzzing with incredulity. Eventually the SSD barrister Heppinstall had to get her to admit that all forms of Uranium are radioactive. Of course, as a 'non-expert', my own knowledge on the topic would have been ruled inadmissible.
Throughout my cross-examinations Blake consistently interrupted when I was about to land a killer blow; on the other hand he permitted Heppinstall to savagely attack our experts suggesting, on no evidence, that they were activists and campaigners rather than the eminent scientists they are.
Quantitative stupidity and strange reasoning
A major problem is that Blake J combined general scientific ignorance with the arithmetical reasoning ability of a GCSE failure.
For example, he accepted that both the published studies of Australian and New Zealand test veterans found levels of leukemia and other cancers which the ICRP model does not predict. Yet at the same time he maintained that ICRP was accurate. This is one example of his failure to understand the concept of ratio (something that teachers find is the hardest thing to get across to 11-year olds).
In a similar lack of understanding of the ratio between study groups and controls, he dismissed Prof Shoji Sawada's evidence that the wide-spread Uranium Black Rain after the Hiroshima bomb caused radiation effects in people several kilometers away from the epicentre - symptoms such as hair loss, purpura and diarrhoea which are consistent with very large external doses but were reported from places so far away that there was only internal dose.
Blake failed to grasp that the Black Rain in fact falsifies the results of the Japanese A-Bomb studies on which ICRP depend. For the same reason he found it "impossible" that the New Zealand veterans had chromosome damage consistent with high doses of radiation because the Geiger counters hadn't recorded high levels.
The idea that internally absorbed Uranium binding to DNA (as it does) could cause genetic damage equivalent to high external doses seemed to be beyond his intellectual grasp. If nothing else, this case proves beyond all reasonable doubt that judges in scientific cases must be scientifically literate!
Where the wind blows
New evidence appearing in this case showed what really happened at Christmas Island.
Like the USA at the Bikini Tests (one of which killed a fisherman on the Lucky Dragon and made his crewmates ill) the MoD failed to allow for the fact that winds at different altitudes can blow in different directions.
The big 3 Megaton Grapple Y bomb exploded at a lower altitude than intended, which explains why eyewitness Derek Fiddaman (who was in court during the appeal) has always said huge amounts of seawater were sucked up into the stem. This water then rained out of the radioactive mushroom cloud bringing down the Uranium, Plutonium and other fallout.
The SSD maintained that the wind was slightly offshore and that this meant there was little or no fallout on Christmas Island. But this was only the low altitude wind. The upper wind was in the opposite direction, blowing the huge mushroom back over the island.
According to evidence from RAF navigator Joe Pasquini, the cloud had a diameter of 110km and covered the whole island. Pasquini should know, since he flew through it in a Canberra measuring dose rates. But Blake decided that Pasquini had an agenda, and he preferred evidence which SSD expert witness Ken Johnston had provided to earlier hearings.
Mr Johnston had used photographs to calculate a much smaller 70km diameter. Blake's reliance on this evidence was one of the situations where I was unable to cross-examine, since Johnston was by then dead.
The MoD's unfortunate error
But here is a Perry Mason 'killer point' on legal process. Months after the hearings Blake put a supplementary question to Rick Hallard, one of the SSD's experts, asking about the doses incurred by the crew of a Shackleton survey aircraft as they monitored radiation levels up to 100 miles west of Christmas Island some hours after the detonation.
Hallard's answer shot the SSD case in the foot when he explained that 90% of the dose would have come from pre-existing radioactivity on the plane's fuselage.
This tells us that the Shackleton had already been seriously contaminated before it took off. There are two possible explanations - either it was contaminated during an earlier flight to the east, or fallout had landed on it while it was on the ground waiting to take off for the afternoon flight.
The airfield was near Port London where the servicemen lived, 40 km from the detonation site. Parenthetically, this may explain why Blake preferred the late Mr. Johnstone's opinion that the cloud was only 70 km wide but either explanation creates significant doubt about the SSD assertion that there was no fallout.
We asked to address the new Shackleton evidence. Blake didn't allow it, in that he simply failed to reply to our letter requesting a cross-examination of the witness. That failure gives us additional grounds for appeal. After all, if Hallard had given this evidence from the witness box, I could have cross-examined him and shown that the pre-contaminated Shackleton provided clear evidence of nuclear fallout on the island.
A critical case
This case is a historic failure of justice in a situation where the genetic integrity of the human race is at stake, as well as the health damage caused by radiation at the test sites. I have been able only to give a superficial account of what was done by this Tribunal.
The Statements of Case, transcripts, pleadings, the appeals and the principal evidence reports are on the website of the Low Level Radiation Campaign. There's far more information there than I can possibly present in an article like this.
We opened the curtain of apparent democracy and justice, only to find a brick wall constructed from chicanery and power - a judicial approach similar to that in Belarus. We will nevertheless continue to pursue justice though the appeal system and the Law regulating agencies.
What Blake J's Tribunal did was a monstrous travesty, and we trust that Sir William Charles, in the Court of Appeal, will take the points of law and overturn this systematic avoidance of everything he himself ordered.
Chris Busby is an expert on the health effects of ionizing radiation. He qualified in Chemical Physics at the Universities of London and Kent, and worked on the molecular physical chemistry of living cells for the Wellcome Foundation. Professor Busby is the Scientific Secretary of the European Committee on Radiation Risk based in Brussels and has edited many of its publications since its founding in 1998. He has held a number of honorary University positions, including Visiting Professor in the Faculty of Health of the University of Ulster. Busby currently lives in Riga, Latvia.