McGinley and Egan v. United Kingdom

Application No. 21825/93 and 23414/94; (1999) 27 EHRR 1
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McGinley (M) and Egan (E) were servicemen who had been present on a Pacific island in 1958 when atmospheric tests of nuclear weapons had been carried out (five in M’s case and one in that of E). During the tests service personnel had been ordered to line-up in the open and to face away from the explosions with their eyes closed and covered until twenty seconds after the blast. M had been twenty-five miles from the test detonations and E had been on a ship sixty miles away. They alleged that the purpose of this procedure had been deliberately to expose the servicemen to radiation for experimental purposes but this had been denied by the United Kingdom, which stated that it had been believed at the time and was the case that personnel were sufficiently far from the center of the detonations to avoid being exposed to radiation at any harmful level.

No record existed of the degree of exposure to radiation, if any, of such servicemen as film badges (which turn black if exposed to radiation) had only been issued to personnel in identified, controlled and active areas. The applicants alleged that this was to avoid future liability for radiation-caused harm but the United Kingdom maintained that previous experience had shown that personnel with duties such as the applicants’ were not exposed to measurable levels of radiation.

Documents containing the original contemporaneous recordings of environmental radiation levels in the vicinity of the island following the tests were kept at an atomic weapons research establishment and the United Kingdom claimed that, since the information in them gave rise to no security concerns, they could have been produced if required for the purposes of proceedings before the pensions appeal tribunal. Under the tribunal’s rules a request for documents believed to be in the possession of a government department could be made to its president at any time up to six weeks after having been sent the statement of case and disclosure can be ordered if a document or part is likely to be relevant to any issue to be determined. Where a government minister certifies that disclosure was not possible for reasons of security the case would be adjourned until the necessity of non-disclosure no longer existed. The United Kingdom submitted that it would not have been necessary under this disclosure procedure to identify any specific document required but only to request in general terms documentary evidence relevant to particular issues.

M claimed that four days after the first detonation he had attended his medical officer because he had developed nausea, diarrhea and itchy blisters on the backs of his hands, neck and cheeks and that he had been treated with a spray for several days. No contemporaneous record of this treatment had been produced but his medical record did refer to treatment between 1958 and 1959 for a throat infection, influenza and a duodenal ulcer. The last led to his discharge and the award of a 20% pension as it was considered attributable to military service. In his statement on his discharge he did not refer, in response to questions about diseases, rounds or injuries and incidents making worse the disability, to the conditions allegedly developed following the first test explosion. Subsequent to his discharge M continued to suffer stomach pain, the ulcer was removed in 1962 and he was admitted to hospital for a week in 1966 suffering from renal colic. In 1976 he had a sebaceous cyst removed from his right cheek and was also diagnosed as infertile. M applied in 1980 for his pension to be reviewed on the ground that the condition of his ulcer had deteriorated and, after an appeal, it was increased to 30% in 1982.

After a series of press articles during 1982 about the potential effects of the explosions on those exposed to them, M came to attribute his health problems to his service on the island and he became chairman of a nuclear test veterans association which campaigned for compensation. In 1984 M made a claim for an increase in his pension, complaining of depression, sterility and severe arthritis, referring to the line-up procedure and the alleged rash that subsequently developed. His medical records showed no evidence of any organic disease but did reveal a disorder involving a high number of red blood cells (of which M was unaware). The defense ministry stated that the areas on the island in which M had served had not been subject to fall-out and his claim was refused on the ground that there was no evidence that his medical condition had been either attributable to, or aggravated by, service in the armed forces. M appealed to the pensions appeal tribunal and the social services department produced for it a statement of his medical records and various medical reports sought from specialists. It was, however, told by the defence ministry that it had no medical records relating to M. An edited version of the statement was sent to M, omitting information that was undesirable in his interests, and his representatives received an unedited version. He had the opportunity to make written submissions to the tribunal, adduce additional evidence or request the production of documents, none of which he did. Together with his representatives, M attended the hearing and made oral submissions. The tribunal disallowed the appeal in February 1988. In July 1991 M submitted another claimed based on alleged radiation-linked acne vulgaris, sterility and arthritis but did not pursue it after being reminded of the previous claim’s rejection in 1988. In 1992 he applied for and received an added assessment to his pension of 1.5% for hearing loss.

In 1958 prior to the test explosion E had received an X-ray and subsequent to it had been treated for a common cold and influenza. He was given X-rays in 1959 and 1960, the latter in connection with a fractured right clavicle. In 1961 he applied to be discharged from the navy but the fractured clavicle was the only thing mentioned in response to questions about diseases, wound or injuries and his medical report stated that he had had a full plate X-ray in 1961 which had detected nothing abnormal with his respiratory system. E was discharged on compassionate grounds but in 1965, following a chest X-ray, he was diagnosed as suffering from sarcoidosis, a chronic lung disease. His medical records showed that he had a normal X-ray in 1961 but had been in hospital for two weeks in 1958 for investigation following a routine X-ray.

In 1970 E applied for a pension in respect of his sarcoidosis, alleging that he had suffered from it since his discharge and that it was attributable to being exposed to the blast from an atomic bomb, resulting in the burning of skin tissues. The social security department requested all available medical records from the defence ministry, which replied that there was no trace of them. A similar response was made to a request for his 1961 X-ray. The social security department was also informed by the defence ministry, in response to a subsequent request for information about the blast, E’s two-week stay in hospital in 1958, his medical records for that year, as well as about any X-rays taken during his service, that (a) all available medical records had been sent to it, (b) E’s ship was about seventy miles from the epicentre of the explosion and (c) all exposed personnel were required to be completely covered, with anti-flash hats, gloves and goggles to be worn and long trousers tucked into socks. The social security department’s medical board found against E in January 1971. On his further representations to trace his service medical records, the defence ministry informed E that the case had been thoroughly dealt with and to date no further service documents could be provided.

E appealed to the pensions appeal tribunal in April 1971. A medical report obtained by the social security department stated that it was virtually certain that his disease had no relationship to any proximity to an atomic explosion. However, it did acknowledge that an incriminating factor could be exposure to a particular alloy leading to berylliosis with similar features to sarcoidosis – which the government subsequently admitted was commonly used in nuclear test devices but also stated that, for security reasons, it could not disclose the materials used in specific devices. The defence ministry also informed the social services department that (a) it was most unlikely that E would ever have been exposed to the alloy in his work on the ship, (b) there was no record to substantiate the story of atomic bomb blast and (c) there would have been no significant exposure if he had been ashore. The department’s medical division also included in its statement of case an opinion which indicated that it was satisfied that E’s lung condition had been correctly diagnosed as sarcoidosis, (b) there was no evidence of exposure to atomic radiation being a cause of sarcoidosis or of E sustaining burns of his skin as a result of an atomic blast, (c) the 1958 X-ray was taken more than six weeks before the atomic explosion, (d) there was no evidence of his subsequent admission to hospital and (e) no disabilities were found in the examination prior to his discharge.

An edited version of this statement was sent to E and his representatives received an unedited version. He had the opportunity to make written submissions to the tribunal, adduce additional evidence or request the production of documents and he made a supplementary statement disputing the absence of any medical record relating to his admission to hospital and the proximity of his ship to the blast, during which he had been made to stand on the upper deck in protective clothing. Special searches for his medical records were then requested but none could be traced. However, the defence ministry did recalculate the ship’s distance from the blast as sixty miles.

The tribunal rejected E’s appeal in August 1972. In October 1992 E submitted another pension claim based on allegedly radiation-related sarcoidosis but the social security department reminded him that the tribunal’s 1972 decision was legally binding unless set aside by the session court on a point of law. A similar claim was lodged in July 1992 by the nuclear tests veterans association on E’s behalf and, after a similar reminder from the social security department, he responded by stating that he was not happy with that decision. The department replied by referring him to the fact that the tribunal had looked at his service documents while considering his case. In April 1992 E made a further unsuccessful pension claim based on deafness against which he did not appeal. M and E complained about not being warned of the effects of their alleged exposure to radiation and about having been denied access to the records compiled in relation to radiation levels and the medical treatment received following the explosions.

The Commission, considering the applications admissible insofar as they related to the non-disclosure of records, found a breach of Art 6(1), no need to consider the complaint under Art 13 and (23-3) a breach of Art 8. M and E subsequently complained about suffering severe mental distress as a result of the unfair pension procedure and their exposure to radiation while stationed on the island. M also complained about being harassed by State authorities. The United Kingdom objected that the applicants had not availed themselves of the procedure enabling the tribunal to require the production of any relevant document. The applicants subsequently complained about having been subjected to harassment and surveillance and about violations of Arts 2 and 3.

 

[Adapted from INTERIGHTS summary, with permission]

The Court held:

(1) that it had no jurisdiction to consider the complaints about lack of monitoring or harassment since the former were not raised before the ECmHR and related to events occurring before the United Kingdom’s declarations under Arts 25 and 46 and the latter had been ruled inadmissible by the ECmHR because it was introduced outside the Art 26 time-limit;

(2) that the complaint concerning the suffering caused by the non-disclosure could be considered from the standpoint of Art 3 as it was based on the same facts as the complaints declared admissible but the matter complained of fell more appropriately within the scope of Arts 6(1) and 8;

(3) that the United Kingdom’s objection about non-exhaustion should be joined to the merits as it was closely linked to the substance of the complaints;

(4) that Art 6(1) was applicable as the pension proceedings involved the determination of the applicants’ civil rights;

(5) that it was not satisfied that medical records in respect of treatments administered to them for health complaints sustained as a result of the test detonations, even if it could be concluded from the applicants’ submissions that these had been created, were still in existence at the date of the declarations under Arts 25 and 46;

(6) that it was clear that there were no personal records of exposure to radiation as there had been no individual monitoring of servicemen during the tests and the applicants had accepted that the records of environmental radiation on the island would not have assisted them in their claims;

(7) that the assertion that other, relevant records must have been produced at the time of the tests and were still being retained by the State had not been substantiated and was thus no more than speculation;

(8) that, even if it could be established that at the time of the applicants’ appeals there was material in the State’s possession relevant to the issues before the tribunal, it had been open to the applicants to apply to the latter’s president for a direction requesting disclosure of the relevant document;

(9) that there was no basis for doubting the United Kingdom’s assertion that it would not have been necessary under this disclosure procedure to identify any specific document required but only to request in general terms documentary evidence relevant to particular issues; particularly as the applicants had not for unexplained reasons attempted to make use of it;

(10) (6-3) that it could not be said that, where a procedure was provided for the disclosure of documents which the applicants had failed to utilise, the State had prevented the applicants from gaining access to, or falsely denied the existence of, any relevant evidence or that the applicants were thereby denied effective access to or a fair hearing before the tribunal and there was, therefore, no violation of Art 6(1);

(11) that in view of this finding it was not necessary to determine whether or not the preliminary objection should be upheld;

(12) that, in the absence of any individual monitoring, the applicants were left in doubt as to whether or not they had been exposed to radiation at levels engendering risk to their health and that the issue of access to information which could either have allayed their fears in this respect or enabled them to assess the danger to which they had been exposed was sufficiently closely linked to their private and family lives as to raise an issue under Art 8;

(13) that the applicants had an interest under Art 8 in obtaining access the radiation level records, even though they had submitted that these would not have been of use to them in the proceedings before the tribunal, because they contained information which might have assisted them in assessing radiation levels in the area in which they were stationed during the tests and might indeed have served to reassure them in this respect;

(14) that, as it had already been observed, the existence of any other relevant document had not been substantiated and was thus no more than a matter of speculation;

(15) that the United Kingdom had asserted that there was no pressing national security reason for retaining information relating to radiation levels on the island following the tests;

(16) that, given the applicants’ interest in obtaining access to the material in question and the apparent absence of any countervailing public interest in retaining it, there was a positive obligation under Art 8 requiring an effective and accessible procedure to be established enabling persons for whose health the hazardous activities concerned might have hidden adverse consequences to seek all relevant and appropriate information;

(17) that the tribunal provided a procedure whereby relevant documents could have been asserted but, although there was no evidence to suggest that this would not have been effective in securing disclosure of the documents sought, the applicants had not availed themselves of it nor requested from the competent authorities at any other time the production of the documents in question;

(18) (5-4) that, as the positive obligation had been fulfilled in relation to the applicants, there was no violation of Art 8;

(19) that in view of this finding it was not necessary to rule on the preliminary objection; and

(20) that in view of holding (10) it was not necessary to examine separately the complaint in relation to Art 13.

 

[Adapted from INTERIGHTS summary, with permission]

European Commission of Human Rights 1996 Report   INTERIGHTS Comment: Both the duty to disclose evidence needed by a party to litigation and information which a person needed about his personal life are well-established (as to the former see Edwards v United Kingdom, (1994) 8 Interights Bulletin 36 and Schuler-Zgraggen v Switzerland, (1996) 10 Interights Bulletin 12 and as to the latter see Gaskin v United Kingdom, Ser A No 160, Guerra v Italy, (1998/9) 12 Interights Bulletin 206 and L C B v United Kingdom, Life, supra) but no violations of them arose because the applicants in this case had failed to make use of the procedure to obtain documents possibly relevant to their pension proceedings. As regards the former duty the Court did, however, make it clear that there would be a denial of a fair hearing if a State, without good cause, prevented someone from gaining access to, or falsely denied the existence of, documents which would have assisted them in establishing his or her case. However, the Court’s ruling only examined the observance of both duties from the perspective of whether material which did exist could have been obtained it specifically distinguished Guerra in that there was information about the health risk in that case - and not of whether particular material should have been gathered by the State in the first place. Judges De Meyer, Valticos and Morenilla in their dissent considered that the nature of the risk following the explosion was such that much more data on those exposed to radiation during the tests should have been gathered. In principle this seems a correct assessment of the way the Court has found a positive duty under Arts 2 and 8 to act in respect of known risks but the timing of the declarations under Arts 25 and 46 could hardly mean that a failure to gather the data in the aftermath of the testing would have been within the Court’s jurisdiction, even if the dissenting judges were right in characterizing this as ‘grossly negligent’. However, setting aside the jurisdictional objection, it would be a substantial expansion of the access to court case law to say that a State was under a duty to gather information which would then enable the data subjects to assert effectively any rights that they had before the courts; the ramifications might not, of course, be so immense if this duty was intended to arise only where as in this case - issues relating to Arts 6 and 8 coincided. Judge Pekkanen dissented as regards Art 8 because of the limited nature of the procedure for obtaining information; there was only a six-week window of opportunity within the context of litigation about pensions. However, the duty of disclosure under Art 8 undoubtedly goes beyond such proceeding and he had good reason, therefore, to doubt that there really was an adequate mechanism to fulfil the positive obligation to provide a means of obtaining access to relevant information not yet in the public domain.
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