Upper Tribunal (Administrative Appeals Chamber)

 

Case numbers: CAF/3206/2013 ENT/00328/2010, CAF/3211/2013 ENT/00129/2010, CAF/3214/2013 ENT/00078/2010, CAF/3217/2013 ENT/00723/2010, CAF/3220/2013 ENT/00065/2010, CAF/3226/2013 ENT/00279/2010, CAF/3229/2013 ENT/00039/2010, CAF/3232/2013 ENT/00658/2010, CAF/3237/2013 ENT/00054/2010, CAF/3242/2013 ENT/00751/2007, CAF/3059/2013 ENT/00176/2010, CAF/3055/2013 ENT/00088/2010

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

Before Mr Justice Charles (Chamber President)

 

 

DECISION: 

 

1.            All the appeals are allowed.

2.            Directions as a consequence of that decision will be given at or after a further hearing on a date to be fixed before Charles J with a time estimate of a day.

3.            Two working days before the date fixed for that hearing the parties are to exchange statements setting out the directions they respectively seek together with skeleton arguments in support thereof.

 

 

 

SUMMARY OF REASONS

 

 

(1)          These appeals were heard over 10 days and involved the consideration of a large amount of documents, authorities and arguments.  They relate to claims made under Article 41 of the Naval Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006 (the SPO) based on the impact on the claimants of the British atomic tests carried out in the 1950s and early 1960s.

(2)          Although the reasons for my decision that follow are lengthy their kernel can be stated shortly and I hope that such a statement will assist the reader to follow them.

(3)          At the heart of the appeals are the issues whether the FTT applied the test set by Article 41(5) of the SPO correctly and further or alternatively adequately explained how they had done so.

(4)          That test (the Article 41(5) test) is:

Where, upon reliable evidence, a reasonable doubt exists whether the conditions set out in paragraph (1) are fulfilled, the benefit of that reasonable doubt shall be given to the claimant.

(5)          In short I conclude that:

                  i.            this test places an onus on the claimant to establish by evidence that is not fanciful or worthless (and so reliable) possibilities that he asserts found the existence of that doubt,

                ii.            the decision maker must carry forward: 

(a) such possibilities, and

(b) matters about which he has no reasonable doubt,

and so the ingredients of the claimant’s case into the judgmental or weighing exercise of deciding whether the Article 41(5) test is satisfied,

               iii.            that judgmental exercise involves an evaluation of the respective cases of the parties by reference to all of the competing evidence and argument and thus on that basis:

(a)        the relative strengths and weakness of those cases,

(b)        their ingredients and so the possibilities they advance, and the matters they rely on (including those about which they assert the decision maker can have no reasonable doubt),

               iv.            that judgmental exercise may come into play at the first stage of the process as an evaluation of the evidence and arguments advanced by the Respondent may at that stage be taken into account in determining what is or is not a possibility to be carried forward or what matters the decision maker has no reasonable doubt about, and

                v.            this is not a rigid approach but importantly it is based on the identification and evaluation of possibilities and effective certainties and it is not based on findings of fact made on the balance of probabilities that are thereafter treated as established facts (or effective certainties) or an approach based on which expert evidence is preferred.

(6)          I conclude that the FTT erred in law by not applying that approach because they did not so identify possibilities but applied an approach to the ingredients of the claimants’ cases that was based on findings made applying the normal civil standard of proof (balance of probabilities) or a similar standard for example by preferring the evidence of one expert to another as opposed to determining whether the evidence they so rejected raised a possibility that needed to be carried forward in the decision making process.

(7)          If contrary to my view the FTT did not so err in law I conclude that on a generous reading of their decision they have erred in law by failing to adequately explain how they reached their decisions on a proper application of the  Article 41(5) test.

 

 

REASONS FOR DECISION

 

Introduction common to all the appeals

 

1.            I have before me appeals from decisions of the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal (the FTT) by 12 claimants for war pensions under Article 41 of the Naval Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006 (the SPO).  Ten claimants are represented by counsel instructed by Hogan Lovells (the HL Appellants).  Two claimants, Mr Battersby (who has died during the proceedings and whose claim and appeal is being pursued by his daughter) and Mrs Smith (the BS Appellants), have been represented before me by Group Captain Andrew Ades with the assistance of others including Robert Manson and Hugo Charlton who made oral submissions before me.  The BS Appellants adopted with slight modification the grounds and arguments advanced by the HL Appellants and they advanced additional points relating to the role and participation of a Dr Busby.

2.            The claims were all dealt with in one decision of the FTT dated 7 May 2013 (the Decision) and they relate to alleged exposure to ionising radiation as a consequence of the British atomic tests that were carried out in the South Pacific and Australia in the 1950s and early 1960s.  One of the claimants (the late Mr Williams) who appealed to the FTT succeeded before the FTT and there is no appeal in that case by the Secretary of State.

The nature and purpose of the proceedings before the FTT

3.            The scale of the proceedings before the FTT was correctly described by the Secretary of State as unparalleled in the war pensions’ jurisdiction.  This was because:

i)             15 appeals by claimants (two had two appeals) all based on their assertions that they had been exposed to ionising radiation from the British atomic tests were heard together pursuant to a direction made under Rule 18 of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules  2008,

ii)            this was a relatively new procedure and resulted in a number of other appeals being stayed to await the result of these appeals, and

iii)          the proceedings involved:

a)           a consideration of written and oral evidence and argument at a hearing that lasted 15 days at which all parties were represented,

b)           experts and representatives (amongst others) being given access on special terms (approved by the FTT – as to which there is no appeal) to classified material,

c)            a gisting exercise, which was used by experts and representatives and the FTT in open reports and hearings (and as I understand it there was no closed hearing and classified material was not relied on by the FTT – certainly they do not mention that they have relied on any such material), and

d)           the consideration of a considerable volume of documentation in the 53 hearing bundles, some of which related to scientific and medical material that was outside the experience and expertise of members of the FTT, albeit that they had considerable experience of other relevant matters.

4.            As the FTT observed in the Decision, the Secretary of State had commented in his closing submissions that “the aim is for the Tribunal’s decision (subject to any appeal) to provide guidance for the future nuclear test veteran war pension decisions and appeals”.  Clearly this was a laudable aim but it resulted in proceedings that presented the members of the FTT with a formidable task.

5.            No doubt this was why the FTT which heard these appeals was composed of some of its most experienced members namely: the President of the Chamber, a long standing judge (appointed in 2001, who had been a partner in a large and well known firm of solicitors, where he dealt with litigation), a Medical member and a Service member both appointed to the Tribunal in 2005 (respectively a former President of the British Association of Forensic Medicine and a former 2 star Major-General).

6.            Rule 18 enables the FTT to specify a case or cases as lead cases and to stay others, which become “related cases”.  A decision on a lead case has to be given to the parties in related cases and that decision will be binding on the parties to the related cases unless they apply for a direction that the decision does not apply to, and is not binding on them (see Rule 18(4)).  I was told that a number of related cases await the outcome of this appeal.

7.            So far as I am aware there is no authority on the manner in which the FTT is to exercise its discretion under Rule 18(4). 

The nature of the appeals

8.            It is correctly common ground that the appeals have to be founded on error of law and that to found a successful appeal the error must be material (see ss. 11 and 12 of the Tribunals, Courts and Enforcement Act 2007). The categories of error of law that can found an appeal are well established and the Secretary of State referred to a non exhaustive description given by Brooke LJ in R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 (at paragraphs 9 and 10). Here the main categories relied on by all of the appellants are that the FTT made material errors in the application of the relevant legal test and failed to give adequate reasons in respect of their application of that test.  The BS appellants also rely on procedural unfairness.

The relevant Articles of the SPO

9.            Articles 40 and 41 of the SPO provide:

Entitlement where a claim is made in respect of a disablement, or death occurs, not later than 7 years after the termination of service

40(1) Except where paragraph (2) applies, where, not later than 7 years after the termination of the service of a member of the armed forces, a claim is made in respect of a disablement of that member, or the death occurs of that member and a claim is made (at any time) in respect of that death, such disablement or death, as the case may be, shall be accepted as due to service for the purposes of this Order provided it is certified that—

(a) the disablement is due to an injury which—

(i) is attributable to service, or

(ii) existed before or arose during service and has been and remains aggravated thereby

or

(b) the death was due to or hastened by—

(i) an injury which was attributable to service, or

(ii) the aggravation by service of an injury which existed before or arose during service.

(2) ----------------

(3) Subject to the following provision of this article, in no case shall there be an onus on any claimant under this article to prove the fulfilment of the conditions set out in paragraph (1) and the benefit of any reasonable doubt shall be given to the claimant. [Emphasis added.]

(4) --------------------

(5) -------------------

(6) Where there is no note in contemporary official records of a material fact on which the claim is based, other reliable corroborative evidence of that fact may be accepted.

Entitlement where a claim is made in respect of a disablement, or death occurs, more than 7 years after the termination of service

41 (1) Except where paragraph (2) applies, where, after the expiration of the period of 7 years beginning with the termination of the service of a member of the Armed Forces, a claim is made in respect of a disablement of that member, or in respect of the death of that member (being a death occurring after the expiration of the said period), such disablement or death, as the case may be, shall be accepted as due to service for the purpose of this Order provided it is certified that-

(a) The disablement is due to an injury which-

(i) is attributable to service before 6th April 2005; or

(ii) existed before or arose during such service and has been and remains aggravated thereby; or

(b) The death was due or substantially hastened by

(i) an injury which was attributable to service; or

(ii) the aggravation by service of an injury which existed before or arose during service;

(2) ---------------------

(3) A disablement or death shall be certified in accordance with paragraph (1) if it is shown that the conditions set out in this article and applicable thereto are fulfilled.

(4) -----------------------

(5) Where, upon reliable evidence, a reasonable doubt exists whether the conditions set out in paragraph (1) are fulfilled, the benefit of that reasonable doubt shall be given to the claimant. [Emphasis added]

(6) Where there is no note in contemporary official records of a material fact on which the claim is based, other reliable corroborative evidence of that fact may be accepted.

10.         These Articles are in the same terms as Articles 4 and 5 of the Royal Warrant and so decisions on those earlier provisions apply equally to Articles 40 and 41.

11.         Article 41 applies to these appeals.

The nature of the factual disputes

12.         Disputes arose before the FTT on the following issues (amongst others) that are relevant or arguably relevant to a consideration of whether the conditions referred to in Article 41(1) are fulfilled:

i)             the claimant’s exposure to ionising radiation as a result of the atomic tests,

ii)            the nature of that exposure and so what it was and whether it was external or internal,

iii)          whether that exposure can be quantified,

iv)          whether different levels of exposure are relevant or whether any exposure is enough,

v)            the link between the disablement or death and the claimant’s exposure and so radiogenicity and causation,

vi)          the relevance and impact of the background radiation that everyone living on Earth is exposed to during their lives, and

vii)         studies of others who were or may have been exposed to ionising radiation as a result of the British atomic tests and other atomic tests, explosions or accidents.

The relevant legal test under Article 41

13.         It was common ground before me and the FTT that:

i)             in accordance with existing authority (see Secretary of State for Social Security v Bennett and ors 17 October 1997 (unreported) applying Royston v Minister of Pensions  [1948] 1 All ER 778; and Secretary of State for Defence v Rusling [2003] EWHC 1359 at para 23), under Article 41 the burden of proof was on the Appellants to prove military service and disablement or death, and that the standard of proof in respect of those two issues was the balance of probabilities,

ii)            pursuant to Article 41(5) the Appellants have to establish, upon reliable evidence, a reasonable doubt that the conditions set out in Article 41(1) (a) and (b) are satisfied and thus, in short, that the relevant disablement or death was attributable to military service;  I shall refer to this as “the Article 41(5) test”,

iii)          the Article 41(5) test means that the onus of proof is on the Appellants and that the standard of proof is that they have to establish “a reasonable doubt based on reliable evidence”, and

iv)          no such burden or onus exists under Article 40.

14.         Before the FTT the Secretary of State did not wholly accept point (iii).  Rather he argued that before the standard of proof set by the Article 41(5) test was engaged the Appellants also had to prove on the balance of probabilities that ionising radiation has caused an injurious or pathological process that has led to the relevant disablement or death.  This argument is referred to in paragraphs 47 to 59 of the Decision but it is not there (or elsewhere in the Decision) expressly rejected by the FTT.  However, I agree with the parties that it is implicit that it was rejected.  There is no appeal against that rejection.

15.         The existence of this argument of the Secretary of State that the normal civil standard of proof applied to those aspects of causation before the FTT had the result that evidence, analysis and submissions were directed to the different standards of proof on these issues.  This is not mentioned in the Decision either generally or in describing the evidence of the relevant experts on these issues.

The approach of the FTT in the Decision to setting out their understanding of the Article 41(5) test and its application.

16.         The FTT set out Article 41 (see paragraph 46 of the Decision) and it is clear that its members were familiar with its terms and were applying Article 41(5).  For example, a heading under their discussion of the law (at paragraphs 44 to 88 of the Decision) is “The meaning of reasonable doubt based on reliable evidence” (paragraphs 60 to 66 of the Decision).

17.         The FTT record a submission that, as the current recommendation to a jury to describe the onus or burden on the prosecution to establish the criminal standard proof (beyond reasonable doubt) is to direct them to be “satisfied so that you are sure”, it is therefore:

“only if the FTT is sure that the disease(s) in question did not arise as a result of exposure to ionising radiation during service, that the appellant’s claim will not succeed”.

 

18.         The FTT stated (at paragraph 61 of the Decision) that they did not agree that that is the appropriate test and, without giving any other reason for that disagreement, go on to state that they consider that the law is well established and is binding on them.  They then set out citations from some of the earlier cases relating to the Article 41(5) test and state (at paragraph 63 of the Decision) that the key issue is whether the Appellants have been able to raise a reasonable doubt based on reliable evidence that their appeal should succeed.  They also identify that one of their citations from authority (at paragraph 66 of the Decision) Minister of Pensions v Greer [1958] NI 156 considers the meaning of the phrase “reasonable doubt” in Article 41(5) and the citation is that it is used there “in the ordinary acceptation of that term”.  (This citation is set out later in this decision.)

19.         Having regard to the existing authorities, in my view correctly it was common ground before me that that reference to the “ordinary acceptation” reflects the way in which the concept “reasonable doubt” is used in the criminal standard of proof.  (I shall return to the authorities cited by the FTT.)

20.         The FTT’s discussion of the law also has a heading: “How raising a reasonable doubt based on reliable evidence is measured in the context of changing medical and scientific opinion” (paragraphs 67 to 72 of the Decision) and the FTT stated that it was accepted by all parties that the test laid down in the penultimate paragraph of R v DSS ex parte Edwards CO/2281/90 is the basis upon which the FTT should do this and then they cited that paragraph.  (It is set out later in this decision.)

21.         Examination of the written argument and the transcript of the oral argument shows that, although both sides accepted that this paragraph was relevant, they did not agree on its application.  However, in their discussion of the law the FTT do not refer to this dispute.  Also, they do not describe their view on how this paragraph should be applied within the application of the standard of proof set by the Article 41(5) test and thus whether and how the FTT did so in accordance with the “ordinary acceptation of” the test “reasonable doubt”.

22.         In the main body of the Decision and before they turn to each appeal separately the FTT make a number of findings.  On a number of occasions they do this without express reference to the standard of proof they were applying or how they applied it.

23.         When dealing with the appeals individually the FTT make a number of findings in terms that “there is insufficient reliable evidence to raise a reasonable doubt”.  Sometimes that is preceded by an express reference to earlier paragraphs of the Decision and sometimes it is not.  Also, in for example paragraph 381, there is a reference to “such evidence as there may be includes the Abramenko Study which describes a different form of CLL to that suffered by Mr Battersby, as explained above by Professor Catovsky” (my emphasis) which does not say whether the FTT thought that the Abramenko Study remains reliable or what other evidence was thought by them to be reliable but nonetheless insufficient to raise a reasonable doubt. 

24.         At the end of the Decision under the heading “Conclusions” the FTT stated that they had been able to reach their conclusions about the exposure of the Appellants to ionising radiation with “considerable confidence” (paragraph 490 of the Decision) and that:

“As is apparent from what we have said in relation to individual claimed appeals a claimant has to show both that he was exposed to ionising radiation and that such exposure led to his claimed condition or (in a widow’s appeal) were causally linked to a cause of death” (paragraph 493 of the Decision). 

These passages do not reflect the ordinary acceptation of the term or standard “reasonable doubt” in the context of the criminal standard of proof or the language of the Article 41(5) test.

Common grounds of appeal. 

25.         The first ground of appeal (common to all the Appellants) is that in their discussion of the law the FTT have demonstrated that they have misunderstood and misapplied the Article 41(5) test and thus the meaning and application of the standard “reasonable doubt based on reliable evidence”.

26.         In particular, it was argued that they erred in law by rejecting the submission that:

“only if the FTT is sure that the disease(s) in question did not arise as a result of exposure to ionising radiation during service, that the appellant’s claim will not succeed.”

 

27.         The Appellants also argue that a reading of the Decision as a whole:

i)             confirms their first point based on the FTT’s discussion and statement of the law,

ii)            shows that the FTT were not applying the test or standard of “reasonable doubt” in the way in which it is generally understood by reference to the criminal standard of proof (and thus in accordance with the ordinary acceptation of the term to which they refer in their citation of authority) but were applying a balance of probabilities test or something approaching it to aspects of their decision making, and further or alternatively 

iii)          shows that the FTT misapplied the Edwards case, in particular by proceeding on the basis that an hypothesis, or a mere hypothesis, was never capable of establishing a reasonable doubt on reliable evidence.

28.         So the Appellants do not argue that the FTT did not have the Article 41(5) test in mind.  Rather, they argue that in fact the FTT have erred in law in the application of the standard of proof it sets.

29.         Their “reasons challenge” is an aspect of their challenge that the FTT erred in law by taking an incorrect approach at least in parts of the Decision to the application of the standard of proof set by Article 41(5) and so, as to those parts, it encompasses the alternative ground that the FTT have failed to give adequate reasons explaining how they have applied the Article 41(5) standard of proof in these cases.

30.         Points were raised in more general terms by the FTT when giving permission to appeal, including whether they had given adequate reasons. Understandably, the appellants concentrated on the grounds they wished to advance but, in my view the points so raised by the FTT were effectively covered in the arguments relating to the Appellants’ grounds of appeal. 

The position of the Secretary of State. 

31.         The Secretary of State argues that read as a whole the Decision does not disclose any material error of law.  In support of that argument he understandably starts with the accepted proposition that the FTT knew what the test was and this demonstrates that they were applying it.

32.         He also relies on well known authorities that:

i)             assert and recognise the respect that should be paid to the decisions on law and fact of a specialist tribunal, and

ii)            provide and confirm that the reasons of a FTT should be read generously and against the background known to the parties.

33.         The prominence given by the Secretary of State to these arguments is an inevitable recognition of the problems caused by the reasoning contained in the Decision and for example of the points that the FTT:

i)             did not set out the rival contentions of the parties and thus, for example, the main evidence, findings sought and factors relied on in support of the rival arguments on the application of the Article 41(5) test in respect of (a) exposure, or (b) radiogenicity / causation, and so did not by reference thereto indicate why they reached their conclusion on the Article 41(5) test (e.g. by explaining their statement that “there is insufficient evidence to raise a reasonable doubt”),

ii)            adopted an approach under headings that set out extracts from and descriptions of the evidence followed by bare statements of their conclusions, and

iii)          on a number of occasions, expressed those conclusions as findings without any reference to the standard of proof being applied to reach them or  any explanation as to how those conclusions are taken forward into the determination of the overarching issues posed by Article 41(5).

34.         Inevitably in cases that raise the quantity of points on scientific and medical issues that these appeals do a FTT cannot, and do not have to, set out all of the evidence or points raised and argued and it is highly likely that an outside reader will have to inform himself of the evidence, issues and argument put to the FTT.  But the approach taken by the FTT in the Decision has undoubtedly increased the need to do this and has so lengthened and complicated these appeals. 

Miscellaneous points

35.         The Secretary of State also argued that if an error of law is established each case still needs to be considered to determine whether it is material to that case.  I agree and will return to this.

36.         In written submissions the Secretary of State argued that the Appellants should not be allowed to establish that the FTT erred in law by reference to authorities not referred to and relied onbefore the FTT.  In my judgment correctly, this point was not pursued with any vigour in oral argument.  The authorities are part of a continuum of cases that apply cases that were before the FTT and so are not introducing a new line of argument.  In any event, if they did and did establish an error of law it seems to me that they should not be excluded from consideration in these test cases.  If they were disregarded at this stage this could cause problems in applying Rule 18(4) in the stayed cases.

Introduction in respect of the BS appeals

37.         I shall deal with the additional points raised on these appeals separately at the end of this decision.

The approach because the decision is one of a specialist tribunal

38.         This approach, and the approach to determining whether the reasons given by a specialist tribunal are adequate, are “meat and drink” to the Upper Tribunal.  However, I shall deal with them at greater length than would be normal because of the stress placed on them by the Secretary of State.

39.         The jurisdiction which is now exercised by the FTT (the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal) was transferred to it (unaltered) from the Pensions Appeal Tribunal (the PAT) constituted by the Pensions Appeal Tribunal Act 1943 (an Act from which the FTT still draws its substantive appellate jurisdiction).  The PAT was first constituted by section 8 and the Schedule to War Pensions (Administrative Provisions) Act 1919 and required the Tribunal to be composed, from the outset, of a barrister or solicitor of not less than seven years’ standing, a qualified medical practitioner, and a disabled  retired/demobilised/discharged officer or man from the Armed Forces (the Service Member). The 1943 Act dropped the requirement for the Service member to be disabled and, in 2000, the 1943 Act was amended (by section 60 of the Child Support, Pensions and Social Security Act 2000) so that the Service Member qualified as such if they had “knowledge or experience of service in Her Majesty’s naval, military or air forces”.

40.         These requirements broadly continue in the form of a Practice Statement of the Senior President dated 30 October 2008 which, in addition to a judge and medically qualified member, requires the FTT to include a Service Member who has “substantial experience of service in Her Majesty’s naval, military or air forces”. The Chamber is charged by Rule 2(2)(d) of its procedural rules, as part of the overriding objective, with using its special expertise effectively.

41.         Until 1943, there was no right of appeal from a decision of the PAT. In 1943, a right of appeal was introduced on a point of law only to a judge of the High Court nominated by the Lord Chancellor and that remained the case until 2005 when the appellate jurisdiction was transferred to the Social Security Commissioners, but was again limited to points of law.  It is this jurisdiction which has been transferred to and is now vested in the Upper Tribunal. 

42.         In relation to the FTT Carnwath LJ (as he then was) stated in Secretary of State for Defence v Duncan [2009] EWCA 1043 (a case under the Armed Forced Compensation Scheme) that:

“....it is important to keep in mind the fact that the Pension Appeal Tribunal is a fact-finding body and it is specially constituted for that purpose. Composed of a lawyer sitting with a service member and a medical member, it is ideally suited to make the factual and legal judgments which the scheme requires. It is also well suited to assist the Ministry, by its decisions from case to case, in pointing out the weaknesses in the scheme and providing a basis for improvements. The special qualities of the former Pensions Appeal Tribunal were acknowledged by Parliament when (contrary to the Government’s initial proposals) it required the provision of a separate War Pensions & Armed Forces Compensation Chamber in the new tribunal system. Turning to the present cases, I bear in mind that both these panels, as well as having medical and service expertise, were presided over by Dr Harcourt Concannon, the then President of the Tribunal.”

43.         Accordingly, it is well recognised that this FTT is a specialist Tribunal combining legal, medical and military expertise, which is expected and entitled to use that expertise in coming to its findings of fact and ultimate judgments and that, whatever its formal incarnation, the specialism and expertise of what is now the FTT has been respected throughout its long history.

44.         Lady Hale has referred in a number of judgments in the Court of Appeal, the House of Lords and the Supreme Court to the need to respect the expertise of a specialist tribunal and its understanding of its own legislative scheme: see e.g. AH(Sudan) v Secretary of State for the Home Department [2008] 1 AC 678 at paragraph 30 (cited below).  The respect to be shown to a specialist expert tribunal which saw and heard the evidence has also been expressed in other contexts.  For example in Meadow v GMC [2007] QB 462 at paragraph 197 Auld LJ stated:

“On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the s 40 test, it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors: (i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect; (ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides; (iii) The questions of primary and secondary fact and the overall value judgement to be made by [the] tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.”

 

45.         Naturally, the FTT considers the statutory questions that arise under Articles 40 and 41 of the SPO on a regular basis and is therefore experienced in the application of those statutory tests.

46.         It was accordingly submitted on behalf of the Secretary of State, and I accept, that the instant appeals must be approached against the background of the general approach  that the FTT is to be accorded considerable respect and deference on account of all of the following factors: its jurisdiction over the facts, its expertise, including in particular its medical expertise, its experience, and the fact that it had the advantage of having before it all the evidence, including hearing extensive oral evidence (and, as I understand, together with some of the experts and representatives,  having access to some, but not all, relevant classified material).

47.         I would add to that list the point that the overarching question on whether the Appellants have discharged the burden placed on them by establishing a reasonable doubt based or reliable evidence is:

i)             one that the members of this FTT have applied many times in the past, and

ii)            one of fact involving judgmental issues on matters of degree, and so can be described as a “jury question” on which there may well be room for different decision makers, both applying the correct approach, to reach different conclusions.

48.         However, it is important to recognise that this general respect and deference does not exonerate the FTT from giving adequate reasons when they are asked for them and from demonstrating, for example, that they have not erred in their application of the relevant legal test.

The duty to give reasons / the adequacy of those reasons

49.         The FTT is under a duty to give reasons if an application for them is made.  It is clear that in these appeals it was always accepted that this duty would arise.

50.         The general approach to the assessment of reasons given by a FTT was not in dispute before me and is well established.  Such reasoning is not to be subjected to an unduly critical analysis: see Shamoon v RUC  [2003] ICR 3337 at paragraph 59 where Lord Hope stated:

“..... It has also been recognised that a generous interpretation ought to be given to a tribunal's reasoning. It is to be expected, of course, that the decision will set out the facts. That is the raw material on which any review of its decision must be based. But the quality which is to be expected of its reasoning is not that to be expected of a High Court judge. Its reasoning ought to be explained, but the circumstances in which a tribunal works should be respected. The reasoning ought not to be subjected to an unduly critical analysis.”

51.         In a leading case on reasons in the Employment Tribunal, which is often cited in other jurisdictions,  Meek v City of Birmingham [1987] IRLR 250 at pararaph 8, Bingham LJ stated:

“It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts.”

52.         In R (Viggers) v Secretary of State for Defence  [2009] EWCA Civ 370 at paragraph 44 the Court of Appeal held that the test for sufficiency of reasons given by the PAT was as follows:

 “this court has to be satisfied that the tribunal dealt with the principal issues in dispute before them, that is to say those that were critical to their decision and, having identified those issues, then explained why they had come to their conclusion, so that the persons affected by their judgment, in this case of course the appellant, should know why they found against him and whether in their reasoning there was some flaw in their decision making.”.

53.         Also a Tribunal is not required to deal with all the issues in dispute, but rather those that are critical to its decision and the adequacy of the reasons also has to be considered in light of the fact that the parties know what submissions were made at the hearing and the content of the documents and evidence.  For example, in Bassano v Battista  [2007] EWCA Civ 370 in which at paragraph 44, Arden LJ stated:

“The next question is the practical question which arises where it is not immediately obvious from reading the judgment of the judge that sufficient reasons were given. That question relates to the process by which the appellate court determines whether the reasons which the judge gave were sufficient to support his conclusion. As to that process, the English case shows that the appellate court will examine the documents and evidence before the judge to see what the issues before him were and what the evidence was. In other words, this court will look to see whether the judge’s reasons, even if not expressed in terms or expressed clearly, can be deduced from those documents and the evidence. If the reasons are ones which can be deduced from those documents and the evidence, and if the judge's findings of fact were ones which he was entitled to make having regard to those documents and that evidence, this court will not accede to a challenge to the judgment on the grounds of insufficiency of reasons.”

Pausing there

54.         In AH (Sudan) v Home Secretary)  [2008] 1 AC 678, the Court of Appeal had found that the Tribunal had made an error of law, which if made, would have been an egregious and inexplicable one (per Lord Bingham at paragraph 11) and at paragraphs 29 and 30 Lady Hale says:

29.         My concern, therefore, is that, although the determination does refer to many relevant considerations, it effectively equates “unduly harsh” with Article 3 ill-treatment; subordinates all considerations to a comparison with the very worst lives led by other Sudanese; and rejects any claim unless there is reason to believe that the individual will be targeted for special attention by the authorities, thus harking back to the fear of persecution as well as Article 3 ill-treatment. No doubt this is the product of the mass of evidence and the multi-pronged case the Tribunal had to consider. But a thorough reading of the determination as a whole has not entirely dispelled these concerns.

30.           I spell them out, not to disagree with the result upon which your lordships are agreed, but in the hope that similar concerns will not arise in such cases in the future. This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently. I cannot believe that this eminent Tribunal had indeed confused the three tests or neglected to apply the correct relocation test. The structure of their determination can be explained by the fact that this was a “country guidance” case: but that makes it all the more important that the proper approach to the internal relocation alternative, as explained by the House in this case, is followed in future.

And at paragraph 19 Lord Hope says:

19. I agree also with what my noble and learned friend Baroness Hale of Richmond says about the caution with which the ordinary courts should approach the decision of an expert tribunal. A decision that is clearly based on a mistake of law must, of course, be corrected. Its reasoning must be explained, but it ought not to be subjected to an unduly critical analysis. As your Lordships have indicated, there are passages in the decision that is before us which might, when read in isolation, suggest that the tribunal misdirected itself. But I am quite satisfied that the decision as a whole was soundly based, and that a more accurate wording of the passages that have attracted criticism would have made no difference to the tribunal’s conclusion on the facts that the Secretary of State’s refusal of asylum in these cases should be upheld.

55.         Respectfully, in my view that passage from Lord Hope’s speech encapsulates the approach urged by the Secretary of State and confirms that;

i)              the FTT must give reasons, and

ii)            if the Decision read without unduly critical analysis shows that they have erred in law in their application of the Article 41(5) test that is a valid ground of appeal notwithstanding their expertise and experience.

56.         In broad terms, and as they were deployed in this case, these points relating to the respect to be given to a FTT and the adequacy of their reasons was to the effect that any reasonable doubt should be given to the FTT.  Clearly they are more likely on the approach set out above to be given that benefit if the error, if made, falls to be categorised as egregious and inexplicable, as it would have been in AH. 

57.         The Appellants did not argue that this general approach was not apposite here.  Rather, they argued that applying it and recognising that the FTT knew that the correct legal test was set by Article 41 and its members had applied it in the past, in this case they have demonstrated that they misapplied it and so erred in law. 

The authorities on the Article 41(5) test

58.         I have already mentioned Royston v Minister of Pensions [1948] 1 All E R 778.  It concerned Article 4 of the Royal Warrant but establishes that for both Articles 40 and 41 the claimant has the burden of establishing the relevant disablement and service on the balance of probabilities.  Dickinson v Minister of Pensions [1953] QB 228 draws the distinction between Article 40(3) and 41(5) at the next stage relating to the establishment of the conditions of entitlement and makes it clear that, in contrast to the position under Article 40(3), under Article 41(5) the burden or onus of proof is on the claimant.  At page 233, Ormerod J said:

I am quite satisfied that the article in itself leaves it quite clear that after seven years a claimant may still be entitled, under the proper conditions, to a pension provided that it is shown by him that the conditions of entitlement have been fulfilled.

A further real difficulty in this case is the wording of paragraph (4) of article 5 which, as I have said, provides that if a reasonable doubt exists the benefit of that reasonable doubt shall be given to the claimant.  Mr McQuown argues with some authority (the authority of the Lord Justice Clerk in Mitchell v Minister of Pensions 1 QB 1953) that if the claimant is to be given the benefit of the doubt in the case of a reasonable doubt, it can mean only one thing: that the onus of proof must be on the Ministry, because, if the burden of proof is put on the claimant to begin with and if he is then given the benefit of the doubt, that burden of proof must shift at some stage of the case.

I agree with Mr McQuown that the wording of that paragraph is probably unfortunate, but I am satisfied that the intention of the paragraph is that it is the duty of the claimant to produce reliable evidence to establish his claim, but if (after hearing and considering that reliable evidence, and making a comparison between such evidence and other evidence which is called on behalf of the Ministry to contradict, or to controvert it) the tribunal has a reasonable doubt, then in those circumstances the plain meaning of that paragraph of the article is that the benefit of that doubt shall be given to the claimant.

Therefore, as I see it, the tribunal have directed themselves properly on this question of onus.  They state in their judgment that they are satisfied that it is not shown that the death of Major Dickinson from coronary thrombosis was connected with such service.  That means that they are not in any doubt reasonable or otherwise, and there is no reasonable doubt the benefit of which could be given to the claimant.  It follows that the appeal fails and must be dismissed. 

The focus of this reasoning is on onus and it may be that this interpretation of the judgment on the issue of the application of the standard of proof is an early example of the generous approach to be taken to a decision of a specialist tribunal.

59.         The conclusion on the burden or onus of proof under Article 5 (now Article 41) in the first of those paragraphs has been accepted in the later authorities and was common ground before me and the FTT.  The Secretary of State placed considerable weight on the remainder of that citation to support the argument that the Article 41(5) test is a two stage test. 

60.         In Starr v Minister of Pensions  [1946] 1 KB 345 and  Miller v Minister of Pensions [1947] 2 All E R 372 Denning J addressed the standard of proof set by Article 4 of the Royal Warrant and thus the evidence required to displace the presumption set by it (and now by Article 40).  He did so by reference to the civil standard of proof in terms that the evidence had to show a real preponderance of probability that the disease was not attributable to war service so as to exclude reasonable doubt.  In Minister of Pensions v Greer  [1958] NI 156 the Miller case was relied on by the Minister to support an argument on the application of Article 5 (now Article 41) that the benefit of a reasonable doubt should only come into operation to assist the claimant when the evidence on behalf of the claimant and the Ministry is equal or nearly equal and where there is a clear preponderance of probability against the claimant there is no room for reasonable doubt.  This submission was rejected by Black LJ who accepted the explanation of Ormerod J in Dickinson and went on to say that the expression “reasonable doubt” is a well known and time honoured phrase by reference to which judges have been accustomed to direct juries and then said:

Accordingly, when the Royal Warrant comes to use a phrase of so well established a connotation in our law I think the phrase must be taken as used in order to indicate that degree or standard of proof which generations of lawyers have been accustomed to employ it as the apt phrase to describe.  It seems to me therefore that I cannot accept it as having the narrow and limited meaning which the Ministry seek to ascribe to it on the basis of Denning J’s observations in Miller's case.  Without clouding the phrase with attempted explanations all paraphrases such as were deprecated by Lord Goddard CJ in  R v Summers and R v Hepworth and Fearnley, I think it is sufficient simply to say that in an Article 5 case the Appeal Tribunal must ask itself whether upon reliable evidence a reasonable doubt, in the ordinary acceptation of that term, exists as to whether the conditions set out in paragraph (1) are fulfilled, and if the answer is in the affirmative the benefit of that reasonable doubt must be given to the claimant. (see pages 162 line 20 to 163 line 10)

----------- And the tribunal further held that this possibility constituted a doubt which was not remote or fanciful but real and substantial and that the claimant was therefore entitled by virtue of paragraph 4 of article 5 of the Royal Warrant to have recorded a finding that his pulmonary tuberculosis was attributable to service.  In my view the tribunal applied the proper test, and having found that a possibility existed that the claimant's disease originated in an infection which occurred during his service and resulted from service conditions and that this possibility constituted a real and substantial doubt, they were justified in allowing the claimant's appeal.  I do not leave out of sight (sic) fact that the tribunal accepted that the expert opinions of Dr Bhandari and all the Medical Services Division establish clearly a preponderance of probability in favour of the view that the claimant's pulmonary tuberculosis originated after his service finished and was not caused by any service factor and that accordingly he would not have been entitled by virtue of paragraph (2) of article 5 of the Royal Warrant (in the absence of the assistance of paragraph (4)) to a finding that his disease was attributable to service.  But I see nothing inconsistent in holding that notwithstanding the existence of a definite preponderance of probability or even a strong preponderance of probability there may also exist a reasonable doubt within the meaning of paragraph (4) of article 5 of the Royal Warrant, and if there is reliable evidence which could give rise to such a doubt the decision as to whether, having heard and weighed all the evidence and arguments, the tribunal should or should not think it proper to come to the conclusion that such a doubt exists is a matter essentially for the tribunal itself and not for this court.  (see page 163 line 25 to 164 line 7).  (my emphasis)

61.         These are the passages in Greer that are cited by the FTT at paragraph 66 of the Decision.  On a proper reading, they show a clear and firm rejection of the argument that a “reasonable doubt” will not be established if there is a preponderance of probability in favour of the conclusion that the conditions in Article 41(1) are not satisfied.  It follows that on a proper reading, they establish that for the purposes of Article 41(5) a reasonable doubt can exist even when, on the evidence, there is a strong preponderance of probability that the entitlement conditions are not satisfied.

62.         This approach rejects a linkage between the “reasonable doubt test” in Article 41(5) and the civil standard, and links it to the criminal standard.  This linkage is adopted and reflected in all the later cases.  For example in Judd v Minister of Pensions (4 October 1965) Edmund Davies J, in an Article 4 case,  having gone through the earlier decisions of Denning J and Greer concluded that it was wrong  to judge a pension claim on the basis of a simple preponderance of probability and, in that case, he concluded that as he could not think that the evidence could properly lead the Tribunal to conclude that the Minister had demonstrated the invalidity of the claim to attributability beyond reasonable doubt he should decide the case himself in favour of the claimant.  The decisions and approach in Greer and Judd were approved and applied in Minister of Social Security v Connolly  (1967) Scots Law Times 121 (see in particular pages 126 /8). 

63.         These cases engage and inform the issue of the approach to be taken to conflicting expert evidence as to which it is necessary to remind oneself that in Howard v Minster of Pensions  (25^th November 1955) Ormerod J at page 587 said:

As I have said time and again in these cases the mere fact that there is a difference of medical opinion does not mean that there is a doubt and therefore the Appellant must have the benefit of it.  There is only a doubt if the Tribunal, having considered the whole of the evidence, are left in doubt ------- (my emphasis).

64.         Although Black LJ in Greer  acknowledged the dangers of attempting to explain or paraphrase the phrase “reasonable doubt” it is to be noted that in describing whether one is raised he did so by reference to the existence of a possibility and to the doubt being reasonable because it “was not remote or fanciful but real and substantial”.  In my view, this flows inevitably and naturally from the use of the phrase in the criminal context when it is transplanted to a standard that requires such a doubt to be established.  This is because the possibility provides and measures the nature and extent of the doubt.  Also, in line with the criminal standard of proof and his rejection of the Ministry’s argument, Black LJ is clearly using the phrase “real and substantial” to indicate that the doubt, and so the possibility on which it is based is “not remote or fanciful”.  As appears later, this level of force or strength is also used to describe the meaning and effect of what is “reliable” evidence.

65.         The FTT cite from R(Edwards)  v  The Department of Social Security CO/2281/90 (10 July 1992) at paragraph 68 of the Decision.  This was an application for judicial review of a decision of the Secretary of State relating to the backdating of a pension to before 1^st February 1980.  The case was heard by McCowan LJ and Pill J and in his judgment McCowan LJ refers to and cites from Dickinson  and a decision of Drake J, Westcott v Secretary of State for Social Services  (11 December 1987) - which was not separately cited to the FTT but is now relied on by the Appellants - and says:

 As I have indicated, it is, to my mind, plain that by consensus the Secretary of State means "the generally accepted view of medical practitioners".  If the right question is to ask when the present view of the possible causes of schizophrenia became the generally accepted view of medical practitioners, then it is impossible to say that the Secretary of State was not entitled to fix on 1^st February 1980 as the appropriate date.  I am in no doubt, however, that it is the wrong question in that it involves a misunderstanding of the meaning of Article 5 (4).

In considering that Article, the word "reliable" cannot, in my judgment, had been intended to mean "convincing".  At most it can be construed as not "not fanciful".  But in fact I doubt whether the word adds anything to the sentence.  The real question is: does the evidence raise a reasonable doubt in the mind of the Secretary of State?  If he finds the evidence unreliable, it obviously will not raise reasonable doubt in his mind.

I see no reason why, on the material put before him, the Secretary of State could not be entitled to hold that in 1968, the time of the publication of the Brown and Burly study, which has now come to be the generally accepted view was a mere hypothesis based on a limited study which would not have created a "reasonable doubt" within the terms of Article 5(4).  The stage by which it became sufficiently supported to raise such a doubt in his mind is a matter for the Secretary of State.  Accepting, however, that the shift of opinion was a gradual process and that by February 1980 it was the generally accepted view, there must have been an earlier stage when, if asked to consider the matter, he would have found that there was a "reasonable doubt" and failure on his part to do so would have been challengeable on Wednesbury grounds.  There are, in other words, in my judgment, three stages: no reasonable doubt, reasonable doubt, and consensus.

It follows, in my judgment, that the Secretary of State's decision that 1^st February 1980, being the date at which consensus was reached, is the earliest date at which he can hold that there was a reasonable doubt is flawed and cannot stand.  I would therefore quash both the decisions ----------------

The Secretary of State relied on the phrase “the stage at which it becomes sufficiently supported to raise such a doubt” as an express recognition of something being “sufficiently” supported to raise a reasonable doubt and thus the formula used by the FTT “there is insufficient reliable evidence to raise a reasonable doubt”.

66.         In Hunt v Secretary of State for Social Services  (21 December 1993), Drake J in an Article 5 case adopted a similar approach to that taken by Edmund Davies J in Judd and by himself in Westcott.  He said:

The burden and standard of proof, very unusual under English civil law, was applied to all pension cases as a matter of government policy.  The policy is aimed at ensuring that no valid claim is likely to be rejected, although the price paid to achieve that end is that some invalid claims will be allowed.  A parallel exists under criminal law where the standard of proving guilt beyond reasonable doubt is justified on the basis that it is better that many guilty escape conviction than that any innocent to be convicted

The present case falls under Article 5.  That means that because this claim is made long after the Appellant's husband finished his service, the burden of proving the claimant does to an extent rest on her.  However, she does not have to prove that the lung cancer was probably linked to her husband's service.  All she has to do is to raise a reasonable doubt based on reliable evidence that there may be such a link. ----------

I fully accept that the evidence to support the Appellant's case is far from strong.  However, having considered it with very great care, I do not think it is possible to say that any tribunal, properly directing itself on this evidence, could find beyond reasonable doubt that there was no causative connection between Mr Hunt's war service and the addiction to smoking which led to his death.  In my judgment the evidence does raise a reasonable doubt in the Appellant's favour.  Accordingly, this appeal will be allowed.

67.         In Busmer v Secretary State for Defence  (20 January 2004), which is a case under Article 5 in which the appellant suffered from a form of leukaemia (myelodysplasia) and maintained that it was attributable to his service on Christmas Island,  Newman J referred to Dickinson, Westcott and Edwards and in applying the guidance given by them said:

8. The Appellant submitted that the PAT must ask itself two questions: (1) Is there any evidence before them which indicates that the death or disablement was due to service? (2) Is such evidence fanciful?

9. Like McCowan LJ  in ex parte Edwards, I have some doubt whether the word "reliable" sheds much light on the correct approach.  The real question is whether on all the evidence which has been presented, on both sides, a reasonable doubt arises as to whether all the conditions have been fulfilled.  Because the burden of proof is on the claimant, unless a reasonable doubt has been raised, the claim will fail.  If a reasonable doubt has been raised, the claim will succeed.  Thus I would substitute for question (1) in paragraph 8 above: "does the evidence raise a reasonable doubt as to whether all the conditions have been fulfilled?"  And would avoid consideration of any other question amounting to an attempt to explain what may or may not be a "reasonable doubt".  The Secretary of State and the PAT are well able to understand that expression.

20.  It was open to the Respondent to contradict or controvert the facts relied upon by the Appellant.  The Report dated the 9 April 2001 from AWE did contain some material controverting the assertion that Mr Busmer had been exposed to radiation from the detonations when they occurred.  However, his evidence as I have outlined it above in connection with events on the Island was not contradicted or controverted by any evidence.  The AWE report does not attempt to meet the evidence from Mr Busmer, reported in the case notes from the hospital in Brisbane or that contained in his statement reported by Ms Roff or the contents of his e-mail dated 3 December 2002.  For example, it was for the PAT to consider his account where he describes:

“ being in parade formation several miles from the test site, facing away from the test site, and being able to feel the heat of the subsequent blast on the back of the neck"

In his e-mail dated the 3 December 2002 Mr Busmer repeated this event is part of his case:

"Emphasis should be made to the heat from the radiation, after the explosion, to the back of my neck area, which was quite intense".

21.  The Tribunal does not appear to have reached any conclusion in connection with this piece of evidence.  Or, if it did, its conclusion is not apparent.  In my judgment, it called for specific consideration. ---------

23. -------------------- The question which arises in connection with this evidence is whether, given the facts provided by the Appellant that he did travel over the Island, saw dead fish, may have swam in a lagoon, ate local food, drank water and had an open wound to his ankle which took a long time to heal, a reasonable doubt was raised as to whether his condition was related to exposure on the Island?  It is not apparent from the Case Stated what conclusion was reached in connection with the various statements, including in particular the accounts given to the Brisbane hospital and to Ms Roff.

24.  Further, the PAT do not appear to have approached this part of the case by asking whether the evidence raised a reasonable doubt.  It dismissed its significance because "there is no evidence of the amount of any contact by the Appellant with those areas of the Island affected whether temporarily or on a  long term basis by those measured amounts of radioactivity".  Thus it appears to have concluded that the case for exposure to radiation from "dispersion radiation" depended upon the validity of a reading which supported its existence and further evidence that the Appellant had been in the vicinity of the recorded fallout.  But this was not the Appellant's case.  If this is the approach which was adopted, it amounted to a rejection of the Appellant's case which relied upon other facts with the inference that fallout had occurred.  His case was that his activities on the Island and exposure to possible sources of contamination by various means raised a reasonable doubt in relation to the contention that he was not exposed to any radiation whilst on the Island.  Or put another way, that on all the evidence reasonable doubt had been raised.

25.  It may be open to the PAT to conclude that this evidence raised no reasonable doubt, but I am bound to say that in placing weight on "the absence of evidence of any contact by the Appellant" there is a risk that the PAT was looking to be "convinced" by the evidence rather than simply asking whether there was a reasonable doubt raised by the evidence which was before it. (my emphasis)

Perhaps unsurprisingly this case has close overlaps with issues that arise in these appeals concerning exposure to radiation, measurements and hotspots.  In it Newman J allowed the appeal and remitted the case to a differently constituted tribunal to consider on all the evidence whether a reasonable doubt had been raised.  I am allowing these appeals on very similar grounds. 

68.         I now turn to consider two cases which were not before the FTT, namely Westcott (although it was cited in cases that were before the FTT) and Roche v Secretary of State for Defence (PA/6/2004 8 October 2004) a decision of Davis J.  I was also referred to another decision of Davis J, Setter v Secretary of State for Defence  (PA/6/2005 17 November 2005) and the parties were unclear whether this case was before the FTT.

69.         In Westcott  the claim was based on Article 5 and Drake J said:

I read that as a clear answer to the question posed by the DHSS.  The answer is: "Yes, Mr Wescott's orthopaedic pathology involving the knees and spine could be related to heavy parachute landings." ------------------------- But having taken those matters into account the report then sets out other considerations which, in the view of those giving the report, point very strongly indeed to the conclusion that Mr Wescott's condition was not related to any parachute landing and was, in fact, primary osteoarthritis particularly related to the fact that he suffered from considerable obesity. ---------

It appears that the Tribunal felt some doubt as to whether Mr Wescott fell in the manner he described, for they said in the sixth paragraph of their decision: "In our opinion even if Mr Wescott fell as he described and hurt his coccyx, this incident is not related to the same conditions."  It is also clear from the passage that I have just read from the decision that the Tribunal did not find that Mr Wescott did not have the fall as he described.

What it then did was to accept and agree with the opinions of the medical services division and say "We are satisfied that Mr Wescott has generalised osteoarthritis."  They therefore concluded, basing themselves firmly on that decision, that the same conditions are not attributable to service.  In reaching their decision the Tribunal, with that evidence, had a great deal of evidence which pointed and I would say pointed strongly against the appellant's claim that his osteoarthritis was attributable to the parachute fall.  But there was also some evidence which did support his claim.  The Tribunal could of course have made a finding that they expressly rejected the consultant orthopaedic surgeon's opinion as being, without any foundation, a wrong opinion that no reasonable specialist could have reached.  They did not make that finding and it is not surprising, they had no reason to do so.

In my judgment, there was therefore on the evidence before them, just as there was before the medical services department in their opinion, evidence which did raise a reasonable doubt in the appellant's favour.  There was simply no material on which the Tribunal could find, as they did, that the evidence did not raise any reasonable doubt in favour of the appellant.

I have had regard to decision which I have been referred to: Cadney v Minister of Pensions and National Insurance Volume 5, War Pensions Appeal Reports, 687, in which the nominated Judge (then Mr Justice Edmund Davies) held that it was entirely a matter for the Tribunal to decide whether the evidence placed before it is reliable or whether the evidence, being reliable, is such as to create such a reasonable doubt as falls within Article 5, and it is not for the nominated judge to reopen these questions.  I give full weight to that decision which I would respectfully say is completely right.  But it is the duty of the nominated Judge to see whether there was any material on which the Tribunal could properly reach the decision it did, and for the reasons I have given I find in this case that the Tribunal erred in that they had no material on which they could reject this claim as one in which there was no reasonable doubt raised in favour of the claimant.  I think they fell into an understandable trap here and relied almost exclusively upon the medical division's report without realising that that report itself did not reject the appellant's claim on the basis that there was no reasonable doubt in favour of the claimant at all.

As I have indicated, the evidence in this case, on the balance of probabilities, points against the appellant's claim.  It may be that many would therefore consider this appellant to be fortunate to be entitled to a pension in all the circumstances of this case.  But it is not a case of being sympathetic and saying that he is fortunate: he is entitled on the law as it stands, which does weight matters heavily in his favour.  For the reasons I have given I hold that this appeal succeeds.

So this case provides another example of the adoption of an approach by reference to the existence of possibilities that create a doubt and a confirmation of the low standard of proof set by the Article 41(5) test.

70.         In Roche the claim was based on Article 5, Davis J refers to Dickinson, Edwards, Busmer and Westcott and said:

21.  Some argument was addressed to me as the meaning and effect of article 5 of the 1983 Order.  As I see it, a number of points are clear enough.

(1) First, article 5 (2), by its terms, cast the burden on the applicant in such cases.  That indeed was so held by Ormerod J in the case of Dickinson v Minister of Pensions [1953] QB 226.

(2) Second, the use of the word "reliable" in article 5(4) cannot be taken, in my view, to be mere surplusage.  I respectfully agree, all the same, with the observations of McCowan LJ in the case of R v Department of Social Security ex parte Edwards (unreported, 10 July 1992) that such word is not intended to convey the meaning “convincing"; rather, it was designed to emphasise that the evidence adduced was not fanciful or worthless.  All courts and tribunals have experience of evidence, sometimes even in the form of a witness statement, which, on examination, or perhaps in the light of a quantity of wholly compelling other evidence, is shown to be completely worthless.  Article 5(4), as it seems to me, is so worded as to allow for that.

47.  But the essence of Mr Pilbrow’s complaint is to be found set out in the second and third points.  Mr Pilbrow frankly accepted that the totality of the evidence no doubt showed a probability, even a strong probability, but (sic) a causal link was not shown.  But that is not the test under Article 5.  In essence, what Mr Pilbrow says is that on the approach that this particular Pensions Appeal Tribunal chose to adopt (that is to say by placing prime emphasis on Prof Hay’s written evidence) it simply was not entitled to reach its finding of fact, ---- or to reach the conclusions ----------- as to law.  In that regard Mr Pilbrow accepted that if that finding and that conclusion was a finding and conclusion properly open to the Pensions Appeal Tribunal, then, as he put it, his appeal was "dead in the water".

50.  Accordingly, goes on Mr Lewis's argument, reading the answers of Prof Hay as a whole, and taking the evidence as a whole (as he stressed, and rightly in my view, one must) and reading also the Pension Appeal Tribunal's decision as a whole, the Tribunal was justified in concluding that no reasonable doubt was shown.

51.  I do not agree.  As it seems to me, it is precisely because one must read the evidence as a whole that the position on the approach adopted by the Pensions Appeal Tribunal, focusing, as it did, in particular on the evidence of Professor Hay in the Tribunal's determination, that the position is not so clear as Mr Lewis would have it.

56.  First, the generalised evidence contained in the various studies and reports, which the Tribunal expressly did not reject as unreliable, lend some support, at least potentially, to Mr Roche’s case, at least with regard to mustard gas; and at all events those reports were not inconsistent with Mr Roche’s case.

57.  Secondly, there are various references in the decision of the Pensions Appeal Tribunal itself which perhaps indicate that on occasions the Tribunal may have been engaging in a balancing exercise.  For example, it refers to the "significant probative weight" which is attached to Professor Hay’s report.  It said that it "preferred" that evidence to the other evidence.  It said, by way of example, that the "compelling weight" of the evidence was that Mr Roche had not received dosages likely to have long-term effects.  It had referred to the evidence of Professor Hay to the effect that he deemed it "unlikely" that mustard gas was a cause.  These points perhaps would not in themselves suffice to invalidate the decision of the Tribunal.  But they do seem to me to lend at least some further support for the view that, quite simply, the wrong answer may have been reached given the approach that needed to be applied under article 5 (4).  In that regard I would reiterate the point raised by reference to paragraph 5 of the conclusions: if the recording of the evidence was that mustard gas was "unlikely" to be a cause, then that would seem to give rise to an acceptance that there was a possibility that it was the cause.  It may be, as Mr Lewis said, that that particular answer is to be read in the answer previously given in paragraph 3 of the findings of fact.  But, again, as it seems to me, there is some doubt as to that; and in any event my fundamental reason for allowing this appeal is that, on the approach adopted by the Pensions Appeal Tribunal, with a particular emphasis on the answers of Professor Hay, it simply was not entitled to reach the finding of fact set out in paragraph 3 or the finding in paragraph 4 of its conclusions, as it did. 

This case has an overlap with the approach taken and the decision made by Newman J in Busmer.  It again emphasises the need to look at the impact of possibilities in light of the reliable evidence taken as a whole and on that approach to determine whether in light of all that evidence a reasonable doubt has been raised.  It also provides important guidance to the effect that evidence that is not fanciful or worthless is not to be categorised as unreliable and  an approach that makes what are expressed as findings based on a balancing exercise or preferring one expert’s evidence to another is incorrect. 

71.         In Setter the claim was based on Article 5.  As in Busmer and these appeals it related to service on Christmas Island.  In Setter Davis J dismissed the appeal concluding that:

49.       It seems to me, therefore, overall, that the Pension Tribunal reached a conclusion it was entitled to reach and no error of law or unfairness is shown.  Mr Stilitz did say that if one takes, together, the various criticisms made that there was here, as he put it, residual unease.  He submitted that inadvertently the tribunal may have reverted, and wrongly reverted, to the balance of probabilities test.  But, in my view, there is nothing to support that.  On more than one occasion the tribunal referred to the reasonable doubt test.  In my view the tribunal reached the conclusion it was entitled to reach by reference to findings of fact it was entitled to make and therefore this appeal fails.

Earlier Davis J at paragraphs 12 and 13 noted that the standard of proof in pension cases under the SPO is much lower than that which ordinarily occurs in a court of law by reference to proof on the balance of probabilities, and that point had been explored in a number of cases (and he referred to Westcott, Edwards and Busmer).  Later he recorded that a copy of the full report of a Dr Woodruff was not before the tribunal and said:

33.  There was a great deal of material which the tribunal was entitled to accept, and did accept, as supporting, and wholly supporting, the case of the Ministry of Defence.  All that the tribunal, in effect, had was an assertion of Dr Woodruff to the contrary.  Indeed, it is very hard to understand how Dr Woodruff, an oncologist, can claim to state that Mr Setter had almost certainly been "heavily exposed to radiation during his year on Christmas Island".  That is a matter of primary fact which needs to be assessed by reference to the evidence by those involved.  It is simply wholly unexplained by Dr Woodruff how it was he was he was able to reach such a conclusion.

34.  It seems to me, given that this is, in effect, a bare assertion in the form put before the tribunal, the tribunal was entitled to reject it in the way that it did, having regard to all the other evidence before it, as not being reliable evidence.  I therefore think that this ground of attack is not made out.

35.  However, Mr Stilitz then went on to attack the way the Tribunal dealt with other aspects of the claim.  He, in particular, attacked the Tribunal's approach with regard to exposure to DDT.  At the hearing Mr Prescott had said to the tribunal that Mr Setter has been exposed to aerial spraying of DDT from aircraft on a very frequent basis throughout his service on the island.  Mr Prescott was in a very good position to give evidence on that because he himself had been on the island at that time.  However the tribunal said this, having referred to Mr Prescott’s submission:

"This statement is not corroborated and we do not find it credible that this occurred to the extent and frequency claimed."

36.  I have to say that I cannot understand how the tribunal felt able to say that.  There is nothing to indicate that Mr Prescott would have been trying to give anything other than truthful and accurate evidence.  There was no reason to reject it out of hand as not credible.  On the contrary, not only was that evidence credible, it did in fact have support from a number of other materials, which I need not specify, which were before the tribunal, including a statement from a particular pilot involved at the time.  It seems to me that there is simply no basis for the tribunal making that particular finding.

37.  However, matters do not end there because the tribunal went on immediately thereafter in the determination to say this:

"A reasonable doubt is not raised in our minds on the totality of the evidence that any exposure to these chemicals that may have occurred had aetiological significance in the fatal process of this individual."

38.          It seems to me that there the tribunal was saying that, in any event, aetiology was not, even on the reasonable doubt test, established.  It seems to me that the tribunal was certainly entitled to take that view.  It is to be noted that they did so by reference to any exposure that may have occurred.  So they were not here simply relying on their rejection of Mr Prescott's evidence. (my emphasis)

In this case Davis J refers to the tribunal making findings of primary fact but does not expressly deal with the basis upon which it is to do so.  However, it is implicit in paragraph 49 that he accepted that a balance of probabilities approach would be incorrect and in my view his approach to the exposure issue is instructive because it shows that he concluded that the tribunal could reject the evidence of Dr Woodruff as bare assertion but they erred in making the credibility finding that they did.  In my view taken together this shows that when he refers to the making of findings of fact or primary fact he is not sanctioning an approach that this should be done on a balance of probabilities standard.

My conclusions on the Article 41(5) test based on those authorities

72.         I repeat that in accordance with existing authority (see Secretary of State for Social Security v Bennett and ors 17 October 1997 (unreported) applying Royston v Minister of Pensions  [1948] 1 All ER 778; and Secretary of State for Defence v Rusling [2003] EWHC 1359 at para 23, it was agreed before the FTT and me that under Article 41 the burden of proof was on the Appellants to prove military service and disablement or death, and that the standard of proof in respect of those two issues was the balance of probabilities.  I agree with that earlier authority and approach.

73.         When one first considers the Article 41(5) test it does not fit easily with established standards of proof and it might be thought to create a reverse burden on the Secretary of State to establish beyond reasonable doubt that the conditions are not satisfied. However, the authorities establish that this is not the case and that the burden is on the claimant to satisfy the test and thus the standard it sets. 

74.         That standard requires the claimant to establish upon reliable evidence that a reasonable doubt exists whether the conditions set out in Article 41(1) are fulfilled.  If he succeeds in doing that the benefit of that reasonable doubt is to be given to the claimant. In short, the claimant has to establish a reasonable doubt on reliable evidence that the conditions are fulfilled. 

75.         Understandably, the cases on Article 41(5) have not sought to redefine a reasonable doubt.  Rather they have equated it to the level of doubt that will found a not guilty verdict by a jury.

76.         In my view, in line with what was said in Greer, Judd, Connolly and Howard, (see paragraphs 60 to 64 above) and confirmed by the later cases referred to above (see paragraphs 65 to 71), to establish a reasonable doubt a claimant will have to establish on reliable evidence possibilities that give rise to it.

77.         In Hunt it was pointed out that this unusual standard was applied pursuant to a policy aimed at ensuring that no valid claim is likely to be rejected (and a parallel was made to the position in criminal law relating to the conviction of the innocent).

78.         The authorities on Article 41(5) have made clear (see in particular Dickinson and Greer) that when one gets to the application of Article 41(5) test the civil standard is not relevant as a trigger or otherwise to the raising of a reasonable doubt on reliable evidence that the conditions set by Article 41(1) are met and so the claimant is entitled to a war pension.  This has been made clear by reference to (a) the reasonable doubt standard, and (b) what is meant by reliable evidence.  The answer or guidance given by those who have thought that the word “reliable” adds something is related to what amounts to a reasonable doubt as that expression is used in criminal law, is that the evidence must not be fanciful or worthless (see Edwards and Roche).

79.         That description of what is reliable evidence links it to the standard set by the Article 41(5) test and in my view adds little to it.  Rather it confirms that the test is founded on the establishment of possibilities based on evidence that cannot be rejected as being fanciful or worthless and it therefore provides a direct linkage between the quality and nature of the evidence that can be relied on and the criminal “reasonable doubt” standard. 

The general approach to fact finding and decision making in the application of a statutory test or standard of proof and its application to the Article 41(5) test by analogy

80.         As shown earlier (a) in Busmer Newman J refers to a case based on facts that found an inference, (b) in Setter Davis J refers to findings of fact the tribunal is entitled to make and (c) in Roche he refers to the assessment of a witness statement and points out that courts and tribunals have experience of finding that, on examination, evidence that appears reliable on its face is in the light of other evidence worthless and so not reliable.   

81.         But none of the authorities I was shown on the Article 41(5) test address in any detail how the Secretary of State and then the FTT should go about determining whether the claimant had satisfied the Article 41(5) test and thereby how the decision reached on it should be explained.  Rather, these cases primarily address the meaning, nature and effect of the test as opposed to its actual application.  So the assertion of the FTT that the law is well established by the earlier authorities does not cover the approach to be taken to the application of the test and thus the reasoning process to determine whether the criterion it sets has been satisfied. 

82.         It therefore appears that there is an important gap in the authorities concerning the approach to be taken to the application of the unusual, if not unique, standard set by the Article 41(5) test – “a reasonable doubt based on reliable evidence”.  I raised this with the parties and referred them to some cases under the Children Act 1989 concerning the general approach taken by courts and tribunals to fact finding and the determination of whether a litigant has proved something to the requisite standard.  The parties addressed me on this general approach and its application to the Article 41(5) test by reference to those cases and without reference to any others (e.g. immigration cases relating to the approach to be taken to whether there is a real and substantial risk or a reasonable degree of likelihood of persecution for a Refugee Convention Reason).

83.         Clearly these cases relate to a different subject matter, a different standard of proof and a different test, namely one relating to whether a child has been the victim of inflicted harm and, as a result, whether that child or another child is likely to suffer significant harm (in the sense that there is a possibility of this happening that cannot sensibly be ignored). But, in my view, and no submission was made to the contrary, they provide useful guidance on the correct general approach to be taken in, and so the reasoning process to be applied and explained in, the application of the standard of proof set by the Article 41(5) test.

84.         In Re H (Minors)  [1996] AC 563 Lord Browne-Wilkinson (who was in the minority) said at 573C:

So in the present case, the major issue was whether Dl had been sexually abused (the macro fact). In the course of the hearing before the judge a number of other facts (the micro facts) were established to the judge's satisfaction by the evidence.

And Lord Nicholls between 585H and 591G said:

The burden of proof

-----The general principle is that he who asserts must prove. Generally, although there are exceptions, a plaintiff or applicant must establish the existence of all the pre-conditions and other facts entitling him to the order he seeks. ---------

The standard of proof

Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.------------

The law looks for probability, not certainty. Certainty is seldom attainable. But probability is an unsatisfactorily vague criterion because there are degrees of probability. In establishing principles regarding the standard of proof, therefore, the law seeks to define the degree of probability appropriate for different types of proceedings. Proof beyond reasonable doubt, in whatever form of words expressed, is one standard. Proof on a preponderance of probability is another, a lower standard having the in-built flexibility already mentioned. If the balance of probability standard were departed from, and a third standard were substituted in some civil cases, it would be necessary to identify what the standard is and when it would apply. Herein lies a difficulty. (my emphasis)

A conclusion based on facts

The starting point here is that courts act on evidence. They reach their decisions on the basis of the evidence before them. When considering whether an applicant for a care order has shown that the child is suffering harm or is likely to do so, a court will have regard to the undisputed evidence. The judge will attach to that evidence such weight, or importance, as he considers appropriate. Likewise with regard to disputed evidence which the judge accepts as reliable. None of that is controversial. But the rejection of a disputed allegation as not proved on the balance of probability leaves scope for the possibility that the non-proven allegation may be true after all. There remains room for the judge to have doubts and suspicions on this score. This is the area of controversy. ----------

Evidence is the means whereby relevant facts are proved in court. What the evidence is required to establish depends upon the issue the court has to decide. At some interlocutory hearings, for instance, the issue will be whether the plaintiff has a good arguable case. The plaintiff may assert he is at risk of the defendant trespassing on his land or committing a breach of contract and that, in consequence, he will suffer serious damage. When deciding whether to grant an interlocutory injunction the court will not be concerned to resolve disputes raised by the parties' conflicting affidavit evidence.

At trials, however, the court normally has to resolve disputed issues of relevant fact before it can reach its conclusion on the issue it has to decide. This is a commonplace exercise, carried out daily by courts and tribunals throughout the country. This exercise applies as much where the issue is whether an event may happen in the future as where the issue is whether an event did or did not happen in the past. To decide whether a car was being driven negligently, the court will have to decide what was happening immediately before the accident and how the car was being driven and why. Its findings on these facts form the essential basis for its conclusion on the issue of whether the car was being driven with reasonable care. ----------

I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. -------------- And facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue.  

In Re B (Children)  [2009] 1 AC 11, Lord Hoffman at paragraphs 1 and 2 said:

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Baroness Hale of Richmond and I am in complete agreement with her reasoning, analysis of the authorities and conclusions. I add some observations on the standard of proof only to underline, without in any way qualifying, what she has said.

If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.

And Lady Hale said at paragraphs 31 and 32

---------------------- Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses. -----------

In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof.

85.         In my view, these citations concerning the general approach taken by courts and tribunals show that when they (and, as pointed out by Lord Hoffmann, juries) have to decide issues of fact that are relevant to an issue that is determinative of a consequence (here the application of the Article 41(5) test and so the entitlement to a war pension) they do so on the evidence that they find reliable relating to a whole range of stepping stones or ingredients and their conclusions on them to reach the relevant conclusion on the issue they have to decide.  That process involves reasoning and in it the range of factors that can properly be taken into account is infinite.  However, it is a principled approach based on evidence. 

86.         The binary system described by Lord Hoffmann is based on a legal rule requiring a fact to be proved, the standard of proof set for its establishment by the law and ultimately the burden of proof.  In my view, an approach of carrying forward facts in that way does not apply to the Article 41(5) test because it is satisfied by establishing on reliable evidence possibilities that found a reasonable doubt (see paragraph 76 above).

87.         So, by analogy the application of his binary approach and the approach to fact finding shown by the cases on the Children Act, to the Article 41(5) test is that: 

i)             possibilities based on evidence that is not fanciful or worthless are carried forward,

ii)            neither side takes forward a score of 1 or 0 based on the normal civil standard (balance of probabilities),

iii)          the carrying forward of a possibility does not convert it to a fact or exclude from later consideration the weight of evidence in favour of or against a possibility, and so its effect in answering whether a reasonable doubt has been raised,

iv)          a score of 0 is only given to a factor, fact, ingredient or stepping stone if it is based on conclusions about which the decision maker has no reasonable doubt, and so is effectively certain,

v)            a score of 1 is only given to a factor, fact, ingredient or stepping stone if it is one about which the decision maker has no reasonable doubt and so is one about which he is effectively certain (and the fact that a matter is accepted or undisputed may mean that it should be so treated), and

vi)          such possibilities and effective certainties (and the matters on which they are based) are weighed in determining whether the Article 41(5) test is satisfied.

88.         In my view, point (v) flows from (a) Lord Hoffmann’s reference to the failure of the person on whom the burden is placed to establish a fact by a legal rule (a fact in issue) and its application to a criminal trial and thus the burden placed on the prosecution, and (b) the point that such an ingredient or stepping stone can be described as a certainty or something about which the decision maker is sure.

89.         Juries do not have to give reasons on why they are satisfied to the criminal standard and so are “sure” that a person is guilty of an offence (e.g. inflicting harm on a child) and no doubt many do not go through a sophisticated reasoning process that banks (a) facts and factors about which they are sure and those which they regard as possibilities, and so (b) ingredients or stepping stones taken into account in their reasoning process as effective certainties and as possibilities.

90.         But, as is shown by Re H and Re B, unlike juries courts and tribunals have to apply a principled approach based on the evidence to reach conclusions and importantly they have to give reasons that adequately explain how they have reached those conclusions on the application of the relevant test or standard (e.g. the balance of probabilities). 

91.         In my view correctly, it was accepted before me that, as in cases governed by the normal civil standard of proof, an equivalent principled approach based on the evidence is required in the application of the Article 41(5) test and so the FTT have to (a) identify the ingredients or stepping stones taken into account in their reasoning process as matters about which they have no reasonable doubt and so regard as effective certainties, (b) identify the ingredients or stepping stones which they regard as possibilities and the reasons why they have been so identified, and (c) by reference to (a) and (b) their reasons for the conclusion they have reached on the application of the Article 41(5) test.

92.         The best way of demonstrating how that test has been understood and applied, and thus the reasons for the decision, will often be to describe that approach.

What I was not shown

93.         Although I was shown a great number of authorities, I was not shown any decisions of the FTT in this jurisdiction in which an explanation of their understanding of the Article 41(5) test and how it had been applied had been set out.  Such decisions would provide good examples of the familiarity of the FTT with the test and examples of it being correctly applied and thus support for the general approach urged by the Secretary of State to decisions of an expert tribunal.

94.         Rather, during the cross examination of Dr Busby, I was taken to two decisions of the FTT in which the style and approach was similar to that taken in the Decision (see paragraph 33 above).  I suggest that if this very limited example of the approach of the FTT in this jurisdiction reflects its general approach its members should revisit that approach with a view to demonstrating their expertise and avoiding respondents having to advance arguments that, as they are an expert tribunal, it should be assumed that they understood and correctly applied the relevant test.

95.         It is important that First-tier Tribunals apply and show that they have applied the correct legal test in the right way.  This involves them reaching conclusions on the evidence, and then explaining why the undisputed facts and their assessment of the evidence has founded the decision reached on the application of that test.  This can avoid rewriting the test and shows how it has been understood and applied.

96.         However, and in accordance with the way in which the arguments were presented, I have not made any assumptions about the general approach adopted by the FTT in this jurisdiction and have focused on this Decision and the grounds of appeal advanced.

97.         But, I should record that after I heard this case I sat with two Upper Tribunal judges who have wider experience of considering decisions of the FTT in this jurisdiction than I do and in that case (CAF/3624/2013) we are likely to comment on the need for the FTT in this jurisdiction to consider their general approach to explaining their decisions.

The approach to be taken to the application of the Article 41(5) test

98.         As was accepted in argument before me, the analysis in paragraphs 72 to 92 above founds the view that it would be wrong in law for a decision maker applying the Article 41(5) test to take an approach that:

i)             determined factors, ingredients or stepping stones and thus the matters that could give rise to possibilities relied on to found a reasonable doubt by reference to the normal civil standard, or any standard other than “reasonable doubt” and so, for example, an approach that rejected evidence that was not fanciful or worthless by preferring other evidence, and

ii)            carried forward those findings or conclusions (on a binary approach or otherwise) to the assessment of whether the claimant has established the existence of a reasonable doubt on reliable evidence that the conditions set by Article 41(1) are satisfied.

99.         Rather:

i)             the factors, ingredients or stepping stones to found the possibilities relied on, and so the existence of those possibilities, have to be determined by reference to the standard of raising a reasonable doubt set by the Article 41(5) test and thus on evidence that cannot be left out of account because it is fanciful or worthless, and

ii)            those conclusions or findings on the existence of possibilities then have to be carried forward to the determination of whether in the light of all the evidence the Article 41(5) test has been satisfied.

100.      In my judgment, unless a factor, ingredient or stepping stone can be established or ruled out on the basis that the decision maker on the evidence has no reasonable doubt about whether (and so is sure) that it is right or wrong (or did or did not happen or exist) the doubt relating to it, and so the possibility that doubt creates, has to be carried forward in the decision making process.  So, evidence that is found to be fanciful or worthless can be ruled out.  Also, some evidence relating to credibility (e.g. whether a claimant was in a particular place or did a particular thing) could found a conclusion that it does not raise a possibility that needs to be carried forward.  Equally, and subject to the FTT, wearing its inquisitorial hat, being satisfied that it does not need further investigation, evidence that is accepted or undisputed can be carried forward as an effective certainty and thus as something about which the decision maker is sure.

101.      The decision making process on whether a reasonable doubt has been established on reliable evidence will also have to take account:

i)             of the relative importance of the relevant factors, ingredients and stepping stones and, on an evidence based approach,

ii)            of the nature and extent of the doubts and possibilities relating to them.

For example, as accepted by counsel for the HL Appellants, an overview or cumulative consideration of all the evidence, of the combined effect of doubts, and so the possibilities they give rise to, may or may not establish a reasonable doubt on reliable evidence that the conditions set by Article 41(1) are met.  Such an overview of the relevant ingredients and their combined effect is commonly carried out by reference to the normal civil standard (see, for example, Lord Nicholls in Re H) and it involves a judgmental or balancing exercise and thus a reasoning process.

102.      It is in that exercise or process that the decision maker has to revisit the impacts of the possibilities (and effective certainties) carried forward and weigh them against each other to determine what possibilities remain and whether they establish a reasonable doubt.  This exercise is very dependant on the circumstances of each case and difficult to explain in the abstract.  It is however of critical importance and one that decision makers applying statutory tests and all of us in our daily lives take when considering whether we regard something as a possibility and whether we have a reasonable doubt about something.  Tribunals and courts have to explain how they have done it.

103.      In carrying out this process, it is highly likely, if not inevitable, that the decision maker:

i)             will have to identify the claimant’s case and so the evidence and argument relied on to support it,

ii)            do the same with the respondent’s case,

iii)          identify any additional matters he considers need to be addressed, and then

iv)          in light of that identification of the issues evaluate the competing parts of the evidence to determine what possibilities should be carried forward in the decision making process, and then

v)            in light of all the evidence and argument and so, on an overview or an assessment in the round, evaluate the claimant’s case to determine whether he has or has not satisfied the Article 41(5) test.

It is at stage (v) that the decision maker will form views that can be expressed by reference to the circumstances of the given case on whether the possibilities (and effective certainties) relied on by the claimant found a reasonable doubt.  I repeat that, as was accepted by the HL Appellants, at that stage it may be that the decision will be that the combined effects of the possibilities carried forward do not found a reasonable doubt because for example the combination of those possibilities is too far-fetched.

104.      The FTT do not describe the approach to the application of Article 41(5) that they have taken and do not go through the exercise described in the last paragraph. 

105.      As mentioned earlier I was not taken to the immigration cases referred to in paragraph 82 above.  However, I comment that although I have not relied on them because they were not addressed in argument the approach I have taken appears to accord with that taken in those cases (see in particular MacDonald’s Immigration Law and Practice 8^th edition paragraphs 12.29 Karanakaran v SSHD [2000] 3 All ER 449).

106.      Counsel for the Secretary of State reminded me, by reference to authority, that cases may have to be decided by an application of the burden of proof.  Naturally, I accept that decision makers on the approach I have described have to be satisfied that there are possibilities that establish a reasonable doubt and an assertion that “anything is possible” is not enough.  But I suggest that as in cases to which the normal civil standard applies it will only be rarely that cases under the Article 41(5) test will be decided on the burden of proof.  Further, and in any event, if a decision maker is to so found his decision he would have to say so and explain why he was driven to that last resort.

107.      The Secretary of State placed emphasis on a submission that Dickinson establishes a two stage test.  First, it is for the claimant to produce reliable evidence to establish his claim and second, if such reliable evidence exists, it must be sufficient to raise reasonable doubt because, at the second stage, it must be compared with such evidence as is called on behalf of the Secretary of State.  The purpose of that argument was to found a submission that the approach of the FTT of making findings on the basis that there was insufficient reliable evidence was correct.  In this context the Secretary of State also submitted that the concept of something needing to be “sufficiently” supported so as to raise a reasonable doubt was expressly recognised in  Edwards  (see the quote in paragraph 65 above).

108.      The Secretary of State recognised that there was an interrelationship between the two stages but relied on their existence to make good his argument on the FTT’s use of the word “sufficiently”.

109.      I do not accept that it is appropriate to approach Article 41(5) on the basis that it imposes a two stage test.  This is too analytical and unjustifiably seeks to differentiate the position of a claimant under Article 41 to that of any other claimant in civil litigation who has to discharge a burden of proof.  In all such cases, there can be said to be a two stage test because the respondent can produce no evidence and argue that the claimant has not proved his case.  This simply reflects the existence of the burden of proof and, to my mind, when a respondent does not choose to give any evidence it is artificial and unwarranted to classify the consideration of all the evidence by a court or tribunal as the second stage of a two stage test or approach.

110.      Further, in my judgment the Secretary of State seeks to read far too much into the passage he relies on in Edwards to show an express recognition of the concept of something needing to be sufficiently supported.  First, that passage is directed to the degree of evidential support needed for a hypothesis to raise a reasonable doubt and not to a general proposition.  Secondly, and more importantly, I have no quarrel with the point that there has to be sufficient evidence to found an evidence based conclusion to the relevant standard but the concept of “sufficiency” is not a free standing concept, rather it has to be assessed in the context of the standard to which it relates.  Thirdly, and also importantly, the way in which the concept is used by the FTT (i.e. “there is insufficient evidence to raise a reasonable doubt”) indicates that in their view although there is some reliable evidence it is not enough to raise a reasonable doubt and the FTT fail to identify:

i)             what that reliable evidence is, or

ii)            why, although it is reliable, it was not enough or sufficient to raise a possibility or possibilities that found a reasonable doubt.

This failure demonstrates that, of itself, the concept of there being sufficient or insufficient evidence to satisfy a standard of proof does not identify or indicate the meaning of that standard, how it is to be applied or how it has been applied.  At best, it is a neutral part of a bare assertion of a conclusion by reference to that standard.

111.      So I agree with the Appellants that if the FTT made findings or reached conclusions on the ingredients to be carried forward and taken into account in applying the Article 41(5) test (for example on internal or external exposure) by reference to the normal civil standard, or to any standard other than that of reasonable doubt on reliable evidence (i.e. evidence that is not fanciful or worthless), they erred in law.  Indeed, as mentioned above, it was accepted before me that this would be the case.

112.      In my view, the passage cited and relied on by the FTT from Edwards, and so references to “was a mere hypothesis on a limited study” and “there are  ------ three stages: no reasonable doubt, reasonable doubt and consensus” do not indicate where in a particular case the divisions lie.  In the phrase “a mere hypothesis on a limited study” both the words “mere” and “limited” are words of degree and their impact is important not least because when something is not known (e.g. exposure to radiation and/or radiogenicity) the possibilities (including the consensus if there is one) are likely to be based on theory or hypothesis founded on facts, research and reasoning all of which will have a part to play in determining whether that theory or hypothesis is fanciful or worthless and so (or for other reasons) should be left out of account, or whether  it should be carried forward to the final judgmental exercise.

113.      So I agree with the HL appellants that if the FTT proceeded simply on the basis that an hypothesis or a mere hypothesis should be left out of account they erred in law.

114.      The BS Appellants advanced an additional argument based on Article 61 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, which provides for a balance of probabilities test.  In my view, the point that a different standard has been chosen in Article 61 is of no assistance.

Taking stock at this stage

115.      By the end of the oral argument, apart from the points:

i)              on there being a two stage test, and

ii)            the utility of the decision in Edwards to developing hypotheses

there was effective common ground between the parties on the meaning and correct application of the Article 41(5) test that accorded with the conclusions I have set out above, albeit that none of the parties expressed them in precisely the same way as me or each other. 

116.      But, so far as I am aware in common with earlier cases in this jurisdiction, there was no consideration before the FTT of the principled evidence based approach to be taken in the application of the Article 41(5) test and thus in particular of (a) how the stepping stones or ingredients relied on and advanced by the appellants to establish the relevant possibilities were to be approached, and (b) the carrying forward of the conclusions on the existence of such possibilities into the decision making process on an evaluation of all the evidence in the round.

117.      So it is unsurprising that this is not addressed in the Decision but its absence means that there is a need to consider whether:

i)             the FTT’s discussion of, or references to, the legal approach they were applying when read alone establish that they did or did not err in law, and if it does not, whether

ii)            the Decision read as a whole show that they did or did not err in law.

Common grounds of appeal based on the FTT’s discussion of, or references to, the legal approach they were applying

118.      As mentioned earlier, the first of these common grounds of appeal is that the FTT have demonstrated that they misunderstood and misapplied the test or standard “reasonable doubt based on reliable evidence” by their rejection of the submission that:

“only if the FTT is sure that the disease(s) in question did not arise as a result of exposure to ionising radiation during service, that the appellant’s claim will not succeed.”

119.      The Secretary of State submitted that the rejection of this submission was correct because it wrongly sought to impose a burden on the Secretary of State and so was not apposite to Article 41 (although it might be to Article 40). 

120.      Particularly having regard to the common ground before the FTT as to who had the burden, I do not accept that that explanation can be read into that submission, or that it is a natural reading of that submission.  Rather, in my view, the natural reading of the submission is one that accords with the common ground before the FTT and me that in Article 41(5) “reasonable doubt” was being used to convey the same degree of doubt as that referred to in the criminal standard of proof.  In my view, if the FTT were rejecting that they erred in law.

121.      It is unfortunate that apart from saying that they do not agree with the submission made and that the law is well established and binding on them the FTT do not say why they were rejecting it.  Although not advanced before me I think that possible explanations for their rejection of the submission could be that:

i)              the cases indicate that the test should not be rewritten, or

ii)            this is a civil case and elements of the fact finding can be based on conclusions based on the civil standard and then carried forward as “facts” on a binary system, which as I have indicated would be an error of law. 

Both of these possibilities are speculation.

122.      Conclusion on this ground.  It supports the view that the FTT erred in law.

123.       The next ground is that the FTT misapplied Edwards. As to that it is unfortunate that the FTT failed:

i)             to record the differences between the parties as to how the passage they cite from Edwards  should be applied and do not set out how they have applied it, and so how they have approached hypotheses, 

ii)            to provide any explanation of their use of the formula “there is insufficient reliable evidence to raise a reasonable doubt”, by reference to hypotheses or other evidence, and

iii)          to provide any explanation or identification of the evidence advanced by the appellants that they thought was reliable or why although it is reliable it is not enough or sufficient to raise possibilities that found a reasonable doubt.

124.      Conclusion on the second ground.  It also supports the view that the FTT erred in law.

125.      The third common ground is that  FTT erred in law in their approach to Article 41(5) test if what they say in paragraph 493 of the Decision reflects their approach to it namely:

“As is apparent from what we have said in relation to individual claimed appeals a claimant has to show both that he was exposed to ionising radiation and that such exposure led to his claimed condition or (in a widow’s appeal) were causally linked to a cause of death”

This paragraph comes at the end of a long decision and could be a typing error.  Nonetheless it is a troubling misstatement of the test and it is surprising that this error was not picked up by the members of the FTT if they were applying the correct approach. 

126.      Conclusion on the third common ground.  It too supports the view that the FTT erred in law.

127.      The fourth common ground is based on what the FTT also said under the heading “Conclusions” in paragraph 490, namely that because of the disclosure in these cases that had not taken place before they were able to reach their conclusions on exposure with considerable “confidence”.  This is an odd assertion if the FTT was taking an approach to the ingredients of their decision making and their overall decision based on whether a reasonable doubt had been raised on reliable evidence because that low standard effectively requires a confident conclusion or one on which  the decision maker is sure. The assertion fits much better with the application of the normal civil standard.  However, the assertion could be descriptive of the application of any standard.

128.      Conclusion on the fourth common ground. As the description could be descriptive of the application of any standard it is neutral.

129.      So I have concluded that when read together or individually three of these four common grounds of appeal indicate that the FTT erred in their legal approach to the application of the Article 41(5) test, and one is neutral.

130.      However, in particular having regard to the experience of this FTT, I have concluded that this appeal should not be decided without an analysis of the Decision read as a whole to ascertain the approach taken by the FTT to the application of the Article 41(5) test to consider whether these indications that the FTT did err in law are dispelled and so a reading of the Decision as a whole demonstrates that the FTT did not err in law by:

i)             making  findings, or reaching conclusions on aspects of their decision making and thus on the ingredients to be carried forward (for example on internal or external exposure) by reference to the normal civil standard of proof or any standard other than that of reasonable doubt on reliable evidence, and further or alternatively by

ii)            proceeding on the basis that an hypothesis or a mere hypothesis should be left out of account.

131.      Also, in my view, my conclusion on these common grounds of appeal have the consequence that notwithstanding the expertise and experience of this FTT and the benefit of the doubt that should be given to them it cannot be assumed when the remainder of the Decision is being considered that:

i)             the FTT applied the right approach at law as for example it seems to have been in Dickinson  where Ormerod J said:

They state in their judgment that they are satisfied that it is not shown that the death of Major Dickinson from coronary thrombosis was connected with such service.  That means that they are not in any doubt reasonable or otherwise, and there is no reasonable doubt the benefit of which could be given to the claimant.  It follows that the appeal fails and must be dismissed.

or

ii)            the challenge is limited to a consideration of whether the FTT was entitled to reach the findings (see for example Roche and Hunt and with the opposite result Setter).

Rather, these conclusions unlock and go so some way to opening the door to a conclusion based on the approach (taken for example in paragraph 25 of Busmer) that as the Appellants submit the FTT were looking to be convinced or satisfied by, or to make findings based on, the evidence (or parts of it) to a different standard to that set by Article 41(5) and so made an error of law.

132.      Indeed, in my view these grounds of appeal undermine the application in this case of the general approach that the FTT should be assumed to have applied the legal test correctly and be given the benefit of any doubt to the extent that when the Decision is considered as whole the reasoning and conclusions should be read with an open mind to see whether they demonstrate that the FTT took the correct approach in law or erred in law in their application of the Article 41(5) test.  But I have not relied on this view in reaching my conclusion because to my mind it is clear from a fair reading of the Decision that, as all the appellants contend, that general approach does not save the Decision by dispelling the concerns arising from these grounds of appeal and founding a conclusion that FTT have not erred in law.  Rather it confirms that they have.

The FTT’s decision making process

133.      I acknowledge that there are a number of passages in the Decision which show that the FTT were fully aware of the language of the Article 41(5) test and in their final conclusions expressed themselves by reference to “raising a reasonable doubt” in respect of both exposure and radiogenicity.  Also, for example at paragraph 410 the FTT refer, when applying Royston, to the normal civil standard (the balance of probabilities) to the establishment of Mr Butler’s claimed condition.  The FTT also made a finding by reference to Royston that on the balance of probabilities Mr Abdale did not suffer a blast injury to his ear but found that he suffered temporary deafness and made an award on that basis.  These findings relating to Mr Abdale are unrelated to ionising radiation and are no part of the appeal.

134.      There is a fairness challenge to the balance of probability finding in respect to Mr Butler and I shall return to this.

135.      I also acknowledge that there are dangers in concentrating on certain parts of the Decision.  However, inevitably I have to take examples from the Decision and in my view they demonstrate that the FTT erred in law in their decision making process when making findings and reaching conclusions that they then took into account in reaching their overall conclusion on the application of the Article 41(5) test (the macro fact).

136.      I shall address examples under headings.

Exposure

137.      The conclusion of the FTT on exposure was determinative in nine of the appeals and in six of them was the only ground for the dismissal of the appeal (Abdale, Beeton, Hatton, Lovatt, Pritchard, Selby).  All six were in non-forward inhabited areas of Christmas Island when at least one of the explosions took place and the conclusion of the FTT was expressed on the basis of effectively the same reasoning on exposure in the following or similar terms:

We find that there is insufficient reliable evidence to raise a reasonable doubt that [the claimant’s] activities on Christmas Island led to sufficient exposure to non-background radiation ------------ 

Three appellants who lost on exposure (Hughes, Shaw and Smith) were not on the island at the time of the tests and so the same reasoning was not applied to them albeit that the same formula “insufficient reliable evidence to raise a reasonable doubt” is used by the FTT in rejecting their appeals.

138.      Some of the appellants who lost on exposure also lost on the basis of conclusions relating to their conditions (Hatton, Pritchard, Selby, Shaw).

139.      In contrast, in the three cases where the appellants succeeded on the exposure issue but lost their appeals (two of whom were based on Christmas Island (Butler and Sinfield) and one ( Battersby) was based at Maralinga) the FTT concluded:

Therefore although we have found that [the claimant] was exposed to a significant amount of ionising radiation, for the reasons given above, we find that a reasonable doubt is not raised that [the claimant’s ] claimed condition was caused by service

And, in the case of the successful appellant the FTT concluded:

We therefore find that reliable evidence does raise a reasonable doubt that Mr Williams activities on Christmas Island led to significant exposure to ionising radiation above background (paragraph 486) for his death to be due or substantially due to service

140.      As I have already mentioned the concept of “sufficiency” is not a free standing or finite one.  The same can be said of the descriptions “significant” used by the FTT.  They are both words of degree and the FTT do not explain the senses in which they are using them.

141.      The issues concerning exposure included:

i)             the impact of the Linear No Threshold Model (the LNT),

ii)            the fact that everyone is exposed through their lives to a level of background radiation from a wide range of sources,

iii)          the stochastic effects of radiation,

iv)          the impact of different types of radiation,

v)            internal and external exposure,

vi)          measurement of exposure,

vii)         fallout/rainout/ hotspots, and

viii)        the levels of exposure as a result of the tests in different parts of Christmas Island and in one case (Mr Battersby) at Maralinga.

142.      The basis for the success on exposure of two of the appellants based at Christmas Island (Butler and Williams who were in forward areas), and of Mr Battersby, was founded on assessed film badge exposure.  In the case of Mr Sinfield, there was no record of a badge reading but the FTT were of the view that his work in forward areas effectively founded the same conclusion.  In respect of each of these appellants the FTT also concluded that they ingested a small amount of radioactive material including alpha particles.

143.      The LNT, background radiation and the stochastic effects of radiation.  The LNT is described at paragraph 157 of the Decision.  It is based on the concept that no exposure to radiation is safe and it follows from the application of that concept that background radiation, to which everyone on earth is exposed at different levels in different places, is not safe. 

144.      So an approach based on exposure to levels above background on Christmas Island (or elsewhere e.g. England, Christmas Island or other places where forces were posted) is something of a red herring because what is of primary relevance is exposure as a result of the nuclear tests (which was clearly not a part of the pre-existing background level and so would be above it). 

145.      Deterministic or non-stochastic effects of radiation are characterized by there being a threshold dose below which the biological effect is not observed, the magnitude of the effect increases with the size of the dose and there is a direct causal relationship between the exposure and the observed effect.  Whereas stochastic effects are effects that occur randomly and where the probability of the effect occurring (rather than its severity) depends on the size of the dose received.  Stochastic effects of radiation are thought by many (and this is the present mainstream view, with which Dr Busby disagrees) to lie on a linear zero-threshold dose-response curve and this implies that each and every extra incremental dose of radiation increases the probability of occurrence for the stochastic radiation effect.  But, and it is an important but, any exposure of an appellant to ionising radiation as a result of the nuclear tests could have a stochastic radiation  effect, including radiation induced cancers and heritable effects.

146.      The impact of different types of radiation (alpha, beta and gamma) / internal and external exposure / measurement of exposure.  Alpha radiation does not penetrate dead layers of skin or clothing and so, absent an open wound, external exposure is not a problem.  But it can be ingested or breathed in.  So the relevant internal exposure to, or ingestion of, alpha radiation arises from penetration through an open wound and ingestion through a variety of methods, including inhalation.  I shall use the term ingestion to include inhalation.  Both gamma radiation and beta radiation can enter the body externally and internally.  Alpha radiation has a weighting some twenty times that of beta or gamma radiation and a very long half-life (some 25,000 years) and its main source as a result of the tests would have been the Plutonium 239 Isotope (Pu239).  A danger, risk or possibility related to Pu239, and so alpha radiation, is that ingestion of a very small amount remains with one for life and can have an impact on your health for life.

147.      Only beta and gamma radiation was measured to monitor the environment after the tests.  This was done by film badge dosimeters and sticky paper collectors for the GY and the GZ explosions (at respectively 10 and 8 monitoring locations) and some radiological surveys using portable monitors were carried out.  It is easier to measure gamma and beta radiation and this decision on monitoring was taken on the basis of the view that alpha radiation would not be present without beta and gamma radiation being present unless there was an accident dispersing plutonium without a nuclear detonation.  This view was disputed by the appellants (see paragraph 108 of the Decision).

148.      Fallout / rainout.  This was obviously important and would be affected by weather conditions (e.g. wind and rain). 

149.      Fallout could occur directly from the detonation cloud or through particles from it falling with rain either from that cloud or other clouds (including cumulo-nimbus clouds) seeded by radioactive particles descending from higher clouds. 

150.      There was evidence from Mr Pasquani and Squadron Leader Aikman (who were in the same aircraft) about rain adjacent to the stem in the aftermath of the Grapple Y explosion.  That evidence was that the aircraft encountered rain at a height of 40,000 feet (which is higher than the majority of cumulo-nimbus clouds) and that when flying through the rain all the radiation instruments maxed out to full readings and went crazy, and once out of the rain they returned to normal. 

151.       In addition to the issue whether there was fallout through radioactive rain,  there was an issue whether there would have been “hotspots” of fallout greater than the measurements of beta and gamma radiation, and thus also hotspots of alpha radiation (although this was not measured), that would or could be present with such measured fallout. 

152.      I shall focus on the dispute relating to hotspots of alpha radiation with beta and gamma radiation because of the effect of internal exposure to and so any ingestion of very small amounts of alpha radiation and the impact of the LNT (i.e. no exposure is safe).

153.      Different levels of exposure in different parts of or in different places on the Island.  Clearly this was a possibility and it is reflected in the different conclusions reached by the FTT on exposure in forward and non-forward areas.

154.      In broad terms the appellants’ case was that in line with the LNT they did not have to show (and they did not attempt to show) a level of exposure rather they asserted that there was some exposure. They did not limit this to alpha radiation although an integral part of their case related to raising a reasonable doubt and so a possibility that founds it that there was such exposure from hotspots.

155.      The evidence given by each of the  appellants on Christmas Island as to where they were, being rained on, eating, swimming and cuts and thus on their possible external and internal exposure to ionising radiation was not challenged and the FTT make findings based on it or do not question it. 

156.      For example, in the case of Mr Battersby (based at Maralinga) the relevant tests were earlier (the Buffalo tests) and they were covered in much less detail in the section of the Decision relating to him (paragraphs 369 to 382).  He gave evidence that he believed, but could not be sure that he was probably a member of the Active Handling Flight involved in the decontamination of sniffer aircraft, and at paragraph 376 the FTT state:

376 We find that Mr Battersby was attached to the AHF and was involved in the final wash-down stage of the decontamination of “sniffer” Canberras.

At paragraph 377 the FTT state:

377  Mr Battersby also stated that he went to the forward area once with AWRE personnel to assist in sample collection: he wore a lightweight suit, with some form of radiation  detector on his belt; we so find. He grazed his leg on the way to the forward area and a scientist in the truck put a bandage over it; the Secretary of State accepts that this injury is not recorded (closing written submission p 153) but did not challenge Mr Battersby about it.

157.      There are other similar findings (e.g. at paragraph 397 in respect of Mr Butler’s activities and him gashing his hand, at paragraph 435 in respect of Mr Pritchard’s whereabouts to the effect that he “may well have been amongst certain personnel” and at paragraph 466 in respect of Mr Sinfield’s duties relating to transporting materials over a non-asphalted road giving exposure to dust).  The standard applied in making these “findings” is not stated but the nature of much of the evidence in favour of them indicates that the FTT were making them on the balance of probabilities and then carrying them forward as established facts.  However, as this evidence does not seem to have been challenged it can also be said that they are credibility findings or non-challenged findings about which the FTT were sure or that they were effectively uncontroversial and so could be carried forward as established facts.

158.      So, of themselves, these findings do not show a material error of law although they support the view that the FTT did not expressly address the approach to be taken to the assessment of the ingredients to be carried forward in their decision making and, in my view, that the FTT were applying a more likely than not standard to  their fact finding on these ingredients.

159.      The  evidence of Mr Pasquini and Squadron Leader Aikman on radioactive rain at 40,000 feet was also not challenged and the FTT make no finding about it, in their decision making process.  But as it was not challenged it needs to be carried forward as reliable evidence or a micro fact that supports the possibility (or a finding to a higher standard) that there was radioactive rain at that height.

160.      The FTT heard a considerable amount of expert evidence on exposure from (a) Mr Johnston instructed by the Secretary of State, and (b) Professor Regan and Dr Nicholson instructed by the appellants (or some of them) in respect of nuclear physics and fallout.  At paragraph 81 of the Decision they state, with my emphasis:

There were several significant instances in written and oral evidence where Mr Johnston on the one hand, and Professor Regan and Dr. Nicholson on the other hand, disagreed. We draw attention to these instances under the 'Local Fallout' section and, where needed, make findings. ----

161.      On meteorology and rainout the FTT heard oral expert evidence from Mr Stretch instructed by the Secretary of State and Dr Nicholson instructed by the appellants.

162.      Before embarking on their description of the expert and other evidence on the issues in dispute, the FTT give an account of some of the background in paragraphs 89 to 104 of the Decision which include (with my emphasis):

94. It is clear from the historical records that there was considerable discussion, involving political, scientific, military and safety factors, leading up to the decision to proceed at speed from the GRAPPLE 1, 2 and 3 (G1, 2, 3) detonations at the uninhabited Malden Island (700 Kms to the South of Christmas Island) to a new series of tests, GRAPPLE X, Y and Z1 to 4 (GX, GY, GZ1-4), at the inhabited Christmas Island mounting base itself (B7/34 p152).  ----------There has been speculation over the years about the detonation height, location, yield and local meteorology of the GY detonation, the UK's first true thermonuclear detonation; these aspects are covered separately in paragraphs 100 to 104.

96.      What is clear to the Tribunal is that, having decided on the Christmas Island option, the importance of the meteorological input to the decision to launch a particular detonation became critical. It is not quite so clear that the meteorological and radiological standards and safety procedures were geared up to cater for any unforecast meteorological event.  -----------------

Orders, Instructions and Safety

97.      The official records entered in evidence (mainly under the 300 or so B folder tabs) indicate that detailed and comprehensive orders and instructions, including on the safety of participants, were issued for all aspects of Operation GRAPPLE, for example the Personnel Safety Plan for the Forward Area issued in April 1958 prior to the GY detonation (B15/278); this included listing ----------------  However, the degree to which these were strictly and consistently applied and their application supervised would inevitably have been variable.  -----------------

98.      To quote the late Air Vice-Marshal Oulton:

"Possibly over-reacting to the _.finally successful outcome of a very dicey operation [i.e. GX] and to the problem itself the TFC [i.e. himself] boiled with fury as he reviewed the quite unnecessary risks and difficulties which had been imposed on the Task Force" (Oulton, p396).

GY — Height, Location, Yield and Meteorology

102.    As to yield, the agreed gist (D143 p4 no.002342) indicated a yield of some 3.1 Megatons ----- . The agreed gist also recorded:

102.1  Very significant transformation of U238 to other Uranium isotopes, which would decay eventually to Pu239, thus adding to the alpha activity in the debris (para 8).

 

104. In oral evidence, Mr Johnston summed it up as (T 6 Feb 152:16 et seq):

"If you put it this way, you asked me what other reason is there. If you take a holistic view of everything that's been recorded, you have the pre-shot calculations and the predictions of where the material in the stem was going to go. You have Mr Scorgie saying after the event; "Blow me," basically, "the 10,000 vector shifted 30 degrees and came awfully close to the island." There was no room for error. He said^• it himself and he was clearly somewhat twitched that such a change could have occurred. What he said was basically, "We got away with it. Just."

163.      The quoted comment of Mr Johnston relates back to the speculation over the years referred to in paragraph 95 of the Decision.  In terms of a standard of proof based on reasonable doubt this comment and that of Air Vice-Marshall Oulton (and one of Dr Nicholson recorded by the FTT in paragraph 116) on how near the safety line the experiments were, provide some support for the appellants, who have that burden.  But how they were taken into account is not taken up in the Decision. 

164.      The FTT made findings in paragraphs 118 and 135 to 138 of the Decision.  As I have already indicated they do so without any express linkage to the summary of the evidence set out in the preceding paragraphs and so without setting out the reasons for those findings or the basis on which they made them.  Paragraphs 118 and 135 to 138 are in the following terms:

In summary we find that :

118.1 No appellant was subject to the effects of prompt radiation and no fireball entrainment occurred (all detonations)

118.2 Local fallout was recorded and was probably from the stem area below the main cloud and carried by wind or rainfall from low-level clouds (GY, GZ1 and GZ4).

118.3 The rainfall which did occur over inhabited areas was not rainout from the main cloud or from the stem but from cumulo-nimbus clouds (GY and GZ1).

118.4 Neutron-induced dust and other particles from the sub-stein area did fall back to ground in the vicinity of the balloon-burst sites (GZ1 and GZ4).

118.5 Risks were indeed taken with the meteorological conditions in deciding to proceed with the GY and Gi1 detonations; the wind directions at the relevant heights, although coming close to the planned safety limits, did not breach them.

118.6 A reasonable doubt based on reliable evidence is raised that particles generating alpha ionising radiation were deposited and that neutron induction did occur in forward areas following the GZ1 and GZ4 balloon detonations.

In summary we find that:

135      The highest record for any form of fallout, the sticky paper deposition of 300 microcuries per square metre in the South-East of the Island following the GZ4 balloon detonations, equates to an annual received human dose of some 0.12 mSv (B4/24 para 28).

136      The highest record for an inhabited area, the sticky paper deposition of 2.8 microcuries per square metre at Main Camp following the GZ1 balloon detonation, equates to an annual received human dose of some 0.001mS^y (B4/24 para 28).

137      No appellant was at risk from ionising radiation above local background as a result of their routine activities in and around the inhabited areas of Christmas Island, including: breathing, eating, drinking, swimming or paddling in the main lagoon, fishing and incurring cuts and grazes for coral.

138      The Tribunal records that two of the Christmas Island appellants received assessed film badge exposures of 0.5 mSv; we discuss this further below. [This relates to Mr Butler and Mr Battersby]

165.      The finding at paragraph 137 has to be read with later findings in the cases where the appellants won on the exposure issue (and so Battersby, Butler, Sinfield and Williams) where taking Mr Butler as the example (and the findings relating to the others are in the same or very similar terms) the FTT state:

In addition, we find that Mr Butler ingested a small amount of radioactive material at the time and was thereby internally exposed to ionising radiation including alpha particles, the means of ingestion including inhalation (of dust directly from contaminated equipment and areas), orally (through eating and drinking whilst hands, other body surfaces and clothing were contaminated) and entering the bloodstream through an open wound. This exposure would not have been recorded on a personal film badge (see paragraph 120).

166.      These later findings show that the FTT accepted the methods by which the ionising radiation could penetrate the body or be ingested and so paragraph 137 is directed to and founded on the level of fallout in the inhabited areas of Christmas Island and not on any rejection of the matters relied on by the individual appellants to show that they were affected by that fallout. 

167.      Later, in paragraph 246 of the Decision, which is under the main heading “Radiogenicity of and Exposure Risk Estimates for Cancer” the FTT record that, as they had made their own findings on ionising radiation exposure in respect of each individual appellant, assumptions on exposure by one of the medical experts “do not otherwise assist us further”. 

168.      This is a clear and important indication that they regarded their findings on exposure as findings of fact.

169.      The findings on exposure in inhabited areas must have been based or primarily based on the FTT’s assessment of the expert evidence in light of the disclosure made, the gist of the classified material and the other material before them (including the evidence of Mr Pasquini and Squadron Leader Aikman).  This is confirmed by the reference in paragraph 81 of the Decision (cited above) to the FTT making findings on issues where the experts they mention disagreed.

170.      In contrast to their view relating to some of the other expert evidence, the FTT were of the view that all of these experts were giving evidence within their area of expertise.

171.      Even without turning to consider the nature of the disagreements between the experts, to my mind, these references to findings on disputes between experts is a clear indication that:

i)              the FTT reached those findings on such disputes in the way a civil court or tribunal normally does, and so

ii)            the findings are founded on the expert evidence they preferred and the FTT were not approaching the disputes between these experts by reference to whether the expert evidence supporting the view they rejected (by making their finding) nonetheless raised a possibility that founded, or could when taken with all the other evidence found, a reasonable doubt.

172.      This conclusion is supported by the approach taken by the FTT in paragraph 106 to fireball entrainment.  They said, with my emphasis:

Fireball Entrainment. AWE's unclassified 1993 Report on Environmental Monitoring at Christmas Island (the Clare Report) stated that, for Operation GRAPPLE, each device was detonated at such an altitude to ensure that its fireball did not touch the surface, thus preventing surface material (sea or land) being entrained in the fireball and leading to a greater risk of local fallout (B4/24 para 5). Evidence in the agreed gist (D143) supported this statement and we so find. Overall, we accept the Clare report as reliable evidence, with the caveats that, whilst comprehensive, it was published as an Unclassified document and is now some 20 years old. Subsequently in this decision, we prefer other, sometimes previously classified, evidence and we also take issue with some of the statements made in the report; we specify each such occasion below.

In my view, the underlined passage shows that in respect of conflicting evidence from experts and contained in unclassified material (and classified material that was gisted) the FTT erred in law by taking an approach based on the evidence they preferred and thus a balance of probabilities approach rather than one that considered whether, in the light of all the evidence, the evidence that they so rejected was not fanciful or worthless, and so reliable evidence that raised possibilities upon which a reasonable doubt was or could be founded.

173.      Rain out and hotspots. The conclusion in the last paragraph that the FTT took an incorrect approach is also demonstrated and in my view conclusively established by the approach taken by the FTT to, and their conclusions on, rainout and hotspots.  These conclusions (or findings) were central to the FTT’s dismissal of six of the appeals (Abdale, Beeton, Hatton, Lovatt, Pritchard, Selby) where they concluded that there was insufficient reliable evidence to raise a reasonable doubt that the activities of these appellants on Christmas Island led to sufficient exposure to non-background ionising radiation.

174.      In those cases, as appears for example at paragraphs 386 (relating to Mr Beeton) and paragraph 418 (relating to Mr Hatton) what the FTT did was to carry forward the calculations reflected in paragraphs 135 and 136 of the Decision by reference to the highest recorded fallout for an uninhabited part of the island for the relevant test (i.e. 150 microcuries per square metre at Decca Master for the GY detonation in for example Mr Beeton’s case and 300 microcuries at the south east of the island for GZ4 in for example Mr Hatton’s case, which was the highest recorded fallout for all of the tests) (see paragraphs 123.3.2, 123.3.4 and 135).

175.      On that approach they concluded that the maximum exposure would be between an annual received human dose of some 0.001 mSv and 0.06 mSv (for Mr Beeton) and 0.12 mSV (for Mr Hatton) and that even at the highest level that is some eight times lower than the limit for the general British public.

176.      Rainout. Dr Nicholson was asked about changes in the wording in reports of Mr Stretch concerning whether rain fell directly from the anvil canopy or umbrella cloud.  He first described this as “not impossible” and later as “unlikely”.  Dr Nicholson did not understand the difference and added that he did not understand how Mr Stretch could have arrived at either conclusion quantifying the assumptions made.  He then stated that in his view: “I just don’t think it is possible to say with any degree of certainty which is the more probable”.  The choices he was referring to were whether the rain came from the mushroom cloud or lower cloud.

177.      Later in his oral evidence, Dr Nicholson confirmed his view that where there was evidence of rainfall coming from the mushroom (as I comment there was from Mr Pasquini and Squadron Leader Aikman) and there is a suggestion that there was cumulo-nimbus around it is quite possible that deposition could occur from the mushroom cloud into the cumulus clouds causing precipitation at the lower level that was contaminated rain.  He also stated that there were no safety margins, no accurate measurements of wind change and, in answer to a question by counsel for the Secretary of State, that it would be a miracle if the only contaminated rain fell at Vaskess Bay, that there would almost certainly be rain somewhere else on the island that was contaminated and that he suspected that any rain falling on the island was contaminated.

178.      Mr Stretch had been present during Dr Nicholson’s oral evidence.  In chief, he said that the change in wording of his reports was a question of semantics and flowed from him referring back to “the cloud physics people upstairs” that he had taken into account, that he accepted Mr Pasquini’s evidence and that he had referred to wind vectors and trajectories which underlay his reasoning in his reports.  In cross examination he confirmed that there was close agreement between him and Dr Nicholson on meteorology with the understandable consequence that he was asked little else by counsel  now representing the HL appellants.  The extent of that close agreement was not pursued or explored by others including the FTT.

179.      So the position was that Dr Nicholson gave evidence to the effect that in his expert view there was a real possibility that rain over all parts of Christmas Island was contaminated and Mr Stretch in his oral evidence had expressed close agreement with Dr Nicholson.  That possibility included the possibility that the rain was contaminated with alpha as well as beta and gamma radiation.

180.      Hotspots. Dr Nicholson also gave oral evidence on this that:

“If you put 10 sticky papers out on an island and you happen to get the maximum concentration on one of them the chances are – it would be easier to win the lottery than get that.  There’s going to  be huge range of concentrations and that almost certainly wasn’t the highest deposition on the island.  I mean, it would be impossible for that to help. “

181.      To my mind that plainly accords with common sense and is obviously right.  Dr Nicholson also confirmed in oral evidence that deposition is not uniform, hotspots could be caused by aerodynamic effects or by rain and that hotspots could be on a small medium or large scale. He referred to radioactivity deposited by rain in various parts of England following Chernobyl.

182.      The FTT record at paragraphs 109 and 110, and conclude at paragraph 122:

109 The principal source of alpha radiation from these tests would have been the Plutonium 239 isotope (Pu239), which has a very long half-life of some 25,000 years (T 4 Feb 13:3) In the order of tens to one hundred kgs of Pu239 would be generated by a nuclear detonation of the size of GY (Regan T 4 Feb 53:9 et seq); the vast majority of it would have been vaporised in the fireball, entered the stratosphere and, in due course, contributed to the global fallout. Professor Regan believed that Mr Johnston's estimates of Pu239 deposition were far too low (T 4 Feb 84:24).

110 Professor Regan stated (T4 Feb 55.15 et seq)

"You can't say that alpha is not there if you have not got the right equipment to find and measure it"

 

He tended to agree with Mr Johnston that it was unlikely that Pu239 would be deposited alone (it was more likely to be co-deposited with gamma/beta emitters and thus be detected) but soil sampling for alpha particles did not take place at the time.

122. Sticky paper and Ground Survey. As part of the Pacific-wide programme, there was one monitoring station for ground deposition at the JOC (Clare B4/24 para 10). Additionally, as part of the local programme, sticky paper collectors were deployed for GY and GZ1 to 4 and radiological surveys using portable monitors were carried out (B4/24 para 11). In oral evidence, Mr Johnston confirmed that sticky paper strips were not part of the safety management system (T 6 Feb 84:17); they were point records of area deposition and "you don 't attempt to radiograph it to see if there is a hot particle "(T6 Feb 218:8). As already stated (para 109) Professor Regan felt that it was completely possible that there were 'hotter' spots than ones recorded by the small number of recording stations. The possibility is obvious to us but there is no evidence that there were. We do not consider that any inference can be made about 'hotter spots' in excess of the highest levels recorded at the relevant time. The only inference that we can reasonably make is that there were other 'hot spots' at these levels. We specifically refer to this, where relevant, in relation to each appellant. No local deposition monitoring took place for GX (B4/24 para 26). There were 10 monitoring locations for GY and a further eight for the GZ series (see sketch map at p206V). For GY, sticky paper trays were laid out immediately after the shock wave had passed (agreed gist D/43 ps4-5).

183.      I agree with the Appellants that this inference is illogical.  Accordingly, it is unsurprising that I was told by counsel that no one asserted to the FTT that the highest reading would be likely to equate to or indicate the highest hotspot, if there were any. 

184.      As explained in paragraphs 173 to 175 above, this inference and the findings based on it form a fundamental step in the FTT’s finding that in the case of six claimants (Abdale, Beeton, Hatton, Lovatt, Pritchard, Selby) there was insufficient reliable evidence on their exposure to radiation from the relevant atomic tests (and thus to radiation above background) to raise a reasonable doubt under the Article 41(5) test with the result that the FTT concluded that their disablement or death were not attributable to service.

185.      Also, it cannot be said that there was no evidence that there were no hotter spots because there was expert evidence to that effect and, as the FTT correctly record, the possibility that there were such hotspots was obvious.  I add that this finding on hotspots and the reasoning behind it are similar to those on exposure of the tribunal in Busmer and which Newman J found amounted to an error of law.

186.      Disagreement between the experts on hotspots including alpha radiation. As indicated by paragraphs 109 and 110 of the Decision (cited above) a number of issues concerning the deposition of alpha radiation from Pu239 were not agreed by Mr Johnston and Professor Regan and these included the existence of hotspots of alpha radiation together with beta and gamma radiation (or alone). 

187.      As recorded, on hotspots Professor Regan’s evidence was that it was completely possible that there were significantly hotter spots of alpha radiation than indicated by the recorded measurements of beta and gamma radiation.  The debate between Professor Regan and Mr Johnston on this (and other matters) extended over a number of reports that were written before and after they signed an agreed gist of classified material on respectively 21 July and 2 August 2011.

188.      In a report dated 24 November 2011, Mr Johnston stated that he became aware that it might be possible using only unclassified material (his emphasis) to produce an approximate estimate of the quantity of alpha-emitting Pu239 co-deposited with the measured depositions of fission product activity on Christmas Island and provided such an estimate and a description of his methodology.  He acknowledged that the result was an approximation but stated that as it was so low that there would have to be an error factor of around 100,000 or more before it indicated a radiologically significant hazard.  Part of his methodology was to take the highest recorded readings, and to this extent it had an overlap with the inference and approach of the FTT, but his methodology was also based on design data, the performance data and the radiochemical post shot analysis for each test.  He stated that the most accurate way to arrive at an estimate of Pu239 in measured disposition of fallout would be to use classified details of device construction and performance and that although he and Professor Regan had viewed much that material they were unable to use it in presenting unclassified evidence to the tribunal.  (I pause to comment that this is an express recognition that relevant material was being withheld from the decision making process).

189.      Professor Regan commented on this analysis in a report dated 20 September 2012.  He pointed out that it was based on reasonable “back of the envelope” estimates for the internal dose associated deposition of Pu239 from the weapons test but that Mr Johnston’s analysis was based on two overarching assumptions: (a) the measured fallout depositions in the inhabited areas of the island are indicative of the fallout on the entire island (including regions that were not measured), and (b) an estimate of the plutonium and uranium content of the detected debris.  He did not dispute Mr Johnston’s numerical analysis but did disagree in particular with assumption (a) (which has an overlap with the approach taken by the FTT) and stated that in his view this was “loading the dice” to get the smallest number for the possible dose experienced by any veteran stationed on Christmas Island.  He pointed out that the measured recordings show deviations of factors of 100,000 and that from this, and using estimates of the amount of Pu239 released by the weapon, he asserted that it did not seem unreasonable to him that similar additional factors of 100,000 or more could also be generated for other localised depositions which were not measured.  In short, he advanced a reasoned view that stated that a premise of Mr Johnston’s approach was unsound and introduced the possibility of an error of the size Mr Johnston accepted would be significant.

190.      Professor Regan also suggested and advanced an alternative “back of the envelope” approach based on the total amount of Pu239 material produced by Grapple Y and what he described as a most extreme assumption that it was distributed homogenously around the entire surface of the earth.  That approach supported the existence of activity from Pu239 many orders of magnitude higher than those suggested by Mr Johnston.

191.      I acknowledge that this brief account does not do justice to the rival contentions and that each side have a number of points to make on them that I have not mentioned.  But for my purposes a fuller account is not necessary because this truncated account demonstrates the existence of dispute between experts giving evidence within their fields of expertise on this important issue.

192.      So the position was that there was competing evidence from those experts on hotspots and the amount of the deposition of Pu239 and thus of exposure to alpha radiation.

193.      How did the FTT (i) approach and resolve the disputes, (ii) approach the general agreement expressed between the meteorological experts and as a result (iii) reach their conclusions on the level of exposure in inhabited areas?

194.      Albeit that the conclusion reached in respect of forward areas indicates an approach and conclusion based on the establishment of a reasonable doubt and thus of  possibilities to found it, in my view it is apparent that in reaching their conclusion in respect of inhabited areas in the cases of (Abdale, Beeton, Hatton, Lovatt, Pritchard, Selby) the FTT erred in law by applying an approach to the competing expert and other evidence relating to the factors (ingredients or micro facts) to be taken into account concerning hotspots and exposure to alpha radiation that resolved the conflicts between the expert evidence:

i)             by applying the normal civil standard or one approaching it and, in any event, by taking an approach that did not address whether there were possibilities based on reliable expert evidence that should be carried forward, and further or alternatively one that

ii)            treated the expert evidence advanced on behalf of the claimants as hypotheses that should be left out of account.

195.      The FTT took an approach that is aligned with or has an overlap with that of Mr Johnston on the existence and impact of hotspots in respect of inhabited areas and it is founded on their illogical conclusion on the existence of the hotspots higher than recorded levels in those areas.  To my mind a clear inference from the reasoning behind that illogical conclusion is that the FTT regarded the expert evidence as to the existence of possible hotspots as only hypothesis and so thought that it could not be reliable evidence and that the only reliable evidence was to be found in the readings that were taken.  In my view, that is wrong in law even if the standard was the balance of probabilities.  To my mind, it is plainly wrong when the standard is the establishment of a reasonable doubt by reliable evidence and so of possibilities to found that doubt, when as the FTT themselves say, the possibility of there being higher hotspots than this recorded is obvious. 

196.      The evidence of all of the experts on and relating to hotspots and so ingestion of alpha radiation was at least in part based on hypothesis or reasoning based on readings, evidence (e.g. that of Mr Pasquini) and the scientific knowledge, expertise  and experience of those witnesses.  All of whom had the relevant qualifications, experience and impartiality to give expert evidence.

197.      The approach of the FTT of making findings in respect of disputed expert evidence and so, as they indicate, to resolve those disputes by accepting or effectively accepting part of Mr Johnston’s evidence and rejecting the other expert evidence (including meteorological evidence on rain out that was largely agreed and parts of Mr Johnston’s evidence in respect of forward areas) is not consistent with an approach that asks and answers the questions whether the expert evidence advanced by the appellants (a) is or is not reliable, and (b) raises possibilities that do or could found a reasonable doubt.  Accordingly, it does not accord with a correct application of the Article 41(5) test.

198.      Such possibilities were and are based on, amongst other things, the LNT (no exposure is safe), fallout/rainout, the existence of a source of alpha radiation Pu239, the long term effect of ingestion of any alpha radiation, the obvious possibility of hotspots higher than those recorded for beta and gamma radiation, and the existence of fallout of alpha radiation with them.

199.      I acknowledge that it is possible that a correct approach in law to the application of the Article 41(5) test could found a conclusion that the appeals of the six claimants (Abdale, Beeton, Hatton, Lovatt, Pritchard, Selby) who were not in forward areas should be dismissed on exposure grounds and that the exposure issues in those appeals was argued by the Secretary of State on different grounds to those expressed and relied on by the FTT.  But, if contrary to my reading and analysis of the Decision, the FTT did correctly apply that test I am satisfied that on a generous reading of the Decision the FTT have failed to adequately explain how they have reached their decisions on a correct application of the Article 41(5) test  and so have erred in law.

Pausing there

200.      The support given by the above analysis of the conclusion on the exposure of six of the appellants (Abdale, Beeton, Hatton, Lovatt, Pritchard, Selby) is not directly applicable to (a) the three of the appellants who were not on Christmas Island at the time of the tests (Hughes, Shaw and Smith), (b) the three appellants that the FTT concluded had established a reasonable doubt that they had suffered sufficient exposure (based on a different analysis essentially by reference to film badge readings and the ingestion of small amounts of alpha radiation in forward areas) but who failed on grounds relating to their condition (Battersby, Butler and Sinfield) and (c) the additional grounds for dismissing the appeals of Hatton, Pritchard, Selby and Shaw by reference to their conditions.

201.      However, in my view this analysis of the conclusion of the FTT on exposure of appellants in inhabited areas, together with the grounds of appeal based on the FTT’s discussion of, or references to, the legal approach they were applying:

i)              go to the heart of the application of the determinative test in all of the appeals (the Article 41(5) test), and

ii)            so demonstrate that the FTT made a fundamental and so material error of law in all of the appeals when applying that test.

202.      Indeed it was only in the case of Mr Hughes that oral argument was directed to the point that as he had left Christmas Island in September 1957 (and so before the first test there in November 1957) there was no material error in his case.  I acknowledge that this presents him with an additional difficulty but in my view the fundamental error of law made by the FTT in the application of the Article 41(5) test that I have identified also relates to the way in which he put his appeal on exposure namely that the contamination came from aircraft sent into radioactive clouds after the detonations at Malden Island (Grapple 1, 2 and 3) 700m kilometres to the south returning to Christmas Island and contaminated material falling from or being cleaned off such aircraft (and water from the cleaning contaminating the water supply).  Further, and in any event, this basis for his claim was not addressed by the FTT and so they have failed to give adequate reasons in respect of it.

203.      The other two (Shaw and Smith) were on Christmas Island after the tests and the approach of the FTT to exposure in inhabited areas is also relevant to them because of the very long half-life of alpha radiation and the undisputed evidence concerning how they might have ingested contaminated material (e.g. eating, drinking, swimming, from others and in Mr Smith’s case, who was a barber, by inhaling small pieces of hair).

204.      With the exceptions of:

i)             the fairness point relating to the finding by reference to Royston that Mr Butler did not suffer from Immune System Dysfunction, and

ii)            the conclusion in respect of Mr Shaw that his cataract was not caused by UV exposure; as to which I agree the FTT erred in law by their failure to address his case that on the reasonable doubt test that the cause was radiation 

the other conclusions of the FTT on condition relating to radiogenicity were all governed by the Article 41(5) test.

205.      In my view, the FTT’s fundamental errors in the application of the Article 41(5) test in the context of exposure also found the conclusion that they made the same errors when applying that test to issues relating to the radiogenicity of a condition. 

206.      Indeed I was not pressed in oral argument to find that if, as the Appellants argued, the FTT were found to have erred in law in their application of the Article 41(5) test to exposure, that they nonetheless applied it correctly when they reached conclusions on radiogenicity.

207.      However, in my judgment a consideration of the approach taken to the issues relating to radiogenicity confirms that the FTT erred in law in their application of the Article 41(5) test to the conclusions they reached on this in respect of all of the appellants to whom such a conclusion is relevant.

208.      I shall deal with this more shortly, again by taking examples.  Again the FTT were faced with competing views from experts and save in the case of Professor Parker (an epidemiologist) and Professor Mothershill (a radiobiologist) the FTT found that all of their evidence was within their area of expertise and so should be given weight.  They record (at paragraph 88) that when they find that Professor Parker and Professor Mothershill gave evidence outside their areas of expertise they have said so.

209.      They do this in respect of what they describe as their generic approach to immune dysfunction and modification of inflammatory response (paragraphs 307 to 319) on the basis that as they are not medically qualified and so could not give an opinion on causal link on the way to reaching the conclusion at paragraph 319, with my emphasis, that:

319.        The Tribunal therefore finds that there is reliable evidence to show that ionising radiation can have a long term effect on immune and inflammatory responses in humans, but that there is no reliable scientific evidence that establishes a causal link between these effects and the development of specific diseases. This area of science is still at the hypothesis stage. The opinions of Professor Mothersill and Professor Parker on such a causal link are outwith their expertise, and the Tribunal attaches no weight to these opinions.

 

210.      The Secretary of State drew my attention to passages in the judgments of the Supreme court in Sienkiewicz v Grief (UK) Ltd  [2011] 2 AC 229 (at paragraphs 80, 93, 163, 164 and 192).  However I agree with the HL appellants that in this case (as was accepted in the parts of the Decision dealing with for example carcinoma of the bladder (Mr Smith and Mr Williams at paragraphs 238 to 250), transitional cell carcinoma of the bladder (Mr Abdale) and chronic lymphatic leukaemia – CLL (Mr Battersby) and whether those conditions or diseases are radiogenic) epidemiological and radiobiological evidence can provide reliable evidence linking a condition to a possible cause and thus a possibility.

211.      Further it seems to me, as submitted by the HL appellants, that the relevant parts of Professor Parker’s evidence were in part based on her area of expertise, namely epidemiology and not wholly on the condition being an inflammatory one, as submitted by the Secretary of State.

212.      More importantly than the points made in the last two paragraphs, I agree with the HL appellants that although this approach of the FTT on causation might fit with the Secretary of State’s argument that  before the standard of proof set by the Article 41(5) test was engaged the Appellants also had to prove on the balance of probabilities that ionising radiation has caused an injurious or pathological process that has led to the relevant disablement or death, which I agree was not accepted by the FTT:

i)              it does not fit with a proper approach to and application of the Article 41(5) test as this is not dependant on “establishing” the causal link referred to, and

ii)            an approach which simply asserts that a body of evidence is at the hypothesis or hypothetical stage does not properly apply Edwards.

213.      I also agree with the HL appellants that paragraphs 172 and 494 of the Decision where the FTT (with my emphasis) state:

172.    The Tribunal heard written and oral evidence from Professor Mothersill to the effect that NTE operating at low levels of ionising radiation exposure, typically below the threshold of epidemiological detection, may alter the dose response relationship from a linear one. In other words, NTE may be relatively more potent at low doses, in effect posing a greater health risk than the LNT model would suggest. The actual shape of this response curve however remains unknown, and is the subject of ongoing research.

494  We recognise that advances in scientific knowledge may over the years lead to an acceptance that conditions other than those now accepted as being radiogenic may also be so regarded. However, the practical problem is going to be that relatively rare medical conditions require larger epidemiological studies.

 

provide support for the view that the FTT misapplied Edwards and the Article 41(5) test by failing to look at the underlying theory or hypotheses founded on fact, research and reasoning all of which have a part to play in determining whether research founds a possibility that should be carried forward in the decision making process (see paragraphs 112 and 113 above).

214.      Also the FTT’s approach to non-hodgkin’s lymphoma (at paragraphs 282 to 291) supports the conclusions that the FTT were approaching disputes between experts by considering who they preferred as is done in civil litigation, where the standard is the balance of probabilities, rather than by considering whether the expert evidence (within the relevant expertise of the witness) that they reject nonetheless raises a reasonable doubt and thus possibilities that need to be carried forward in the decision making process and misapplied Edwards.

215.      This is because on this issue:

i)             the FTT had evidence from a range of experts namely (a) Professor Parker, (b) Dr Berney (a consultant haematologist who treated Mr Sinfield), (c) Professor Kaldor (professor  of epidemiology) and (d) Professor Rowland (professor of molecular biosciences).  Professor Parker relied on evidence from RERF Report Number 8-08, which found “positive associations between lymphoma mortality and radiation dose” and “protracted induction and latency period for radiation-induced lymphoma mortality”.  Dr Berney said that Mr Sinfield had a form of lymphoma which was rare and she added that: “When Mr Sinfield mentioned that he had been involved in the Christmas Island atomic tests, both myself and my colleague, Dr Virchis, felt that exposure to radiation at that time was highly likely to have contributed to the development of this aggressive and unusual type of lymphoma which makes up 3% of cases of NHL in adults”. Professor Rowland agreed with that view in an email that is not mentioned by the FTT and Professor Kaldor’s  evidence included the assertion that he considered that a lengthy list of conditions including non-Hodgkin lymphoma could plausibly be considered to have a link with ionising radiation exposure, and

ii)            they did not conclude that any of these views were outside the field of expertise of the person who expressed them or that no weight could be attached to them or otherwise why they did not raise a possibility that merited consideration.

216.      I again acknowledge that it is possible that a correct approach in law to the application of the Article 41(5) test could found effectively the same conclusions as the FTT on radiogenicity in respect of some or all of the appellants where the dismissal of their appeals was in whole or in part based on such conclusions.  But, if contrary to my reading and analysis of the Decision, the FTT did correctly apply that test I am satisfied that on a generous reading of the Decision the FTT have failed to adequately explain how they have reached their decisions on a correct application of the Article 41(5) test  and so have erred in law.

Mr Butler’s fairness challenge to the finding that on the balance of probabilities he has not established his claimed condition ISD

217.      I allowed an amendment to add this as a ground of appeal and in my view it is well founded because the Secretary of State accepted prior to the hearing and in closing submissions before the FTT that disablement had been established by Mr Butler and so the FTT should have given Mr Butler (and the Secretary of State) an opportunity to address this possible finding before they made it.  Further, in my view the FTT have failed to give proper reasons for this finding.

218.      In any event, in my view it would be wrong to exclude Mr Butler from relying on this claimed condition on a rehearing of his appeal because there is also an issue whether it is radiogenic and to exclude this part of his claim on the basis that this finding can be isolated from the errors of law at the heart of the Decision would be an inappropriate exercise of the discretion under s. 12 of the Tribunals, Courts and Enforcement Act 2007. 

Conclusion

219.      On the common grounds of appeal I allow all the appeals.

220.      It was agreed that I should hear the parties on the directions I should give after this decision was promulgated.

221.      I invite the parties to include in the matters that should be considered at that hearing whether and if so what directions I should give concerning the approach to be taken to classified material and the impact of any non-disclosure of relevant classified material having regard to Al Rawi v Security Service [2011] UKSC 34, [2012] AC 531 at paragraphs 10 to 17 and in Re A (a child) (disclosure) [2012] UKSC 60, [2013] 1 FCR 69 at paragraphs 34 and 35.

The BS Appellants

Introduction

222.      The additional grounds of appeal advanced by the BS Appellants relate to the approach taken concerning the evidence of Dr Busby.  They can be described as “fairness grounds”.  In response to them the Secretary of State maintained that even if Dr Busby had given oral evidence, or his reports had been considered in the Decision, this would have made no difference because he lacks (a) the necessary expertise and (b) the independence and impartiality to be permitted to give expert evidence in claims by servicemen who were stationed near the atomic tests in the South Pacific and Australia in the 1950s and early 1960s, although he has given such evidence before the FTT in the past.

223.      At paragraphs 35 to 37 of the Decision the FTT say:

The role of Dr Busby in these appeals

35.      When the Tribunal made Directions in early 2010 for the individual appeals to be heard together Dr Busby had already prepared reports in support of appeals by Mrs Pritchard and Mrs Williams. In the Responses in the appeals by Mr Abdale, Mr Beeton, Mr Hatton, Mr Hughes, Mrs Selby, Mr Shaw, and Mr Smith the SPVA included in the Response a document prepared by Mr Ron Brown commenting on Doctor Busby's Research note even though the research note itself was not included in the Response.

36.      On 23 July 2010 the Tribunal directed that Dr Busby should produce a composite report. He did so. He subsequently produced five further reports. Mr Ken Johnston, the atomic physics expert instructed by the Treasury Solicitor and Professor Busby have been critical of each other's reports. Professor Regan who was instructed first by Rosenblatt and then by Hogan Lovells disagrees with Dr Busby in significant respects. None of the parties wished to rely on his evidence.

37.      The Tribunal were informed on 19 December 2012 (some six weeks before the start of the hearing) by Mr Gersch instructed by Hogan Lovells that they would not be calling Dr Busby as an expert witness. Dr Busby wrote to the Tribunal on 20 January 2013 offering to fly from Latvia at his own expense to give evidence to the Tribunal because he was concerned that the experts instructed by the parties would not deal with his arguments. Dr Busby's request to give evidence was canvassed with the parties. The Appellants were neutral. The suggestion was opposed by the Secretary of State. Following written and oral submissions from the parties the Tribunal decided not to accept Dr Busby's offer. The Tribunal was reinforced in making this decision by the observations about doing this in paragraph 17 of Chandra v Care Standards Tribunal [2008] EWHC 2833 (Admin), paragraphs 30 and 31 of Jeleniewicz v Secretary of State for Work and Pensions [2008] EWCA Civ 1163 and paragraph 11 of Clapson v British Airways [2001] IRLR 184. Dr Busby was informed of the Tribunal's decision by emailed letter dated 31 January 2013.

224.      I think there is only one other reference to Dr Busby in the Decision and that does not address his written evidence in any detail.  His reports were commented on in some detail by others (e.g. Mr Johnston and Professor Regan) and they formed an integral part of the written evidence.  To my mind, for understandable reasons, Dr Busby refused to agree the terms of the access given to others to classified material and so he did not see it.

225.      It is unfortunate that the FTT and the parties did not ensure that there was much greater clarity on the approach to be taken to and the reliance being placed on Dr Busby’s evidence. 

226.      As I have explained,  the Article 41(5) test gives rise to the question whether evidence put forward as expert evidence that does not accord with the decision maker’s preferred view on the balance of all the evidence is nonetheless reliable evidence that raises a possibility that should not be ignored and so is relevant to the consideration of whether a reasonable doubt has been established. If follows that the failure of the FTT to address these issues in determining the approach to be taken to Dr Busby’s evidence is another factor in favour of my conclusion that they were taking “a balance of probabilities approach” (or something akin to it) when considering competing expert evidence because if they had appreciated that this question was relevant they would have:

i)             raised it in determining the approach to be taken to Dr Busby’s evidence, and that of other authors of reports who were not called to give oral evidence, and

ii)            commented on the views of Dr Busby that they were rejecting having regard in particular to the comments of Mr Johnston and Professor Regan on Dr Busby’s reports and assertions.

Or they would have sought greater clarity from the parties on their reliance on Dr Busby’s written evidence.

227.      The grounds of appeal indicated that there may be factual disputes concerning the matters recorded in paragraphs 35 to 37 of the Decision and so I gave directions to clarify this.  The schedules and the evidence so provided (including that from the solicitors acting at the time) showed that there was no material dispute of fact concerning what the BS appellants had been told and it was common ground that Dr Busby’s reports remained part of the evidence advanced as expert evidence before the FTT.  Indeed, closing written submissions before the FTT on behalf of the Secretary of State included an attack on Dr Busby’s expertise and suitability to be an expert witness (which had been raised earlier in the history of the appeal but never determined).  This is not mentioned by the FTT who effectively ignore Dr Busby’s evidence.

228.      As I have already mentioned, the attack on Dr Busby’s expertise and suitability as an expert witness was raised again in the context of the BS appeals and I gave directions that the grounds relied on be particularised and answered.  This was done and Dr Busby took up the opportunity to give oral evidence on these issues.  He gave oral evidence over three days.  To my mind, fairness necessitated that approach to this attack on Dr Busby’s professional competence and standing.  As the FTT did not take a similar approach and made no decision on Dr Busby’s professional competence they must be taken to have proceeded on the basis that, as the FTT had done in the past, Dr Busby had appropriate qualifications, experience and impartiality to act as an expert witness.

The fairness challenge

229.      At the hearing the BS appellants narrowed their fairness challenge by concentrating on the failure of the FTT to consider Dr Busby’s evidence and not pursuing the other grounds they had advanced in respect of the decision of those then advising them not to call Dr Busby and the approach taken by the FTT to that.  This was because it became clear that his written evidence was not withdrawn.

230.      Accordingly, and because the fairness challenge of the BS appellants is effectively academic I shall not dwell on these further grounds.  However, I record that in my view they were without substance and it is unfortunate that time and money had to be spent to clarify them and the underlying facts.  There was no breach of Rule 35 or of the overriding objective as alleged or at all.

231.      It is obvious why the forensic decision was taken not to call Dr Busby and it was referred to in correspondence.  The very understandable reason was that as parts of his evidence conflicted with other expert evidence relied on by the appellants, rather than assisting the appellants’ cases oral evidence from Dr Busby would undermine that other evidence and so harm their cases.  I agree with the Secretary of State that notable and important examples of this conflict are:

i)              Professor Regan was of the view when Dr Busby was adding beta and gamma measurements taken on different levels and at different locations he was adding apples and oranges and getting pears, and so was wrong,

ii)            Professor Regan and Mr Johnston agreed that Dr Busby’s evidence relating to the washdown pad was wrong and that he had been wrong to assert that radioactivity emanating from old army lorries was caused by fallout debris when it was caused by luminous dials fixed to the lorries.

232.      I should also record that in my view the clarification of the surrounding circumstances relating to the decision not to call Dr Busby demonstrates that (a) the express and implicit criticism of their then advisers by the BS appellants was unwarranted, and (b) the FTT were clearly entitled to act on the basis of what they were being told by those advisers and were under no duty to take any steps to ascertain the circumstances or validity of their instructions. 

233.      As I have said, in my view the approach taken to the written evidence of Dr Busby (and others who were not called) is a factor supporting the conclusion that the FTT erred in their application of the Article 41(5) test.  However, in my view the FTT were put in a difficult position by the understandable reluctance of the appellants’ representatives to rely on Dr Busby’s evidence and the fact that they did not advance arguments based on it.  Although the FTT have an inquisitorial role, in those circumstances their approach during argument in not raising points of difference between Dr Busby and the other experts and in the Decision of not mentioning Dr Busby’s written evidence was not unfair.  Indeed, if they had done either, and in particular the latter on the basis that his written evidence had not been withdrawn it might well have triggered argument that it was unfair for them to do so without giving the parties an opportunity to comment on its relevance and force.  Equally, the FTT did not fail in its inquisitorial role or act unfairly in taking the same or an equivalent approach to the other written expert evidence that was before them.

234.      Further and in any event, having regard to my conclusions under the next heading I consider that if Dr Busby had been called and so been cross examined the FTT would or should have found him to be a witness on whom they could place no reliance when his views differed from or were not supported by those of the other experts called and relied on by the appellants.

235.      I acknowledge that this has not been the view of other FTTs in the past but in those cases his expertise and impartiality were not as I understand it challenged at all or in the way that they would have been before this FTT.

236.      In any event, my conclusion that these appeals should be allowed renders the issues relating to the approach taken by the FTT to Dr Busby’s evidence and whether it would have made a difference academic.  If they become relevant on any further appeal, the appeal court can deal with them without me making any findings of fact or reaching further conclusions. 

Dr Busby’s suitability to give expert evidence in cases of this type (i.e. ones raising issues relating to the existence, impact and effect of ionising radiation)

237.      The BS appellants urged me not to deal with this because of its impact on future cases where they argued it should be left to the trial court or tribunal. In support of that they urged on me the difficulties facing veterans in advancing their cases against the Secretary of State.  I fully accept the existence of those difficulties but in my view I must deal with this issue because it is relevant to the directions I will give concerning the re-hearing of these appeals and it would be wrong not to do so given the time, cost and effort expended on this issue in this case which would have to be repeated if it was left to other trial courts or tribunals.

238.      Dr Busby was cross examined thoroughly and with scrupulous fairness on his suitability to give expert evidence in cases of this type.  His oral evidence spread over three days.

239.      I am sorry to have to conclude that the upshot of that evidence was that to my mind it is clear that he is not a suitable person to give expert evidence in cases of this type.  I am sorry because I do not dispute that:

i)             Dr Busby is passionate in his views and believes them to be true and based on valid science and  reasoning,

ii)            on their face some of them appear to have some force,

iii)          he has been invited to sit in and has sat on relevant bodies dealing with exposure to radiation (e.g. the Committee Examining Radiation Risks and Internal Emitters CERRIE – see paragraphs 226 to 231 of the FTT’s Decision) and so it has been recognised by others that he has a contribution to make to the issues that arise in cases of this type,

iv)          there is some force in Dr Busby’s view that the confirmation  by the National Radiological  Protection Board (NRPB) of the majority view in the CERRIE report (Dr Busby and another wrote a minority report) is in effect confirmation by that majority and he is arguing against an establishment view in a developing  area, and

v)            as supported by his participation in CERRIE and him giving evidence in other cases before the FTT in this jurisdiction his lack of qualifications does not constitute a bar to him giving expert evidence based on his research and experience albeit that on some aspects he may have to defer to others with particular expertise, qualifications or experience. 

 

240.      The reason why I have concluded that he is not a suitable person to give evidence in cases of this type is that as he accepts and is obvious he is a campaigner and activist on issues relating to radiation and radiation risks (amongst other things) and in my view his oral evidence demonstrated clearly that:

i)             he cannot put aside his passion and beliefs as such and act in a dispassionate way as an expert witness,

ii)            this is demonstrated by his descriptions of his approach to his role as an expert witness, and

iii)          too frequently his campaigning or activist hat or mind-set leads him to make unwarranted assumptions or to jump to unwarranted conclusions because he has not checked underlying material with appropriate thoroughness, and wishes to  support a conclusion.

241.      This conclusion is founded on the duties and responsibilities of an expert witness set out set out in National Justice Compania Naviera S.S. v Prudential Assurance Co Ltd (“The Ikarian Reefer”) [1993] 2 Lloyds’s LR 68 at pp 81/2.  This is a well known summary that has been approved and applied on a number of occasions.  Of particular relevance here are:

i)             the evidence should be, and be seen to  be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation, and

ii)            it should provide assistance to the court or tribunal by way of an objective unbiased opinion.

242.      The BS appellants argued that all of these problems could be addressed by him giving a declaration or statement of impartiality such as that suggested in Toth v Jarman [2008] EWCA (Civ) 1028, [2006] 4 All ER 1276 and that when Dr Busby had done this the issues raised should go only to weight and not to admissibility.  I acknowledge this important distinction but I do not agree because the evidence shows that the problems relating to Dr Busby’s partisan approach to litigation of this type and his impartiality and objectivity are far too ingrained.

243.      Dr Busby’s evidence was transcribed and I imagine that the Secretary of State would make it available together with the two cross examination bundles should the issue of Dr Busby’s suitability to give expert evidence in cases of this type arises in another tribunal or court.

244.      I shall confine myself to extracts from evidence that have founded my conclusion but record that in reaching it I have had regard to his evidence as a whole and have not forgotten that he was in the witness box a long time.

245.      First, his correspondence with the BS appellants and the FTT relating to him giving  evidence before the FTT and in connection with this appeal provide clear examples of Dr Busby acting as a campaigner or adviser seeking to “win” cases and so encouraging claimants to advance his evidence, rather than as an expert witness.

246.      This approach was confirmed by his description of giving expert evidence.  He indicated that he thought that an approach of advancing one side’s case followed by negotiation or discussion with experts instructed by the other side leading to a withdrawal of, or changes to parts of his evidence, is appropriate.  He demonstrated that his understanding and approach was well outside that which is appropriate and that he was not describing a meeting between experts taking a proper approach.  Rather his approach was one of negotiation where you started high and continued to try and support the case of one party.

247.      He is very quick to assume that there has been a conspiracy or improper conduct by others who do not take the course he favours or who promote or hold different views to his own.  One example was that he thought the decision that he should not be called to give evidence was the result of “some deal being struck”.  When challenged in cross examination on an email in which he had made this assertion he said that at the time he thought that there may have been some kind of conspiracy but now that he had reconsidered the position in the light of the recent evidence he had to concede that it was possible that it was not a stitch up.  He said he did not know what to believe but he was not saying it was a stitch up now.  There were no sensible grounds for thinking there was one at the time as the reasons for not calling him were explained and would have been obvious to any objective and unbiased observer.  His response in cross examination to that explanation being put to him was that he was right and the appellants’ advisers were wrong because the appellants lost.  All this shows that he is stuck in a groove as an activist and campaigner and is either not capable of acknowledging or refuses to acknowledge that parts of his evidence are demonstrably wrong or based on a false or inadequately researched premise (see the examples in paragraph 231 above). 

248.      Another example was that he said that as a result of someone from the Department of Health talking to judges sitting on the case of CSA v Scottish Information Commissioner [2008] 4 All ER 851 the House of Lords had decided the case in favour of the appellant on the basis that this was a reasonable political decision for the Department and was not sinister.  He said it was a matter of record and with considerable conviction.  He was not indicating that it was any part of the submissions made in and in respect of the determination of the case. In re-examination (put in leading terms) he conceded that his assertion was based on his recollection of a conversation with somebody and he was sure that he saw an article about it and that his earlier evidence was or may have been based on a misunderstanding of the position.  That earlier evidence was of a fanciful assertion but as I have said one that was advanced with conviction as a matter of record.  Dr Busby’s retreat was limited and this is another example of the groove he is in.

249.      On a similar theme in connection with estimates of uranium fall out and Dr Busby’s failure in one of his reports (his composite report pursuant to directions of 23 July 2010 at section 3.4 pp 47-55 under the heading the Oldbury reports) to refer to the 24 American Operation Dominic tests carried out in 1962 Dr Busby replied that the Dominic tests were not at Christmas Island but at Johnson Island some 1,000 miles to the north and on being challenged about that replied you can read it up on Wikipedia.  He later accepted that this was a mistake as a result of a long day in the witness box.  I acknowledge that he had been giving evidence for a long time but this part of this report was the subject of comment  by Mr Johnston in a report dated 4 May 2011 where he said in respect of this section of Dr Busby’s composite report that “sadly  this picture is at complete variance with the facts”, referred to the Dominic tests being conducted off Christmas Island and asserted that the entire chain of Dr Busby’s reasoning ending with his conclusion on part 3 of his cumulative report at section 3.7 that it denotes the presence of large amounts of uranium at Christmas Island can be dismissed.  Dr Busby commented on this in his supplementary report dated January 2012 where he says “I should make it clear that the material Oldbury was examining was largely (though not entirely) from the USA tests in 1962.  Nevertheless, these were nuclear tests and examining Oldbury data tells us about the relative proportions of Uranium 238 in these, and by analogy, the UK tests ---------- ”.  So, in stark contrast to his initial oral evidence and the unfortunate reference to Wikipedia he was there accepting that Oldbury was examining material from the USA tests.  Although this exchange of reports was some time ago, to my mind it makes Dr Busby’s initial response to this part of his cumulative report surprising because of his failure to remember this earlier exchange and so it is an example of him being driven by his desire to reach a particular conclusion without properly checking or considering the underlying information or remembering the embarrassment of such an exchange on the accuracy and force of a part of a report he had written.

 

 

 

(signed on the original) Charles J

President of the UT(AAC)

22 October 2014