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The United Kingdom Veterans of the Atomic Atmospheric Testing in the Pacific and Australia have always maintained that they suffered harm, including cancer and leukemia. The government has consistently denied this.
Its argument is that except for very few of them, no-one received a radiation ‘dose’ significantly different from natural background. This was recently affirmed by the new Minister when she refused to concede that the test veterans were any different from any other ex-servicemen.
There have been two challenges. The first was an action against the Ministry of Defence taken by a group of some 900 veterans in the Royal Courts of Justice. This case (AB and others vs Ministry of Defence) was handled by Rosenblatt Solicitors of London on a pro-bono basis.
I was commissioned from the start in 2009 as an expert witness on this case. My position was essentially that the radiation risk model (the model of the International Commission on Radiological Protection, ICRP) on which the whole case pivoted, had been proven to be unsafe by new scientific developments and by epidemiology.
The initial focus of this case was on Limitation (it happened too long ago) was won at the beginning of 2012 but then overturned on appeal to the Supreme Court. The second approach is the theme of this article.
The Veterans Pensions Appeals
Test veterans (or their wives, if they have died) may apply for a pension if they can show that their illness may have been caused by their service. The MoD has always refused such pensions. The level of proof in these cases is very low: there only need be “doubt” about causality based on reliable evidence. Any refusal decision can be referred to an Appeals Tribunal.
Beginning with Eva Adshead in 2006, I began to be brought in as an expert in these appeals. The story of the first appeal, for Gerald Adshead is given in Wolves of Water (Busby 2007).
The appeal was successful: the Secretary of State’s decision was overturned. From then on, I was brought in on 5 appeals, and also on a coroner jury case on Depleted Uranium and Cancer.
In those appeals that made it to the Tribunal, and the jury case, all were successful. But in 2010 there was a change in the process.
There were three outstanding cases which I had agreed to represent, where expert reports had been submitted, and which had been endlessly delayed – so much so that two of the veterans I had helped, Dawn Pritchard and Derek Hatton actually died before they came to the Tribunal.
These three cases were put together with 12 other cases and the whole bunch was ordered heard together. Apparently the Secretary of State was concerned that some cases had been won (mine) and some lost (not mine) and this was unfair to the veterans.
So there was to be this major combined case, which would set a precedent for all the cases that might follow – including some that had already followed and were being ‘stayed’ pending the outcome of the combined appeal.
What had been small local affairs had now hotted up to become a mega case in London lasting three weeks.
I was approached by Rosenblatt who asked me to act as expert witness for all the appellants. The outcome of this combined Pensions Appeals case would influence their decision on the High Court action. There was no money, they said, but would I do it anyway? I agreed, and produced several reports over three years.
Secret and missing evidence
In the course of the earlier litigation I had looked through all the paperwork Rosenblatt had assembled, all the historic reports and letters and documents relating to the test sites and exposures, maybe 30 large ring binders.
My arguments were all about internal exposures to the fallout, exposures which the MoD denied occurred as (they said) bombs were exploded far from where the veterans were.
I had been struck by the fact that although the MoD kept arguing that there had been no exposures, there were hardly any radioactivity measurements. So I made a Freedom of Information request for all documents containing any “radiation measurements”.
After a long time, and much stalling, the MoD sent a list of some 40 documents. I was told that I could have copies of two of these and I had to choose which ones. This was because “to photocopy more than two would exceed the £600 limit on copying defined in the Freedom of Information Act.” (Yes!)
The list omitted some reports which I had already obtained from contacts in Australia and so they were clearly holding back. I complained and haggled. By then I had figured it out. I had obtained reports on the clean-up of the Christmas Island runway carried out in 1963, after the tests were over.
Uranium mysteriously missing
These established that a missing radionuclide in all the measurements was Uranium. Yet the bombs were all made of tons of Uranium. The entire test series was based on Uranium, the main component of the bombs.
Among the documents I had found were the minutes of a meeting at the Atomic Weapons Research Establishment Aldermaston in 1952, where the US expert Dr Karl Z Morgan had warned the British to beware of the effects of Uranium-234.
This rare isotope of Uranium is produced in nature at very low levels by the decay of Uranium-238, but is concentrated in the ‘enriched uranium’ used in nuclear bombs, with its higher fraction of Uranium-235. It is also produced in nuclear explosions from the intense neutron irradiation of 235U (via a so-called ‘n, 2n reaction’).
Studies at the Hiroshima nuclear explosion site show that 234U is present in the ‘black rain’ fallout from uranium bombs at enhanced levels. This is important because 234U has a half-life of 246,000 years – 18,000 times shorter than the main Uranium isotope, 238U, with its 4.47 billion year half life. So even a small increase in 234U causes a big increase in radioactivity.
The 234U was present in huge quantities on the Test sites – but it was not measured by the Geiger counters that were employed, because it produces the ‘wrong kind of radiation’ – alpha particles rather than the beta and gamma rays that Geiger counters pick up.
Yet no-one had provided any measurements of the vast quantities of Uranium that were vaporized when the bombs exploded. These minutes later vanished from Rosenblatt’s files.
After much correspondence with the MoD, the key report on the composition of the fallout was denied on the basis that it was “information likely to affect the UK’s relationship with a foreign power”. I was asked to sign the Official Secrets Act. I refused.
I contacted the judge, Mr Stubbs and said I wanted to see the report, and that it was necessary for the vets to obtain justice. He ordered that a dumbed-down (redacted) version be made by Prof Paddy Regan (who by then had become another expert for Rosenblatt and who had Official Secrets Act clearance) and the MoD expert, Mr Johnston.
I received this redacted version, which turned out to be useless as it had no data. I complained to Mr Stubbs, who ordered that they produce a new version with some numbers. This they eventually did. It showed that most of the fallout was Uranium, as I had thought. The redacted data showed that the big Grapple Y bomb at Christmas Island had about 4 tons of Uranium in it.
Pure Gold. Or rather, pure Uranium. What I had was something that linked the Atomic Test veterans with the Gulf war veterans and the population of Fallujah, where we knew increases in cancer and congenital illness was caused by Uranium.
I wrote a report pointing this out which I submitted to the Tribunal and Rosenblatt. I think this was a critical document and nailed the lid on the MoD’s case.
But immediately after this there was a surprising development: Rosenblatt promptly and suddenly pulled out of the case on the basis that they had run out of money.
This seemed rather odd to the vets, since Rosenblatt had been working pro bono - i.e. for no money – all along. Shortly after this a new outfit took over, Hogan Lovell International. What was going on?
The key issue? ‘Dose’ …
The key issue, which won all the previous cases, is the failure of the concept of ‘dose’ for internal radiation exposure, especially to Uranium. In the last ten years there have been many research studies by eminent scientists showing that inhaled and ingested Uranium cannot be dealt with on the basis of absorbed dose.
Yet it was the ‘dose’ of the veterans that was the lynchpin of the MoD argument.
Uranium weapons have been used in Iraq and the Balkans with strong published evidence that this has caused marked increases in cancer and genetic damage and congenital malformations in children of Gulf veterans.
In Fallujah we measured the Uranium in hair of the mothers of the birth defect babies. The Gulf veterans are increasingly dying of cancer and lymphoma in their 40s (I have been involved in three cases so far).
In 2007 I carried out a study of the children and grandchildren of the British Nuclear Test Veterans Association which found a 9-fold excess congenital malformation risk on the children and a 8-fold risk in the grandchildren. An earlier study by Sue Rabbitt Roff had also shown congenital effects in the offspring of the veterans.
By the end of 2011 I had all the information I needed and had submitted all the reports to the Appeals Tribunal on the issue. I had shown that the MoD had no case. The argument was won. But was it?
After the abrupt disappearance of Rosenblatt Solicitors at the end of 2011, in February 2012 a new firm, Hogan Lovells International took over. This is an outfit that was usually on the ‘other side’, having a history of defending pharmaceutical companies against sick people and governments against their citizens.
The hearing was adjourned again in order to allow them to ‘get up to speed’ on the details. Throughout 2012 I hardly heard from them: they passed on some of the judges Directions asking me to respond to various criticisms produced by the MoD. The hearing was scheduled for the end of January 2013..
On the 10th January, two weeks before the hearing I received a letter written by Hogan Lovell informing me that they would not be calling me to give evidence. I replied that the veterans (the appellants) had asked for me to be their expert and asked if Hogan Lovells had discussed the issue with them. They had not. I wrote that without my evidence, the cases would inevitably fail.
Hogan Lovell replied that they would not change their mind but that all the evidence I had put before the Tribunal would be advanced by other experts they were using: principally Prof Paddy Regan, a man you can find on the web reassuring everyone about Fukushima.
I wrote to the veterans and I wrote to the judge. One veteran who contacted Hogan Lovell three days before the hearings asked for me to act as his expert was told that if he did so, Hogan Lovell would not represent him.
The appeals inevitably failed. Prof. Paddy Regan, the ‘expert’brought in by Hogan Lovell, agreed with the MoD that the authoritative radiation model was that of the International Commission on Radiological Protection, the ICRP.
Of course, following this, the cases were lost. For the ICRP risk model requires a ‘dose’ of 1,000mSv to give a 50% excess chance of cancer. And no-one got anywhere near that, although they will have inhaled a lot of Uranium particles.
The same ICRP argument is applied to Depleted Uranium and cancer, the nuclear site child leukemias, Chernobyl and now Fukushima, and is used to airbrush away the evidence on the basis that the dose is too low.
According to the Royal Society, Uranium particles cannot cause cancer – according to the ICRP model – unless you inhale so much you choke!
Appeal to the Upper Tier Tribunal
Never give up. I recruited two of the veterans, Don Battersby and Anna Smith and we put together an appeal to the Upper Tier. There had been “procedural irregularities” in that the solicitors had not consulted with or informed their clients. The judge should have incorporated my evidence, which was before him.
In particular he should have done so since I had won two earlier appeal cases and so he knew exactly what my evidence was. Yet he ignored it. In one of these cases, that of Colin Duncan who cleaned down radioactive aircraft with kitchen tissues and later developed cancer, the same Judge wrote:
“Professor Busby submitted a detailed report dated 30th March 2008. He is a distinguished scientist who was asked by Michael Meacher MP, Minister for the Environment, to be a member of the Committee Examining Radiation Risks from Internal Emitters, CERRIE. This is an area of Science where there are divergent views …
“We find that his evidence is both cogent and reliable and raises a reasonable doubt that the Secretary of State’s views which rely exclusively on contemporary dose meter readings is wrong. It is accepted in the relevant Medical Appendix that non-Hodgkin’s lymphomas have an increased incidence following exposure to excess ionising radiation.
“We find that the combination of Mr Duncan’s written and oral evidence and Professor Busby’s evidence both of which we have found is reliable raises a reasonable doubt that Mr Duncan’s Non-Hodgkin’s Lymphoma is attributable to service.”
We got our appeal. On November 20th Hugo Charlton, the barrister and ex-Chair of the Green Party and Chris Busby turned up at the Royal Courts of Justice, the imposing ancient building in The Strand, to lay out the case before the Chamber President, Mr Justice William Charles.
Also present were Hogan Lovells, their QCs, Rosenblatt’s representative Neil Sampson and the Secretary of State for Defence, represented by the Treasury Solicitor, Leigh Ann Mulcahy QC. She argued that Busby was not a real expert and should never have been given the time of day in the first place.
To her consternation, the Judge disagreed. The MoD then had to make the somewhat challenging case that the exclusion of Busby’s evidence would not have in itself caused sufficient doubt for the appeals to be allowed, by proving that Busby was not an expert.
Busby then was to respond in writing and if he wished, orally in court. At the same time, Hogan Lovell argued that the lower Tier judge had set the standard of proof too high. A hearing would take two weeks in June 2014.
This case will be critical!
We can win this case. The judge is interested in what happened. (So are we, so should you be). The radiation risk model and internal exposures, especially to Uranium is the key; it was excluded when my evidence was excluded.
The short term rainout of black rain from the Uranium particles and cumulative fallout are major environmental concerns yet to be fully understood or accepted. The absence of wider fallout data suggests that it has been hidden or destroyed.
The outcome of this appeal will seal the future chances of any nuclear test veteran proving that he or his children were affected by the exposures at the Test sites. It will affect decisions in Australia and New Zealand.
It will also have implications for the many Depleted Uranium veteran victims of the Gulf War increasingly appearing with cancer, and will ultimately also affect political decisions affecting nuclear new build, disposal of radioactive waste, nuclear weapons and the use of Uranium weapons.
Chris Busby is the Scientific Secretary of the European Committee on Radiation Risk. For details and current CV see www.chrisbusbyexposed.org. For accounts of his work see www.greeenaudit.org, www.llrc.org and www.nuclearjustice.org.
This article originally appeared in The Ecologist.