EHRM, 19-10-2005, nr. 32555/96

The applicant alleged as follows. In the spring of 1962 he was invited to Porton Down; he was medically examined on arrival; he was asked on three or four occasions to enter a sealed and unventilated room where he was seated and strapped to a chair; over a period of about 6 hours, drops of mustard gas were applied to patches of tissue which patches were taped to his skin; he was told that, if he was unlucky, he might suffer temporary pain or discomfort but otherwise he was not given any, or any proper, warning about the possible consequences of the tests for his health; once the tests were finished he returned to his unit; and there was no further medical review after he left Porton Down. He relied on a memorandum and file note of 13 November 1989 (paragraph 24 below) and on the conclusions in this respect of 14 January 2004 of the Pensions Appeal Tribunal (‘PAT’ — paragraph 63 below) to substantiate his participation in tests in 1962.

While the Government did not deny that participation, they pointed to a number matters which appeared to militate against such a conclusion: the summary and alphabetical record books did not refer to his attendance in 1962 but only to his attendance in 1963; there was no documentary evidence at all of the 1962 tests whereas certain records existed of his 1963 tests; and if the PAT accepted his participation in the 1962 tests, this was based solely on his recollections.

The nerve gas (known as G-agent or ‘GF’) test is described in the relevant records as ‘exposure to single breath GF’. The applicant alleged that he was told before the test that the experiment ‘could not harm a mouse’; that he was placed in an air-tight glass-partitioned cubicle containing a face mask, the mask was placed over his mouth and nose, the fitting was checked and the chamber was sealed; that a loudspeaker informed him that the test was about to begin and to inhale normally; that he had an immediate tightening of the chest muscles and lungs which wore off after the end of the test; and that blood samples were taken at regular intervals during the following 24 hours. The Government submitted that diluted GF vapours were put into a gas chamber and, as the name of the test suggested, volunteers took a single breath of air with calculated doses of GF gas through a tube connected to that chamber, they held their breath for 2 seconds and then exhaled.

The other test involved mustard gas and was described in the records as ‘H sensitivity and penetration’. According to the applicant, it followed the same format as in 1962.

The Government added the following detail: the mustard gas test was designed to test the performance of protective clothing and was carried out in two parts. The first was a sensitivity test to determine an individual's sensitivity to mustard gas and it involved the placement of a dilute solution of the gas on the participant's upper arm. If after 24 hours the test subject had a small red mark, he or she was deemed too sensitive and participated no further in the tests. On the other hand, if the participant was not demonstrably sensitive, the second part consisted of putting a drop of dilute mustard gas solution on three samples of protective clothing left in place on the participant's body and the skin under the clothing was examined after 6 and then 24 hours. The participants were monitored before and after the tests. The rooms were properly ventilated, the dosages were small and safe and the tests were carefully planned and controlled.

In response to his doctor's query, in late 1987 the MOD supplied his doctor with his service medical records on a ‘medical in confidence’ basis. Those records did not refer to the applicant's Porton Down tests.

In a letter of 14 November 1989 Porton Down responded to another enquiry from his doctor. The letter was sent on a ‘medical in confidence’ basis and confirmed the applicant's participation in a GF gas test in July 1963. That GF test had been preceded and succeeded by a full medical examination which revealed no abnormality. The letter also referred (inaccurately, as it later emerged — see paragraph 36 below) to seven blood tests conducted after the GF test and to their results and confirmed that the applicant had also taken ‘Peak Flowmeter measurements’ and ‘breath holding tests’, a clothing penetration study (apparently, although not expressly noted, the mustard gas tests) and a battery of personality tests. The results of these tests were not included in the letter and no other records supporting the statements made in the letter were enclosed. His doctor's stamp on the letter indicates that he decided to tell the applicant that all was normal. The applicant persuaded his doctor to show him the letter in 1994.

By letter dated 14 December 1989 a Consultant informed the applicant's doctor that he doubted that the applicant's bronchial asthma was caused by his exposure to nerve gas. Further tests would be carried out.

A letter from Dr H. (a Professor of Environmental Toxicology at the University of Leeds and later the court-appointed expert witness in the PAT proceedings, see paragraphs 42–68 below) dated 5 December 1994 to the applicant stated that full and detailed records were required to judge the long term effects of his participation in the tests and that a long term epidemiological study would have been useful either to establish that there were long term effects or to re-assure test participants that there were none. His letter of 10 July 1996 repeated his view as to the need for such a study.

An internal Porton Down memorandum of 24 November 1997 noted that certain blood test figures given in the letter to the applicant's doctor of 14 November 1989 were inaccurate. In addition, it was considered that the applicant's description of the tests was roughly consistent with the procedures in the 1960s. While there were no obvious gaps in the 1960s records, it could not be said that the records were complete: the applicant could have attended in 1962 and his name could have been omitted or incorrectly recorded due to a clerical error.

The applicant, inter alia, carried out a sit-in hunger strike at Porton Down, held a press conference in the House of Commons and requested Members of Parliament to put parliamentary questions.

Between 11 and 14 November 1989 he was on hunger strike outside Porton Down. On 13 November 1989 he spoke with the Secretary of Porton Down. The latter noted in a memorandum of that date that the applicant's description of the tests was strong enough to indicate that he had been there and he recommended a further search of the records. That Secretary also recorded in a file note (of the same date) that the applicant's description of his visits to Porton Down in 1962 and 1963 left him with a level of confidence that he had been a volunteer there on both occasions. This led to the letter of 14 November 1989 to the applicant's doctor (paragraph 19 above).

In January 1994 the applicant formed the Porton Down Volunteers' Association with the object of seeking recognition and redress for test participants. The association has over 300 members to date.

By letter dated 26 January 1994 the Chief Executive of Porton Down answered, at the request of the Secretary of State for Defence, a series of questions raised by a Member of Parliament about chemical and biological warfare testing. The Chief Executive's letter described the test procedure stating that participants were given a medical examination before and after the tests and recalled for check-ups ‘from time to time’. It was pointed out that there was no evidence that the health of participants had deteriorated because of their test participation. On 22 June 1994 the Chief Executive confirmed the well-established policy of the Ministry of Defence (‘MOD’) to release service medical records to a veteran's doctor on a ‘medical in confidence’ basis. The Chief Executive's letter of 7 March 1995 (in response to a parliamentary question to the Minister of State for Defence) noted that the tests did not include any plan for long term systematic monitoring of participants: any monitoring thereafter was purely ad hoc and sporadic.

On 2 February 1994 the applicant wrote to the MOD requesting copies of his medical records and of reports on the relevant tests. The reply of 9 March 1994 from Porton Down recalled the MOD policy of release on a ‘medical in confidence’ basis. The applicant's doctor had been provided with information in 1989 on this basis. It was ‘entirely up to your own doctor how much or how little of this information he conveys to you’. Further queries from the applicant led to a similar response from Porton Down by letter dated 20 April 1994.

On 12 December 1994 Lord Henley stated in the House of Lords that the MOD would continue to send veterans to their doctors and would release medical records as appropriate. Information was provided to doctors to allow proper diagnosis and ‘would be released, if necessary’. He repeated that there was no evidence over the previous 40 years that test participants had suffered harm to their health.

In response to a series of parliamentary questions put to the Secretary of State for Defence as to the necessity for a public enquiry, the Government's representative replied on 28 February 1995 that there was no evidence that any test participants had suffered any long-term damage to their health in the past four decades. Similar responses as to the lack of evidence of harm to the test participants were given by the Minister of State for Defence in Parliament on 4 April and 2 May 1995 in response to questions concerning the instigation of a study into the long-term health effects of exposure to chemical and biological substances.

On 25 April 1995 the applicant and the Labour Party defence spokesman took part in a press conference on the question of Porton Down volunteers and their requirements.

Following a meeting between them, on 2 December 1997 the Minister of State for Defence wrote to the applicant. He referred to the concerns of the applicant (and other test participants) that information about the tests was being withheld. He confirmed that this was not the case but rather reflected ‘less than thorough’ record-keeping than would be currently expected. Henceforth all volunteers would be able to obtain access to all the information held on them at Porton Down and steps would be taken to declassify reports so as to make that information more accessible.

Certain copy test documents were enclosed:

It was indicated that these documents were available to any test participant who requested them.

This was the first material obtained by the applicant about his participation in the tests.

The letter went on to note that much GF-related research work had already been published in open literature or was in the public records' office. The review of files to be disclosed would continue and the applicant was given a list of all relevant research papers already published between 1957 and 1987. There was no evidence to date to suggest that any volunteer had suffered long-term adverse effects. A full independent and long-term study of the health impacts of test participation was not, however, considered feasible or practical so none had or would be carried out.

In a letter dated 31 August 1999 to the PAT, Porton Down indicated that it was well acquainted with the applicant, having received numerous communications from the applicant and from Members of Parliament.

By letter dated 3 May 2001 Porton Down informed the applicant that it had discovered some old laboratory notebooks that included information about the 1963 tests: one book included some previously unavailable detail of the mustard patch tests. A pre-exposure chest x-ray and the associated report card were also now available. The applicant was to contact Porton Down if he wanted to see this material or have copies.

The Government indicated that these were all the relevant records that could be traced:

The Government corrected their previous explanations of the seven blood samples (see paragraph 19 above): one was taken on 13 July 1963, a second prior to his exposure to GF and the remaining five were taken thereafter. They also corrected other errors relating to information provided in their earlier observations about those tests including the following: ‘the reference to ‘25 milligrams of GF [vapour per kilogram of body weight]’ appears to have been a typographical error. In fact, calculated doses of GF ranged from 0.16 to 2.84 microgrammes per kilogramme of body weight’. They also disclosed documents recently discovered following a further search:

On 10 June 1991 the applicant claimed a service pension on the grounds of ‘hypertension/breathing problems’ resulting from the Porton Down tests (and, in addition, from his radiation exposure on Christmas Island during the relevant nuclear tests there). The Department of Social Security (‘DSS’) obtained copies of his service and civilian medical records together with a report from his doctor, which report confirmed that he suffered from hypertension, COAD and late onset of bronchial asthma. On 28 January 1992 the Secretary of State rejected his claim for a service pension as there was no causal link demonstrated between the tests and those medical conditions. The applicant did not pursue an appeal at that stage.

The applicant consulted solicitors in 1994 and obtained legal aid for proceedings. By letter dated 14 November 1994 to the Secretary of State, his solicitors threatened proceedings, inter alia, alleging negligence, assault and breach of statutory duty on the part of the MOD and demanding release of all medical and laboratory records in the possession of the Secretary of State or of Porton Down as regards the test periods in 1962 and 1963, failing which the applicant would apply to the High Court for pre-action discovery. The applicant's representatives met with MOD representatives in early January 1995 on a ‘without prejudice’ basis and by letter dated 5 June 1995 requested confirmation from the MOD as to whether a certificate would issue under section 10 of the 1947 Act (‘a section 10 certificate’).

By letter dated 4 July 1995 to the applicant's solicitors, the claims section of the MOD wrote as follows:

On 3 August 1995 a section 10 certificate was signed by the Secretary of State:

By letter dated 8 August 1995 the Treasury Solicitor provided a copy of the section 10 certificate to the applicant's representatives.

Following the judgment of this Court in McGinley and Egan v. the United Kingdom (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III) and the Government's disclosure of certain documents in their observations in the present case (on 9 March 1998), the applicant requested an adjournment of the present application in order to pursue an appeal to the PAT and, in particular, disclosure of documents under Rule 6 of the Pensions Appeal Tribunals (England and Wales) Rules 1980 (‘the PAT Rules’). The present application was adjourned.

On 1 June 1998 he lodged his PAT appeal. Since the War Pensions Agency (‘WPA’, a specialised agency of the Department of Social Security) clarified that a further form was required, on 8 November 1998 the applicant re-lodged the appeal.

In February 1999 the applicant received the Statement of Case. He obtained two extensions of the time-limit for the submission of his ‘Answer’ to the Statement of Case (to take advice from an expert chemical pathologist on the documents already disclosed and on those which should also be requested during the PAT appeal and to consider the intervening observations of the Government in the present application) and he indicated that he would be making an application under Rule 6(1) of the PAT Rules.

On 30 July 1999 his Answer was submitted to the WPA along with a letter which noted that the Answer included an application for disclosure of documents under Rule 6(1) of the PAT Rules: paragraph 18 of the Answer set out a list of 17 categories of document required by him under that rule.

On 10 August 1999 the WPA responded by pointing out that enquiries were being made to obtain all the information requested under Rule 6(1) of the PAT Rules. Once received, the WPA would ask for the agreement of the President of the PAT to disclose it.

On the same day the WPA wrote to Porton Down enclosing a copy of the applicant's Rule 6 request and asking for the information as soon as possible so that the agreement of the President of the PAT could be obtained.

On 14 March and 13 April 2000 the WPA sent the supplementary Statement of Case (now incorporating the supplemental medical evidence) to the applicant and to the PAT, respectively.

On 3 August 2000 the President of the PAT responded to the applicant's enquiry indicating that his case had not been listed as it awaited production of further documentary evidence and the Secretary of State's response. However, since the Rule 6 request should not have been made in the applicant's Answer to the Statement of Case, that request had just come to light. The applicant was to confirm to the President if he intended paragraph 18 of his Answer to constitute his Rule 6 request and, if so, the President would be grateful to receive any observations that would assist his consideration of the relevance of the documents to the appeal issues. The applicant was also to identify the Department of State to which a Rule 6 direction should be addressed.

On 9 November 2000 the applicant confirmed to the President of the PAT that paragraph 18 of his Answer indeed constituted his Rule 6 request and he made detailed submissions on the matters requested by the President.

By letter dated 13 November 2000 the President of the PAT requested the applicant to submit a draft direction and attend a hearing on it since he was concerned that the wording of some parts of the Rule 6 request appeared to be ambiguous and lack clarity. The applicant submitted a draft direction (essentially listing those documents already included in paragraph 18 of his Answer).

By order dated 1 February 2001 the President of the PAT directed, pursuant to Rule 6(1) of the PAT Rules, disclosure of the scheduled documents by the Secretary of State since the documents ‘were likely to be relevant to the issues to be determined in the appeal.’

On 6 July 2001 the Secretary of State responded to the direction of the President of the PAT. It was marked ‘medical in confidence’. It referred to the documents already submitted by the Government to this Court (paragraphs 34–36 above). The Secretary of State was unable to give a definitive response to the request for the 5^th category of document required (namely, ‘any scientific or medical reports, whether published or prepared for internal use by Porton Down, the [MOD] or other Government departments or agencies of the volunteer studies or experiments in Porton Down between 1957 and 1968 which were similar or related to the studies or experiments in which [the applicant] was involved’). A full and careful review had been undertaken and was a time-consuming process. Many of the documents identified as being possibly relevant to the request were classified. The Secretary of State had asked for an urgent review of the classification to be undertaken and, once the review was completed, he would let the PAT have his full response. Otherwise the Secretary of State provided various explanations of the documents already submitted by the Government to this Court and details of the precise dates on which the applicant would have participated in the tests, of the levels of exposure to gases and of various headings and abbreviations in the disclosed documents. The only documents (additional to those already submitted to this Court) disclosed to the PAT were the applicant's service and payment records, the latter of which included a payment for attendance for a week at Porton Down in July 1963.

The MOD's letter was passed to the applicant on 25 July 2001. By letter dated 19 July 2002 the applicant wrote to the PAT apologising for not having responded and explaining the reasons for the delay.

By letter dated 23 August 2002 the MOD disclosed documents concerning the above-described 5^th category: two reports entitled ‘The feasibility of performing follow up studies of the health of volunteers attending [Porton Down]’ and ‘The single-breath administration of Sarin’, from which reports individual names had been blanked out. The feasibility report acknowledged that the records held at Porton Down prior to the late 1970s generally consisted of the name, service number and age of participants at the date of testing but were not ‘sufficient to allow either a comprehensive morbidity study or mortality study to proceed’. While a study could be carried out on post-1976 test participants, ‘such a study would be of very limited value and may only serve to draw attention to [Porton Down's] interest in possible long-term health problems experienced by volunteers’. The feasibility report concluded that a comprehensive follow up study of all volunteers was ‘impractical’. Porton Down's library catalogue had also mentioned a document entitled ‘Unique papers relating to early exposure of volunteers to GD [O-Pinacolyl methyl phosphonoflouidate, commonly known as Soman] and GF and DM [diphenylaminearsine chloride, commonly known as Adamsite]’. However, a copy of this document could not be located. A letter of 20 August 2002 was also enclosed which certified that nine of the requested documents were ‘in the nature of departmental minutes or records’ and would not therefore be disclosed (Rule 6(1) of the PAT Rules).

A hearing was fixed for 3 October 2002. On 27 September 2002 the applicant was obliged to request an adjournment since his counsel had advised that further questions needed to be put to Dr H. On 30 September 2002 the PAT declined to adjourn, indicating that it was unlikely Dr H could or would prepare a report.

On 2 October 2002 the MOD wrote to the PAT and the applicant. While nine documents had been previously certified non-disclosable, (letter of 23 August 2002, paragraph 55 above), seven of those nine documents could now be disclosed. The MOD had ‘had the opportunity of re-examining the documents … with a view to assessing whether [they] could be the subject of voluntary disclosure … in an effort to ensure that everything that can be disclosed has been disclosed and so as to ensure the maximum openness and the maximum assistance to the [PAT]’. Certain blocking out had been done on some disclosed documents to protect the identities of staff involved and to excise irrelevant material. Two documents remained undisclosable: the first did not appear ‘to contain anything of relevance’ to the applicant's tests and, in any event, ‘contained information which remains security sensitive and is not properly subject to voluntary disclosure on security grounds’; and the second required permission from the United States before it could be disclosed.

The appeal came on for hearing on 3 October 2002. The applicant applied for an adjournment supported by the Veterans' Agency (the successor of the WPA — ‘VA’). The PAT decision (delivered on 7 October 2002) recorded as follows:

The PAT was to clarify with the MOD the status of certain classified documents and the extent to which they could be released to the public and directed the MOD to provide, by 21 October 2002, disclosure of further documents. The MOD, the VA and the applicant were to notify the PAT by 18 November 2002 of the questions and documents it wanted Dr H to examine. It was intended that the PAT would add its own questions and submit a composite questionnaire to Dr H who would report in response to the PAT. The applicant was also to confirm his position as regards the hypertension appeal by 28 October 2002.

On 21 October 2002, the MOD disclosed to the PAT three de-classified documents. These were forwarded by the PAT to the applicant by letter dated 8 November 2002, accompanied by a warning that the MOD had released the documents for the purpose of the appeal and that no information in them was to be used for any other purpose without the consent of the MOD. By letter dated 25 October 2002 the applicant confirmed that his appeal had been intended to cover hypertension also, he explained the reasons for his confusion and he requested an extension of time to so appeal. A ‘hypertension’ appeal form was lodged with the PAT on 5 December 2002.

By letter dated 3 December 2002 the PAT wrote to Dr H enclosing the documents disclosed by the MOD (by then) with two sets of questions (prepared by the applicant and the medical member of the PAT). By letter dated 19 February 2003 Dr H provided the PAT with a report. The applicant having noted that Dr H had omitted to respond to the PAT questions, Dr H did so in a supplemental report sent to the PAT under cover of a letter dated 14 May 2003.

In a document dated 14 October 2003 the MOD submitted its comments on Dr H's reports. On 16 October 2003 the VA submitted a supplementary Statement of Case.

The PAT appeal hearing took place on 23 October 2003. It allowed the hypertension appeal to be heard out of time but, once it became clear that the VA had not processed the appeal documentation filed by the applicant, the PAT reluctantly granted the MOD an adjournment to allow the VA time to ‘properly consider all the evidential material and prepare a reasoned medical opinion’. The COAD appeal was, however, dismissed.

On 14 January 2004 the PAT delivered its written decision. As to the facts, the PAT accepted that the applicant had undergone tests for mustard gas ‘some time in 1962 as well as the documented tests in July 1963’despite the fact that there was no reference in his service records or in other research records to the 1962 test. The PAT also found ‘disquieting’ the ‘difficulties’ experienced by the applicant in obtaining the records which were produced to the PAT. The PAT also established the following facts:

The PAT also accepted, as a matter of law, that it was sufficient to show that the proven service event was only one of the causes of the condition even if there were other contributory factors. However:

On 4 February 2004 the applicant applied to the PAT for leave to appeal to the High Court (on the COAD matter) and for a stay of the hypertension appeal then pending before the PAT. On 26 April 2004 leave was refused, the PAT's reserved decision being delivered on 28 April 2004.

On 11 May 2004 the applicant applied for leave to appeal to the High Court. On 13 July 2004 leave was granted.

The applicant's appeal notice and supporting skeleton argument were submitted on 10 August 2004. The appeal was listed to be heard on 7 October 2004.

On 8 October 2004 the High Court allowed the appeal and referred the matter back to the PAT for a further hearing.

On 7 March 2005 a directions hearings was held before the PAT. It ordered the hypertension and COAD appeals to be heard together and mutual disclosure of any further documents relevant to the appeal by 18 April 2005. On the latter date the Treasury Solicitor produced a ‘schedule of disclosure’ listing and disclosing 11 documents: apart from 3 items, the applicant had not seen these before. The Treasury Solicitor maintained that disclosure of most of the documents (including 2 minutes of meetings which Rule 6 specifies can be withheld) was not obligatory as they were of marginal relevance, noted that all documents had been downgraded to ‘unclassified’ and indicated that the MOD would use its best endeavours to produce the annexes referred to in certain documents.

It was a well-established and unqualified common law rule that the Crown was neither directly nor vicariously liable in tort.

The rule was counterbalanced in several ways. Actions against the errant serviceman would be permitted in which case the Crown would invariably (if the defendant was acting in the course of his duty) accept responsibility for any damages awarded. In cases where the individual author of the injury could not be identified, a nominee defendant would be appointed to enable the claim to proceed. In addition, from 1919 a serviceman injured in the course of war service was entitled to a disability pension and his spouse to a pension. The scope of these entitlements later widened to include disability or death caused by injury attributable to any service in the armed forces (war service or not). A feature of these successive schemes was that entitlement to a pension did not depend on proof of fault against the Crown.

Further to strong criticism of the Crown's position as litigant, in the 1920s legislation was envisaged that would make the Crown liable in tort. The 1924 terms of reference of the drafting committee were to prepare a bill to provide, inter alia, that the Crown should become liable to be sued in tort. Clause 11 of the draft bill produced in 1927 (and never adopted) provided, under the heading ‘Substantive Rights’, that ‘Subject to the provisions of this Act, the Crown shall, notwithstanding any rule of law to the contrary, be liable in tort’. This provision was made subject to clause 29(1) (g) which read:

The 1947 Act made far-reaching changes, both substantive and procedural, to the Crown's liability to be sued.

The 1947 Act was divided into four parts: Part I ‘Substantive law’ (sections 1–12 of the Act); Part II ‘jurisdiction and procedure’; Part III ‘judgments and execution’; and Part IV ‘miscellaneous’.

Section 1 provides for the Crown to be sued as of right rather than by a petition of right sanctioned by Royal fiat.

Section 2 of the 1947 Act provides:

Members of the armed forces were to be treated differently. If they died or were injured in the course of their duties, the Crown could not be sued in tort once the Secretary of State certified that the death or injury would be treated as attributable to service for the purposes of entitlement to a war pension. In particular, Section 10 of the 1947 Act was entitled ‘Provisions relating to the armed forces’ and provided as follows:

The words in section 2 of the 1947 Act ‘subject to the provisions of this Act’ rendered section 2 subject to the provisions of section 10 of the 1947 Act.

The exception contained in section 10 of the 1947 Act was removed by the Crown Proceedings (Armed Forces) Act 1987. This removal was not retrospective. Accordingly, after 1987 claims in tort by members of the armed forces (or their estates) who had died or been injured as a result of conduct which took place prior to 1987 could not proceed if the Secretary of State issued the relevant certificate. The reasons why the law was prospective only were explained by the Member of Parliament introducing the Bill as follows (Hansard, HC, 13 February 1987, col. 572):

Section 11 of this Act provides that any action for damages for personal injury must be brought within three years of the cause of action arising.

On the preliminary issue of whether the MOD could be pursued given section 10 of the 1947 Act, the High Court found that provision to be incompatible with Article 6 § 1 of the Convention.

In deciding whether section 10 amounted to a procedural or substantive limitation on his rights, the High Court considered that the issue turned on whether a section 10 certificate extinguished not only Mr Matthews' right to sue for damages but also his primary right arising from the Crown's duty of care:

In concluding that section 10 amounted to a procedural bar to an existing right of action in tort and in thus finding Article 6 applicable, the High Court relied, in particular, on Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (judgment of 10 July 1998, Reports 1998-IV) and on Fogarty v. the United Kingdom ([GC], no. 37112/97, ECHR 2001-XI).

The limitation had to be therefore subjected to a proportionality test. In this respect, the High Court concluded that the disadvantages of a pension scheme were such that access to it was an ‘exceptionally, indeed an unacceptably’ high price to pay for the advantage of not having to prove fault, an advantage which would only apply when the question of the fault of the other party was in doubt. Neither was the High Court convinced that the choice to repeal the 1947 Act prospectively was proportionate, considering, inter alia, that the finding of liability for conduct that was not a basis for liability when it took place, was far less pernicious a solution than denying proper damages to persons injured as a result of negligence.

The Court of Appeal allowed the MOD's appeal. Section 10 had a substantive and not procedural effect and the High Court's reliance on the above-cited Fogarty case was mistaken. The Master of the Rolls stated that:

In so finding, the Court of Appeal rejected the MOD's objection, based on Pellegrin v. France ([GC], no. 28541/95, ECHR 1999-VIII and, more recently, R. v. Belgium (no. 33919/96, 27 February 2001), to the applicability of Article 6 § 1, the Court of Appeal finding that Pellegrin was concerned solely with ‘disputes raised by servants of the State over their conditions of service’ whereas the proceedings before the Court of Appeal concerned the nature and effect of section 10 of the 1947 Act on a claim in tort against the MOD.

The applicant appealed arguing that the Court of Appeal had ignored a clear principle established by the Fogarty case. The MOD did not pursue the Pellegrin argument.

The House of Lords (Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Millett and Lord Walker of Gestingthorpe) unanimously rejected the appeal. The House of Lords considered the maintenance of the distinction between procedural and substantive limitations on access to court to be a necessary one since Article 6 was concerned with procedural fairness and the integrity of a State's judicial system rather than with the substantive content of its national law. However, the House of Lords acknowledged the difficulty in tracing the borderline between the substantive and procedural, considering the Convention jurisprudence to be indicative of some difficulty in this respect. Drawing on the text, historical context, legislative intent and the actual operation of section 10 of the 1947 Act and, further, on a comprehensive analysis of the Convention jurisprudence and applicable principles, the House of Lords concluded that section 10 of the 1947 Act maintained the existing lack of liability in tort of the Crown to service personnel for injury suffered which was attributable to service and served to ease servicemen towards the no-fault pension option by taking away the need to prove attributability. It amounted therefore to a substantive limitation on the liability of the Crown in tort to servicemen for service injury to which Article 6 § 1 did not apply.

Having reviewed the Convention jurisprudence, Lord Bingham noted that, whatever the difficulty in tracing the dividing line between procedural and substantive limitations of a given entitlement under domestic law, an accurate analysis of a claimant's substantive rights in domestic law was, nonetheless, an essential first step towards deciding whether he had, for the purposes of the autonomous meaning given to the expression by the Convention, a ‘civil right’ such as would engage Article 6.

Lord Bingham went on to outline the historical evolution of section 10, considering it clear that there was no parliamentary intention to confer any substantive right to claim damages. ‘Few common law rules were better-established or more unqualified’, he began, ‘than that which precluded any claim in tort against the Crown’ and because ‘there was no wrong of which a claimant could complain (because the King could do no wrong) relief by petition of right was not available’. Claims referred to as ‘exempted claims’ against the Crown for damages for, inter alia, injury sustained by armed forces personnel while on duty were ‘absolutely barred’. When proposals for reform were put forward in the 1920s, ‘no cause of action was proposed in relation to the exempted claims’. When the Crown Proceedings Bill was introduced into Parliament in 1947 it again provided that the exempted claims should be ‘absolutely barred’, but those fulfilling the qualifying condition would be compensated by the award of a pension on a no-fault basis.

When what was to become section 10(1) was amended uncontentiously in the House of Commons, the intention was not to alter the ‘essential thrust of the provision as previously drafted’. The object of the new certification procedure was to ‘ease the path of those denied any right to a common law claim towards obtaining a pension, by obviating the need to prove attributability, an essential qualifying condition for the award of a pension’. Whereas the issue of a certificate under section 10(3) of the 1947 Act was discretionary as shown by the permissive ‘may’, no such permissive language applied to the issuance of a certificate under section 10(1)(b). ‘It was plainly intended that, where the conditions were met, the Secretary of State should issue a certificate as was the invariable practice of successive Secretaries of State over the next 40 years’. Although different language had been used over the years, ‘the English courts had consistently regarded section 10(1) as precluding any claim at common law’. It was in fact the ‘absolute nature of the exclusion imposed by section 10(1)’ (coupled with the discrepancy, by 1987, between the value of a pension and of a claim for common law damages) which fuelled the demand for the revocation of section 10 and which led to the 1987 Act. In deciding whether section 10(1) imposed a procedural bar or denied any substantive right, regard had to be paid to the practical realities and, in that respect, the Secretary of State's practice had been ‘uniform and unvarying’ so that any practitioner would have advised Mr Matthews that a section 10 certificate was ‘bound to be issued’. Lord Bingham found the Fogarty case to be ‘categorically different’ from the Matthews' case at hand and concluded, for reasons closely reflecting those of the Court of Appeal and of Lord Walker (see below), that the appeal was to be rejected.

As regards the distinction between substantive and procedural bars to a judicial remedy, Lord Walker conducted a comprehensive analysis of the Convention jurisprudence, highlighting what he considered to be inconsistencies and the difficulties in applying it:

Lord Hoffman agreed with Lord Walker's reasoning and conclusions and made certain additional observations. He noted that Mr Matthews' counsel (also counsel for the present applicant) had conceded that, if the 1947 Act simply said that servicemen had no right of action, it would not have infringed Article 6. Mr Matthews argued, however, that the structure of the 1947 Act was such that he had a civil right (a cause of action in tort) until a section 10 certificate was issued; if no certificate had been issued he would have been able to prosecute his action before the courts; and section 10 therefore gave the Secretary of State a power at his discretion to cut off the applicant's action and prevent him from bringing it before the courts. Lord Hoffman pointed out that, if the purpose of section 10(1)(b) and (2)(b) had been to give the Secretary of State a discretionary power ‘to swoop down and prevent people with claims against the Crown from bringing them before the courts’, he would have agreed since such executive interference would run counter to the rule of law and the principle of the separation of powers. However, referring to the historical analysis of Lord Bingham, he considered it clear that section 10 delimited the substantive cause of action and the section 10 certificate was no more than a binding acknowledgement by the Secretary of State of the ‘attributable to service’ requirement for an award of a pension, the quid pro quo for the inability to sue in tort. He too considered distinguishable the Tinnelly case (the Matthews case did not involve any encroachment by the executive upon the functions of the judicial branch) and the Fogarty case (having regard to the discretion available to the foreign Government to submit or not to jurisdiction).

Lord Hope analysed in some detail the Convention jurisprudence and principles, the history of the 1947 Act, the text and operation of section 10 and the section 10 certification process. He noted:

Lord Hope concluded, in full agreement with the reasons expressed by Lord Walker, that section 10 amounted to a substantive limitation on the right to sue the Crown in tort.

Lord Millett's judgment also contained a comprehensive assessment of the Court's jurisprudence, the historical context and text of section 10 and the consequent purpose of the section 10 certificate. He noted:

Lord Millett considered it plain that the section 10 certificate did not operate as a procedural bar to prevent the serviceman from having his civil right judicially determined. As regards the Fogarty case, and unlike the other Law Lords, he considered that immunities claimed by a State which conformed to generally accepted norms of international law, fell outside Article 6 entirely. For the reasons outlined by each of their Lordships with which he agreed, he would also dismiss the appeal.

The scheme currently in force for the payment of a service pension in respect of, inter alia, illnesses and injuries attributable to service is contained in the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (‘the Pensions Order’).

The basic condition for the award of a pension is that ‘the disablement or death of a member of the armed forces is due to service’ (Article 3 of the Pensions Order). ‘Disablement’ is defined as ‘physical or mental injury or damage, or loss of physical or mental capacity’ (Schedule 4 to the Pensions Order). Where claims are made more than seven years after the termination of service, Article 5(1)(a) provides that the disablement or death is to be treated as ‘due to service’ if it is due to an injury which is either attributable to service after 2 September 1939 or existed before or arose during such service and was and continues to be aggravated by it.

The Pensions Order provides that where, upon reliable evidence, a reasonable doubt exists whether the above conditions are fulfilled, the benefit of that doubt must be given to the claimant (Article 5(4)).

The scheme for the payment of pensions is administered by a specialised agency of the DSS, formerly the War Pensions Agency (‘WPA’) and now the Veterans' Agency (‘VA’). On receipt of an application, the VA, inter alia, obtains the claimant's service records (including service medical records) from the MOD and, with the assistance of additional medical evidence if required, assesses whether the claimant is suffering from a disability attributable to service. The Secretary of State decides on the basis of this assessment on the award of a service pension.

A claimant who is refused a war pension by the Secretary of State may appeal to the PAT (see the Pensions Appeal Tribunals Act 1943) in accordance with the PAT Rules. This body is composed of a lawyer, a doctor and a serviceman or ex-serviceman of the same sex and rank as the claimant.

The VA provides the PAT with a ‘Statement of Case’, which includes, inter alia, a transcript of the claimant's service records including service medical records, civilian medical records and reports including those prepared at the request of the VA and a statement outlining the Secretary of State's reasons for refusing the application. The claimant may submit an Answer to the Statement of Case and/or adduce further evidence. A hearing then takes place. The PAT examination is de novo so that the appellant does not have to show that the Secretary of State's decision was wrong. A further appeal lies to the High Court on a point of law with leave from the PAT or the High Court.

Rule 6 of the PAT Rules (‘the Rule 6 procedure’) is entitled ‘Disclosure of official documents and information’ and provides as follows:

The right of access to court guaranteed by Article 6 at issue in the present case was established in the above-cited Golder judgment (at §§ 28–36). In that case, the Court found the right of access to court to be an inherent aspect of the safeguards enshrined in Article 6, referring to the principles of the rule of law and the avoidance of arbitrary power which underlay much of the Convention. Thus, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court (see, more recently, the above-cited judgment in Z and Others v. the United Kingdom, at § 91).

Article 6 § 1 does not, however, guarantee any particular content for those (civil) ‘rights’ in the substantive law of the Contracting States: the Court may not create through the interpretation of Article 6 § 1a substantive right which has no legal basis in the State concerned (the above-cited Fayed v. the United Kingdom judgment, at § 65). Its guarantees extend only to rights which can be said, at least on arguable grounds, to be recognised under domestic law (James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, Z and Others, at § 81 and the authorities cited therein together with McElhinney v. Ireland [GC], no. 31253/96, § 23, ECHR 2001-XI (extracts)).

The applicant maintained that there was a certain tension between this afore-mentioned principle, on the one hand, and, on the other, the established autonomous meaning accorded by the Court to the notion of ‘civil rights and obligations’. Connected to this, he questioned the distinction between a restriction which delimits the substantive content properly speaking of the relevant civil right (to which the guarantees of Article 6 § 1 do not apply (Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, § 36 and Z and Others, cited above, at § 100) and a restriction which amounts to a procedural bar preventing the bringing of potential claims to court, to which Article 6 could have some application (Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, § 62, Al-Adsani v. the United Kingdom [GC], no. 35763/97, §§ 48–49, ECHR 2001-XI, Fogarty v. the United Kingdom, § 26 and McElhinney v. Ireland, § 25). The applicant argued that it was not necessary to maintain that distinction (relying on the above-cited Commission decisions of Ketterick, Pinder and Dyer together with § 65 of the Fayed judgment, as cited in the Fogarty judgment, at § 25): any restriction should be subjected to a proportionality test because the important point was to protect the courts from the assumption of arbitrary power and control on the part of the executive.

The Court cannot agree with these submissions of the applicant. It does not find any inconsistency between the autonomous notion of ‘civil’ (König v. Germany, judgment of 28 June 1987, Series A no. 27, § 89 and, more recently, Ferrazzini v. Italy [GC], no. 44759/98, §§ 24–31, ECHR 2001-VII) and the requirement that domestic law recognises, at least on arguable grounds, the existence of a ‘right’ (James and Others v. the United Kingdom, cited above, § 81; Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, § 192; and The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, § 80). In addition, the Commission decisions in Ketterick, Pinder and Dyer must be read in the light, inter alia, of the judgment in the case of Z and Others (cited above) and, in particular, in the light of the Court's affirmation therein as to the necessity to maintain that procedural/substantive distinction: fine as it may be in a particular case, this distinction remains determinative of the applicability and, as appropriate, the scope of the guarantees of Article 6 of the Convention. In both these respects, the Court would reiterate the fundamental principle that Article 6 does not itself guarantee any particular content of substantive law of the Contracting Parties (see, amongst other authorities, Z and Others v. the United Kingdom, cited above, § 87).

No implication to the contrary can be drawn, in the Court's view, from paragraph 67 of the Fayed judgment. The fact that the particular circumstances of, and complaints made in, a case may render it unnecessary to draw the distinction between substantive limitations and procedural bars (see, for example, A. v. the United Kingdom, no. 35373/97, § 65, ECHR 2002-X) does not affect the scope of Article 6 of the Convention which can, in principle, have no application to substantive limitations on the right existing under domestic law.

In assessing therefore whether there is a civil ‘right’ and in determining the substantive or procedural characterisation to be given to the impugned restriction, the starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (Masson and Van Zon v. the Netherlands, judgment of 28 September 1995, Series A no. 327-A, § 49). Where, moreover, the superior national courts have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction, on the basis of the relevant Convention case-law and principles drawn therefrom, this Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law (Z and Others, at § 101) and by finding, contrary to their view, that there was arguably a right recognised by domestic law.

Finally, in carrying out this assessment, it is necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation (Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A no. 50, § 38). The Court must not be unduly influenced by, for example, the legislative techniques used (the Fayed judgment, at § 67) or by the labels put on the relevant restriction in domestic law: as the Government noted, the oft-used word ‘immunity’ can mean an ‘immunity from liability’ (in principle, a substantive limitation) or an ‘immunity from suit’ (suggestive of a procedural limitation).

The Court has therefore taken as a starting point the assessment of, and conclusions concerning, section 10 of the 1947 Act by the House of Lords in the above-cited Matthews case.

Drawing on the historical context, the text and purpose of, in particular, sections 2 and 10 of the 1947 Act, the House of Lords concluded that section 10 did not intend to confer on servicemen any substantive right to claim damages against the Crown but rather had maintained the existing (and undisputed) absence of liability in tort of the Crown to servicemen in the circumstances covered by that section. The Lords made it clear that prior to 1947 no right of action in tort lay against the Crown on the part of anyone. The doctrine that ‘the King could do no wrong’ meant that the Crown was under no liability in tort at common law. Section 2 of the 1947 Act granted a right of action in tort for the first time against the Crown but the section was made expressly subject to the provisions of section 10 of the Act. Section 10 (which fell within the same part of the 1947 Act as section 2 entitled ‘substantive law’ — see Lord Hope in the Matthews case at paragraph 94 above) provided that no act or omission of a member of the armed forces of the Crown while on duty should subject either that person or the Crown to liability in tort for causing personal injury to another member of the armed forces while on duty. Section 10 did not therefore remove a class of claim from the domestic courts' jurisdiction or confer an immunity from liability which had been previously recognised: such a class of claim had never existed and was not created by the 1947 Act. Section 10 was found therefore to be a provision of substantive law which delimited the rights of servicemen as regards damages' claims against the Crown and which provided instead as a matter of substantive law a no-fault pension scheme for injuries sustained in the course of service.

As to whether there exist strong reasons to depart from this conclusion, the applicant mainly argued that the section 10 certificate issued by the Secretary of State operated as a procedural restriction to prevent him from pursuing a right of action which he enjoyed under the 1947 Act from the moment he suffered significant injury. The Court is unable to accept this argument. It finds that section 10 must be interpreted in its context and with the legislative intent and purpose in mind. As explained in detail in the judgments of Lords Bingham and Hope in the Matthews case, the object of the certification procedure introduced by section 10(1)(b) was not to alter the essential thrust of section 10 as originally drafted — namely, to exclude the Crown's liability altogether — but was rather to facilitate the grant of a pension to injured service personnel by obviating the need to prove that the injury was attributable to service.

Moreover, Lord Bingham pointed out that the ‘realities of the situation’ were that it was ‘plainly intended’ that the section 10 certificate would issue where the relevant conditions had been fulfilled and he noted that that had indeed been the uniform and unvarying practice of successive Secretaries of State for the 40 years thereafter, to the extent that any practitioner would have advised Mr Matthews that a section 10 certificate was bound to issue (see also Lord Walker in the Matthews case, at paragraph 92 above). This narrow discretion conferred by section 10(1)(b) was to be contrasted with the broader discretion for which section 10(3) of the 1947 Act provided. For the reasons set out at paragraph 126 below, this finding as to the narrow discretion of the Secretary of State is not altered by the fact that the latter has now decided not to maintain ‘a section 10(1) point’ against the applicant.

The Court finds this discretion conferred on the Secretary of State by section 10 to be fundamentally different in character from the unfettered discretion enjoyed by a foreign Government, which was the subject of the Court's examination in the Fogarty case, not to waive State immunity and thereby to prevent a claim otherwise well-founded in domestic law from being entertained by a domestic court.

The certification procedure provided for by section 10 is similarly to be distinguished from that considered by the Court in the Tinnelly case. In that case, the Fair Employment (Northern Ireland) Act 1976 clearly granted a right in national law to claim damages for religious discrimination when tendering for public contracts. Section 42 of the 1976 Act was not aimed at creating an exception for cases in which Parliament (when adopting the 1976 Act) considered discrimination justified but rather allowed the Secretary of State by a conclusive certificate, based on an assertion that the impugned act was done to protect national security, to stop court proceedings which would otherwise have been justified. As observed by Lord Hoffman, section 10 did not involve such encroachment by the executive into the judicial realm but rather concerned a decision by Parliament in 1947 that, in a case where injuries were sustained by service personnel which were attributable to service, no right of action would be created but rather a no-fault pension scheme was to be put in place, the certificate of the Secretary of State serving only to confirm that the injuries were attributable to service and thereby to facilitate access to that scheme.

Accordingly, this Court finds no reason to differ from the unanimous conclusion of the Court of Appeal and the House of Lords as to the effect of section 10 in domestic law. It considers that the impugned restriction flowed from the applicable principles governing the substantive right of action in domestic law (Z and Others, § 100). In such circumstances, the applicant had no (civil) ‘right’ recognised under domestic law which would attract the application of Article 6 § 1 of the Convention (Powell and Rayner v. the United Kingdom, cited above, § 36).

It is not therefore necessary also to examine the parties' submissions as to the proportionality of that restriction. It is further unnecessary to examine the Government's argument that Article 6 was inapplicable on the basis of the above-cited judgments in Pellegrin and R. v. Belgium.

The Court concludes that Article 6 is not applicable and that there has not therefore been a violation of that provision.

Finally, the Court has noted the submissions of the parties concerning the recent discovery of the Treasury Solicitor's letters of advice from 1953 concerning another test participant (paragraphs 72, 107 and 115 above). The fact that the Secretary of State has now decided no longer to ‘take a section 10(1) point’ in any civil action of the applicant, does not alter or otherwise affect the above conclusion in respect of section 10 in the applicant's case. That decision merely serves to resolve in the applicant's favour a doubt which has recently emerged (not commented upon by the applicant and remaining unclarified) as to whether the applicant in fact belonged to a category of persons to which the provisions of section 10 applied. Further, it is a decision which concerns the future, the Government having confirmed that the section 10 certificate remains valid for the purposes of the on-going PAT appeal.

The Court has, however, returned to these submissions in the context of Article 8 of the Convention below.

The Government were not definitive about the applicant's participation in tests in 1962 despite the findings of the PAT. The Court considers that it is not necessary for current purposes to resolve this dispute since, in any event, it is accepted that the applicant attended at the Chemical and Biological Defence Establishment at Porton Down in 1963 to participate in testing on armed forces personnel of mustard and nerve gas.

The tests are described at paragraphs 15–16 above and involved the applicant's exposure to small doses of both of these agents for research purposes. In the case of mustard gas, the PAT expressly found that the aim was to test the suitability of military clothing to exposure (the PAT finding of fact at paragraph 63 above) and it would appear from the inhalation of nerve gas, that the aim was to test the reaction of service personnel to it. Even accepting the Government's clarifications about the manner in which those tests were conducted, the Court considers that the issue of access to information, which could either have allayed the applicant's fears or enabled him to assess the danger to which he had been exposed, was sufficiently closely linked to his private life within the meaning of Article 8 as to raise an issue under that provision (the above-cited McGinley and Egan judgment, § 97). It is not necessary to examine whether the case also gives rise to a separate issue under the family life aspect of this Article.

It follows that Article 8 is applicable.

The applicant considered that the State failed to provide him with access to information in violation of his rights under Article 8. The Court recalls that, in addition to the primarily negative undertakings in Article 8 of the Convention, there may be positive obligations inherent in effective respect for private life. In determining whether or not such a positive obligation exists, it will have regard to the fair balance that has to be struck between the general interest of the community and the competing interests of the individual concerned, the aims in the second paragraph of Article 8 being of a certain relevance (the above-cited Gaskin v. the United Kingdom judgment, at § 42).

In the Gaskin case, a file existed containing details of the applicant's childhood history which he had no opportunity of examining in its entirety. The Court found that the United Kingdom, in handling his requests for access to those records, was in breach of a positive obligation flowing from Article 8 of the Convention:

In the later Guerra case (cited above) the Court ascertained whether the national authorities had taken the necessary steps to provide the applicants with information concerning risks to their health and well-being:

Subsequently, in the above-cited McGinley and Egan case, the Court also examined whether the State had fulfilled a positive obligation to provide information to the applicant servicemen who had participated in armed forces atmospheric tests of nuclear weapons. It distinguished the Guerra case since, in that case, it was not disputed that the applicants were at risk from the neighbouring factory or that the State had in its possession information which would have enabled them to assess this risk and take steps to avert it whereas Messrs McGinley and Egan had only demonstrated that one set of relevant records remained in the hands of the authorities (radiation level records). It went on:

The present applicant's uncertainty, as to whether or not he had been put at risk through his participation in the tests carried out in Porton Down, could reasonably be accepted to have caused him substantial anxiety and stress (McGinley and Egan judgment, at § 99). Indeed, the clear evidence is that it did. From the onset of his medical problems in 1987, he single-mindedly pursued through various means (detailed at paragraphs 17–33 above) any relevant information which could inform him about his test participation and assuage his anxiety as to the consequences. While the PAT found, relying on its expert's report, that there was no reliable evidence to suggest a causal link between the tests and the applicant's claimed medical conditions, that was not until 2004 and, in any event, the High Court has since allowed his appeal and sent the matter back to the PAT, before which the matter is pending. Moreover, as is now clear, a significant number of ‘relevant records’ of the 1963 tests were still in existence in 1966, the date of the respondent State's declarations under Article 25 and 46 of the Convention (McGinley and Egan judgment, at § 88): the documents included with the letter of 2 December 1987 from the Minister of State for Defence; those documents referred to in the letter of 3 May 2001 from Porton Down; the records submitted with the Government's observations in the present case (on 9 March 1998 and 5 April 2001); and the additional documents disclosed to the PAT on 6 July 2001, 23 August 2002, 2 and 21 October 2002 and on 18 April 2005.

On the other hand, the Government have not asserted that there was any pressing reason for withholding the above-noted information although they commented on the vagaries of locating old records which had inevitably become dispersed. Reasons of ‘medical confidence’ were not pleaded by the Government and such reasons would, in any event, be inconsistent with the dilution of the notion in the 1990 Act and the apparent decision not to raise it in the context of the 1998 Scheme and Porton Down records. Following certain revisions of their position and de-classification of documents (see paragraphs 53, 55, 57, 59 and 68 above), the Government submitted that, ‘nothing of significance’ had been withheld on national security grounds (paragraph 152 above).

In such circumstances, the Court considers that a positive obligation arose to provide an ‘effective and accessible procedure’ enabling the applicant to have access to ‘all relevant and appropriate information’ (McGinley and Egan judgment, at § 101) which would allow him to assess any risk to which he had been exposed during his participation in the tests (Guerra and Others, § 60).

As to compliance with this positive obligation, the Government mainly relied on the Court's conclusion in the McGinley and Egan judgment that the Rule 6 procedure before the PAT fulfilled this obligation.

The Court considers that that conclusion does not apply in the present case since the essential complaints of Messrs McGinley and Egan and the present applicant are not comparable. The search for documents by the former was inextricably bound up with their domestic applications for pensions in respect of illnesses they maintained were caused by their participation in nuclear tests. In contrast, the present applicant had made numerous attempts to obtain the relevant records (outlined at paragraphs 17–33 above) independently of any litigation and, in particular, of a pension application. Indeed, even when he applied for a pension in 1991, he continued to seek documents in parallel with that application since the Rule 6 procedure was not, in any event, available at first instance. If the present applicant appealed to the PAT it was because he felt constrained to do so in order to make his Rule 6 request for documents following the judgment of this Court in the above-cited McGinley and Egan case in June 1998.

The Court's McGinley and Egan judgment did not imply that a disclosure procedure linked to litigation could, as a matter of principle, fulfil the positive obligation of disclosure to an individual, such as the present applicant, who has consistently pursued such disclosure independently of any litigation. Consistently with the above-cited Guerra and Gaskin cases and as the applicant argued, it is an obligation of disclosure (of the nature summarised at paragraph 162 above) not requiring the individual to litigate to obtain it.

The Government also relied more generally upon the disclosure which had been made through the ‘medical’ and ‘political’ means and upon the other information services and health studies (paragraphs 17–33 and 69–71 above). However, the Court does not consider that, either individually or collectively, these could constitute the kind of structured disclosure process envisaged by Article 8. In any event, it is evident that those processes resulted in partial disclosure only given the later disclosure of relevant records, notably during the present application and the PAT appeal.

In particular, the applicant's doctor was given information in 1987 and 1989. However, the applicant did not see it until 1994 given the ‘medical in confidence’ basis of disclosure, the information did not refer to the mustard gas tests, it was not accompanied by the underlying records and it was, in any event, incorrect as regards certain matters (see paragraphs 19 and 36 above). Having been refused disclosure of further information, the applicant was given access for the first time to original records in 1997: this was an ad hoc procedure adopted in response to his tenacious pursuit of the information (see paragraphs 19–33 above) and it constituted but the first of many instalments.

Moreover, none of the processes described as ‘information services and health studies’ (paragraphs 69–71 above) began until almost 10 years after the applicant had commenced his search for records and, further, after he had introduced his application with this Court.

As to the 1998 Scheme, the Court recalls the difficulties experienced by the authorities, even in a judicial context before the PAT, in providing records pursuant to the Rule 6 order of the President of the PAT. Even taking into account only the period following the making of the Rule 6 order by the President in February 2001, the disclosure has been piecemeal (over five occasions listed at paragraph 161 above, the most recent being in April 2005), the State reviewed its position on the classification of certain material on several occasions during that period (see paragraphs 53, 55, 57, 59 and 68) and, over four years after the Rule 6 order, disclosure remains unfinished (see the letter of 18 April 2005, paragraph 68 above). Indeed, the PAT described as ‘disquieting’ the difficulties experienced by the applicant in obtaining the records produced to the PAT. In the same vein, it is also illustrative that none of the authorities dealing with the Rule 6 procedure or the present application was aware until recently of the Treasury Solicitor's letters from 1953 (see paragraph 72 above). These demonstrated difficulties in making comprehensive and structured disclosure to date undermines, in the Court's view, any suggestion that an individual's attendance at Porton Down to review records retained there (the 1998 Scheme) could lead to the provision of all relevant and appropriate information to that person. It is undoubtedly the case that certain records (existing after 1996) were, given their age and nature, somewhat dispersed so that the location of all relevant records was, and could still be, difficult. However, it is equally the case that the absence of any obligation to disclose and inform facilitates this dispersal of records and undermines an individual's right to obtain the relevant and appropriate disclosure.

Finally, the Porton Down Volunteers Medical Assessment Programme involved only 111 participants and no control group whereas 3000 service personnel had participated in nerve gas tests and 6000 in mustard gas tests, with some having been involved in both types of test. The full-scale epidemiological study did not begin until 2003 and has not yet been completed.

In such circumstances, the Court considers that the State has not fulfilled the positive obligation to provide an effective and accessible procedure enabling the applicant to have access to all relevant and appropriate information which would allow him to assess any risk to which he had been exposed during his participation in the tests.

It is not therefore necessary to examine the applicant's additional submission that the positive obligation required the completion of a ‘long-term follow-up study’ (paragraph 146 above) or the applicant's alternative and secondary arguments outlined at paragraph 148 above.

There has been a violation of Article 8 of the Convention.