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Atomic Test Veterans' pension appeals:

a shameful miscarriage of justice

Why such a desperate fight to maintain the Sellafield Defence?
Nuclear power under a cloud

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Between 2004 and 2013 Busby gave expert evidence in several appeals. Throughout these cases the SSD relied on the radiation risk model advised by the International Commission on Radiological Protection (ICRP), according to which the veterans' doses were far too small to have caused their cancers. Busby calls this the Sellafield Defence. In court he showed in precise detail how the Sellafield Defence rests on ICRP's concept of absorbed dose and that it is a phony construct, developed in the Cold War to support nuclear bombs. By 2013 the evidence had proved so decisive that the Tribunal had upheld six men's appeals.

But Governments everywhere use ICRP advice to regulate all kinds of radiation exposure. Thus the apparently insignificant matter of whether a few old men should be granted pensions was, in reality, a very significant threat to business as usual for state-sponsored nuclear enterprises - power stations, Trident, depleted Uranium weapons and nuclear submarines. The future of these industries rests on denying the evidence. On the basis of what has happened to the veterans we have to conclude that the law is not as independent of the Government as it ought to be.

Excluding the Evidence

After 2013 an operation was launched. First, solicitors Hogan Lovells, acting for a new group of veterans whose appeals were still undecided, threw out Busby's expert evidence a few days before the hearings began in January 2014. Inevitably, the appeals failed so pensions were refused.

The veterans immediately appealed to the Upper Tier Tribunal asking for Busby's evidence to be included. There were further hearings in which Busby was cross-examined at great length on the science. The result, in December 2014, was both a victory and a defeat for the veterans: the victory was that the Upper Tier Tribunal cancelled the Lower Tier's decision and ordered a complete rehearing by a new Lower Tier Tribunal. The bad news was that Busby was barred from giving expert witness evidence because the SSD had argued that he was an activist, and therefore biased.

There was, however, no obstacle to Busby acting as a 'representative' (normally the job of a barrister). In this new role he submitted the veterans' Statement of Case. It consisted of evidence from eminent scientists - Professors Vyvyan Howard, Inge Schmitz-Feuerhake, Malcolm Hooper and Shoji Sawada - supporting the argument that ICRP is inadequate for radioactive substances inside the human body.

The Upper Tier's ruling required the SSD's lawyers to respond to the evidence. There was only one thing they could do to prevent the Sellafield Defence collapsing - they refused to respond. When the SSD's expert reports finally appeared (months after the deadline) they made no mention whatever of any of the arguments specified in the veterans' Statement of Case.

Busby made a written complaint. Roger ter Haar, the Barrister representing another group of veterans, also complained of arrogant disregard of the Orders.

SSD barrister Adam Heppinstall QC replied that, as his experts

had been instructed to consider all the evidence, there was no need to respond line by line.

We therefore expected to be able to cross-examine the SSD experts on the scientific evidence, but it became obvious that those experts had not in fact been instructed to look at any of it. For example, Mr. ter Haar cross-examined the MoD's witness Dr. Richard Haylock ...

Mr. ter Haar ... if I understood it right, you were not asked ... to set out for the benefit of the Tribunal if there was an alternative body of scientific evidence ... That was not part of what you were asked to do?

Dr. Haylock: No.

(Read it all at transcript of Day 8, page 91, line 11. And do read down to page 93 line 4 to see that Dr. Haylock was taking a partisan line thus failing the standards required of expert witnesses in English courts.)

Cross-examination of Professor Geraldine Thomas revealed that she too had not been instructed to consider the alternative evidence. She said:

I was asked to do a very specific job, which was to consider whether there was reasonable doubt raised on reliable evidence that exposure to ionising radiation at certain British nuclear tests was the cause of the appellants' claimed condition and I was asked very specifically to only do that and based on the dose, which was assessed by Rick Hallard, who is our expert on that.

(You can read it on transcript of Day 4, page 103, line 9. And if you have the patience, read on to the end of the cross-examination ending at page 140. It shows how partisan she was - and so voluble!)

So it is clear that Adam Heppinstall, the SSD's barrister, had misdirected the Tribunal by claiming that his witnesses had been instructed to consider all the possibilities and certainties. It was not a slip of the tongue - it was in writing. Misdirection perverts the course of justice, so we have taken this issue to the Bar Standards Board as a formal complaint against Mr. Heppinstall.

Questionable expertise

The transcripts show that the SSD stratagem of not addressing the evidence was compounded by choosing experts who didn't have the expertise to respond to cross-examination on topics such as epidemiology, biochemistry, microdosimetry and meteorology which were all material to our argument. Professor Thomas took this to a laughable extreme when Mr. ter Haar asked her (Day 4, page 137, line 10) whether uranium inside the human body might cause cancer. She said there was no evidence and added … because we're all exposed to stable uranium. Busby later took her back to this, asking her if she really thought there was a non-radioactive form of Uranium (same transcript, page 159, line 7 etc.). She replied

Stable uranium is not radioactive; it is the non-radioactive isotope of uranium.

Next day it came up again. In his cross-examination, Busby asked Professor Thomas about a study of the genetic effects of Uranium. Before he got to the point of asking her any questions she said she had issues with the methodology - she would have liked the study to have used a control population exposed only to stable Uranium. She maintained this nonsense at length (see it here as a web page) while the court room was buzzing with incredulity. Eventually the SSD barrister Heppinstall had to get her to admit that all forms of Uranium are radioactive.

All three of the SSD witnesses avoided tricky questions or gave long irrelevant and rambling answers; they frequently retreated behind the excuse that a question was outside their expertise although they went beyond their expertise if they wanted to. This was particularly true of Professor Thomas, picking and choosing which epidemiological matters she would or would not discuss.

The involvement of Judge Blake

Getting away with this required active assistance from the Judge. Blake J was consistently hard on the veterans. He ambushed us two days before the hearings began, ordering that we could not refer to any papers published in the peer-review literature if Busby had written them. He was applying the Upper Tier Order which said Busby could not give expert testimony but he extended it by excluding papers on which Busby was named only as a co-author. This was a particular problem with Professor Schmitz-Feuerhake's review of genetic defects after Chernobyl which indicated a 1000-fold error in the ICRP model. It was a very unfair trick; if Blake had made this decision when the case began more than a year earlier we could have accommodated it and written our plea accordingly.

Blake also excluded all our meteorological evidence that the wind directions for the big 3-megaton Grapple Y test brought the fallout onto the Island, on the basis that we were not experts in meteorology.

Throughout Busby's cross-examinations Blake consistently interrupted at points when he was putting SSD witnesses under pressure. On the other hand Blake permitted Heppinstall to savagely attack the vets' experts suggesting, on no evidence, that they were activists and campaigners rather than the eminent scientists they are.

Quantitative stupidity and strange reasoning

A major problem is that Blake is scientifically ignorant and has a poor grasp of arithmetic. For example, he accepted that both the published studies of Australian and New Zealand test veterans found levels of leukaemia and other cancers which the ICRP model does not predict, yet at the same time he maintained that ICRP was accurate. In a similar lack of understanding of the ratio between study groups and controls, he dismissed Professor Shoji Sawada's evidence that the wide-spread Uranium Black Rain after the Hiroshima bomb caused radiation effects in people several kilometers away from the epicentre - symptoms such as hair loss, purpura and diarrhoea which are consistent with very large external doses of gamma rays and neutrons from the bomb. The point Sawada was making was that the symptoms were reported from places so far away that the Black Rain fallout was the only exposure and that it caused internal doses following inhalation and ingestion. Blake failed to grasp that this falsifies the results of the Japanese A-Bomb studies on which ICRP depend. For the same reason he found it "impossible" that the New Zealand Navy veterans had chromosome damage consistent with high doses of radiation because the Geiger counters on the ships hadn't recorded high levels. The idea that internal Uranium binding to DNA could cause genetic damage equivalent to high external doses seemed to be beyond his intellectual grasp.

The Shackleton survey; MoD's mistake

New evidence appearing in this case showed what really happened at Christmas Island. The SSD failed to allow for the fact that winds at different altitudes can blow in different directions. The big 3 Megaton Grapple Y bomb exploded at a lower altitude than intended which explains why Derek Fiddaman, who witnessed the test (he was in court during the appeal) has always said huge amounts of seawater were sucked up into the stem. This water then rained out of the radioactive mushroom cloud bringing down the Uranium, Plutonium and other fallout. The SSD maintained that the wind was blowing away from the shore and that this meant there was little or no fallout on Christmas Island. But this was only the low altitude wind; the upper wind was in the opposite direction, blowing the huge mushroom back over the island.

According to evidence from RAF navigator Joe Pasquini, the cloud diameter was 110km and it covered the whole island. Pasquini should know, since he flew through it in a Canberra measuring dose rates, but Blake decided that Pasquini had an agenda, and he preferred evidence which SSD expert witness Ken Johnston had provided to earlier hearings. Mr Johnston had used photographs to calculate a much smaller 70km diameter. Blake's reliance on this evidence was one of the situations where cross-examination was impossible, since Johnston is now dead.

But here is a serious legal process point. Months after the hearings Blake put a supplementary question to Dr. Rick Hallard, one of the SSD's experts. He asked about the doses incurred by the crew of a Shackleton survey aircraft as they monitored radiation levels up to 100 miles west of Christmas Island some hours after the detonation. Hallard's answer shot the SSD case in the foot when he explained that 90% of the dose would have come from pre-existing radioactivity on the plane's fuselage. This means the Shackleton had already been seriously contaminated before it took off. There are two possible explanations - either it was contaminated during an earlier flight to the east, or fallout had landed on it while it was on the ground waiting to take off for the afternoon flight. The airfield was near Port London where the servicemen lived, 40 km from the detonation site.

Parenthetically, this may explain why Blake preferred the late Mr. Johnston's opinion that the cloud was only 70 km wide but either explanation creates significant doubt about the SSD's argument that there was no fallout. We asked to address the new Shackleton evidence. Blake didn't allow it, but it's another appeal point - after all, if Hallard had given this evidence from the witness box, he could have been cross-examined and we probably would have established that the pre-contaminated Shackleton was evidence of fallout on the island.