News 15th June 2013.
Nuclear Test Veterans Appeal Pensions Decision: A conspiracy?
Those Atomic Test Veterans who have been involved in legal actions in the UK appear to have been betrayed in 2013 by their own agents, the Royal British Legion and their solicitors the US firm Hogan Lovells International LLC. The case was a combined hearing in London for Ionising Radiation Pensions Appeals for 16 veterans of the UK Atomic Tests in Australia and Christmas Island. It was a key event in the saga of the Atomic Test Veterans and their need to show that these tests affected them and their children and grandchildren. Dr Busby outlines the history of the betrayal in a presentation from Riga here: http://youtu.be/ll11ZXpbDKg
In this Youtube outline of the situation, Dr Busby explained that he would be putting all the paperwork on the Green Audit website, and that of the Low Level Radiation Campaign
These appeals were questioning earlier decisions not to grant a pension for illnesses and conditions cause by exposure to radiation at the Test sites. The government case was that the vets received very low doses and no effects could be predicted. Busby’;s argument was that for internal radiation and Uranium the doses were unmeasurable and that “dose” itself is an unsafe concept for internal exposure.
Dr Busby was involved as an expert commissioned by Rosenblatts Solicitors in the substantive veterans case against the Ministry of Defence from 2008. But as far as the appeals cases were concerned, where the burden of proof is far smaller (raising reasonable doubt) by 2010, Dr Busby had already won a number of cases for the veterans (e.g. see decisions for Colin Duncan, John Cammish), and at that point had produced new reports for three cases which were due to be heard individually. These were for Dawn Pritchard, Derek Hatton and Mary Williams who all asked him to act as expert witness for them (by 2013, when the case was eventually heard, the first two had died). In 2010 all the outstanding cases were ordered to be heard together.
Because of his earlier successes, he was commissioned by the Test Vets then solicitors, Rosenblatts, to prepare composite reports for the 16 outstanding veterans appeals. This he did. By the end of 2012 he had provided more than 12 reports to the Tribunal for the composite case. Also by the end of 2012 Busby had obtained access through Freedom of Information requests to a number of reports which had been hidden by the Ministry of Defence. These included evidence from photographs taken at Christmas Island that the Grapple Y bomb had sucked up enormous amounts of sea water which rained out as black rain. The black rain was black because the bomb, according to a top secret document, was made of 4 tons Uranium. It was the Uranium particles that were the most likely cause of the cancer and other health problems in the veterans and the genetic damage and malformations in their children and grandchildren. This was exactly like the uranium effects in Iraq and in the Gulf War veterans and their children.
But this evidence had to be excluded by the UK government which is beginning to have to fight Depleted Uranium cancer cases also. Something had to be done, and it was. In December 2012 Rosenblatts in a sudden and very peculiar move pulled out of the case thought they retained two appellants. This meant a gap which was promptly filled by a Washington based firm, Hogan Lovells International, a firm which had a history of representing the establishment, and pharmaceutical industry in court (check on wikepedia). Indeed, the UK end of Hogan Lovells lists on the website as a past client, the UK Treasury Solicitor, the very person who is defending the appeals for the Ministry of Defence. Hogan Lovells said that they would do this work for nothing, pro bono, but they actually received £47500 in legal aid. A letter to Don Battersby, one appellant, who applied for the legal aid is available. Battersby was in fact the strongest case of all, but his case was lost by Hogan Lovells. The plan appears to have been that Hogan Lovells would cut out Busby at the last possible minute before the hearing and not tell any of the appellants they were doing this. If Busby complained to the veterans themselves, there would be no time for any appellant to remedy this, and if they did try to, they would be (and were ) bullied into compliance. Hogan Lovells were to enlist another physicist as expert witness, one Prof Paddy Regan, a man who has no experience of radiation and health and no publications in this area, but critically, for losing the case, a man whose evidence supported the current radiation risk model and which related nothing about Uranium effects. With Regan as expert, all the cases were automatically lost. That seemed to be the plan. But even if there was some astounding innocent explanation, that is what happened.
But we never give up. Having contacted some of the appellants, Busby got in touch with a legal team he has worked with in the past in various cases. The key to an appeal under the relevant Acts is that it has to be a Point of Law to succeed. There may in fact be a Point of Law. It is that the tribunal had all of Busby’s evidence, all 12 reports, but did not refer to them or discuss them in the Judgement (strictly, the Decision). So the judge could write things in the Decision which he knew were falsified by the evidence before him. How can this be?
Now this may sound crazy, and it is crazy, but the situation in English Law is that a judge does not have to consider any evidence which is not relied on by the opposing parties. What?! Yes that is apparently true. Let us see two examples. The first is the Decision in this case. The second is a thought experiment.
A man, Mr Innocent, is accused of stabbing his wife to death. For some reason the government engages in a conspiracy to have Mr Innocent found guilty. Maybe they don’t like him, he is some danger, maybe he had evidence that Saddam Hussein did not have weapons of Mass Destruction. There is a piece of evidence before the judge, brought by the police, or a private detective, Sam Spade. It is a signed statement from the Bishop of Bootle saying the Mr Innocent with him when the killing was done. But neither prosecution nor defence lawyers want to rely on it (since they are in the conspiracy). Under English Law, the judge can ignore the evidence and find Mr Innocent guilty. And this is what happened to the veterans, apart from the conspiracy argument, that is. It might of course be innocence and incompetence on the part of Hogan Lovells and the Royal British Legion. They may have genuinely thought that the chance of winning the appeals with Regan was better than with Busby. But then why not ask the appellants what they wanted to do? Why not raise the issue in time for a discussion? Why not address the fact that Busby had a record of winning several appeals and Regan had no record of winning any appeals. The question of conspiracy is not really to the point (except to suggest that the vets should be more careful about whom they trust). The point is this: why did the judge go along with this? He could have called Busby to support his evidence under cross examination. In fact the same judge had heard most of this evidence already in the earlier cases where the same judge had found for the appellants. This is the proposed Point of Law in the appeal.
It is a serious matter for all test veterans everywhere. The written reason for putting all the appellants in one case was avowedly to “influence future decisions about test veteran pensions appeals” and also of course the larger case of the Test Veterans against the UK government which was being handled by Rosenblatts and which has stalled.
The main man in the Rosenblatt case against the government, Neil Sampson has just had a heart attack and is out of the game. The other main man, Stephen Evans, who was with Rosenblatt and worked with Busby until Rosenblatt pulled out, then worked for the Royal British Legion and Hogan Lovells. He is now hard to find..
Meanwhile, Hogan Lovells are trying to get all the appellants to joint them in an appeal. This appeal is based on the idea that the judge made the wrong decision. This is also rather suspicious, since Hogan Lovells know quite well that such an appeal will fail in law. The law says clearly that an appeal can only succeed on a point of Law. Hogan Lovells have no Point of Law. But if we revert to our suspicious approach to all this, they may not be taking the appeal to win it, but to lose it. The appeal will fail. And that may be the strategy: that will close all the loopholes. The news will be: Judge found there was no case. All the Appellants lost appeal. Radiation did not cause all the effects in the veterans because the doses were too low.
There was another interesting thing: two of the vets died of pancreatic cancer in their 60s. This is two out of 16. Epidemiologically this is a very powerful case statistically that these two men totally unrelated with only Test site exposures in common, were exposed to the same cancer producing agent. The probability of this occurring by chance in two random men is about 500,000 to one. Now Hogan Lovells employed an epidemiologist expert witness, one Prof Louise Parker. She certainly is an epidemiologist: so why did she not raise this exceedingly powerful argument in the Tribunal hearing? Perhaps she also is incompetent. Perhaps she missed it.
So Busby and his small legal team are taking a separate appeal, on the point of Law that his evidence, which would have won the case, as it did several other earlier cases, was excluded by the lawyers representing the veterans, without their knowledge or informed consent. And the judge did not consider it but should have. The appeal letters are uploaded.
We could do with some help for this. First kick up a fuss. Write to your MP. Write to the Judge at the address in the appropriately named “Fox Court”. We could also do with money for this top pay for time, to pay for our lawyers.; so if you want to help get in touch. But we will do it anyway. You can find all the main papers in the attached bundle. The file names are below. Let us try and make such a public fuss that they will be shamed into putting aside the decision re-opening the case.
Busby (2008) Do gamma doses from film badges give information about internal doses to atmospheric atomic test participants from beta and alpha emitters?
Busby C (2008) Expert witness statement for Dawn Pritchard Pensions Appeals case ENT/00039/2008; NINO YB7208272 (dawnpritchrept.doc)
Busby C (2009) Supplementary statement for Dawn Pritchard Pensions Appeals case in response to questions from Tribunal ENT/00039/2008; NINO YB7208272 (dawnpritchrept2.doc)
Busby C (2009) Expert witness statement for Mr Derek Hatton Pensions Appeals case NINO ZS133518B 32pp
Busby C (2010) Health consequences of exposures of British personnel to radioactivity whilst serving in areas where atomic bomb tests were conducted. Composite report for the Royal British Legion, the RAFA and Rosenblatts Solicitors in response to Tribunal Service Directions issued 23 July 2010 in respect of 16 named appellants. (testcaserept5.pdf) 152 pages.
Busby C (2010) Health consequences of exposures of British personnel to radioactivity whilst serving in areas where atomic bomb tests were conducted. Supplementary Report 1st October 2010 on 3 additional cases. (testvetrept4suppl2.doc)19pp
Busby C and Williams D (2010) Meteorological records, airflow and othet factors affecting local fallout from British nuclear tests at Christmas Island in 1957-58). A joint report from Green Audit and Eos. Oct 2010. Occasional Paper 2010/12 35pp (testhysplitrept.doc)
Busby C (2012) Health consequences of exposures of British personnel to radioactivity whilst serving in areas where atomic bomb tests were conducted. Supplementary Report 1st October 2010 on 3 additional cases. 2nd Supplementary report. Jan 2012. Gisted secret reports. (testvets2ndsuppl.doc) 13pp
Busby C (2012) Health consequences of exposures of British personnel to radioactivity whilst serving in areas where atomic bomb tests were conducted. Response to K Johnston: Exposure to ionizing radiation at Christmas Island. A Review. 5th Feb 2012 (testvets3rdsuppl.doc) 15pp
Busby (2012) Health consequences of exposures of British personnel to radioactivity whilst serving in areas where atomic bomb tests were conducted. Alpha emitters in the fallout and estimated dosimetry for the Christmas Island Tests: evidence from the secret documents. Feb 10th 2012 (testvets4suppl) 19pp
Busby (2012) Health consequences of exposures of British personnel to radioactivity whilst serving in areas where atomic bomb tests were conducted. Response to K Johnston: Ionising radiation appeals: Christmas Island Radiation Exposure Revised Dose Estimates. A Note. Aug 29th 2012 (testvets5suppl)
Busby C and de Messieres M (2007) Nuclear Veterans Child Health Study. (testvetrept.pdf)
First Appeal letter anonymised
Second Appeal letter anonymised
The Reserved Judgement May 2013. (Ionising radiation appeal decision.doc)
Canberra data Grapple Y (sniffgrapY.pdf)
Oldbury 1964 decontamination Christmas Island (aeoldbury.pdf)
Oldbury’s paper analysis by Busby showing Uranium (oldburyreptA.pdf)
Grapple Y Lancaster photos showing seawater (photograpY….pdf)
Cammish decision (Cammish Decision.pdf)
Duncan Decision (Duncan Decision.pdf)
Eyewitness observation of the black rain at Grapple Y Christmas Island (joepasq.doc)
Environmental monitoring at Christmas Island: the Clare paper that the MoD rely on.
New Zealand survey of Christmas Island showing Radium and Uranium present (newzealandsurvey.pdf)