The European Court of Human Rights has determined that the UK Government blocked vital information requested by an ex-serviceman about the poisonous tests he underwent at the Porton Down Chemical and Biological Defence Establishment in the 1960s.

Thomas Michael Roche, represented by Liberty, is a registered invalid and has serious health problems as a result of his exposure to mustard and nerve gas tests while serving in the British army.

The Court also determined, in a 9-8 vote, that Mr. Roche had not been denied access to the courts by the Crown Proceedings Act 1947, which barred servicemen from suing the Government.

Commenting on the case, James Welch, Liberty’s Legal Director, said:

“It’s taken Mr. Roche almost 20 years to get information from the Government about the dangerous tests he was subjected to. If the Government is having difficulty recruiting new forces as reported this week, surely treating retired veterans with respect is a partial remedy.”

Liberty Press Office on 0207 378 3656 or 07973 831 128

NOTES TO EDITORS

The European Court of Human Rights delivered its Grand Chamber judgment in the case of Roche v. the United Kingdom on Wednesday 19 October 2005.

The Court held unanimously that there had been a violation of Article 8 (right to respect for private and family life) and by nine votes to eight, that there had been no violation of Article 6 (access to court.)

Roche v. the United Kingdom

The case concerns an application brought by a United Kingdom national, Thomas Michael Roche, who was born in 1938 and lives in Lancashire (United Kingdom). Mr Roche served in the British Army between 1953 and 1968.

In 1987 he developed high blood pressure and now suffers from hypertension, chronic obstructive airways disease (bronchitis) and bronchial asthma. He has not worked since 1988 and is registered as an invalid. He maintains that his health problems are the result of his participation in mustard and nerve gas tests conducted by the British Armed Forces at the Chemical and Biological Defence Establishment (CBDE) at Porton Down Barracks (England) in 1962 and 1963. There is no record of his having participated in such tests in 1962 but it is not disputed that he did so in 1963.

From 1987 the applicant actively sought access to his service records via medical and political channels, with limited success. On 10 June 1991 he submitted a claim for a service pension. On 28 January 1992 the Secretary of State rejected his pension claim as he had not demonstrated a causal link between the tests and his medical condition.

In 1994 he threatened to bring judicial review proceedings alleging, among other things, negligence on the part of the Ministry of Defence. On 3 August 1995 the Secretary of State issued a certificate under section 10 of the Crown Proceedings Act 1947, which effectively blocks any such proceedings concerning events prior to 1987 while allowing the person concerned to apply for a service pension.

In November 1998 – following the European Court of Human Right’s judgment of 9 June 1998 in the case of McGinley and Egan v. the United Kingdom – the applicant appealed to the Pensions Appeal Tribunal (PAT). He applied for the disclosure of official information under Rule 6 (1) of the PAT Rules to enable the PAT to decide whether his illness was caused or aggravated by the Porton Down gas tests. In February 2001 the PAT ordered the Ministry of Defence to disclose certain categories of records and certain documents were disclosed in 2001 and 2002. The PAT found against the applicant on the substance of his appeal. He appealed successfully to the High Court, which remitted his case to the PAT.

The applicant complains that he was denied adequate access to information concerning the tests he underwent at Porton Down in violation of Articles 8 (right to respect for private life) and 10 (freedom of expression) of the European Convention on Human Rights. He also complains that the certificate issued by the Secretary of State under section 10 of the 1947 Act constitutes a violation of his right of access to court, guaranteed by Article 6 § 1 (right to a fair hearing), and of Article 1 of Protocol No. 1 (protection of property) taken alone and in conjunction with Article 14 (prohibition of discrimination). He further relies on Article 13 (right to an effective remedy).

The application was lodged with the European Commission of Human Rights on 31 January 1996 and transmitted to the European Court of Human Rights on 1 November 1998. The case was declared partly admissible on 23 May 2002 and on 25 March 2004 the Chamber relinquished jurisdiction in favour of the Grand Chamber[1][1]. A public hearing took place in the Human Rights building, Strasbourg on 20 October 2004. ENDS//