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Alan Care [a personal view].

In 2001 I gave an interview to the Guardian. A front page story reported that Scotland Yard were to investigate any criminal aspect involving the atomic bomb tests. That enquiry was undoubtedly the hottest of political potatoes and was quickly dropped. ["Police enquiry into 50's nuclear tests". Rob Evans 28/12/2001].

Other solicitors firms then took up the veterans cause but Legal Aid funding was withdrawn. The solicitors packed up their tents and the issue went into the long grass. Rosenblatt solicitors then took up the veterans cause who now act in the current multi-party litigation having spent in excess of £15 million in litigation legal costs to date.

I recall an apocryphal tale of Tony and Cherie Blair’s visit to an atomic bomb veteran in hospital before Labour was elected saying afterwards “we must do something for these poor veterans”. If true, just as with the Porton Down veterans, such feelings changed and hardened when elected.

Porton Down litigation

I dealt with the Porton Down veterans litigation from 1994 until 2009 when it finally resolved several million pounds in compensation being paid to the veterans. This litigation and the campaign was about unlawful experimentation (lack of consent/Nuremberg Code) and service personnel. The issue included the death of Ronald Maddison in 1953 and was reported as one of the biggest “cover ups” of the Cold War.

BBC news report - Porton Down http://news.bbc.co.uk/player/nol/newsid_5010000/newsid_5018400/5018468.stm?bw=bb&mp=wm&news=1&bbcws=1

Before Labour’s election in 1995 there was a press conference and Press Release by Derek Fatchett MP then Labour Shadow Minister for Defence [now deceased] calling for inquiry along lines of Clinton radiation experiments and long-term health study for the veterans. But in 1997 Dr J Reid (then MoD Minister) refused this health review for veterans upon the "grounds of cost and impractical". Dr Moonie, a subsequent Defence Minister, 3 years later changed this when he announced long-term health studies of Porton Down volunteers.

In the meantime the litigation grinded on as Porton Down veterans expired with old age and ill health. There were House of Commons debates.

In 1999 Wiltshire Police began their criminal investigation “Operation Antler”. This resulted in 66 “development” cases being submitted to the Crown Prosecution Service in 2003. All were turned down. But it was as a result of this Police investigation that the true picture emerged about the death of Ronald Maddison at Porton Down in 1953. The Lord Chief Justice ordered a new inquest after HM Coroner David Masters request. The 1953 inquest (held in secret) returned a verdict of misadventure. The 2004 inquest jury’s verdict was wholly different and that Ronald Maddison was “unlawfully killed” (a criminal standard of proof). The MoD tried to overturn this verdict at a Judicial Review but the amended verdict stands.

So 15 years until 2007 for the MoD to face up to its Cold War past. I can see plainly stark similarities with the atomic veterans cause. The UK government approach and wording is uncannily similar for all claims involving toxic exposure. This is I understand is the “Waterloo” MoD defence to litigation and truly time tested. For example do see MoD press releases - Porton Down, “Gulf War”, atomic bomb veterans, depleted uranium and others.

The Waterloo defence as blueprint?

The value of the claims are worked by the MoD as “tank costs” ie how many tanks will it cost from the MoD budget. The MoD system and litigation response follows a well established pattern of denial and obfuscation.

1. First deny claims as barred because of Section 10 “Crown immunity”. That failed for the atomic bomb veterans with Pearce in the House of Lords in 1985.

2. Then say the claims are too old and statute barred. That issue continues until today for the atomic test veterans and will be resolved by 7 law Lords in November.

3. For the MoD you should always temper your position by saying [all the following extracts are taken from apology given to House of Commons as reported in Hansard in 2008 by example]:

“The Government have in the past made clear the debt owed by the nation to those who took part in the trials at Porton Down [substitute atomic tests as the phrase is interchangeable for whatever cause] designed to ensure that the United Kingdom had the defensive and deterrent capabilities to counter the real and horrific threat that chemical weapons [change to atomic weapons] would be used against our armed forces or civilian population, as they had against others; the security of the country rested on these trials and the contribution of those who took part in them. The trials were in many cases conducted under considerable pressures of time as new threats emerged”.

4. Then if the MoD are eventually pushed to the wall because of litigation add

“The Government accept that there were aspects of the trials where there may have been shortcomings and where, in particular, the life or health of participants may have been put at risk. The Government sincerely apologise to those who may have been affected”.

5. If all else fails say the science is not there yet.

6. When, as the MoD you have run out of cards to play, then settle the claims but rather begrudgingly say -

“The Parliamentary Under-Secretary of State for Defence (Derek Twigg): The Ministry of Defence has for some months been in discussions with solicitors representing a group of Porton Down veterans regarding compensation claims arising out of their participation in the programme of trials undertaken at the Chemical Defence Establishment during the cold war. I am pleased to report that an amicable settlement has now been reached with respect to these claims. This settlement is without admission of liability by the Ministry of Defence and involves the payment of a global sum of £3 million in full and final settlement of all claims made by the group”.

So I see the atomic bomb veteran litigation as a repetition to what I faced when first taking up the Porton Down litigation given the MoD’s present response. No other lawyer wanted to know about the Porton Down veterans until the final years after the second inquest.

Disclosure

Has everything been disclosed by the MoD in the atomic bomb litigation? A lesson from the Porton Down litigation is that the crucial “Smoking Gun” liability letter written by the Treasury Solicitor dated 1953 did not “surface” (Treasury Solicitors words) until the second inquest in 2004. This letter from the Treasury Solicitor to Ministry of Supply [forerunner of MoD] was then disclosed and stated:

‘…The sentence ‘Tests are carefully planned to avoid the slightest chance of danger’ has proved misleading. Indeed it is difficult to see how it was ever possible to say truthfully that tests with lethal gases did not contain ‘the slightest chance of danger’…”

I had requested full disclosure from Porton Down/MoD in 1994. Only six months before this the very same 1953 letter was being reviewed by Porton Down’s own historian.

Long term health

A similar approach as to long term health consequences for veterans and causation seems to apply. In 2004 Lee et al. Porton Down Volunteers' Medical Assessment Programme (PDVMAP) reported:

"Clinical findings in 111 ex-Porton Down volunteers". "Conclusion: On a clinical basis, no evidence was found to support the hypothesis that participation in Porton Down trials produced any long-term adverse health effects or unusual patterns of disease compared to those of the general population of the same age".

By 2009 (after settlement of the litigation) the MoD funded Oxford University studies (set in motion by Dr Moonie in 2000 and took 9 years to complete) were eventually published "Long-term effects of the Human Volunteer Programme at Porton Down".

‘We have found a small increase in overall death rates in the Porton Down veterans when compared with other veterans but no increase in overall cancer rates. Many of the Porton Down veterans have concerns about the effect that taking part in experimental tests will have had on their health. We hope the results of this independent study may help to answer some of their questions..."

It all sounds rather familiar. Forgive my cynicism.

The historical perspective

By 2007 "Medical Ethics and Human Experiments at Porton Down: Informed consent in Britain's Biological and Chemical Warfare Experiments". [Professor] Ulf Schmidt, School of History, University of Kent was published. By 2008/9 the London Wellcome Collection exhibition "War + Medicine" included a display of the 1953 Treasury Solicitor letter. The “Porton Down Project” continues and publication is awaited.

What now for the veterans?

So what chances of success and justice for the atomic bomb veterans? The arrogance of the British Government and MoD is breath taking. Whereas most nations involved in the bomb tests have paid out compensation the UK seemingly as always stands alone. Again we see a failure of UK governments to face up to its Cold War past and give the benefit of doubt to the veterans who have served their country.

The MoD have fought tooth and nail using every legal technicality to prevent these veterans taking their cases to Court for over a quarter of a century. At long last, in November 2011, the Supreme Court will consider the issue of limitation during a 4 day hearing. At least the MoD have done the decent thing for any other veteran wanting to bring a claim now be it late in the day and have now formally advised that any veterans wishing to join the multi-party action (presently about 1,200 veterans) need not issue proceedings but await the result of the Supreme Court limitation hearing in November of this year.

What a civil servant said in 1959

For the Porton Down veterans a civil servant perhaps summed it all up by saying in 1959 - "If we tell them that the experiments should be lethal there would inevitably be a sharp fall off in numbers, and probably a degree of embarrassing publicity. On the other hand, if no more warning of the danger is given than at present, we may be quite rightly accused of deliberate misinterpretation in the future".

We shall have to wait and see how our Supreme Court decides to deal with the atomic veterans. ___________