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Anonymised second appeal letter to the Pensions appeals Tribunal in the Ionising radiation appeals

Anonymised second appeal letter to the Pensions appeals Tribunal in the Ionising radiation appeals

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Published by Chris Busby
This is the second of these appeals to the First Tier Tribunal in the Ionising Radiation Pensions Appeals asking for a reconsideration of teh Decicion in view of the fact that Dr Busbys evidence was excluded from consideration
This is the second of these appeals to the First Tier Tribunal in the Ionising Radiation Pensions Appeals asking for a reconsideration of teh Decicion in view of the fact that Dr Busbys evidence was excluded from consideration

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Categories:Types, Research
Published by: Chris Busby on Jun 22, 2013
Copyright:Attribution Non-commercial

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06/22/2013

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
AddressJudge Hugh Stubbs5
th
Floor, Fox Court14 Grays Inn RdLondon WC1X 8HN10
th
June 2013Dear Judge StubbsI would like to apply for leave to Appeal your Reserved Decision of 7
th
May 2013 [1]with regard to my case (

) and would be grateful if you could deal with thecase in the light of the
overriding objective
under Section 2 of the Rules [2].I will be content were you to agree to review your decision rather than forwarding thisappeal to the Upper Tier. But in either case this is because you have not dealt with points which Prof Busby raised in his evidence before you and which I refer to ingreater detail below.I appreciate that in your decision you state that my lawyers did not want to rely onProf Busby’s evidence, but it was not explained to me until the very last minute thatthis was the case, and the implications of this were not explained to me in any waythat I could make an informed decision. The whole process may perhaps beconsidered as an “procedural irregularity” [3].It is my understanding, and I believe also that of the appellants, that Prof Busby had been successful in a number of Pensions Appeals cases in the past, including appeals before the current Tribunal judge, yourself, and at the time of the consolidation of allthe cases in 2009 into one hearing Prof Busby was already acting as expert witness for three of the cases (the late Dawn Pritchard, Mary Williams and the late Derek Hatton)and had provided expert reports to the Tribunals Service in these cases.The principle facts are as follows:1. In 2009, when the consolidation was ordered, for this reason, Rosenblatts hadspoken with the 16 appellants (including me) and with our agreement hadcommissioned Prof Busby to write an expert report on the general issues together withspecific reports for individual cases for the hearings. Rosenblatts have represent methroughout this appeal. Prof Busby made an initial 150 page report for the case in2010 [9] and supplemented that with a series of other reports including one which wascommissioned by Rosenblatts and which specifically addressed my case. In this report[10] Prof Busby drew attention to the fact that there were two pancreatic cancer casesin the 16 appellants. He pointed out that the probability of such an event occurring bychance was vanishingly small and that therefore these two cases, that of 

andof Mr Alun Williams [4, 5, 9] could not have occurred by chance and had to do with1
 
what antecedent cancer producing exposure they had in common [10]. This on itsown, Prof Busby stated, must raise reasonable doubt. Similar statistical arguments ontheir own have influenced many legal cases.2. By the end of 2012 Prof Busby had obtained access to a number of documentswhich he had discovered by the Freedom of Information Act Requests which he hadmade since 2008 and followed up, and which he had requested, and which ultimatelywere released in some cases in redacted form following an order by the Tribunal.By the end of 2012, Prof Busby had provided 12 separate reports on the issues [4-16]including three reports which drew attention to significant new evidence on the link  between internal radiation exposure to Uranium, the main component of all the bombs, and bomb tests, and a range of ill health effects, including cancer. The effectsof Uranium particle inhalation and ill health including cancer and leukaemia at verylow doses is an area where Prof Busby is an acknowledged expert with many research papers and reports on the issue to his name. Indeed, in 2009 he assisted a coroner’s jury to a verdict implicating very low inhalation doses of Uranium in the Gulf War inthe subsequent cancer and death of a soldier, Stuart Dyson and he has carried out bothepidemiological and theoretical work which has been published in the peer reviewliterature on this issue, and should provide a base for raising reasonable doubt in thecase of the Christmas Island veterans who were all exposed to particulate respirableUranium, the main component of the bombs.3. Several of these reports were produced as a result of Directions made by theTribunal Judge, yourself.4. Taken together, these reports, and Prof Busby’s evidence, provided the most powerful expert evidence for the success of my appeal. However, as a result of anunfortunate and curious decision made in December 2012 as I now understand, Dr Busby’s reports were not relied upon by the barristers who were instructed byRosenblatt.5. Nevertheless, it is true that all Dr Busby’s reports were submitted and available tothe Tribunal. I believe that the Tribunal should, in the interest of Justice [3] havetaken note of them and included consideration of their content in making the reserve judgement. It did not, and this clearly influenced the final decision.6. Dr Busby himself was not informed of this decision by Rosenblatts at all but heardfrom Hogan Lovell, who represented other appellants on 13
th
January in a letter dated10
th
January, some two weeks or so before the hearings.7 As I understand it Dr Busby then entered into correspondence with Hogan Lovelland stated he would write to individual appellants informing them of this developmentwhich he believed they were unaware of. I was contacted by Neil Sampson of Rosenblatts at a very late stage who explained that Prof Busby had agreed to comeand support his evidence. But it was not made clear to me what the consequences of his not coming would be.8 For these reasons I believe that this sequence of events has resulted in unfairnessand injustice since evidence which would have materially affected the decision was2
 
excluded without my informed consent. I believe that such a sequence of events is notin the interests of justice and may constitute a procedural irregularity [3].
Effect of not addressing Busby’s evidence on the Decision
9 There are a number of pieces of evidence which Prof Busby’s reports discussed andwhich could have materially altered the judgement.10 The first and most critical is the evidence cited and discussed by Prof Busby thatthe current radiation risk model, that of the International Commission of RadiologicalProtection (ICRP) is unsafe for the assessment of harm from internal radionuclideexposures, of the type experienced by my husband and the other appellants. The issueis particularly relevant to exposure to Uranium particles. Included in the bundle andreferred to always by Prof Busby in his reports is the “Lesvos Declaration” of 2009which was signed by a number of very eminent global authorities on radiation andhealth. In particular the concept of Absorbed Dose (milliSieverts) on which the entirecase pivots has been criticised by many authorities for many years including theCERRIE committee. However, in the Reserve Judgement paras 203 onwards theTribunal accept the radiation risk model of the ICRP without question.
 ICRP is an independent, international organisation with more than 200 volunteer members from approximately 30 countries across six continents. These membersrepresent the leading scientists and policy makers in the field of radiological  protection.' The Tribunal therefore has no trouble in accepting their views as authoritative
However, Prof Busby’s reports take issue with this position and draw attention tomany peer-reviewed publications, which he has supplied to the Tribunal and whichwere before it, showing that the current radiation risk models do not explain or predicta whole range of radiation related illnesses following internal exposures, particularlyto the element Uranium.11. Other evidence and argument contained in Prof Busby’s various reports before theTribunal but not addressed were:(1) The presence of large quantities of alpha emitters notably Uranium present in thedust at the Christmas Island airfield as shown by the beta gamma ratios in the AEOldbury Dominic reports(2) The anomalous health effects of Uranium as shown by a great deal of recentresearch including both epidemiological and theoretical work that he has personallycarried out with colleagues and which is in the peer-review literature.(3) The evidence from the data produced as a result of his Freedom of Informationrequests showing that the high level winds at Christmas Island were in the oppositedirection to the low level winds and carried the plume back across the Island.(4) The evidence from photographic data and evidence from the Canberra crews thatlarge amounts of sea water were sucked into the Grapple Y stem and later rained outon the Island.3

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