Address Judge Hugh Stubbs 5th Floor, Fox Court 14 Grays Inn Rd London WC1X 8HN 10th June

2013

Dear Judge Stubbs I would like to apply for leave to Appeal your Reserved Decision of 7th May 2013 [1] with regard to my case () and would be grateful if you could deal with the case 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 this appeal 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 in greater detail below. I appreciate that in your decision you state that my lawyers did not want to rely on Prof Busbys evidence, but it was not explained to me until the very last minute that this was the case, and the implications of this were not explained to me in any way that I could make an informed decision. The whole process may perhaps be considered 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 all the 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 had spoken with the 16 appellants (including me) and with our agreement had commissioned Prof Busby to write an expert report on the general issues together with specific reports for individual cases for the hearings. Rosenblatts have represent me throughout this appeal. Prof Busby made an initial 150 page report for the case in 2010 [9] and supplemented that with a series of other reports including one which was commissioned 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 cases in the 16 appellants. He pointed out that the probability of such an event occurring by chance was vanishingly small and that therefore these two cases, that of and of Mr Alun Williams [4, 5, 9] could not have occurred by chance and had to do with

what antecedent cancer producing exposure they had in common [10]. This on its own, Prof Busby stated, must raise reasonable doubt. Similar statistical arguments on their own have influenced many legal cases. 2. By the end of 2012 Prof Busby had obtained access to a number of documents which he had discovered by the Freedom of Information Act Requests which he had made since 2008 and followed up, and which he had requested, and which ultimately were 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 effects of Uranium particle inhalation and ill health including cancer and leukaemia at very low 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 coroners jury to a verdict implicating very low inhalation doses of Uranium in the Gulf War in the subsequent cancer and death of a soldier, Stuart Dyson and he has carried out both epidemiological and theoretical work which has been published in the peer review literature on this issue, and should provide a base for raising reasonable doubt in the case of the Christmas Island veterans who were all exposed to particulate respirable Uranium, the main component of the bombs. 3. Several of these reports were produced as a result of Directions made by the Tribunal Judge, yourself. 4. Taken together, these reports, and Prof Busbys evidence, provided the most powerful expert evidence for the success of my appeal. However, as a result of an unfortunate and curious decision made in December 2012 as I now understand, Dr Busbys reports were not relied upon by the barristers who were instructed by Rosenblatt. 5. Nevertheless, it is true that all Dr Busbys reports were submitted and available to the Tribunal. I believe that the Tribunal should, in the interest of Justice [3] have taken 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 heard from Hogan Lovell, who represented other appellants on 13th January in a letter dated 10th January, some two weeks or so before the hearings. 7 As I understand it Dr Busby then entered into correspondence with Hogan Lovell and stated he would write to individual appellants informing them of this development which 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 come and 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 unfairness and injustice since evidence which would have materially affected the decision was

excluded without my informed consent. I believe that such a sequence of events is not in the interests of justice and may constitute a procedural irregularity [3]. Effect of not addressing Busbys evidence on the Decision 9 There are a number of pieces of evidence which Prof Busbys reports discussed and which could have materially altered the judgement. 10 The first and most critical is the evidence cited and discussed by Prof Busby that the current radiation risk model, that of the International Commission of Radiological Protection (ICRP) is unsafe for the assessment of harm from internal radionuclide exposures, of the type experienced by my husband and the other appellants. The issue is particularly relevant to exposure to Uranium particles. Included in the bundle and referred to always by Prof Busby in his reports is the Lesvos Declaration of 2009 which was signed by a number of very eminent global authorities on radiation and health. In particular the concept of Absorbed Dose (milliSieverts) on which the entire case pivots has been criticised by many authorities for many years including the CERRIE committee. However, in the Reserve Judgement paras 203 onwards the Tribunal 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 members represent 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 Busbys reports take issue with this position and draw attention to many peer-reviewed publications, which he has supplied to the Tribunal and which were before it, showing that the current radiation risk models do not explain or predict a whole range of radiation related illnesses following internal exposures, particularly to the element Uranium. 11. Other evidence and argument contained in Prof Busbys various reports before the Tribunal but not addressed were: (1) The presence of large quantities of alpha emitters notably Uranium present in the dust at the Christmas Island airfield as shown by the beta gamma ratios in the AE Oldbury Dominic reports (2) The anomalous health effects of Uranium as shown by a great deal of recent research including both epidemiological and theoretical work that he has personally carried 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 Information requests showing that the high level winds at Christmas Island were in the opposite direction 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 that large amounts of sea water were sucked into the Grapple Y stem and later rained out on the Island.

(5) The rainout of radioactive material over Christmas Island and the admission that the sticky papers were either brought in or did not collect fallout owing to the rain washing it off. (6) The fact that the MoD assertion that the doses at Christmas Island were lower than the UK can be shown to be false because Uranium and Radium are known components of coral atolls, are present in sea water and were measured by the New Zealand surveys. (7) Various other points he made about missing radionuclides, C-14, Tritium etc. (8) The evidence of high levels of congenital disease in veterans children and grandchildren shown by Prof Busbys study of the British Nuclear Test Veterans Association members in 2007. 12 With regard to my own claim relating to my ex-husbands pancreatic cancer Prof Busby provided a specific report which was before the Tribunal but not addressed but which showed that the US NIOSH-IREP accepted that pancreatic cancer was radiation related. He drew attention to the virtual impossibility of two pancreatic cancer cases turning up in 16 veterans by chance. The probability of this happening randomly is vanishingly small and so these two men, and Alun Williams must have shared an exposure which caused their cancer. It is surprising and worrying that the epidemiologist expert Prof Parker did not mention this important evidence. 13 With regard to expertise, Prof Busby is the only expert among all those involved who has specific expertise in the area of radiation and health. He has published many scientific reports and papers in peer-review journals on this issue and has been retained as an expert on radiation and health by many courts in the USA. Testimonial letters about his expertise were submitted for the Ionising Radiation Appeals following an attempt by the treasury solicitor to have him excluded in 2011. 14 In a recent decision on a Pensions appeal by Colin Duncan (PAT ref :ENT/00893/2007), in finding for the appellant, the same Tribunal, including Judge Stubbs, wrote about Dr Busby: We find that his evidence is both cogent and reliable and raises a reasonable doubt that the Secretary of State's views which rely exclusively on contemporary dose meter readings is wrong. It is accepted in the relevant Medical Appendix that nonHodgkin's lymphomas have an increased incidence following exposure to excess ionising radiation. We find that the combination of Mr Duncan's written and oral evidence and Professor Busby's evidence both of which we have found is reliable raises a reasonable doubt that Mr Duncan's Non-Hodgkin's Lymphoma is attributable to service. 15 A similar appeal was also allowed in the case of John Ramon Cammish (ENT/00317/2010), also heard before Judge Stubbs in April 2011. Cammish cleaned radioactive aircraft and developed laryngeal cancer. In this case, the decision specifically drew attention to Uranium dust which Dr Busby has shown is the most likely vector for ill health in the appellants including my ex husband. 42. We find that there are two papers which lend support to there being a causal link for lower dose exposure. (1) 'Cancer Risk in Nuclear Workers Occupationally Exposed to UraniumEmphasis on Internal Exposure' is co-authored by well-known experts in their

field, two of whom work for the French Institute of Radioprotection and Nuclear Safety (IRSN), a French public authority . . . Conclusion 16 I conclude that the decision made by Rosenblatts not to rely on Prof Busbys evidence materially disadvantaged my appeal. The decision was made without informing me or other veterans before the decision was made of the issues at stake in time to discuss this, contact Prof Busby and make an informed choice. Indeed, the underlying issues were not discussed with me at all. In the interests of justice [2] I believe that this may represent a procedural irregularity [3], though even if this is not so, in the interests of the good name of the Tribunal and of Justice for the appellants it should be re-visited in some way. Signed:

Date:

References [1] Reserved Decision the War Pensions and Armed Forces Compensation Chamber. Ionising Radiation Appeals. May 7th 2013 [2] Tribunal Procedure (First Tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 http://www.legislation.gov.uk/ukpga/Geo6/67/39/section/5B [3] Tribunal Procedure (First Tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 ; Section 35 (1) (a) and Section 35 (2) (d). http://www.legislation.gov.uk/uksi/2008/2686/part/4/made [4] Busby C (2008) Expert witness statement for Dawn Pritchard Pensions Appeals case ENT/00039/2008; NINO YB7208272 [5] Busby C (2009) Expert witness statement for Mrs M G Williams Pensions Appeals Case No ZW280088B 47pp (williamsrept.doc) [6] Busby C (2009) Supplementary statement for Dawn Pritchard Pensions Appeals case in response to questions from Tribunal ENT/00039/2008; NINO YB7208272 [7] Busby C (2008) Do gamma doses from film badges give information about internal doses to atomic tests particpants from beta and alpha emitters? Green Audit Research Note 2008/8 (oldburytrept.pdf) 13pp

[8] Busby C (2009) Expert witness statement for Mr Derek Hatton Pensions Appeals case NINO ZS133518B 32pp (hattonrept.doc) [9] 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 Serveice Directions issued 23 July 2010 in respect of 16 named appellants. (testcaserept5.pdf) 152 pages. [10] 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 [11] Busby C and Williams D (2010) Meteorological records, airflow and othet factors affecting local fallout from British nuclear tests at Christmas Island in 195758). A joint report from Green Audit and Eos. Oct 2010. Occasional Paper 2010/12 35pp (testhysplitrept.doc) [12] 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 [14] 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 [15] 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 [16] 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) 10pp