Boards of Inquiry

[cazatou]

It is now almost 10 years since I left the RAF after more than 31 years service. In that time we have seen several BOI's with contentious conclusions. Is it not time for a formal review of the BOI system?

The system in use when I retired had been in use for decades and was designed to cope with accidents occurring in an Air Force with world wide Bases and (in todays terms) relatively poor communications. It was not possible, given the above, to have a centralised BOI system and, in addition, the sheer number of "Accidents" (ie Cat 3 or greater) precluded such a system. I know (because I asked) that, up to the time I went on Terminal Leave, there were 764 aircraft "accidents" during my time in the RAF. I hasten to add that only one of those was mine; and that was a Cat 3 birdstrike at low level.

That makes a rate slightly greater than an "Accident" every 15 days!!

After several fiasco's the Courts Martial system was adjusted and a cadre of "Permanent Presidents" was established. Is it not time to do the same with BOI's? Rather than establishing more ground tours, it could be done by utilising RO's of Wg Cdr/Gp Capt rank. It would, at the very least, bring some consistancy to the proceedings; particularly where the contentious matter of "negligence" is concerned.

[Climebear]

cazatou

After several fiasco's the Courts Martial system was adjusted and a cadre of "Permanent Presidents" was established.

It has now (for some years) been disestablished as it was found to be inconsistent with the law.

As for 'negligence', BoIs are now not permitted to attribute (or indeed infer) negligence in any way, shape or form. They are there to ascertain the facts and make recommendations, they are no longer permitted to apportion blame.

[cazatou]

Climebear

Thanks for that; as I said I have been out of the loop for 10 years.

I still think, however, that there is merit in what I propose. Why take a Sqn Commander out for 12-18 months as President of a BOI during his one and only Wg Cdr flying tour? Moreover, a team of dedicated Presidents of BOI's would produce consistancy in the BOI system. I remember the BOI into a mid-air collision that passed no comment on the evidence of the Pilot who hit the other aircraft that he did not realise that he was supposed to wear his "Corrective Flying Spectacles" when flying!!

[Safeware]

caz,I remember the BOI into a mid-air collision that passed no comment on the evidence of the Pilot who hit the other aircraft that he did not realise that he was supposed to wear his "Corrective Flying Spectacles" when flying!! If we are talking about the same accident, I think you'll find that's just a little bit of a simplification.

sw

[BEagle]

If it's the one I'm thinking of (F4), then vanity played a significant part.

As did arrogance....

[cazatou]

Safeware

My recollection would be that it was a direct quote from the BOI.

[cazatou]

BEagle

Sorry, wrong one.

Tornado's over Canada; they left the crew that had ejected to fend for themselves for 12 hours; and the other crew to divert (without escort) to a minor airfield.

Several people found themselves on the wrong end of an interview with their AOC.

[Safeware]

caz, Different Tornado accident then.

sw

[Si Clik]

Cazatou

Under the new tri-service act due to come into force in the very near future Boards of Inquiry have changed and will have common terms of reference across all three services. They will not be allowed to apportion blame and may only make recommendations about the cause of an accident/incident and any actions required to prevent reoccurence. The full tme judge advocates of the relevant service will then be required to see if there is a case to answer at Courts Martial.

Si

[Argus]

The Australian Senate’s Foreign Affairs, Defence and Trade Committee recently delivered a damming report into the Australian Military Justice System, including BOIs.

The Report is at http://www.aph.gov.au/Senate/committee/fadt_ctte/miljustice/report/index.htm (http://www.aph.gov.au/Senate/committee/fadt_ctte/miljustice/report/index.htm)

This latest Report, which was bi-partisan, is the seventh in recent times to have made major adverse findings against the Australian Military Justice system, including delays and other major shortcomings in BOIs and Inquiries. The previous six had not been acted on to any great extent by successive governments – a point that was not lost on the authors of the seventh!

One only has to read some of the submissions at http://www.aph.gov.au/Senate/committee/fadt_ctte/miljustice/submissions/sublist.htm (http://www.aph.gov.au/Senate/committee/fadt_ctte/miljustice/submissions/sublist.htm) to get a flavour of the feelings held by NOK, parents, veterans and the community generally.

The recently retired Senator Hill, Minister for Defence, apparently agreed to most of the recommendations. It’s not clear whether the new incumbent of that office shares the views of his predecessor. Certainly the CDF is on the public record as being seized with the recommendations, and being totally committed to implementing reform over the next two years.

As far as BOIs are concerned, it seems that they will be used more frequently, together with Commissions of Inquiry headed by retired judicial officers, for deaths, accidents and other serious matters. Like the UK, blame isn't to be the primary objective.

Interestingly, the Australian Services are rumoured to be doing away with the JAG and DJAGs, in favour of an about to be created military division of the Federal Court.

[BARNWOOD]

You seem to know quite a lot about Board of Inquiry procedure, so I seek your advice. I quote from the recent findings of the F15 accident in the Cairngoms on 26 th March 2001:

Station Commander on Cause (aircraft under RIS):

I did not find the arguments over "instructions" wholly germane to the question. I accept that the the "instruction" from air traffic to the formation was not an order but it was reasonable to assume that the crews would comply with the "advice" given and doing so placed the aircraft and crews in an unsafe situation. I am therefore content that the Board's determination of the cause of the accident is soundly based. Indeed, I would go further and suggest that the word "potentially" should be deleted from the Cause, as the "instruction" given was clearly unsafe

Comments by the Air Officer Commanding:

A BOI does not apportion blame and I note that none has been apportioned in this case

and later,

I support the Board's analysis of causes and factors other than finding myself in agreement with the Stn Cdr that the cause of the accident was that the formation accepted an unsafe ATC instruction rather than one that was [U]potentially[U] unsafe,

[U]Comments by Commander in Chief[U]

I am therefore in no doubt that the Air Traffic descent information " BITE 21 descend initially 4000ft on the Portree 29.62" was unsafe, and I agree with my Stn Cdr and AOC 3Gp that the word "potentially" be removed from the Board's Cause for the accident


All the above suggest that they are 'blaming' the controller concerned and that appears to be outside the remit of the BOI procedure and I assume these gentleman would be considered part of that whole procedure. If my assumption is correct, then they may have negligently exceeded their authority and opened up a possible claim under 'vicarious liability'.

Any help (from any source) would be appreciated, as I am tabling some questions for my MP on this BOI report.

[cazatou]

BARNWOOD

The system was always that the AOC in C was ultimately responsible for accident investigation but delegated the investigation to the relevant AOC who, in turn, appointed the BOI.

All evidence given to the BOI is given under oath and forms the basis for any subsequent proceedings.

[Climebear]

Barnwood

I am no longer in the BoI world. However, I recall that when the rules changed so that BOIs were not permitted to apportion blame we went to great lengths to ensure that none was inferred. This was quite difficult to do especially when it was clear that someone (or indeed some people had made mistakes - which do happen). To the extent that (I am trying hard to give an fictional example that does not give away any details of BoIs I may have been involved with for obvious reasons but it does make the example seem too simplistic) if a pilot had failed to remove an item in preflight checks the BOI would not say that 'Flt Lt Prune failed to to remove' said item but would relate the fact that it 'had not been removed' (obviously if there is only one pilot and it is his job then...). That was back in about '98-99 ish.

I have subsequently been a member of a BoI investigating a fatal incident and we went to extraordinary lengths (under direction from P-staff and lawyers) in phrasing our findings so that it did not apportion blame to individuals but just stated the facts.

So where does this lead us. I am loathed to comment specifically about this case because (like the majority on here) I know very little about it apart from second hand accounts. Now the 'high price help' have often gone off message; however, I am sure that what they wrote would have been checked before it was finalized. The issue appears to be whether it is factual to say that ATC instruction was unsafe. I note that neither author states that xxxx[the controller] gave an unsafe instruction; accordingly, they do not actually say that it was his fault. So any challenge to the statement must concentrate on factual accuracy.

As for vicarious liability, the MOD could be vicarious liable irrespective of any blame apportionment that may have occurred in the BOI. Such liability has been interpreted by the courts extremely widely. As an unrelated (obviously) example of how wide the courts can extend its cover:

In an after work drink session in a local pub a police officer was deemed to have sexually harassed a female police officer. Neither were on-duty. However, that court decided that the Chief Constable of their force was vicariously liable for the male officer’s actions - unlucky!

[BARNWOOD]

Many thanks for your help. Very useful.

[Two's in]

Without doing the whole F-15 BOI again, the members of the board concluded that the ATC Instruction was a key factor in the cause, but recognizing the crew's responsibility, they used the word "potentially". The Senior Commanders elected to attribute the blame more directly. This obviously has a number of parallels with other accidents and begs the question of how the personnel furthest from the BOI in terms of current knowledge and experience invariably end up making the causal judgements after the more qualified members have reported the facts. I certainly have no problem with the CinC, AOC et al having the ultimate responsibility for preventing a reoccurence, but I am not convinced the BOI is the appropriate delivery means for any subsquent punitive action.

As for the currency and expertise of the the Board, the benefits of having appointed, longer term Members that are practiced in the mechanics of convening and executing a Board, and are hence more effective, must be balanced against the danger of familiarity and the benefits of viewing accidents with a fresh pair of eyes on each occasion.

Ultimately, the wonderful PC and litigious world in which we live will hopefully preclude senior officers making a name for themselves on the altar of sacrifice provided by our fellow aviators.

[Argus]

I assume that, like in Oz, UK BOI’s are appointed pursuant to statutory authority.

The Instrument of Appointment contains the Terms of Reference (TORs). The TORs for the F15 BOI are at Para 5 of Part 1 ‘Details of the Board Document at:
http://www.mod.uk/DefenceInternet/AboutDefence/CorporatePublications/Reports/OtherPublications/BOI/BoiReportIntoF15AccidentMarch2001.htm (http://www.mod.uk/DefenceInternet/AboutDefence/CorporatePublications/Reports/OtherPublications/BOI/BoiReportIntoF15AccidentMarch2001.htm)

There are eight TORs for the F15 BOI, including a TOR to determine the cause of the accident; and a TOR to make appropriate recommendations and observations. This the Board has done – see Paras 48 et seq of the Report on the same web site.

And, as the Report moved up the food chain, specialists, including lawyers, have, as Climebar notes, doubtless examined it to ensure that in their opinion(s), the investigation was adequate and that it satisfactorily addressed the TOR; and the conclusions are supported by the evidence.

BOIs form conclusions to the civil standard of proof – on the balance of probabilities – and, at least in Oz, are not bound by the Rules of Evidence. Courts martial apply the higher criminal standard – beyond reasonable doubt – and are bound by the Rules of Evidence. These are but two reasons why BOIs should not be used for any punitive purpose.

I agree with Climebar’s remarks on the MOD’s vicarious liability (although I’m not attracted to his example). In this particular case, on the basis of the Report (or that version which is in the public domain), I think there’s sufficient therein for the NOK of the deceased pilots to be at least seeking Senior Counsel’s ‘Advice on Prospects’ of bringing a negligence (civil) action against both the individual (or his insurer) and the MOD. The Report says that the accident occurred because the formation accepted an unsafe ATC instruction. However, it’s not difficult to infer from the Report as to who gave that instruction and who his employer was at the time the instruction was given.

Or, on the other side of the argument, there are legal remedies available to the individual concerned if, for example, he believes that the BOI’s appointment was flawed, that it was biased, acted irrationally and ultra vires, denied him procedural fairness, relied on irrelevant and ignored relevant material, deliberately or improperly abused its power, had ulterior motives, failed to follow any mandatory procedures, that it didn’t satisfactorily address its TORs and that its conclusions aren’t supported by the evidence.

There is another thread running on this issue in the Military Aircrew forum: ‘Crash controller ‘partly blamed’. I’ve posted some other views there, including details of a similar accident in 1966 involving a Canberra and a RN air traffic controller at Lossiemouth, and what let down procedures into LFAs 14/15 and Tain Range were introduced after a court martial. IMHO, if these procedures were still in place, this terrible accident would not have happened. So, does the subsequent removal of those procedures, either intentionally or recklessly, by the RAF, give rise to a further breach of a ‘duty of care’ on the part of the MOD?


Catazou

The system in use when I retired had been in use for decades and was designed to cope with accidents occurring in an Air Force with world wide Bases and (in todays terms) relatively poor communications.

In the F15 BOI Report, there’s some reference to what, on any version of the facts, must be a Heath Robinson means of communication between Leuchars and Lossie ATC. Even in the 1960s, there was direct ATC land line comms between controllers (and to Highland Radar at Buchan, too) to facilitate ATC/ADIZ/QRA/MDA responsibilities and radar handovers via GEOREF i.a.w a SOP. The vision of using an ordinary telephone in 2001 to effect a radar handover via an assistant simply beggars belief.

And there’s the hoary old chestnut about the permissive nature of the drafting of orders. Is the RAF using public servants to draft orders these days? As Grampaw Pettibone used to say: “Holy snapping ducks*hit, it don’t take no Einstein to know that an order that’s capable of more than one interpretation ain’t no order”.

[SASless]

If a BOI by design is to determine the cause of an accident...how does the BOI do so...and clearly state the cause...and not "apportion blame" when an individual does something overt or by omission that results in that accident occurring?

It seems hard to be specific without it appearing to be an apportionment of blame....because sometimes it is patently obivious as to the cause and the individual who is culpable/responsible for the act.

It would seem that as long as the board was impartial and fairly examines all of the evidence and compares actions to regulations, procedures and such...and makes a determination of facts that lead to the identification of the cause then they have done their duty. If as a result they tag the tail on the donkey and prove their statement beyond any doubt then that is stating facts and not "apportioning blame".

If a fresh set of eyes for each crash is better than a fixed set of BOI members....how does the AAIB fit into that concept?

[Argus]

SASless


Have a look at the Terms of Reference (TORs) for the current BOI being conducted in Sydney into the loss of a Royal Australian Navy (RAN) Sea King last year on Nias Island, Indonesia, and the death of nine occupants.

They can be viewed at http://www.defence.gov.au/sea_king_boi/terms_of_reference.htm (http://www.defence.gov.au/sea_king_boi/terms_of_reference.htm)

There is also a link to transcripts and other relevant BOI info.


Of particular interest is the division of the proceedings into ‘Hearing Phases’ or ‘Chapters’; and the rights/representation of ‘Potentially Affected Persons’, particularly in Chapter 10.

One of the RAN BOIs tasks in ‘Recommendations’ is to recommend any further investigations by police and others, which, if accepted by Appointing Authority, could result in a referal to a prosecuting authority for disciplinary action being taken. As in the UK, there is an independent of the chain of command Director of Military Prosecutions, who will make the decision whether to proceed or not.


With respect, for the BOI,that's not apportioning blame, merely recommending further enquires be made in which potentially affected persons have prescribed legal rights.


And in Oz, any statement or disclosure made in the course of giving evidence to a BOI is not admissible against that witness in any civil or criminal proceedings in any Federal, State or Territory court or before a Service Tribunal except in proceedings by way of a prosecution for giving false testimony at the BOI. Problem here is that administrative action (eg show cause why one should not be discharged) isn't subject to this provision.

IMHO, these TORs are much more comprehensive than those used in the F15 BOI, and in some previous BOIs held in the Antipodes.

Also, the posting of transcripts and other information on the web by the RAN is welcome step in openness and transparency.

[cazatou]

Argus

I see you work for the "Insitut Geographique National"; that's the way they mispell the name on most of their maps.

When I said "communications" I meant physical as well as signal traffic. When I went out to the Gulf in the 60's it took 3 days to get there; getting to the site of an accident in Borneo would have taken at least a week.

[Argus]

cazatou

Having served in 'Confrontation', I can only agree with your comment.

But if memory serves me correctly, even back in those days, we had an HF manpack radio called a GR 345 which enabled SSB coms back to at least Cyprus and on a good night back to the UK, where the WRNS at Lossie sounded appealing.

Usual SNAFU with helo comms though: no VHF in Wessex Vs (UHF only) to talk to HM's finest RMs on the ground. Poor bas***ds had to lug a separate UHF portable round the ulu so that we could talk to the client!

[cazatou]

Argus

Yes, we had SSB but it did have its limitations depending on the time of day and the height of the ionosphere.

I remember having to inform the then Home Secretary (Mr Callaghan) that troops had been deployed in NI whilst we were transiting between St Mawgan and Northolt. The message had to be relayed by Gibralter!!