Finally, as regards this accident I think you could hold any number of inquiries by any number of agencies and the findings would be largely identical to that which the RAF produced at the time.
The Fatal Accident and Sudden Death (Scotland) Act1976 stipulates that an FAI will be undertaken if “it appears that the death has resulted from an accident occurring in Scotland while the person who has died, being an employee, was in the course of his employment or, being an employer or self-employed person, was engaged in his occupation as such. The Lord Advocate has made it clear that this cannot apply to service personnel as they are not considered to be employees. A fact that I believe has been known by the MoD for a considerable time, and yet QR J975 clearly stipulates that "In Scotland the Procurator Fiscal inquires into fatal accidents and sudden deaths by means of a Fatal Accident Inquiry (FAI). Where the death was caused by an accident at work, and in some other cases, the law requires an FAI to be held." A BOI/SI report forms just one piece of evidence in that investigation.
In the words of Lord Philips in his Mull of Kintyre review, dated 13th July 2011, “A Board of Inquiry [now Service Inquiry] was an internal process convened for Armed Services reasons to determine how a serious incident happened and why, and to make recommendations to prevent a recurrence. The Board of Inquiry was not a substitute for a legal inquiry into the cause and circumstance of death.”
In the Super Puma deliberation issued by Sheriff Principal Derek Pyle on 13th March 2014 it states, from Carmichael (the definitive textbook), that
“The whole object of an impartial inquiry is to get to the truth, to expose fault where fault is proven to exist, and in all cases to see to it so far as humanly possible that the same mistake, whether it arise through fault or any other reason, is not made in the future. The public interest, in whose names inquiries are held, requires and deserves no less”. Sheriff Principal Pyle points out that
“It is an opportunity for the whole circumstances of an accident to be aired in public. Witnesses are examined and cross-examined under oath and documents are considered and scrutinised. And any party interested in the circumstances is free to come to his or her own conclusion on the evidence........It is also an opportunity for an independent judge to come to his or her own conclusions on the evidence.” Service Inquiries do not determine fault and accountability.
In the case of the Nimrod XV230 accident the coroner, Mr Andrew Walker, declared
“that this aircraft, like every other aircraft within the Nimrod fleet, was not airworthy and never been airworthy from the first time it was released to the service nearly 40 years ago. I see no alternative but to report to the Secretary of State for Defence that the Nimrod fleet should not fly unless, and until, the ALARP standards are met.” No in-house Board of Inquiry, or Service Inquiry, would have had the resolve or power to recommend such a course of action.
Mr Walker also recommended that “
consideration be given to civil aircraft investigation replacing the Board of Inquiry system (now Service Inquiry) for investigating the loss of military aircraft”. This was brought about because board members cannot be regarded as specialists in the field of aircraft accident investigations and are not independent.
So my bottom line is that the general public, those that died in the XV256 accident and their families were denied an open independent public inquiry, along with all the ‘checks and balances’ that brings. This accident marked the beginning of the ‘collusion’ between the MoD and the Crown Office of Scotland with regards to military accident investigation in Scotland, and that is why it is important. The root cause of that ‘collusion’ had an impact for the next 40 years and still presents an obstacle to the legal completion of 2012 Moray Firth Tornado collision inquiry.
DV