Alan M
Wouldn't want to test it in court! Don't envy you, working under the TMA.
At my Unit, we have recently got around the night IFR issue by using this bit: -
1.4 Outside Controlled Airspace
1.4.1 An air traffic control unit at an aerodrome outside controlled airspace (Class F and G airspace) shall provide approach control services to aircraft, as determined by the aerodrome operator and approved by the CAA...
The Aerodrome Operator (i.e. me!) has determined that we won't provide an Approach Control Service to aircraft operating in VMC at night, solely by refernce to the surface...i.e. the night rating, 'VFR at night' brigade.
We publish the following warning in the AIP:-
Extensive flying may take place in the vicinity of the aerodrome at night, sometimes below MSA, by aircraft only capable of operating in VMC in accordance with Rule 29(d). This activity occurs on random tracks and at varying levels. These aircraft will be considered to be nonparticipating in the Advisory Approach Control Service and provided with a Flight Information Service only. Traffic information, departure and joining instructions will continue to be passed as appropriate but standard separation cannot be assured between these aircraft and other arriving and departing flights.
I'm fairly confident that this protects my ATCO's and, I guess it could be expanded to include the scenarios to which this thread relates.