I have no wish for this thread to be side-tracked into legal argument or the semantics of RIS/RAS but I think it might be time to remind folk of the actual charges levied against Spot at the Court Martial. As you know, he was found
NOT GUILTY on all charges. I also enclose some notes taken from the Court Martial which relate both to eyewitnesses and causation.
Charge 1 & 3 (One for each pilot, Lt Col Hyvonen and Capt Jones): Causation
Doing an act in relation to aircraft causing the loss of life to a person contrary to Section 49 of the Air Force Act 1955, in that he, at Royal Air Force Leuchars on the 26th day of March 2001 when on duty as an air traffic controller providing a radar information service and in radio communication with Lt Col Hyvonen USAF, the lead pilot of a formation of two F15C aircraft, having been requested to provide a descent to RAF Leuchars' minimum vectoring altitude, it being his duty, as the aircraft were outside RAF Leuchars' radar vector chart, not to descend the pilot below 6500 ft, said to the Lt Col to descend to 4000ft, which act caused the loss of life of the said Lieutenant Colonel.
Charge 2; Negligence
Negligently performing a duty contrary to Section 29A (b) of the Air Force Act 1955, in that he, at Royal Air Force Leuchars on the 26th day of March 2001 while on duty as an air traffic controller providing a radar information service and in radio communication with Lieutenant Colonel Kenneth John Hyvonen, United States Air Force, the lead pilot of a formation of two F15c aircraft, having been requested to provide a descent to RAF Leuchars minimum vectoring altitude, it being his duty, as the aircraft were outside RAF Leuchars radar vector chart, not to descend the pilot below six thousand and five hundred feet, so negligently performed his said duty as an air traffic controller in that he said to the Lieutenant Colonel to descend to four thousand feet.
The charges against Spot are based on Causation (the most serious) and Negligence. On the Causation Charge (under Section 49 of the RAF Act) Spot is charged on two counts (mirror charges relating to the two individual pilots) of committing an act summarised in the followng phrase from the charge sheet ‘which act caused the loss of life’. It appears that these charges could have included the underlined phrase ‘which act caused the loss of life or is likely to have caused the loss of life”. This was not the case in the charges made against Spot.
Extract from daily summary:
The Defence objected to a Prosecution question that intimated an act that was “likely to have caused” the deaths of the pilots as this was not in the framework of the charges.
The JA ruled in favour of the Defence, stating that the cause of the accident must be a “direct cause”. Furthermore, the cause must be proven beyond reasonable doubt and it must not be a “trifling cause”.
Extract from the daily summary:
The eye-witnesses. Without going into the full detail, of which you all fully aware, Mike Jones QC dealt with very eye-witness account and summarised their evidence to being clear, both in direction, identification of twin tails and that the ac were not Tornados. He could not see any reason for the Crown to discredit the eye-witness evidence.
Crucially, he directed the Board that:
1. Belief of all of the eye-witness statements = AQUITTAL.
2. Belief of only one of the eye-witness statements = AQUITTAL.
3. Any probable belief of even one of the eye-witness statements (or inability to completely discount the witness) = AQUITTAL.
Extract from daily summary:
In getting to the crux of the charges, Mike Jones QC then covered the causation aspect (charges 1 and 3). He said that, if the Board saw no causal link or that if they had any doubt of the link (the link must be more than a slight or trifling link), then this must mean acquittal. He said that charge 2 referred to negligence and, whilst negligence must be a factor in all 3 charges, it was a separate charge under Section 29 of the RAF Act 1955. For negligence to be proven, the Board must be content that "harm" had been caused by Spot’s actions. Mike told the Board that acquittal on charges 1 and 3 may lead to acquittal on charge 2; that said, he also told them that they would be led by the JA in relation to this topic. Mike had raised this point of law in closed session yesterday.
On the question of negligence, Mike directed the Board that they would have to be sure that Spot was criminally responsible for his act and, if they had any doubt, they must acquit. Mike accepted that, if negligence were to be proven, that Spot would have to break his Duty of Care to the pilots, i.e. as set out in the contract of RIS. Duty of Care states that an individual must avoid acts which are likely to injure your neighbour etc. For negligence to be proven, the Board would have to be sure that Spot could have reasonably foreseen the probable consequences of his act (the RT descent to 4000’). Mike was adamant that, in law, this must be viewed at the material time and not with the benefit of hindsight.
He also said that the Board must view the question of negligence from the perspective of an ATCO. It had been suggested by the prosecution that a measure of responsibility rested with the pilot for the accident; Mike refuted this and stated that he was wholly responsible for his terrain separation. He further stated that controllers have no responsibility for terrain clearance while providing RIS. Furthermore, by regulation, pilots are not to descend below their safety altitude without being either visual with the surface or using a Terrain Following Radar ( TFR). He contended that Spot was working on the above basis and was entitled to believe that the pilots would fly in accordance with known UK regulations. This being the case, Spot could not have foreseen the probable consequence of his action in descending the ac to 4000’. This led Mike to the conclusion that, without foreseeability, there can be no question of guilt
I hope the above information will give you all a clearer picture as to why the Support Group take exception to both the latest Board of Inquiry findings and the finger of blame pointed by the senior officers in their comments on the findings.