Repeating Ourselves
I have watched with some dismay some of the recent posts on this forum, led by the Air Marshals’ chief apologist, degenerate into circular arguments about the cause of the accident and even totally unsubstantiated comments on the (in)competence of the pilots from people claiming to have “been there” but without any “facts” to show on what they base this assertion.
Whilst we all have opinions, and I have argued mine, under my own name, in several places in this forum there are only two facts that we know are true – the aircraft crashed and NOBODY knows why. Thus this forum, and the work of the Mull of Kintyre Group is not about finding the cause of the accident it is about removing the criminal slur of manslaughter against the pilots’ names – nothing more – nothing less. To do this, unlike the BoI with its starting presumption of “pilot error” we are obviously looking at all the issues surrounding the airworthiness (in its widest sense) of both the Chinook Mk2 fleet generally, and ZD 576 in particular, and we are finding plenty of evidence totally ignored by both the BoI and the Reviewing Officers.
You may or may not agree with the findings of the FAI and the House of Lords Select Committee, but the fact is that they remain the two most thorough investigations of this accident – certainly in my view significantly more thorough than the BoI, and they do not support the Reviewing Officers findings – indeed those who have read the HoL report, which I suggest some of the wilder contributors to this site may not have done, will see that a very distinguished committee found that the Air Marshals were turning hypotheses into facts – great for a good read like “The Da Vinci Code”, but not the basis for a criminal verdict of manslaughter, with no defence or appeal, against two pilots whose competence has never been in doubt. Have a look also at the “join” in the BoI and Stn Cdr’s comments where the first findings were rejected from above and ask yourself if this is the way the RAF should be dispensing justice in a criminal case!
However, you can put aside all of this previous work if you wish and just look at what was happening within the RAF senior management chain. As most contributors will know, in February 1995, just before making his judgement on ZD 576 the Senior Reviewing Officer circulated a hard line Directive stating how he wished flight safety to be “played” in his command – nothing wrong with this you might say and I would agree with you. However, if you wish to play the hard rules you should follow them yourself. So, for example one paragraph of this memo said:
“It follows that I wish to put this policy into practical effect by ensuring that formal disciplinary action is taken whenever, following Board of Inquiry or Unit Inquiry investigations, clear evidence emerges of unmitigated indiscipline or negligence.”
I wrote to ACM Wratten to say “given that the BoI could not find such clear evidence and neither have any of the independent inquiries since then found such evidence what additional “evidence” as opposed to personal opinions did you and AVM Day have on which to base your verdict? On what basis did you decide that this “evidence” passed the “no doubt whatsoever requirements of AP 3207”? This is particularly relevant given that your BoI review includes the statement: “Without the irrefutable evidence which is provided by an ADR and a CVR there is inevitably a degree of speculation as to the precise detail of the sequence of events in the minutes and seconds immediately prior to impact.” How does this statement meet the requirements of either AP 3207 or your own Directive?”
Another paragraph of the Directive stated:
“This will of course in no way undermine the certainty for those affected of a fair and unbiased hearing with all the safeguards entailed in the legal process.”
I asked ACM Wratten “how was this “requirement” met in the period when the Reviewing Officers were making their decision? Where were the safeguards? What was the legal process? We [the Mull of Kintyre Group] do not believe that any of this occurred, but we will be happy to be corrected. Certainly whatever this process was has not stood up to the independent reviews that have since taken place of it. It would be interesting to know what advice you may have sought regarding the meaning of "Gross Negligence", but given that Air Force Law has to "mirror" the laws of England and Wales it is worth looking at what would happen in a civilian court. Gross negligence is a concept from criminal law. It is also used by various disciplinary tribunals. "Manslaughter by gross negligence" is a recognised offence. Where such a charge is brought the prosecution first has to prove negligence (ie that there was a duty of care between the defendant and the deceased and that it was breached) and secondly that the defendant's conduct was "so grossly negligent or reckless so as be properly branded criminal" (R v Devine [1999]). In each case this is a question for the jury on which they bring their common sense to bear. There is no general definition of what is and what is not capable of constituting gross negligence used in such cases. It will not escape your attention that in this case there was no defence and no jury (except yourself and AVM Day), albeit it could be argued that all of the independent inquiries since then could be seen as representing a jury, and they have shown clearly that they would not have found "Gross Negligence".”
Needless to say I neither received a reply nor was my offer to meet for a discussion taken up, and I see this as further evidence that the last thing MOD wants is to open the door for a debate on the justice of this perverse verdict – perhaps because of what else may emerge when the lid comes off Pandora’s Box. If you want to see just how perverse this verdict is have a look at the same Reviewing Officers’ comments on the Glen Ogle Tornado crash of September 1994 made within two weeks of finding the Chinook pilots “guilty” of manslaughter.
Thus I suggest to you, as I did to ACM Wratten, that the intransigence shown by MOD has done far more to raise questions of honour and integrity, and even links to conspiracy theories, than anything that those seeking to correct the injustice could ever do.
JB