No wonder Nimrod is top of RAF worry list
Families sue MoD over air victims' right to life
Afghan spy plane deaths were unlawful, historic test case is to be told
Jamie Doward and Mark Townsend
The Observer, Sunday August 31 2008
Article history
Benjamin Knight and Stephen Swarbrick were killed on RAF Nimrod XV230 after a refuelling fault led to an explosion. Photograph: AFP
Families of servicemen killed when their Nimrod spy plane exploded in the British military's biggest loss of life since the Falklands War are to sue the government under the European Convention on Human Rights (ECHR), claiming it failed to respect their right to life.
In what promises to be a historic and controversial legal test case that could trigger scores of similar claims from British military personnel serving around the world, the families will tomorrow issue proceedings against the Secretary of State for Defence, Des Browne, alleging the government failed to offer adequate protection to men by minimising the risks of a fire on board the plane.
It will be the first time the Ministry of Defence has faced a legal challenge under the ECHR and the case is likely to cause a furore as it raises complex questions about the extent to which the government can be liable for the deaths of military personnel killed in war zones overseas. It will also refocus the debate around the military's preparedness for combat and the condition of the equipment being used by the armed forces in theatres of war.
The RAF Nimrod XV230 Nimrod exploded on 2 September 2006 in Afghanistan, killing all 14 servicemen on board including Benjamin Knight, 25, and Steven Swarbrick, 28, whose families are launching the legal action.
Evidence presented at the inquest into the mens' deaths highlighted a series of faults with the plane, which exploded after an airborne refuelling operation. The coroner, Andrew Walker, heard how the plane had no fire detection and suppression system and that there were serious design flaws with the way it had been modified that meant ducts were prone to overheat. However, a safety code drawn up for the plane in 2001 considered the possibility of it overheating after refuelling 'improbable'.
Walker was scathing about the RAF and the MoD. He said the aircraft had 'never been airworthy' and called for 'this cavalier approach to safety to come to an end'. Largely on the strength of the evidence presented at the inquest, the families have now decided to start legal action against the government.
'We feel had this happened to a private company somebody would have resigned by now, somebody would have said, "This was my fault",' said Benjamin's father, Graham. 'Heads rolled over Terminal Five and that was just about a backlog of luggage. Fourteen men have died and still there's been no resignations.'
Earlier this year, in a ruling that has paved the way for tomorrow's groundbreaking legal action, a judge ruled that article 2 of the ECHR imposed obligations on the state to take sufficient steps to protect the life of its military personnel and to minimise the risks posed to them even when serving abroad. 'A soldier doesn't lose all protection simply because he is in hostile territory carrying out dangerous operations,' Mr Justice Collins said in his ruling.
In the case of the Nimrod tragedy, the families argue more should have been done to reduce the threat of an explosion after refuelling. 'The families feel there was a duty on the defendant to ensure the aircraft was airworthy,' said their barrister, John Cooper. 'It was not airworthy.'
A spokeswoman for the MoD said: 'We cannot comment on a potential lawsuit; any such action would of course be addressed when presented to the MoD. We have ceased air-to-air refuelling and the use of very hot air systems when our Nimrods are in flight. These measures, together with the enhanced aircraft maintenance and inspection procedures introduced ensure the aircraft, as it is today, is safe to fly. 'But Graham Knight said the measures were not enough. 'At 25 my son's life was taken away because somebody didn't do their job properly,' he said.
Last edited by nigegilb; 31st Aug 2008 at 09:59.