Chinook - Still Hitting Back 3 (Merged)

[John Blakeley]

Justice - not Speculation

Having been out of the UK for the past 5 weeks I am disappointed to see so much repetition of old arguments and in particluar speculative opinions rather than hard facts again coming to the fore in so many recent comments - it is the injustice of the use of such speculative opinions to try to justify a verdict of Gross Negligence that this thread is about, and not to try and claim knowledge of the cause of the accident since none of us will ever know this - but, of course, we now know a great deal more about the airworthiness failings of the aircraft (and the general and longer-term malaise in MOD and the RAF on airworthiness issues) as "facts" that make such speculation even more dangerous and unjust.

In late 2004, following personal criticism of my position by the Senior RO I wrote back to him as shown in the extract below. Until now I have not released this letter. Needless to say the questions I posed were not answered and no meeting took place, but as far as I can see they remain very relevant to today's position and, in my view, are further confirmation of the untenable and unjust nature of this verdict.

I would also welcome the opportunity to hear from you first hand (as I am sure MOD will never tell us) how you ensured that the verdict that you and ACM Day came to met the requirements of the [Flight Safety] Directive that you issued on 16 February 1995. In particular I would welcome the chance to discuss with you the following issues:

Paragraph 2 of your Directive states: “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.” 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 ACM 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? You go on to say that “there is no evidence whatever of any combination of possible minor problems or of any major difficulty which would have so taxed the crew that they had no option other than to keep flying towards high ground…..”. Of course there is no such evidence – there was no CVR or ADR fitted! The starting point for the BoI’s deliberations was that this was an aircrew error accident (but even then they did not prove the aircrew directly to blame or make a judgement on negligence). As a result there is plenty of evidence in the BoI, which is either ignored or is not followed up, of serious airworthiness and engineering problems with the aircraft – these have all been pointed out to MOD and pointedly ignored! (I assume that you have seen it, but I enclose the report that I wrote for the Tapper family on these issues – not one point has ever been responded to by MOD).

Paragraph 4 includes a clear requirement for any recommendation for disposal to be endorsed by the Director of Legal Services (RAF). Who did this in this case – you or ACM Day? When was this advice sought, and what was the exact question asked? What was the DLS response and when was it given (complex legal opinions usually take more than 3 weeks)? This is particularly important as we now have first hand evidence that the RAF’s own professional flight safety organization the RAF Inspectorate of Flight Safety advised the then CAS that there was insufficient evidence to justify a “Gross Negligence” verdict.

Paragraph 5 of your Directive states “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.” 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 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 ACM 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"

You have given me your views as to why the conclusion of negligence is “inescapable”, and I note that you say negligence rather than the “Gross Negligence” of your Review verdict – is this deliberate? I believe that the arguments you have used are those that were not accepted by the House of Lords, and I would not wish to either accept or disagree with them except to note that I believe that your point 2 is based on interpretation of RNS 252 data which even the manufacturer has pointed out is not designed to be a forensic flight recorder. Thus it would appear that nobody knows, with the certainty that would be needed if this was to be part of the case for a Gross Negligence verdict, exactly where the waypoint change took place. Rather I would like to point out that there are quite a few facts relating to ZD 576’s airworthiness and engineering that would throw doubt on an aircrew error and the “no doubt whatsoever” verdict of Gross Negligence, and one of my major criticisms of the BoI process was that neither ACM Day (who should have been the first to do so) nor yourself picked up on these engineering issues at all.

During my investigations for the Tapper family I was given the following statement (the source is unknown but I believe that it was from Odiham):

Now the Mk2 was a refurbished Mk1. Consequently when it came to routing looms there were a myriad of redundant mounting points (it was too costly to remove them) that could mistakenly be used when fitting the loom. Coupled with the fact that there are a number of ways to route a loom and at least 2 ends from which to start Odiham soon found that each new Mk 2 was as different as the proverbial snowflake. Boeing's Quality Assurance procedures and engineering standards were seen at the time as having failed in this area. It is doubtful whether you will ever find an official reference, but out of a build run of 32 aircraft, it was not until aircraft 18 that Boeing would certify that the aircraft was built to the drawings (the actual aircraft where this was achieved was nearer to number 23). The Aircraft Support Authority carried out an investigation to assess the risks and produce a mitigation plan. On any helicopter the correct configuration of wiring and pipe routing is essential because of the high levels of vibration - chaffing is a major problem.

As you will know better than many, the RAF Phantom suffered a large number of uncommanded flying control movements - some leading to very dangerous situations. The major cause as I recall was put down to chaffed wiring looms - certainly this was the case in those where I was involved in the investigation. We know from the BoI evidence that ZD 576 took off with at least one defect in the engine control and monitoring systems that could have been a wiring problem. It had also had a major flying control problem just before the accident which was still being investigated – how do you rule out the possibility of a UFCM, or an engine runaway or even just erroneous cockpit indications preventing or distracting the crew of ZD 576 from turning away from the Mull to follow the course that they would appear to have selected whilst still under control and flying quite legally on a planned VFR flight? The evidence you provide does not answer any of these questions let alone allow for anything other than an aircrew “error” verdict.

Am I claiming to be right and that you are wrong – no of course not – neither of us knows exactly what happened, and we never will. If you were right you are effectively saying that one of your best Chinook crews effectively took a suicidal decision, and there would be no doubt of the justice of your finding, but I do not believe that you can say that and hence I cannot, along with a whole range of both legal and aviation professionals and even the responsible politicians of the time, accept that your verdict can stand, as its outcome leads to a gross miscarriage of justice. I am sorry if you feel that this is a personal attack on you, but at the end of the day I do not believe that I am saying anything that has not already been covered one way or another in the FAI, various House of Commons and Lords Committees and by your fellow senior aviation professionals from many walks of life.

Perhaps some of the supporters of the GN verdict who clearly know what the thinking was at the time could answer some of these questions - I am particularly keen to learn how the assurances given at paragraph 5 of the Flight Safety Directive were actioned.

JB