Chinook - Still Hitting Back 3 (Merged)

[Wokkafans]

Great news

Full report here: http://www.mullofkintyrereview.org.u...w%20Report.pdf

Executive summary:

1.4 Executive Summary and Conclusions

1.4.1 We were appointed by the Secretary of State for Defence, Dr Liam Fox, to examine all available evidence relating to the findings of the RAF Board of Inquiry into the fatal accident on 2 June 1994 in which RAF Chinook helicopter ZD576 crashed on the Mull of Kintyre, killing all those on board. The accident resulted in one of the worst losses of life sustained by the RAF in a peacetime accident and dealt a severe blow to the services and agencies of which the passengers were important members.

1.4.2 The investigating Board found that there were several potential causes of the accident but, despite detailed analysis, were unable to determine a definite cause. They however, concluded that the most probable cause was the selection by the pilots of an inappropriate rate of climb which was insufficient to enable them safely to overfly the high ground of the Mull of Kintyre.

1.4.3 Detailed provisions for the conduct of aircraft accident inquiries were contained in the RAF Manual of Flight Safety. The Board were required by the Regulations in force at the time to obtain evidence to show whether or not the aircrew who died in the accident were negligent. The Board concluded that pilot error was the probable cause of the accident, but made no findings of negligence in relation to any of the aircrew of ZD576.

1.4.4 The Board of Inquiry procedure was not complete until the Board’s report had been reviewed by the RAF Chain of Command. The report was accordingly reviewed by the Air Officer Commanding No1 Group, Air Vice Marshal Sir John Day, who found that the evidence could only lead him to the conclusion that both pilots had been “negligent to a gross degree”. The
Air Officer Commander-in-Chief Strike Command, Air Chief Marshal Sir William Wratten agreed with this finding.

1.4.5 The finding has been and remains controversial and the controversy has led to the examination of the Board of Inquiry by a number of subsequent inquiries. The continuing debate is understandably distressing to the families of those who died and we hope that this review can bring the controversy to an end.

1.4.6 Our review took the form of a non-statutory independent inquiry and was not held under the Inquiries Act 2005. We did not therefore have the power to compel witnesses to attend and to give evidence. We did, however, write to the families of those who died in the accident and to a number of other individuals inviting them to meet with us or to provide written submissions. We are most grateful to those who accepted our invitation and to those who provided us with submissions.

1.4.7 We held meetings with representatives of the families of the deceased pilots, the Board’s president Air Marshal Pulford and Mr AN Cable the Air Accident Investigation Branch Inspector who carried out the detailed examination of the wreckage and provided the Board with a statement of his findings. We also met with the Reviewing Officers Sir John Day and Sir William Wratten and a number of pilots and aircrew who were colleagues of the deceased pilots at the time of the accident. In addition, at his own request, we met Sir Malcolm Rifkind who was Secretary of State for Defence at the time of the accident and the subsequent publication of the Board of Inquiry report.

1.4.8 The Regulations made detailed provision for the protection of the rights of officers or airmen whose character or professional reputation might be affected by an inquiry. These were designed to ensure that the officer or airman had adequate notice of any matter which might affect his character or reputation and that he fully understood his rights. He was entitled to be made aware of the evidence against him, to be present and represented at sittings of the Board, to examine and cross-examine witnesses, and to give evidence in his own defence. An officer or airman who was considered by a Board to have been negligent had to be shown the evidence on which that opinion was based and be given the right to ask for further evidence to be taken and any new points to be fully investigated. If negligence was finally attributed to him he was entitled to make a further statement giving reasons why he should not be held to blame. A similar right applied when the Higher Authority attributed negligence to him when a Board had not done so, or altered the reason for the finding of negligence. Disciplinary proceedings would be likely to follow a finding of negligence, and the outcome would be based on a complete re-hearing of the evidence. In such proceedings the officer or airman would be entitled to a fair trial with all the rights that would entail. In contrast, in the case of deceased aircrew there was no opportunity before the Board for representation or for defence of the deceased’s reputation and the Board’s decision on negligence constituted the final judgment on the deceased’s character or reputation, against which there was no appeal.

1.4.9 The unfairness to deceased aircrew inherent in this procedure was recognised by an RAF working party set up in 1983 to examine the Board of Inquiry regulations. Their recommendation that accident investigation should be separated from the chain of command was rejected, but the Air Force Board accepted the introduction of a provision which created a very high standard of proof in relation to findings of negligence against deceased aircrew,

“Only in cases where there is absolutely no doubt whatsoever should deceased aircrew be found negligent”.

1.4.10 Despite the introduction of this high standard of proof we consider that the Board of Inquiry procedure into the ZD576 crash was conducted under a system which was, by generally accepted standards of justice and fairness, unfair to deceased aircrew, and which had previously been characterised as flawed by two authoritative reports commissioned by the
Ministry of Defence and RAF.

1.4.11 No steps, apart from the introduction of the standard of proof, were taken to address any of the defects in the Board of Inquiry system so far as they related to deceased aircrew, until 1997. In that year, partly due to the controversy surrounding the ZD576 accident, Defence Ministers directed that Boards of Inquiry should not be permitted to attribute blame or
negligence in cases of unnatural death or serious injury. Subsequently, in 2008, Boards of Inquiry were replaced by Service Inquiries under the Armed Forces Act 2006 separating accident investigation from the operational chain of command, and as recently as 2011 when an autonomous professional Military Air Accident Investigation Branch was created.

1.4.12 The standard of proof of “absolutely no doubt whatsoever” was as unfamiliar to lawyers as it was to military officers, and it is not surprising that its interpretation has given rise to differences of opinion. It was however, vital that its effect should have been properly understood and applied.

1.4.13 In our view, the provision was intended to create the highest possible standard of proof in order to offset, so far as possible, the unfairness of the Board procedure to which we have already referred. Negligence had to be proved by evidence. It could not be presumed and there could be no onus on deceased aircrew to disprove it. Missing evidence could not be assumed to
support a finding of negligence. The standard of proof was higher than the standard of beyond reasonable doubt which applied in criminal cases. The words “absolutely” and “whatsoever” emphasised that the doubt was unqualified and unrestricted and could be of any kind. It was not limited to reasonable doubt. A speculative doubt could be sufficient to prevent a finding of negligence. The test was an objective one, so the subjective certainty of the decision maker was not enough to entitle him to make a finding of negligence. A hypothesis for which there was no evidence, if it created doubt as to what had happened, would also be sufficient to exclude
a finding of negligence. In our unanimous opinion this case was precisely the kind of case for which the standard of proof was designed to preclude findings of negligence against deceased aircrew.

1.4.14 When the Board report came before him for review Air Chief Marshal Day sought legal advice from the RAF Directorate of Legal Services. We were told that this was the first time that someone in his position had done so. We have considered the legal advice he received and
found it to be unclear and inaccurate. It failed to recognise the objective nature of the test, and placed no restriction on the power of the Reviewing Officers to make a finding different from that made by the Investigating Board. It introduced a reference to RAF policy which could be interpreted as an assertion that the standard of proof meant what the RAF wanted it to mean. The consequence was that the Reviewing Officers were given inadequate legal assistance in their interpretation of the standard of proof.

1.4.15 We are left with the impression that prior to 1994 there was no appreciation in the RAF or the Ministry of Defence of the need to examine carefully the effect of the introduction of the high standard of proof in relation to findings of negligence in cases involving deceased aircrew. It seems to us that the Ministry and the RAF simply failed to apply their minds to the restrictions which the standard of proof placed on the power of Boards and Reviewing Officers to make findings of negligence in such cases. This impression is reinforced by the fact that the Department sought counsel’s advice on the interpretation of the standard of proof only when the House of Lords Select Committee had been established, several years after the requirement to consider negligence on the part of deceased aircrew had been removed.

1.4.16 For the investigating Board, the absence of a cockpit voice or flight data recorder, coupled with the multiple impact of the crash and the ground fire which damaged a major proportion of the wreckage, greatly reduced the quantity and quality of the available evidence. In his statement to the Board Mr Cable said that the pre-impact serviceability of ZD576 could not be positively verified, but that there was no evidence of malfunction that could have contributed to the accident. He told us that his investigation would probably have uncovered evidence of a preimpact malfunction, had there been one, but that this could not be certain. That did not mean that the absence of such evidence conclusively proved that there had been no malfunction.

1.4.17 In that situation the Board found that there was insufficient factual evidence to enable them to determine how and why the accident happened. Although they were reasonably certain that ZD576 was flying fast at low level in proximity to the southern end of the Mull of Kintyre, in the absence of a cockpit voice recorder, a flight data recorder and the evidence of the crew or any other witness, they could not know how or why the crew got into that situation or what they were intending to do. All they were able to do was to postulate three possible scenarios as to the cause of the accident and to choose the one they considered the most probable.

1.4.18 Applying the high standard of proof, the Board unanimously concluded that they were unable to make any finding of negligence or make any assessment of human failings because of the lack of evidence. After they had briefed Air Vice Marshal Day and his staff they reconsidered
the question of human failings and concluded that, although it was likely that Flt Lt Tapper had made an error of judgment in the conduct of the attempted climb over the Mull of Kintyre, it would be incorrect to criticise him for human failings based on the available evidence.

1.4.19 Criticism that insufficient attention was paid by the Board to the maintenance, engineering and airworthiness aspects of the Chinook, was not in our view, justified. They investigated the problems with the engines’ Full Authority Digital Electronic Control system and other technical malfunctions in the Chinook fleet, and the history of ZD576. They took these matters seriously, but did not expand on them in their report because there was no positive evidence that a malfunction had occurred before or during the accident. Their job was to determine the cause of this accident and make recommendations, not to investigate all aspects of Chinook operations. Moreover, these problems were well known and were being addressed
by the Ministry of Defence.

1.4.20 Having considered the Board report along with Mr Cable’s statement, and had the benefit of discussions with Air Marshal Pulford and Mr Cable, we are of the clear opinion that the Board was correct, in the light of the available evidence or the lack of it, to refrain from making a positive finding as to the cause of the accident.

1.4.21 As part of our review, we discussed with the Reviewing Officers the reasoning by which they came to their decision and raised with them a number of factors which could be said to create doubt as to the way in which the accident came about. We list a number of these factors.

1.4.22 While there was ample evidence that low cloud was present over the Mull of Kintyre at the time of the accident there could be no certainty as to its configuration or as to the visibility available to the pilots as they approached the coast.

1.4.23 Mr Cable told the Board that the serviceability of the aircraft could not be verified and he was concerned that that statement had been ignored or misrepresented. Our discussions with Sir John Day indicated to us that he had in fact disregarded Mr Cable’s statement and had instead applied his own judgment to the assessment of the serviceability of the aircraft.

1.4.24 Both Reviewing Officers told us that they did not consider why the pilots had apparently acted in a way which was contrary to their instinct and training. They argued that this would have involved inappropriate speculation. We consider that it was wrong to exclude that consideration since it was capable of giving rise to doubt.

1.4.25 Sir John Day rejected a number of scenarios postulated by the Board which involved a chain of events different from that preferred by him. The existence of those scenarios in the minds of the Board indicated that there was doubt as to how the accident came about.

1.4.26 Because of the absence of a cockpit voice recorder and flight data recorder we cannot know what was going on in the cockpit in the moments before the crash. The Reviewing Officers’ approach to this gap in the evidence was to apply to both pilots what in our view amounted to a presumption of negligence based upon their shared responsibility for the safety of the aircraft. That approach was inconsistent with the standard of proof.

1.4.27 For all these reasons we consider that the Reviewing Officers failed to apply correctly the standard of proof of “absolutely no doubt whatsoever” in deciding the question of negligence.

1.4.28 In fairness to them we do not consider that the application of the unfamiliar standard of proof was an easy task for professional aviators with no legal training. Legal advice was sought but the advice provided did not assist the Reviewing Officers. Instead it provided them with comfort when it should have emphasised the restriction on their power.

1.4.29 When the Board of Inquiry Report was presented to the Ministry of Defence the Department’s principal concerns were the public presentation of the Board’s findings, and the question of compensation for the relatives of the deceased. When the matter was first put before the Secretary of State he was not told that there had been a difference of view between the Board and the Reviewing Officers nor was he informed of the standard of proof
which applied. The consequence was that Ministers were deprived of the ability to reach a properly informed view on a matter which has given rise to so much disquiet inside and outside the Service.

1.4.30 Since 1995 the Ministry of Defence has continued resolutely to defend the finding of gross negligence and to rebuff all public and private representations that the finding should be reconsidered even when the representations included cogent arguments based on a sound understanding of the effect of the relevant Regulations. We find it extremely regrettable that the Department should have taken such an intransigent stance on the basis of an inadequate understanding of the RAF’s own Regulations in a matter which involved the reputation of men who died on active service.

1.4.31 After receiving the Board of Inquiry report the Ministry of Defence reviewed its policy and procedures for carrying key personnel. They concluded that the decision to carry the passengers on ZD576 was not necessarily unsound and that in future a similar decision was ikely to be made. We remain concerned that that conclusion leaves open the possibility of a similar accident involving groups of personnel vital to national security happening in the future.

1.4.32 Having completed our review we are led to make the following recommendations:

(i) We recommend that the finding that Flt Lt Tapper and Flt Lt Cook were negligent to a gross degree should be set aside.
(ii) We recommend that the Ministry of Defence should consider offering an apology to the families of Flt Lt Tapper and Flt Lt Cook.
(iii) We recommend that the Ministry of Defence should reconsider its policy and procedures for the transport of personnel whose responsibilities are vital to national security.