Day 5
From Mickydrip
Sorry for the late report but, as warned, we all departed for home at the end of proceedings, around 1600 yesterday; 350 miles of snowy motorway later and (almost) all I needed was a dram and some kip.
Before I start I would like to point out that great care is taken to ensure that these reports are de-personalised and only contain information given in open court, i.e. in the public domain. Nothing heard either behind the scenes or in confidence has or will ever be included.
Yesterday was a long and frustrating day; at one point the court was adjourned for an hour and a quarter to enable the Prosecutor to photocopy documents that he had failed to provide for the Board. Later in the day the court was closed by the JA and we were all asked to leave. To a man, we all thought that he was considering the shambolick Prosecution case and that it might all end there. Our disappointment was obvious when court re-opened and the case for the Prosecution continued; the closure had been to allow the Board to try to understand the complexities of altimetry.
It is interesting to note, however, that everybody in the public area feels that the case appears more and more like a house of cards; 1 more big hit by the Defence QC, who is doing a magnificent job, will bring the whole case crashing down. We have been warned, however, that there is a possibility that it may drag on into a 3rd week! My view is that the Defence QC is so focused that once the weak and disorganised Prosecution case has been completed, proceedings will move at a much faster pace. There may not even be a case to answer if the Prosecutor has failed to prove the charges. The Defence team has an impressive number of big hitters waiting in the wings including a whole raft of eye witnesses, some of whom are aircraft enthusiasts, a senior RAF officer,(the ATC specialist) and a Brit F15 pilot from BAe.
The Prosecution only managed to call 2 witnesses yesterday, neither being the only big-hitter they have left. The first was a member of the RCC staff, to comment on the conversion of radar data provided by Scatcc Mil into lat./long to aid the production a radar plot. Included in the creation of the plot was time, distance, azimuth count pulse, flight level, altitude, ground speed and descent rate. The second witness was an aircrew member and advisor to the Board of Inquiry who drew the plot from the data converted by the RCC. It had been evident to the defence team that serious of errors and assumptions had been made in creating the plot; this was confirmed in open court by questions to the aircrew member. Having already documented his altimeter conversion error, he was asked to demonstrate his mathematics for the benefit of the court and he made the same mistake. Apart from the error of incorrectly converting flight level and QNH data, the pilot stated that in creating the radar plot he had projected the track of the aircraft forward, in a straight line, from the final radar contact position, which was normal procedure. However, as this put the crash site some 800 metres WEST of the summit, on his own volition, he moved the plot to the right, to arrive at the then-known crash site, which was approximately 500 metres EAST of the summit. In my opinion this is outrageous; he has clearly altered the evidence to fit the scenario. [A quote from Dick follows…] "Spot would have been stitched up like a kipper on evidence based mainly on - dare I say it - assumption ! Like the kipper, it stinks" !
Do bear in mind that it has been agreed that when the aircraft disappeared from radar, it was because they had faded below cover and not because they had already hit the mountain, although that happened shortly afterwards. The given descent rate of 5000 feet per minute at the last radar return, strongly suggests to me that the pilots were clear of cloud and in ground contact, hence the disappearance from radar. I know of no pilot who, in mountainous terrain, would descend at such a steep angle when in cloud, it just doesn’t make sense.
That’s it for now, it’s a long report but contains a great deal of vital information for your consumption. As Dick says, only now is the work of Spot’s support group over the last 2 years coming to fruition, (altimetry etc.). We haven't been able to post our work, as this would have been prejudicial to his case. As we are now approaching the time when we hear the defence witnesses, more of the work that has been done will come to light.
From Dick Doleman
The altimetry and altitude question relating to this accident has been well known to us for a considerable time. Reference the reply to Mickydrip's last posting concerning discussion on this issue at the Court Martial, this was the very item that the Sqn. Ldr. aircrew witness got so wrong. His initial findings were to be presented to the Board of Inquiry and were subsequently presented to the Court Martial as an exhibit.
He also got it wrong when initially asked to demonstrate his findings to the Board of the Court Martial. However, following further questioning by the defence QC he, the witness, subsequently came to the same result as us; the cockpit indication on the altimeter would have been 3700 ft (with the Regional Pressure Setting, which was agreed to have been set).
The leader of a Tornado formation had previously reported to the Court Martial that, not long before the crash, the white-out conditions localised around the Ben McDhui area were the worst that he had ever encountered and turned away. The Court Martial had already been presented with evidence of a high rate of descent not long before impact and that the aircraft impacted in level flight.
This leads to my supposition that these aircraft were visual with the surface but had very little time to adjust to the white-out conditions after their rapid descent and subsequently impacted with snow covered terrain.
From Mickydrip
NoD asks for a resume of the charges; I did summarise them a little while ago and it's difficult to expand on what has gone before without going over old ground.
Perhaps if I write exactly what appears in the charge sheet then make a comment or two. The charge sheet has been made available to members of the press and public.
Charge 1 & 3 (One for each pilot, Lt Col Hyvonen and Capt Jones):
Doing an act in relation to aircraft causing the loss of life to a person contrary to Section 49 of the Airforce 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 piolt below 6500 ft, said to the Lt Col to descend to 4000ft, which act caused the loss of life of the said Lt Col.
Also a 2nd charge of: Negligently performing a duty contrary to Section 29 A (b) of the Airforce Act 1955 in that he .....etc .
Appreciating that summarising can over-simplify matters, you may be wise to go back to some of the previous and carefully drafted comments for a full explanation. However, in essence, the Prosecution believe there is a direct link between what Spot said and the death of the 2 aircrew; the Defence believe not, as that direct link was broken when they went visual and proceeded low-level. Despite being in the charge sheet, there is also the question of the "minimum vectoring altitude" which is not a Royal Air Force term but is used by USAF crews. Finally, reference is made in the charge sheet to the "radar vector chart"; as you are well aware, this is designed for arriving aircraft to, in this case, RAF Leuchars - it is therefore based on QFE; it is not designed for use by departures or transit aircraft.
It's a pity that before they decided to go low level, the pilots hadn't said as much to Spot; this may tie in with their speedy disappearance from radar, in that they rapidly went out of radio coverage due to terrain as they descended (at 5000 ft per minute).
Concerning the transcripts, only brief and selective mention has been made to small portions of the tape transcript, the odd phrase here and there. To mention what has been commented on so far would appear disjointed and meaningless; the tape transcripts are not yet in the public domain and the R/T recording has yet to be played, although that is expected next week.
The middle charge of negligence is, despite being a lesser charge, much more difficult to defend. If you don't mind, I'll not say any more on the subject as I've no wish to give the other side any clues, suffice to say that there are one or two ideas being carefully considered.
From Mickydrip
One other interesting point that I neglected to mention in a previous brief about the plotting of the map by the advisor to the B of I : Defence asked him if he plotted the map (and moved the plot to fit the known crash site) in isolation, or was he aware that eye witness statements were available. To the man's shame, he admitted knowing of the eye witness reports and discounting them; he actually made no attempt to read them or take them into his calculations. It's outrageous.
Day 6
From Dick Doleman
Day 6, Monday 3rd February 03
For reasons that connot be explained right now, my posting will be restricted to the basics of the day. Please be patient and all will be made clear at the end of the CM; this will be in the best interest of the defence.
The whole day was taken up with the playing of the R/T tapes and the reading of Spot's 165 page statement made to the RAF Police. This was a very difficult and stressful day for Spot, Sue and his sister Barbara and was as bad as can be imagined; they were all close to tears, having to go through, yet again, a very harrowing part of their lives. They all showed commendable dignity throughout.
Day 7
From Brian Young
Day7 Tuesday 4th Feb 03. A particularly turgid and boring day, with the Prosecutor going over old ground (again), plus the arrival of Gp Capt Jim Stenson. The CM saw a replay of the Aberdeen, Lowther Hill and Alan's Hill radar pictures. The Prosecutor has not yet finished with his latest witness, so no appearance of the defence today, hence no report. We have hopes for a more interesting day tomorrow. From a personal point of view, I can see what "track" the Prosecution is on, so I'm sure it will be blindingly obvious to the Defence team!
Day 8
From Mickydrip
Day 8 - Wednesday 5th Feb 03
Summary from Dick @ Helensburgh:
The first session of the morning was spent with the Prosecutor finishing off his examination of his ATC witness Gp. Capt. Jim Stenson. Thereafter, Spot’s QC started his cross-examination, which was completed just before adjourning for the day.
Spot’s QC established the following:
1. Under RIS, the pilot is wholly responsible for terrain clearance
2. Spot broke no regulation in descending the aircraft to 4000 ft
3. Spot is both an experienced and professional ATCO who attempted to assist the aircraft to achieve their task through his own honest endeavour. The QC then used a number of examples from the tape transcript to support this.
4. The RAF authorities did not interview civilian witnesses, for whatever reason.
It was an exciting day with plenty of points of order, and one question of law necessitating the Board leaving the room while the Judge Advocate considered both sides of the argument. He subsequently ruled in favour of the Defence.
Day 9
From Dick Doleman
Summary for Thursday 6th Feb 03:
The first part of the morning was taken up with Gp Capt Jim Stenson, for the Crown, being questioned by his Prosecutor. Spot’s QC, Mike Jones, then did his 2nd cross-examination. From this it was established that when flying IMC, IFR’s were mandatory. Much to his surprise, Gp Capt Stenson was asked to give a graphic demonstration of the Quadrantal Rule for the benefit of the members of the CM. Jim Stenson was then released as a witness.
The Crown’s last witness, Major Scott Chamberlain USAF, then took the stand. At the time of the accident he was Chief of Staneval, HQ USAFE. Major Chamberlain is a very experienced F15 pilot (2,200 hrs), instructor pilot and a qualified USAF aircraft accident investigator. Some of the issues examined will probably be better dealt with after the Defence has cross examined.
In his experience as a qualified Aircraft Accident Investigator he gave a thorough and detailed briefing of his opinion as to how the aircraft came to impact the ground. In brief summary, some of his comments were:
1. This was a low angle, high speed (300 kts +) impact with snow covered terrain.
2. The aircraft crashed in close formation with no evidence of collision prior to impact.
3. The aircraft were wings-level and instruments recovered from the scene suggested that they were throttled back (72%) at 13 degrees angle of attack at the time of impact with the surface at 4058 ft amsl.
The court adjourned, with the Prosecutor still to finish with his witness and the Defence yet to cross examine. It should be noted that all the above may be of great interest but has really nothing to do with the material charges.
Day 10
From Dick Doleman
Herewith the summary for Friday 7th. Very exciting and a masterly performance by Spot’s QC, Mike Jones. Sorry this is a little late but have just driven across country to Broughty Ferry.
The day began with completing the examination in Chief of Major Scott Chamberlain USAF. The Defence led the witness through various USAF documents to demonstrate that the pilots involved should have beeen fully aware of their sole responsibilities for terrain clearance. He then led him through mission planning and established that the pilots were aware of the weather, high ground and route abort calculations required during this mission. The ‘out brief’ also included lowlevel nav requirements and the possible use of Dead Reckoning in the event of INS failure. Furthermore, weather and high ground avoidance procedures were defined. This particular sortie was to include low level nav training and low level intercepts. The mission was subject to a risk assessment by the lead pilot and it was given a low rating.
The met forecast signed-for at the ‘out brief’ indicated the possibility of cloud on the hills at 2500 feet so the weather and high ground avoidance procedures were particularly significant.
It was elicited from the witness that the descent profile prior to impact indicated the likelihood of a descent in VMC. This was supported by the Defence requesting the witness to draw a graphic representation on a flip chart of 3 oktas of Cumulous cloud at 3000 feet . The aircraft were depicted at around 8000 feet on the chart. At top of descent it was conceded that the pilots would have been able to see some 100 miles in all directions and see the ground through significant breaks in the cloud. However, to reach their low level objective, they would probably, for at least a short time, have to enter cloud, therefore, they selected “ intake anti – icing on”. The general wx in the area given by the Aviemore Wx centre (only approx 20 mins before the accident) gave the vis as up to 60kms outside snow showers. It was known from a Tornado pilot witness, who flew through the local area no more than 1 hour before the accident, that the ‘white out’ conditions on Ben McDhui in particular, were the worst he had encountered in 7 years of fast jet flying in Scotland. The witness agreed with the defence that:
1. The pilots had briefed.
2. They would have taken account of significant high ground on their intended mission.
3. They knew where they were by reference to their Inertial Navigation System (INS).
4. They were carrying maps for the area which were marked appropriately for their mission.
5. They should have been able to see the ground through significant gaps in the cloud from 8000 feet before start of descent.
6. They knew where Ben McDhui was, yet they flew into it.
The witness concurred that the pilots may have become disorientated by the previously described ‘white out’ conditions around Ben McDhui.
The witness also agreed that there may have been another explanation as suggested by the Defence and seemingly supported by eye witnesses yet to be introduced. The aircraft may have encountered localised bad wx and circled around Ben McDhui to regain their track and subsequently met the same ‘white out’ conditions previously mentioned. Defence QC was able to have the witness agree that the cockpit instruments recovered could be consistent with both a shallow descent profile and the 2 pilots also attempting a ‘join up’ at low level. The distance the aircraft were apart at impact was double the norm, indicating that they had possibly widened out in a turn and were yet to close up again. They then crashed in the same manner in ‘white out’ conditions as previously described.
The Defence established, through a prosecution witness, that there are 2 accepted alternatives compared with the the charges as laid.
After a short re-examination by the Prosecutor, the Judge Advocate released Major Chamberlain and thanked him most warmly for his voluntary support to the RAF’s invitation to contribute to the proceedings. Spot’s QC, Mike Jones, had been very robust in cross examination of Major Chamberlain. Major Chamberlain responded that his duty had been an honour to have helped but he was, tomorrow, “going to war, and after this it will be a relief !! “ This elicited much laughter and spontaneous applause from the entire court including the Judge Advocate, the Board, and both Counsels. There was genuine warmth for Major Chamberlain with most present shaking his hand and wishing him a safe return from the Gulf.
It was revealed that the USAF accident inquiry has not yet been completed some 2 years after the accident. I find this rather extraordinary. What are they missing in evidence ? Please post your conclusions - I know mine!
We have been told that, on Monday morning 10am , a submission will be made by the Defence and that the Board members will not be required til 2pm. Watch this space !!!!!!!!!!!!!!!!!!!!!!!!!!!
Day 10 1/2 !!!
From Dick Doleman
s we have a break in the proceedings, I thought it might be a good time to give you some background on the daily happenings in Helensburgh.
We start our day at the farmhouse with a chat over breakfast, reviewing the newspapers and the last ‘posts’ on Pprune which Mike Tasker faxes up to us each morning. Spot and Sue very much appreciate all the messages of support that you have been sending. These give Spot a great lift and it is just the right stuff to start the day with. Keep them coming. The strike rate on the forum is massive and yet another indicator to Spot of the interest and support out there. He has been taking this on the chin for himself and all ATCOs for 2 years now, so, he needs your encouragement. Thanks also to all those good people running Pprune, I don’t know what we would have done without you.
The CM commences at 10am each morning and is held in a very large room in a community centre. The acoustics leave a little to be desired. For those not familiar with military matters, it might be useful to give you some idea of how a CM is conducted.
Running along one side of the room is a very long table. The Judge Advocate (a civilian barrister) acts as the legal advisor to the Board and sorts out any points of order or legal matters that might arise from, or between, the defence and Prosecution. The JA sits in the middle. To his left sits the President of the Board, in this case, a Group Captain. To his right sits the senior member, in this case, a lady Wing Commander. The senior member swears in the witnesses. There are a further 5 members of the board, 2 Squadron Leaders and 3 Flight Lieutenants.
Facing the Board and well separated are the Prosecution and Defence teams. The Prosecutor, a Group Captain from the RAF legal services branch sits alongside his assistant. Behind them sit his expert witnesses. In this case, Group Captain Jim Stenson (ATC) and Major Scott Chamberlain USAF (now departed for the Gulf) an experienced F15c pilot and qualified aircraft accident investigator. The expert witnesses, unlike normal witnesses, are allowed to remain in court throughout and can be consulted at any time.
The Defence side is slightly more complicated. Mike Jones, Spot’s QC sits alongside his assistant. Behind them sit Spot with his escorts and these are friends of his chosing. Spot has Wing Commander Al Quinn and Flight Lieutenant Dave Mc Pherson. Alongside them sit the experts for the Defence. They are Wing Commander Chris Foster (ATC) and Craig Penrice (Test Pilot) currently flying Eurofighter/Typhoon and experienced on the F15c. What a team !!!
Behind the Defence and Prosecutor teams is the public gallery. CMs are open to the public. However, this gallery has been mainly used by friends, family, the press and Al Turner who, on at least 4 occasions, has forgotten to zip up his flies. A new spin on open to the public perhaps?
The witness chair is just in front of the Board and to their extreme right, closest to the Prosecutor.
There has been no marching in and out of the accused but the court is conducted in a formal but relaxed manner with plenty of saluting, bowing and rising for the court and JA.
Very occasionally, individual members of the Board may require clarification from a witness. In this event, the question is written and passed to the JA. With his sanction, the President may then ask the question. You will have already gathered that witnesses are handled by both the Prosecutor and Defence in the normal way. Everything introduced into court becomes an exhibit and some of this has to be read into court, this can be very laborious at times. So far, we have close to 60 exhibits including an airfix model of a tornado introduced by the Prosecutor.
You are not allowed to eat in Court, as I was politely told by the Court Orderly. He also assists in shuffling paper and exhibits between all concerned and operating such things as tape and video recorders. The court goes into recess for about an hour over lunch and adjourns for the day at approx 4pm. We have a couple of short breaks in the day to give the stenographer a rest.
After adjournment for the day, the support team returns to the farmhouse where a full debrief takes place in ‘Al’s Bar’. The daily summary is formulated – my thanks to Paul Beat and Daryl ‘Disco’ Hazelgreaves for their help in this – written up and then faxed down to Mike Tasker for posting on Pprune. Then it is time to tuck Al up in bed and have an early night -----not!!!!
Day 11
From Dick Doleman
SUMMARY FOR 10th February 2003:
The Judge Advocate considered both the submission of ‘no case to answer’ put forward by the Defence and the response by the Prosecutor.
The submission by Mike Jones QC was very elegantly and expertly put and was a test of the legal points of negligence and causation. The JA decided that the CM should continue and the Board was called back in.
The Defence then called their first witness, this is a gentleman who was hill walking with a friend in the general area at the time. He was looking north and saw two twin finned aircraft which were tracking east to west before he saw them bank to the right towards Ben McDhui. They were above him (he was in a valley bottom) but were flying beneath cloud. He saw them for about five seconds. He initially identified them as F14s but afterwards realised that they were F15s.
The witness is now under cross examination.
Day 12
From Dick Doleman
SUMMARY FOR TUESDAY 11 FEB 03
This was, all in all, a pretty dramatic day.
The morning started with the Prosecution completing cross-examination of the first eye witness without eliciting any significant contradiction from his original examination by Defence.
The second eye witness (a retired teacher and very experienced hill walker) was most convincing. He knew exactly where he was when he saw two aircraft approaching him and his companion from the south. They were standing at a spot height of 756m (approx 2300ft). He could see two aircraft in very close formation and that they were twin tailed. He mentioned to his companion that the aircraft were not Tornados as he was very familiar with them in his hill walking experience.
The aircraft started to bank before reaching him and flew belly towards him at an estimated range of 40 yards!! The aircraft were flying beneath cloud and were last seen banking steeply flying in a westerly direction close to the time the aircraft were last seen on radar.
In cross examination the eye witness remained adamant on his assessment of his position and height and that the aircraft were twin tailed and definitely not Tornados.
The third witness was part of the walking group of Witness 1. He verified the information of Witness 1, that the aircraft were seen to the north of him and travelling east to west in close formation.
The fourth eye witness was lady walking with the second eye witness. She was not an experienced map reader but saw the aircraft and knew they were not Tornados because Tornados regularly flew in the area where she lived and she noticed these aircraft had a double tail. Her companion also stated that the aircraft were not Tornados at the very time of sighting them. On cross examination she was adamant that the aircraft had a double tail and were not Tornados. They passed 100 ft above her head banking towards a gap in the hills. They were flying beneath cloud.
An expert witness, Craig Penrice (test pilot) was then called. He is currently working for BAe Systems, Warton. He has a total of 4,200 hrs including Lightning (750 hrs), Hawk (1800 hrs), F15 (550 hrs), Tornado + Eurofighter. He has very extensive low level experience including Farnborough Display Pilot in Eurofighter down to 500 ft a.g.l. He has been a Qualified Flying Instructor (QFI), Qualified Weapons Instructor (QWI), Instrument Rating Examiner (IRE) and USAF Instructor Pilot. He is also a graduate of the US Navy Test Pilot School. Craig has flown all variants of the F15 interceptor and was a qualified 4-ship leader on this aircraft.
Mike Jones QC started his examination by asking Craig for his views on the pre-flight mission planning and briefing of Bite 21. Various items of documentary evidence were already in court as exhibits.
He stated that the weather information available to the pilots would assist the crews in validating that the mission was viable and that they would have a complete weather picture before setting off. From the information LFA 14 looked good to excellent visibility, scattered cloud base greater that 2500 ft and the possibility of cloud on the hills in places with the possibility of scattered snow showers.
He stated that on such a mission, pilots would not simply climb to their Abort Altitude if encountering cloud as they would want to achieve their mission objectives. In this case, a low level navigation exercise and low level intercept training. He also stated that pilots viewed low level abort as more perilous than other options available which would probably have been enunciated in the brief. Such other options might include:
1. Circumvent bad weather.
2. Return to an area of known good weather.
3. Conduct their exercise in an area other that originally planned.
Craig was still being examined by Mike Jones when the court closed for the day.
IMPORTANT REVELATIONS Mike Jones QC for the defence elicited that none of the eyewitnesses had ever been interviewed by the RAF, USAF or any aircraft accident investigator. They had all made statements to the Grampian Police. All authorities were aware of the existence of such statements. We know that Major Chamberlain saw at least one of these statements but did not follow it up in his role as USAF aircraft investigator.
We also know that the RAF Board of Inquiry also knew of the existence of the statements and chose not to pursue the evidence through interview.
Furthermore, we know that the USAF accident investigation was still not complete after two years or its findings were left open.
We can draw over our own conclusions as to why all these authorities chose this course of action. However, I am sure readers of this forum will draw their own conclusions and make the appropriate comments. Personally, I smell some very large rodents!!!