Today was one of high and lows. The Crown Prosecutor waded into the case and threw just about everything at Spot. With no chance to answer back, this was difficlut for us all to take, but Spot and Sue maintained their dignity by listening to what he had to say. Despite the Prosecutor's earlier assurances that his summing-up would only take 2hrs, Mike Jones finally got to his feet in reply at 1500! In the hour left of the day, Mike got straight to the point and we left feeling 'on the up'.
Before I go any further, I want to say a very big thank you to everyone who has sent their best wishes. We read them at the breakfast table each morning (courtesy of Micky Drip's Fax machine) and they mean an awful lot to Spot and Sue. Keep them coming!
Summary for Wednesday 19 February 2003
The GCM re-commenced with the Prosecutor presenting his closing address for the Crown. The job of the prosecution is obviously to discredit the evidence of the defence and their witnesses. Moreover, it is incumbent on them to highlight the strong (!) elements of their own case. The Prosecutor started by directing the Board as to how they should treat the evidence presented to them. He then went on to point out that charges 1 and 3 require causation to be proved and that charge 2 was a negligence charge. For charge 1 and 3, the Crown must prove that Spot directly caused the death of the pilots. The cause must be more than minimal and more than a slight or trifling link.
In commencing his summing-up, the Prosecutor compared his case to a rope. He conceded that all the evidence might not support his case, but advised us that any anomalies were merely individual frayed fibres which did not weaken the integrity of his rope. He also likened the defence case to a chain, saying that any problems with their case highlighted a break in the links, so ruining their case. What a convenient analogy! The rope may come be used later by the Prosecutor, but not necessarily to prove his point!
The Prosecutor then went on to highlight his reliance upon the evidence of his own expert witnesses. These were Gp Capt Jim Stenson (ATC) and Maj Scott Chamberlain (USAF). The Crown conceded that Spot was not solely responsible for the accident; however, they claim that he had contributed significantly to the cause of the accident by placing the pilots in a false environment and lulling them into a false sense of security which led to the fatal impact. He contended that Spot’s advice to descend to 4000’ was a direct causal link to the accident as he ought to have known that there was high ground in the area.
In support of this theory, he quoted Gp Capt Stenson as saying “for Flt Lt Williams to choose an interim descent altitude of 4000’ instead of 6500’ was an error”. The Prosecutor agreed that under the terms of RIS, pilots were responsible for terrain clearance and by descending to the advised altitude of 4000’ they had made a major contribution to the accident. However, in his view, Spot mad a significant contribution to the cause and, therefore, this proves causation in his case.
The Prosecutor introduced a statement (supposedly) made by Maj Chamberlain who said “that it would appear that the ac were not in VMC because they descended from 6000’ to 4000’. Descending the ac to 4000’ was a significant cause of the accident”. We say supposedly because of later contention from the summing-up of the Defence which seems to contradict Maj Chamberlain’s statement.
In describing the prosecution witnesses, the Prosecutor highlighted the fact that workmates of Spot would have found it very difficult to give measured and careful evidence against a colleague. That said, he complimented Gp Capt Stenson and Maj Chamberlain on “measured, considered, impartial and objective evidence”; the evidence was not, in his view, “partisan” – more of that word later.
In the Crown’s submission, Spot’s actions fell below that of a competent and careful controller and the pilots carried out his advice to descend to altitude 4000’, which resulted in the accident. They claim that a pilot must be able to assume that the advice given is safe.
The Crown’s contention was that the case is not about RIS but Spot’s assumption that the ac wanted to go the low-level and his failure to question the descent to “Min Vectoring Altitude”. In their view, there was no logic in Spot’s assignment of 4000’ in terms of the response itself. In their view, “Min Vectoring Altitude” was clearly heard by Spot and not blocked by another call. It was their view that the only proper response was a descent to 6500’ (the 100nm Emergency Safe Altitude).
The Prosecutor then went on to point out that when all the Leuchars ATC witnesses were questioned on the subject of MVA, they said that, if they didn’t understand the phrase, they would either question the pilot or ask the Sup for guidance.
The Crown moved on to introduce the evidence of certain members of the RAF BoI, which has still to reach a conclusion. According to the Prosecution, the President of the BoI, was only giving a “birdseye view” of the accident with no attempt to accurately plot the indicated track. Moreover, he tried to infer that another member of the BoI had only been called to superimpose lat and long information onto an OS map. We know, however, that when the plotting of his information did not match with the impact point or any manoeuvre that could have been carried out by the ac from the last radar return, he simply moved his plotted line to meet the impact point. In concluding the evidence of the 2 BoI members, the Prosecuotor adivised the Board that they should not rely on the accuracy of the plotting and mathematical proposition (!). Most importantly, the Prosecutor reminded the Board that, although, the BoI member was aware of eye-witness accounts made to the Grampian Police, he did not consider them worthy of further investigation.
The Crown’s case relies upon the fact that the ac maintained a continuous descent from FL80 to the impact point. They say that the radar plots point directly, or almost directly to the impact point, so supporting their theory.
The Crown conceded that with the pressure setting information (agreed evidence) the pilot’s had broken their assigned altitude of 4000’ and that the rate of descent was steeper than should be expected for ac flying in formation in IMC. The Prosecution tried to explain this away as “just a frayed fibre of the entire rope supporting the prosecution case”.
A great deal of time was taken by the Prosecutor in covering Spot’s 7 hour interview with the RAF Police. Whilst the Prosecutor tried to lead with the fact that it was a “gentle and probing interview”, those of us who had earlier listened to the 165 pages of text formed a somewhat different view. I personally saw the day as an interrogation, rather than as part of a balanced police investigation. It led me to think that, rather than Spot helping the RAF with their enquiries, it seems to have served only to provide information to be used against him. In retrospect (and perhaps a thought for the future), if I were an RAF controller – having seen how this information was used – I would not give an interview under similar circumstances. From the transcript of the interview, there seemed to be an indecent haste into reaching the conclusion that Spot was guilty of some form of negligence and that charges would be laid. In my mind, this pre-supposes that the decision had already been made to press charges.
The Crown went on to bullet-point some of their case:
1. No pilot flies into terrain that he can see.
2. The pilots did what they were told.
3. Snow levels were at about 2000’ AMSL.
4. The descent from FL80 to 4000’ was advised by Spot.
5. The weather report gives 3/8 cloud cover with a base 2500-3000’ AMSL.
6. It is entirely feasible that Ben McDui was obscured by cloud and snow.
7. The pilots were aware of the proximity of high ground from their INS.
8. There was a telling exchange of confirming 4000’ between the pilots an ATC.
9. The pilots were partly responsible for the events leading to the impact.
10. Spot contributed significantly to the accident by creating a false environment and lulled the pilots into a false sense of security.
The Prosecutor then went on to make a clear attack on the defence evidence and stated to the Board that, if the eye-witnesses were to be believed, then charges 1 and 3 (causation) would be negated. He therefore warned the Board to look at eye-witnesses statements most carefully. He went on in a concerted attempt to discredit all eye-witness statements. He said that it was natural for witnesses to think that they were helping when they had heard of the accident through TV and the media. He tried to convince the Board that eye-witnesses had seen Tornados and not F-15s, but carefully avoided explaining that the Tornados had landed back at Lossiemouth some half an hour before the Prosecution’s time of impact.
He then moved to attack the theories put forward by Craig Penrice (widely reported in the Scottish Press as one of the world’s leading test pilots!). The Prosecutor stated that, to believe Craig’s theories required several levels of supposition and that the theories went against the real evidence of what the pilots expected to do. He said that the theories defy all logic and that, once north of Ben McDui, the formation would have turned north rather than south. He said that Craig’s theories were and understandable but academic exercise and, in reality, not plausible.
The Prosecutor then moved on to attack the evidence of Wg Cdr Chris Foster, the defence’s expert ATC witness. He said that, compared with the evidence given by Gp Capt Stension and Maj Chamberlain for the prosecution, Wg Cdr Foster’s evidence was “partisan in the extreme”!! Clearly upset by Wg Cdr Foster’s stance, he said that getting evidence from him was like pulling teeth and that he had adopted a view from which he would not be moved. The Prosecutor said that Wg Cdr Foster’s views were nothing more than a flight of fancy and he urged the Board “in reality, you can set aside his evidence”. The Support Team read into this the fact that our original theory of Chris looking like Vinny Jones on the witness stand may have been closer to the truth than we realised at the time! Subscribers to pprune who purport to work at Swanwick(Mil) are requested never to refer to the Boss as Vinny!!
The Prosecutor said that Wg Cdr Foster’s evidence stretched the point of incredulity in his conclusion that (as an examiner) would have allowed this scenario to develop by sitting back and doing nothing. The Crown suggested that this was just not right and completely out of step with those ATC staff who said that they would have got involved in correcting Spot’s actions.
The Crown moved to their questioning of the selection of altitude 4000’ as an interim descent altitude. The Crown said that such a decision was not based on logic and that 5000’ or 6000’ would have been better. In their view, “more compellingly”, the logic was not volunteered in Spot’s police interview and that it lacked the logic of the compliance of the rule of thumb for primary radar coverage.
The Prosecution were working towards their conclusion and stated that, even though the ac were under RIS, Spot should have recognised as “foreseeable” the consequence of his actions in relation to the high ground. He said that, whilst that this decision may have been uncharacteristic, it was in error. He finally concluded that the defence theory was awkward and tortuous and without logic. Moreover, he concluded that Craig Penrice’s theory was implausible.
We then moved to the Defence and Mike Jones QC had about an hour on the stand. He started with a tongue in cheek plea to free us all from ropes and chains! He went on to brief the Board that they had 2 duties in terms of the charges before them, summarising primarily causation on the major charge (1 and 3) and negligence on the alternative charge. He reminded all that the primary charge was a very serious criminal charge in which causation must be proven. He made it clear that the Crown’s view of causation was that, from top-of-descent, the ac made a straight line track from FL80 to impact at 4058’ AMSL; moreover, the ac was IMC from 6000’ to impact.
Mike Jones then went to consider the evidence of prosecution witnesses, starting with the available radar data. Of the 3 plots:
1. The Aberdeen radar displayed the ac transiting to the west of Ben McDui. It also had the ac at FL49, 1nms south of the impact point. Up until then, the information derived from the Aberdeen plot highlight a rate of descent at 3000’pm; the ac would have had to increase their rate of descent to 4500’pm in order to reach the impact point from the last radar return.
2. The Allens Hill display supported the Aberdeen.
3. The Lowther Hill track stop some 6kms south of the impact point.
If all the radar data is understood, the ac could not have impacted Ben McDui as they did. If the view of the Defence, the data supplied by the ARCC witness does not support the prosecution case of a straight line descent into terrain and therefore causation must be discounted.
Mike then went on to question the evidence of the BoI member called to plot the lat and long information. He had been given information that the last Allen’s Hill radar trace was to the North and west of Ben McDui. From his flying experience, he considered that it was impossible for an ac to manoeuvre from the last known radar position to the impact point. Accordingly, he decided to transpose the line to fit his assumption of a straight line descent into terrain. His adaptation of the facts does not support the Crown case of causation; without direct causation, they have no basis for charges 1 and 3. Further to that, this witness (armed with all the pressure-setting information) incorrectly calculated the ac’s altitude. He also made the same mistake in court, with only the cross-examination by Mike Jones highlighting the error.
Mike Jones then moved to Maj Chamberlain’s evidence and, which recognising his contribution, viewed it as “neutral”. In the defence case, a neutral position cannot support the prosecution.
With the Prosecution having made a big point of Spot’s reaction to the incident, Mike moved say that any evidence was purely subjective and didn’t take any account of an objective view towards causation. Wg Cdr Foster also said that Spot’s reaction could have been reasonable for any controller. Mike Jones moved to summarise the evidence which doesn’t fit with the prosecution case and these were summarised, through his Powerpoint presentation, as:
Flight planning. All high ground would have been marked on relevant maps and retained in the cockpit.
Briefing. Ground clearance emphasised and low altitude manoeuvring in conjunction with obstacle avoidance briefed. Route Abort Altitude of 5700’ briefed.
Weather information. Known to be excellent visibility outside showers. Some cloud on high ground. Also known 5/8 of ground visible to them before descent from FL80 and able to see 100nms clear of cloud. In all probability, they could see Aviemore and surrounding country side before commencing descent
Rate of descent. From 7200’, the rate of descent was up to 4000’pm, compared with an earlier rate of nearly half that. Maj Chamberlain conceded that the rate of descent towards Ben McDui (as put forward by the prosecution) did not support the prosecution case of a formation descent in IMC straight to the impact point.
The levelling-off procedure. This rule of thumb procedure (as earlier mentioned) does not seem to have been complied with, indicating a rapid descent in VMC.
The radar plots. As previously described, they were construed to be misleading and the real case supported the defence supposition that a real track pointed to the wet of Ben McDui
The eye-witnesses. Without going into the full detail, of which you all fully aware, Mike Jones dealt with very eye-witness account and summarised their evidence to being clear, both in direction, identification of twin tails and that the ac were not Tornados. He could not see any reason for the Crown to discredit the eye-witness evidence.
Crucially, he directed the Board that:
1. Belief of all of the eye-witness statements = AQUITTAL.
2. Belief of only one of the eye-witness statements = AQUITTAL.
3. Any probable belief of even one of the eye-witness statements (or inability to completely discount the witness) = AQUITTAL.
More tommorow, but for now, I’m off to rest my wrist. Quiet night ahead!
Dick Doleman and friend.