Thu 20 Feb
NOTE: Sorry for the late posting but neither Dick nor I were able to access Pprune yesterday.
Hi folks,
Another good day for the Defence and we finally saw all Mike’s good work come together. He gave a brilliant closing address – most convincing !
Poor Spot and Sue will now have to wait over the weekend before things come to a conclusion, hopefully on Monday. Spot is very much on edge, so please keep the messages of support coming. Talking of support, Turner and his walking stick are due back on Monday !
It was good to see another SCATCC civil controller make the short journey to support Spot in person – thanks Hamish – it would be nice to see some light blue support on Monday, please make the effort if you can.
Dick
Summary for Thursday 20th February 2003.
The CM re-commenced with Mike Jones QC continuing with his closing address. Mike started by dealing with some of the inconsistent evidence, which he viewed as not fitting the prosecution case. He covered the following:
1. The ac descended from FL80, levelled off and impacted in straight and level flight at 4058’ AMSL. The prosecution had said that this was a straight line descent into terrain. In his view, the evidence was inconsistent with the prosecution’s initial theory.
2. The radar track information took the ac to the west of Ben McDui and this fact did not fit the prosecution claim of a straight line descent to the impact point.
3. The ac had been cleared to an altitude of 4000’ on the Portree RPS (29.62ins) which, had they levelled in accordance with Spot’s advice, would have placed them at 4300’ AMSL. Mike told the CM that, in this event, the ac would have missed the impact point by some 242’.
None of the above has been explained or challenged by the Prosecution.
Mike Jones highlighted further inconsistencies that came from the evidence of Maj. Chamberlain, an expert witness for the prosecution. Maj. Chamberlain had agreed with the Defence supposition that the rate of descent immediately prior to the ac disappearing from cover indicated the fact that they were descending visually. He further agreed that the radar track information would indicate the ac passing to the west of Ben McDui. He agreed that if the pilots found themselves blocked by weather they may have decided to abort to their Route Abort Altitude (RAA) and that the information gained from recovered gauges supported this view. Moreover, Maj. Chamberlain concurred that the ac were in a wider than normal line abreast at impact, suggesting that they were possibly joining-up prior to climbout, when they impacted. He admitted that that he never saw or heard any eyewitness statements when drawing his original conclusions for the Prosecution. In summary, Mike Jones reminded the Board that Maj. Chamberlain had accepted the Defence suppositions in every event.
Mike Jones then went on to prove to the Board that the Prosecution had moved from their original theory of the accident, to an entirely new case – during the course of the CM to date. To emphasise this, he pointed out that:
1. The Prosecution now seem to accept that the ac were in VMC.
2. The Prosecution now accept that the pilots knew where they were and where they were going.
3. The Prosecution now accept that the pilots knew that high ground would be covered in cloud.
In short, he said that, the Prosecution view of evidence was "if it doesn’t fit, fudge it". He drew the Boards attention to the fact that the Prosecution’s case now centered on Spot’s advice to descend to 4000’, where (they claimed) he had created a false environment and lulled the pilots into a false sense of security. Mike Jones said that there was no evidence to support the new Prosecution case and that, without evidence; there can be no "causation", which is the vital element of charges 1 and 3. Mike also said that the Prosecution case now drew the inference that, whilst they were descending in VMC, that they flew into high ground purely because they were told to do so!
In the view of the Defence, the pilots were not in a false environment created by Spot, but in a "real world" with high ground all around them. To be a false environment, they would have had to:
1. Forget Ben McDui as a dominant and pre-briefed obstacle.
2. Forget it’s relative position.
3. Not see the high ground all around them.
Mike Jones suggested to the Board that the only logical explanation for the cause of the accident was that the pilots encountered a visual illusion (white out) which resulted in spatial disorientation.
Mike Jones then moved on to outline the positive aspect of the Defence strategy. He had not spent his time purely attacking the Crown case in an attempt to put uncertainty in the minds of the Board. On the contrary, it was the Defence that did the following:
1. They obtained the weather and barometric pressure charts.
2. They interviewed all the eyewitnesses.
3. They obtained the F-15 low-level Ops manual.
4. They obtained the services of Craig Penrice (one of the world’s leading test pilots – hopefully Craig is reading this bit!).
Mike said that this was a "substantial defence".
He then moved on to deal with the evidence provided by Craig Penrice. Craig’s theory of the ac circling around to regain track (the very theory that the Prosecution called illogical) was in fact the very thing that the Tornados had done in their sortie. Craig’s theory was, therefore, not implausible, as suggested by the Crown. Craig had examined all the available facts and evidence in coming to his theory of events. The manner in which the Prosecution had attacked Craig’s evidence (by deconstructing it and questioning the parts individually) was absurd. Mike highlighted this point by quoting his favourite prosecution question of the GCM so far:
"If you take away the eye-witnesses, there is no evidence that the ac were seen to the east of Ben McDui. Isn’t that true?" (A titter rippled through the courtroom!).
Again, Mike reminded the Board that the Prosecution case only stands with the RT instruction and the exclusion of the other evidence.
In getting to the crux of the charges, Mike Jones then covered the causation aspect (charges 1 and 3). He said that, if the Board saw no causal link or that if they had any doubt of the link (the link must be more than a slight or trifling link), then this must mean acquittal. He said that charge 2 referred to negligence and, whilst negligence must be a factor in all 3 charges, it was a separate charge under Section 29 of the RAF Act 1955. For negligence to be proven, the Board must be content that "harm" had been caused by Spot’s actions. Mike told the Board that acquittal on charges 1 and 3 may lead to acquittal on charge 2; that said, he also told them that they would be led by the JA in relation to this topic. Mike had raised this point of law in closed session yesterday.
On the question of negligence, Mike directed the Board that they would have to be sure that Spot was criminally responsible for his act and, if they had any doubt, they must acquit. Mike accepted that, if negligence were to be proven, that Spot would have to break his Duty of Care to the pilots, i.e. as set out in the contract of RIS. Duty of Care states that an individual must avoid acts which are likely to injure your neighbour etc. For negligence to be proven, the Board would have to be sure that Spot could have reasonably foreseen the probable consequences of his act (the RT descent to 4000’). Mike was adamant that, in law, this must be viewed at the material time and not with the benefit of hindsight.
He also said that the Board must view the question of negligence from the perspective of an ATCO. It had been suggested by the prosecution that a measure of responsibility rested with the pilot for the accident; Mike refuted this and stated that he was wholly responsible for his terrain separation. He further stated that controllers have no responsibility for terrain clearance while providing RIS. Furthermore, by regulation, pilots are not to descend below their safety altitude without being either visual with the surface or using a Terrain Following Radar ( TFR). He contended that Spot was working on the above basis and was entitled to believe that the pilots would fly in accordance with known UK regulations. This being the case, Spot could not have foreseen the probable consequence of his action in descending the ac to 4000’. This led Mike to the conclusion that, without foreseeability, there can be no question of guilt.
Mike came to the Prosecution claim that Spot clearly heard the words "Min Vectoring Altitude" (MVA), as used by the pilot of BITE 21. He raised several points on this subject:
1. The composite tape told us nothing about the volume levels in Spot’s headset.
2. There were interruptions between RT and landline transmissions.
3. (Even in everyday conversation) not everything that is heard is necessarily registered.
4. A large amount of information had to be evaluated in a short period of time.
5. The first part of the transmission (request for descent) may have been heard without the second element (MVA) getting through.
6. Spot had previously queried a transmission that he did not understand, so logically, he would have queried the MVA issue had he heard it said.
7. Gp Capt Stenson had inferred that Spot had not heard all of the transmission. Wg Cdr Foster had agreed with this.
8. Spot had told the RAF Police interviewer that, without the benefit of the tape transcript before him, he had no recollection of MVA.
Mike told the Board that, in his view, they could not be sure as to whether Spot had heard the MVA call.
Mike went on to cover the issue that Spot could only be guilty of negligence if the Board were sure that Spot did an act that no other reasonable and careful controller would have done. During evidence, the Prosecutor had not asked Gp Capt Stenson about this. That said Wg Cdr Foster (in questioning from Mike) said that any other controller might have acted in exactly the same way. The question and answer is a crucial test of negligence. Staying with crucial questions, Mike reminded the Board that Gp Capt Stenson had not been asked whether Spot was likely to have foreseen the consequence of his actions in descending the ac to 4000’. On a totally different line of questioning, all Gp Capt Stenson gave was his opinion that 4000’ was "potentially unsafe". Compare this to Wg Cdr Foster’s answer to the question on Spot’s foreseeability: "No, he could not have foreseen it as a probable cause because the ac were under RIS". Moreover, in the defence view, Wg Cdr Foster had given a logical reason for Spot’s choice of 4000’ as an interim altitude.
Now staying with Wg Cdr Foster, Mike Jones took issue with the Prosecutors line that Chris had been a partisan witness. He told the Board to disregard the Prosecutors personal attack on Wg Cdr Foster. Mike did however concede the notion that there was a problem between witness and Prosecutor, but said that it was more to do with the quality of the question than with the answers!
Mike Jones reminded the Board that, because the controller does not know whether the pilots are in IMC, there is nothing to alert the controller of ordinary competence exercising reasonable care to the possible consequences of their actions. This matter had been unchallenged by the Prosecution. In essence, a man can only be responsible for the consequences of his actions when the outcome can be reasonably foreseen.
Mike Jones came to the end of his closing address with the following points:
1. Spot had breached no ATC regulation in the conduct of his duty.
2. ATC regulations had been changed as a result of this accident and Mike asked the Board to draw their own conclusion from this.
3. At worst, Spot may have made a "slip" and he asked the Board as being worthy of being branded as a criminal act.
4. He asked where the justice was in this prosecution, given no breach of regulations, no responsibility for terrain clearance and the ac crashed into terrain when the pilots were wholly responsible.
5. Mike finally said that, if the Board could see no guilt or any doubt as to guilt, then this must mean an acquittal on the charges.
Mike, having concluded his excellent closing address, made way for the JA, who gave direction to the Board as to matters of law. Most interestingly, he supported Mike in saying that negligence must be proved on all 3 charges and that, in direct reference to charge 2, harm must result from the negligent act. He directed the Board to consider the second charge first because, if they are not satisfied of negligence, then all 3 charges will fall.
The JA is now summarising all the evidence. At the time of writing, I see his time moving into Monday with a decision either later in the day, or perhaps on Tuesday. Finally, in view of this, there will probably be nothing to report tomorrow.
Dick Doleman