Cardiff City Footballer Feared Missing after aircraft disappeared near Channel Island

[runway30]

A definition of gross negligence manslaughter

The test to be applied to determine whether a person has committed gross negligence manslaughter was articulated by Lord Woolf LCJ in R v Adomako [1994] UKHL 6, who set out the five elements required:

1. a duty of care owed by the defendant to the victim
2. a breach of that duty
3. a risk that the defendant’s conduct could cause death
4. evidence that the breach of duty caused the victim’s death
5. the defendant’s conduct fell so far below the standards of a reasonable person in that situation that they should be labelled grossly negligent and deserving of criminal punishment.

[Mike Flynn]

I would be looking at three,four and five on that list.

Sadly we no longer have Flying Lawyer on here to offer an opinion since he was elevated to the judiciary a couple of years ago.

[EXDAC]

Originally Posted by oggers

S-Works, post 1559:

Quote:
His EASA medical had a no night flying restriction on it.

Ok, so back to my question which was "Please explain in a bit more detail why he could not fly an N reg aircraft at night on his FAA PPL. The argument put forward before was that he could not do so because he had no night rating on his base UK licence. Now you say he couldn't do it even with a UK night rating."

What restriction was on his UK PPL and how would it have made the (hypothetical) night rating invalid.

[Mike Flynn]

Originally Posted by EXDAC

Ok, so back to my question which was "Please explain in a bit more detail why he could not fly an N reg aircraft at night on his FAA PPL. The argument put forward before was that he could not do so because he had no night rating on his base UK licence. Now you say he couldn't do it even with a UK night rating."

What restriction was on his UK PPL and how would it have made the (hypothetical) night rating invalid.

US piggyback licences are issued on the back of UK licences and their restrictions.

In the case of this pilot his eyesight prevented him obtaining a UK night rating because he was colour blind.

So he could not fly at night end of story.

Other countries such as Australia do not allow their residents fly a home based N reg without changing it to a VH and complying with local licensing requirements.(As I know from importing a PA32 to Perth)

The use of N reg aircraft in the UK has mushroomed in recent years because it is a cheaper less regulated and less scrutinised method of flying.

[deltafox44]

Originally Posted by Mike Flynn

There was a recent accident at Haydock Park that just luck on the day prevented fatalities.

Fortunately there was no pilot onboard this PA 32 when the accident occured, so no question about pilot's licence

[vanHorck]

Thank you, Mike, for your answer.

Originally Posted by Mike Flynn

I doubt there was any “malicious intent” on the part of any of those who played a part in this tragedy.

I do not understand this..... Surely whomever "contracted" the pilot for this commercial flight (as McKay confirmed) had a duty of care to only employ a commercial pilot fully licensed to execute this flight on an N registered aircraft with a paying passenger (irrespective who paid). So if wilfully employing a daytime-only PPL as the sole pilot is malicious in its intent?

[eltonioni]

Originally Posted by Mike Flynn

One has to ask the question how did that PA32 fly in to Haydock with passengers in poor weather to a grass strip which has no published approach plate?

No one doesn't need to ask the question. Haydock is a nice little strip, about 800m from memory, with trees at either end but it's not difficult to get into. That aside, the PA32 was parked and minding its own business until a Beech Baron landed long and fast and skidded into it.

[Luc Lion]

Originally Posted by oggers

Originally Posted by Luc Lion

Oggers, I am talking about FAR 91.501(b)(4)

Luc Lion

Well, I am not sure why you are referring to that regulation. The airplane was not a Large or Multi-engine Turbine. Are you saying it was part of a 91-K fractional ownership program?
Subpart F—Large and Turbine-Powered Multiengine Airplanes and Fractional Ownership Program Aircraft

Sorry Oggers ; my mistake.

I was looking for the regulation that construes FAR 91 flights organised and paid for by the operator and flown by a hired commercial pilot for the purpose of transporting the operator or his guests free of charge.
Actually, FAR 91.501(b)(4) describes that for large aeroplanes while there is no equivalent for small aeroplanes and no need for this equivalent because it is authorised by the constitutional principle "what isn't explicitly forbidden is permissible".

FAR 91.501(b)(4) is needed (beyond the constitutional principle) for authorising these operations on large aeroplanes because FAR 125.1 (Certification and Operations of "large" aeroplanes, Applicability) is stated in such a way that it applies by default when no other regulation supersedes it.

[hec7or]

"Please explain in a bit more detail why he could not fly an N reg aircraft at night on his FAA PPL.

The aircraft is at the bottom of the English Channel, he clearly could not fly any aircraft at night whatever his qualifications or lack thereof.

[Pittsextra]

Originally Posted by runway30

How are you going to establish the number of hours of illegal flying because nobody is going to admit to it? I’m sure we can recall accidents that many on here think were illegal but were never labelled as such.

How many accidents can you recall that would satisfy the terms of illegal "grey flying" which let me push you to suggest that were such flying to be illegal then given the duty of the CAA there would surely follow a prosecution. I can think of just 1, the recently prosecuted PA28 / Manchester pilot.

Unless I am oblivious to a heap more then either one must conclude it either doesn't happen or the CAA turn a blind eye?

[Mike Flynn]

Originally Posted by eltonioni

No one doesn't need to ask the question. Haydock is a nice little strip, about 800m from memory, with trees at either end but it's not difficult to get into. That aside, the PA32 was parked and minding its own business until a Beech Baron landed long and fast and skidded into it.

On a very wet day and a wet strip in weather that was not exactly VFR!

Does this look wet to you?

Anna Lisa Balding, wife of Here Comes When trainer Andrew, was on board the plane as it landed.

She said: "Our pilot did an amazing job in really bad weather conditions. I don't know what happened, I am no pilot, But I know I saw my life slip away from me very quickly. But we are all alive, it was a bit scary.

"I'm going to try and get home safely. I will be going in the lorry. But when you have a winner you don't mind how you get home."

[runway30]

Originally Posted by Pittsextra

How many accidents can you recall that would satisfy the terms of illegal "grey flying" which let me push you to suggest that were such flying to be illegal then given the duty of the CAA there would surely follow a prosecution. I can think of just 1, the recently prosecuted PA28 / Manchester pilot.

Unless I am oblivious to a heap more then either one must conclude it either doesn't happen or the CAA turn a blind eye?

Pitts, it isn't a question of turning a blind eye, if everyone has a prepared statement about a mate doing a favour then there is no evidence and no prosecution.

The difference in this case is the person who paid for the flight has made a very public statement pointing fingers. He is no stranger to litigation and has started to defend himself before even being accused of anything.

[Pittsextra]

Originally Posted by Mike Flynn

On a very wet day and a wet strip in weather that was not exactly VFR!

Does this look wet to you?

It being wet alone has nothing to do with VFR.

[Pittsextra]

Originally Posted by runway30

Pitts, it isn't a question of turning a blind eye, if everyone has a prepared statement about a mate doing a favour then there is no evidence and no prosecution.

The difference in this case is the person who paid for the flight has made a very public statement pointing fingers. He is no stranger to litigation and has started to defend himself before even being accused of anything.

Yes it is everything to do with asking the question if authority is turning a blind eye and what you have suggested above still hasn't given the answer to a question asked which was effectively - what is the ratio of the grey flight accidents to non grey flight accidents. I gave you the only one I can think of, I guess you can not add to the tally?

I might well agree some people are doing things that seem quite sharp, but on the basis this practice has been common place for at least 3 years (where the cost element shared by the pilot was reduced to 1p) then there can only be 3 options. 1) regulators are unconcerned because it isn't a problem 2) they are concerned it is a problem but required wording to change to prosecute flights they are unhappy about but failed to change the wording 3) regulators are concerned but can't be bothered to do anything until a high profile accident then they will have a look, which doesn't seem responsible either tbh

[Mike Flynn]

I have received this email from Terry Holloway who is well known to many of you and MD of the Cambridge Flying Club.

I have campaigned for quite some time for jockeys to use a safer means of transport locally, since I watched Franki Dettori crash. They regularly fly from the grass strip at Newmarket in all sorts of aeroplanes and I have encouraged them to use a proper local airport such as Cambridge! Rightly you raise the Haydock Park accident which you and I discussed at the time. The fact of the matter is that jockeys are not particularly well paid – unless they get a winner – and that they are looking for flying on the cheap, and I do know that Dave Henderson has been flying jockeys in that very aeroplane.
My understanding is that it is not necessary to have an AOC to conduct that sort of flying. A pilot - however inexperienced – with a CPL is able, as I understand it, to transport anyone and be paid for doing so. Frankly, Dibbo with a PPL and 3700 hrs was probably much more competent, and safer, than a newly qualified CPL who only has 250 hours, and is hours building before he can get into an airline job. However, everyone has to start somewhere, but the issue for me with the jockeys is putting too much risk in the process: poor weather/inexperienced pilot/inadequate landing strips.
Wingly is a different matter, and as you know I have banned its use at the Cambridge Aero club – or rather banned our members using our aeroplanes for Wingly flights. I believe the intention of the CAA was to provide opportunities for young inexperienced holders of PPLs is to gain experience by flying more - to be safer - which is why they introduced the cost sharing scheme. Unfortunately, Wingly has exploited that, and you get the ridiculous situation where a PPL holder with maybe 50 or 60 hours is taking people for what is effectively a commercial flight. It goes rather deeper than that, because Wingly pilots are also allowing their passengers to handle the controls and that is strictly forbidden unless you happen to be a flying instructor. As the holder of an ATO I can teach people to fly, but because I do not have an AOC my highly experienced instructors cannot take people for passenger/charter flights in my aeroplanes – they can only be used for training! Another idiosyncrasy in the rules, Is that the CAA has placed very clear restrictions on PPL holders taking members of the public for a charity flight - de facto a commercial flight - but then Wingly runs roughshod over that as well! The Wingly pilots are not being supervised or controlled, and there are no weather minimal in force. It’s all very dangerous
Wingly needs to be stopped!

[runway30]

Frankly, Dibbo with a PPL and 3700 hrs was probably much more competent, and safer, than a newly qualified CPL who only has 250 hours, and is hours building before he can get into an airline job.

I am shocked at Terry saying this. He might have had 3700 hours of take offs and landings but if he had 0 hours at night and was not qualified/current on instruments then he was dangerously negligent and I don't think a newly qualified CPL would be that stupid.

[Pittsextra]

Originally Posted by Mike Flynn

I have received this email from Terry Holloway who is well known to many of you and MD of the Cambridge Flying Club.

His view is broadly one likely shared by very many here but I don't agree with its conclusion. First of all there is confusion around just what it is regulation and/or guidance is actually trying to associate risk with. As Terry himself highlights a 3700hr PPL is entirely likely to be as capable as a 250hr CPL in all ways but the paperwork, so then one might try and understand just what the barriers are to holding an AOC because if it is cost for the sake of loading cost into the equation due to the view that commercial operations can afford it and must pay then surely that is a bad thing and better to bring people into the fold than leaving them outside.

Further he may well speak about his highly experienced instructors and perhaps they are yet prior to AOC holders complaints over Wingly the other grumble surrounded the "Air experience" / gift flight conducted by this time inexperienced instructors!

You can have a conversation around the conduct of individual flights and if they are safely done or not (i.e. handling of the controls etc) and you can argue the relevant ratings this accident pilot may or may not have had, but what I don't think you can say with much confidence is that Wingly pilots are creating lots of smoking holes and I think that actually the root of this is more likely to be found in an overly onerous and costly AOC process than in any other place.

Wingly and its pilots are supervised just as any other pilot would be -the regulator has the same powers over them as anyone else?

I am shocked at Terry saying this. He might have had 3700 hours of take offs and landings but if he had 0 hours at night and was not qualified/current on instruments then he was dangerously negligent and I don't think a newly qualified CPL would be that stupid.

Come on - it may not suit the current mood of outrage but I can give you dozens of CPL/ATPLs that make mistakes, even with all the associated ratings.

[runway30]

Pitts, it is the difference between negligence and gross negligence. It doesn’t really matter what the mistake was that sent them into the Channel, on departure the combination of ratings, experience and weather made it very likely that something would happen that would stop them reaching their destination and that is the recklessness.

[Red Plum]

There have been many selective quotations from SERA trying to prove a point but perhaps they should be the relative quotations:

GM1 SERA.5005(c)(3)(iii) Visual flight rules
NIGHT VFR ON TOP When flying in airspace classes B, C, D, E, F, or G, more than 900 m (3 000 ft) above mean sea level (MSL) or 300 m (1 000 ft) above terrain, whichever is higher, the pilot may elect to fly above a cloud layer (VFR on top).

When making the decision on whether to fly above or below a cloud at night, consideration should be given at least but not limited to the following:
(a) The likelihood of weather at destination allowing a descent in visual conditions;
(b) Lighting conditions below and above the cloud layer;
(c) The likelihood of the cloud base descending, if flight below cloud is chosen, thus resulting in terrain clearance being lost;
(d) The possibility of flight above the cloud leading to flight between converging cloud layers;
(e) The possibility of successfully turning back and returning to an area where continuous sight of surface can be maintained; and
(f) The possibilities for the pilot to establish their location at any point of the route to be flown, taking into consideration also the terrain elevation and geographical and man-made obstacles.

There is NO mention of maintaining visual contact with the ground - in fact (e) indicates that it is not necessary

[Luc Lion]

Red Plum, what you are quoting is the Guidance Material (GM) of SERA that explains, a contrario, that when above 3000 ft AMSL (or 1000 ft AGL) maintaining sight of the surface is no more required and thus VFR on top is possible.
The actual SERA requirement states that, below 3000 ft AMSL (or 1000 ft AGL), keeping sight of the surface is mandatory.

Originally Posted by SERA.5005(a)(iii)

(iii) in airspace classes B, C, D, E, F and G, at and below 900 m (3 000 ft) AMSL or 300 m (1 000 ft) above terrain, whichever is the higher, the pilot shall maintain continuous sight of the surface; and’;

Sera regulation writers have played the same game as FAR authors : what is not explicitly forbidden is permitted.