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F15 Court Martial Updates

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F15 Court Martial Updates

Old 12th Feb 2003, 15:10
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F15 Court Martial Updates

To try and keep everyone focused on the actual events which are going on, I have copied the regular updates from our contributors on to this new thread.

This thread will feature all the latest news from the trial, whilst the original thread can continue to be used for sending Spot messages of support and encouragement.

The following is an article by the Scottish Sunday Mail dated 19 Jan.


COURT DATE FOR JET DEATHS CONTROLLER EXCLUSIVE

Steve Mckenzie



AN RAF air traffic controller blamed for a double jet crash is to learn his fate this month.

American fighter pilots Kenneth Hyvonen and Kirk Jones died when their F- 15C jets slammed into the Cairngorms.

The Sunday Mail can reveal that Flight Lieutenant Malcolm Williams, of RAF Leuchars, Fife, is to face a court martial a week tomorrow in connection with the tragedy.

The hearing will be held at a Royal Naval centre in Helensburgh.

The rare move is the armed forces' most serious disciplinary hearing and can result in jail.

It is understood that the charges relate to conduct amounting to professional negligence.

Military and civilian air traffic controllers have rallied behind Flt Lt Williams while the Guild of Air Traffic Control Officers (GATCO) and droves of supporters have sent him messages of goodwill.

Sympathisers are outraged at the RAF's handling of the case. Top brass did not hold a board of inquiry, denying the officer an opportunity to give his side of the incident.

Flt Lt Williams is believed to be the first military controller in the UK to be court martialled in connection with a fatal air crash.

He was providing radar information as the US pilots trained over Scotland in March 2001. Lt-Col Hyvonen, 40, and Captain Jones, 27, died when their jets smashed into Ben Macdhui in a snow storm. But sources close to the case claim the pilots themselves, based at RAF Lakenheath, in Suffolk, were responsible for where and how low they flew.

More than 100 rescuers battled over the mountainous terrain in sub- zero temperatures and blizzards to find the missing men.

Eventually the smell of aviation fuel near the summit of the 4,284ft mountain led them to the wreckage. The bodies of Lt- Col Hyvonen and Capt Jones were found nearby.

Debris from the two jets took months to clear and more than 250 tonnes of snow had to be removed to avoid contamination of the environment by aviation fuel.
DAY 1

From the Press Association a few minutes ago...

:An RAF air traffic controller today appeared before a court martial charged with causing the death of two pilots in a double jet crash.

Flight Lieutenant Malcolm Williams, 47, was on duty at RAF Leuchars, Fife, on the day two F15C jets crashed into a Scottish mountain.

Lieutenant Colonel Kenneth Hyvonen, 40, and Captain Kirk Jones 27, of the United States Air Force, died in the incident at Ben Macdui in the Cairngorms during a snowstorm on March 26, 2001.

Flt Lt Williams, who had been providing radar information and was in contact with Lt Col Hyvonen, is alleged to have told the pilot to descend to 4,000ft when the minimum safe altitude in that area was 6,500ft. The descent is said to have caused the deaths of the two pilots.

Williams faces an alternative charge of negligently performing in his duties as an air traffic controller.

He has pleaded not guilty to all charges.
...
The court martial, which is expected to last several days, opened today before seven senior RAF officers assisted by a judge advocate.

RAF Group Captain Alistair McGrigor, prosecuting, said Flt Lt Williams had “created a false environment and lulled the air crew into a false sense of security”. He said the air traffic controller had responded “inappropriately” by telling Lt Col Hyvonen, the lead pilot of the formation, to descend to 4,000ft.
However, he said Williams was not solely responsible for the accident and conceded that the pilots were responsible for the avoidance of any other air traffic and the terrain.

The court martial heard that Lt Col Hyvonen had used an American phrase “minimum vectoring altitude” which Flt Lt Williams had not queried. Lt Col Hyvonen had then asked Flt Lt Williams to confirm the descent to 4,000ft, which the air traffic controller did.
...
The court martial, before Judge Advocate Edmwnd Hoelwyn-Hughes, was to continue tomorrow at the Royal Navy base in Helensburgh, Argyll and Bute, Scotland.
From Mickydrip
Update Day1, Monday 27 Jan 03

Not much to report but before I give you a brief update of todays proceedings, I must applaud the comments of ajsh;his comments are accurate in the extreme and are to be applauded.

Todays events:

The Defence objected to one of the members of the Board, a fighter controller, who was subsequently replaced.

The charges presented were:

1. A charge of "Doing an act in relation to aircraft causing loss of life to a person contrary to Section 49". This refers to the deaths of one pilot.
2. As an alternative to the first charge- Negligently performing a duty contrary to section 29 of the Air Force Act.
3. A second charge of " Doing an act in relation to aircraft causing loss of life to a person contrary to Section 49" This refers to the death of the second pilot.

Interestingly, the Crown prosecutor conceded that terrain clearance was the responsibility of the pilot.

There are 2 major areas of conflict: the Prosecution state that Spot is negligent, the defence say NO his actions were not negligent. The prosection says there is a direct link between what Spot said to the aircraft formation and the subsequent crash; the defence believe that the link had been broken when the aircraft descended low level to the East, eventually crashing into high ground.
Day 2

From Mickydrip


Day 2, Tuesday 28th Jan 03

Another busy day for the Prosecution, with the Gp Capt calling 2 atco witnesses, one a current staff member at RAF Leuchars, the other a former training officer at the base. Incidentally, there are numerous witnesses to be called, the original list numbered 76; this has been reduced to 16, with the agreement of both sides. It’s probable that this trial will run into next week, possibly finishing on Wednesday.

Questions from the Prosecution and the Defence produced lengthy and detailed discussion on the intricacies of Flight Level/Altitude and Heights, also the vagaries of VFR, VMC, IFR and IMC. The Board members, who are all ground trade officers, looked somewhat puzzled – it’s a lot to try to grasp in a relatively short period of time. It was warming to watch the Defence QC carefully draw out from the witnesses, precise information, which was readily assimilated by all in the room; he’s certainly a talented man. A very interesting period saw him listing the various types of ATC service, carefully highlighting the shared responsibilities of both the atco and the pilot. Two other important points covered were that the Radar Vectoring Map was not displayed anywhere in the approach room, although it was available as a selectable map (containing barely readable figures for safety heights); also that the controllers were not required to commit this map to memory. Surely if that’s the case, it strikes me that a display must be considered absolutely essential. I’m told that the RV map now features heavily in the approach room.

Finally, it seems that the Judge Advocate, who has a very Dickensian look about him, has a sense of humour. When the subject of the electronic tote was raised, he questioned whether this had some gambling conotation, and smiled!
Day 3

From Mickydrip



Day 3, Wednesday 29th Jan 03.

Firstly thanks to everyone from Spot and Sue for all the good wishes and support; don’t be shy, keep it coming because they’re both surprised and delighted that so many of you care, but isn’t that the sort of people they are?

To answer a couple of points that have arisen in recent correspondence:

1. The name of the Judge Advocate is Edmwnd Hoelwyn-Hughes (spelling taken from the Daily Mail so I hope it’s OK).

2. There are a couple of queries from our Fighter Control colleagues concerning the removal of the FC specialist; I made a careful note of the reasoning on Day 1 and copy it for your information. An objection to any member of the Board can be made, under S29 (1) of the Airforce Act, on any reasonable grounds. The Defence team objected to Sqn Ldr Maguire, (not sure of the spelling), a Fighter Controller currently stationed at RAF Innsworth. It was argued that Sqn Ldr Maguire’s expertise could include matters which are special to the world of air traffic control. Experts views differ and the Defence team were apprehensive that the FC member may have an expert view, that the lay members did not, thereby prejudicing justice.

Finally, before I give a brief summary of todays events, you may be interested to know that membership of Gatco has increased dramatically as a result of recent events – a very wise move!

Ted Tilley of the Guild departed last evening, to be replaced by the President of Gatco, Richard Dawson. Three witnesses for the Prosecution were called today; the lead pilot of a Tornado formation operating in the area on the day of the accident plus 1 serving member of ATC at RAF Leuchars, and one ex member of the ATC Sqn. There were lots of questions regarding safety altitudes and the associated responsibilities of the pilot and the controller. More RIS and RAS was discussed. Spot was acknowledged as being “a very experienced, capable and competent controller” whose brother had been very seriously ill followed in quick succession by his Father, also being taken very seriously ill.

The Defence team explored the JSP 318A on the subject of safety altitudes, and the various pressure settings in use by transit aircraft. The subject of multiple inputs was discussed at length; there may be more on this subject tomorrow when the R/T tapes are expected to be played. At one point, the Board was asked to leave the court in order that a point of law, submitted by the Defence team, could be examined by the Judge Advocate. After a short adjournment, the Judge Advocate found in favour of the Defence team and the case continued.

The lead pilot of the Tornado formation was quizzed on the weather conditions in the area just 1 hour before the accident. He said that the snow showers were passing through rapidly and in some areas it was possible to fly comfortably beneath the cloud in the valleys, although the deteriorating visibility and lowering cloud base created “white-out” conditions. He was quizzed by the Defence team regarding the visible differences between the Tornado GR4 and the F15c, large fin, longer nose, different intakes etc; this may be leading somewhere......

In summary, yesterday was another day when things seemed togo to plan. Our rising hopes are tempered by the knowledge that the stakes are still high and that the Prosecution has 1 big batter to call tomorrow. Also in our minds is the fact that the widow of Lt Col Hyvonen, the flight leader, sits just 15 feet away; she is clearly upset by procedings.

On a lighter note, the Spot Support Group, received 2 rollickings today. The first from the landlady for making too much noise after the pubs kicked out – we’ve told Doleman to be quiet in future! The second was from the admin Sqn Ldr running the court who politely asked us to stop shaking our heads and making other such gestures during the giving of evidence by the Prosecution witnesses. We’ve asked Turner to stop muttering bo**ocks under his breath. Suitably chastised we left for the pub. More tomorrow.
Day 4

From Mickydrip


Day 4, Thursday 30th January 03

I’ve just remembered who the Judge Advocate resembles – Wilfred Hyde White (who I hear you say!?); it’s true to say that we’ve all warmed to him, although after what the landlady said, I’m not sure he’d want to be part of this particular group!

Not a dynamic day today – the Prosecutions’ big hitter was expected to make an appearance but was not called; the strong rumour is that he’ll be first on stage tomorrow, I’ll let you know tomorrow. Incidentally, tomorrows posting might be a bit behind the curve as we’re all shipping out and heading home but, be patient, it’ll get there.

Prosecution called 5 witnesses: 1 on the current strength @ Leuchars, also the Supervisor on the day of the incident, the President of the Board of Enquiry (Wg Cdr Navigator) plus 2 controllers from Lossiemouth who were on the landline to receive Spots handover of Bite 21, the 2 F15’s.

Lots of old ground was covered once again, RIS/RAS and Radar Vector Chart featuring very heavily throughout. 2 questions from the Defence team elicited correct answers, the importance of which were not lost on the Board (I hope). The subject was ‘descent to low level’, having accepted that the Radar Vectoring Chart refers to QFE and is only designed for the recovery of inbound aircraft “Can an aircraft quite properly be cleared to descend to 4000ft ?” – Answer “Yes”. “Am I right in thinking that the height an aircraft descends to is a matter of the pilots choosing?” – Answer, “Yes”. Why are we still here I hear you ask!

The Prosecution placed great credence on the map produced for the Board of Enquiry by the President of same (as stated, a Navigator). This map had been produced from information provided by Scottish Military and the RCC, was converted from range and bearing information into Lat & Long for plotting purposes. All looked good until the Defence QC asked for the accuracy of the plotting data and was told it was about a quarter of a mile on that scale of map. When asked how accurate was the radar data provided by Scottish, the witness did not know. Additionally he was unable to confirm that the software used by RCC to convert the data was calibrated, and to what scale. The map showed the crash site as being on the summit, in fact the aircraft hit about 500metres to the East of the peak. The last straw was when questioned about the drawn track between the last position report and what was purported to be the crash site (it appears as a straight line), the witness confirmed that he’d drawn the straight line himself; the fighters could, of course have done a couple of 360’s for weather between those 2 points. The Wg Cdr also mentioned to the Board of Inquiry that he’d been selected to be President of the BOI. They had collected a great deal of information but were suspended as a Board by the convening authority, an AVM, and turned their findings over to the police. Nobody has offered an explanation as to why the Board was not reconvened after the police investigation.

On return from lunch, (they serve a nice pint of 70/- in the local) a bombshell was dropped, wisely by the Defence QC. He stated for the Judge Advocate’s ruling, that a newspaper report indicated that the Procurator Fiscal in Elgin had stated that there was certainly a case to answer for unlawful killing; the court went very quiet; it was an uncomfortable moment. Much to everyones surprise, the Judge Advocate thanked the QC and asked “What’s it got to do with him? (i.e. the Procurator Fiscal); disregard it and completely put it out of your minds, let’s get on”.

Last edited by PPRuNe Radar; 12th Feb 2003 at 16:08.
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Old 12th Feb 2003, 16:11
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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!!!
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Old 12th Feb 2003, 19:54
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Wednesday update

Thanks PPRuNe Radar - sorry it's late but it's taken me some time to get on line. The following has been dispatched by the guys up North, so here goes:

SUMMARY FOR WEDNESDAY 12 FEB 03

Craig Penrice (test pilot) resumed as an expert witness for the Defence under the examination of Mike Jones QC.

It was elicited from documentary evidence already exhibited in court that the risk assessment both in terms of the Daily Ops Assessment and the Flight Leader Assessment were both low. The two pilots were well rested and had allowed good time for the flight preparation. They were carrying the correct scale of map for low level navigation. The pilots would have been assisted in their navigation by:

1. Bearing and distance from their planned way-points on displays in their cockpits (INS).
2. TACAN at the higher altitudes (no good low level).
3. 1:500,000 properly marked low level map.

The briefing would have covered the low level portion of flight and included specific emphasis on dominant obstacles, obstacle avoidance, significant topographical features etc. Although not by name itself, Ben McDui would have been mentioned as it was very close to planned track.

The weather in the area of intended low level flying looked adequate for the purpose.

The mission planning data in the form of way-points showed that the planned route was to take the aircraft about three miles west of Ben McDui towards the next way-point at Aviemore. This would have been along a steep sided valley named the Lairig Ghru. The track plotted from the ATC radars confirmed this track. However, since the Board of Inquiry could not reconcile the last known position of the aircraft with any manoeuvre that would have taken them directly to the known crash site, they decided to move the line to fit the conclusion!!! Bear in mind that the RAF Board of Inquiry never interviewed any eye-witnesses.

The weather at Aviemore (some 9 miles north of Ben McDui) had been introduced into evidence giving good visibility and 3/8 cloud. Craig Penrice was asked if he thought this weather pattern would have been the same if approaching from the south. He said it would, that there would be showers around and probably cloud on the hills. He said that there was a good chance that the pilots would see Aviemore from top of descent (FL80) at range of 20 nms or at least see a topographical feature such as Lairig Ghru (steep sided valley).

Asked for his interpretation of “that looks good, put engine heat on” (from the radio transcript), Craig opined that the first part could mean “we have a good chance of getting on with the mission” – i.e. low level flying. As to the second part, the crews were selecting anti icing on as a precaution against flying through precipitation or icing conditions.

In Craig’s opinion, Bite 21 would be seeing nothing worse in weather than they had expected from the out-brief. He did not concur with the Prosecution theory of a maintained descent in IMC into the mountain.

It was restated from previous evidence, that if Bite 21 was maintaining 4000 ft on Regional Pressure Setting, then their actual altitude would have been 4300 ft amsl and therefore could have not have impacted terrain at 4058 ft. Craig also stated he disagreed with the Prosecution theory on aircraft track – the moving line!

We then moved to Craig’s assessment of the eye witness accounts. It was an agreed fact that the only other aircraft in LFA 14 in the vicinity of Ben McDui at anywhere near the time of the incident were two Tornados. To have seen the Tornados, it was established that all the eyewitnesses would have to have been looking well to the south. All eyewitnesses saw aircraft (twin-tailed) either fly overhead or to the north of their vantage points.

Craig was asked how the aircraft had arrived at the impact point taking all the evidence into account, including eye witnesses and the information from ATC radars. In his opinion the aircraft had seen and entered the valley called the Lairig Ghru to the west of Ben McDui. The weather may have deteriorated ahead of them necessitating a change of plan. The first choice would have been to avoid the weather and find an area that was suitable to continue the mission, rather than climb. The aircraft would have turned east around the back (north) of Ben McDui and then turned south to the east of Ben McDui. They would then have then turned west to try and resume their low level sortie. It was at this point that the eyewitnesses saw them. Craig reminded the court that, during this phase of the flight, the leader would be working very hard and looking for a suitable route to the north again.

There were a number of routes available to the leader but he knew that the Lairig Ghru was not an option, so he selected the next valley to the east of the Lairig Ghru and turned the formation north onto a track that took them to the impact point south east of Ben McDui.

Craig explained that what appears to be a clear way through can sometimes be a visual illusion. White-out is a classic example of such an illusion and it was known that such conditions surrounded Ben McDui.

Craig concluded by saying that he did not view the Prosecution’s account of the accident to be credible. They had not taken account of the eyewitnesses available to them and had not believed the radar information given to them.

Craig was still on the witness stand when proceedings concluded for the day.

Dick Doleman and Brian Young.

That's it, more tomorrow
MickyD
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Old 13th Feb 2003, 13:57
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Join Date: Jul 2002
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Summary for Thursday 13th February

This is likely to be the shortest daily summary of the entire CM.

When the Board assembled this morning, two members were missing. The Judge Advocate explained that the senior member was informed at 4am this morning that her father was terminally ill. The junior member then drove her to Crewe and was unlikely to be back in Helensburgh before 3 pm today. The JA informed the court that the CM could continue with only 5 members but if there was a further similar occurrence, the CM would have to be dissolved and started afresh. Accordingly, he decided to adjourn for the day and the CM will resume tomorrow at 9 am with 6 members and the JA. The senior member will not rejoin the board after today. Our sympathies and best wishes go with her.

This event will now take the CM into next week and it is rumoured that it may take until Friday to conclude. This is already the longest running CM in RAF history and certainly the most expensive. So long has it been running that one of the board has been promoted since it started! Our congratulations!

Tomorrow’s summary might be posted quite late or even on Saturday, as I shall be travelling home from the CM on Friday evening.

On a personal note, my sincere thanks to my colleagues at ATC Warton for their support.

Dick Doleman
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Old 15th Feb 2003, 10:14
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Hi Folks,

Sorry this is a little late but I was ‘cream crackered’ on arriving back home last night and opted for bed instead.

I think Friday was a very good day for the Defence – not quite a Valentine’s Massacre but somewhere close ! I apologise if this summary is rather long but I think it is very important that, if you are to understand the ‘big picture’, you will need some of the finer detail. This summary was condensed from 14 pages of handwritten notes!

Spot and Sue are in good spirits and continue to appreciate your kind words and messages of support through PPRuNe. Keep it coming. Monday is the start of week 4!

Dick


SUMMARY FOR FRIDAY 14th FEBRUARY 2003

A Sqn. Ldr. board member has taken over as the senior member. The board is now comprised of 6 members and the JA.

Craig Penrice (test pilot) continued as expert defence witness under examination from Mike Jones QC.

Craig stated that the eyewitnesses all reported seeing the aircraft on an east to west track at various points to the SE side of Ben McDui. The most easterly sighting was some 9km east of the Prosecution’s descent line. Their theory being that the aircraft followed a straight line (heading 350 degrees) from top of descent to impact.

Earlier in the CM a ‘rule of thumb’ had been introduced explaining that pilots use 10% of their rate of descent to gauge a point at which to commence a levelling off. Using the criteria in this case, an aircraft descending to 4000 ft (at 4000 ft per minute) would be reducing it’s rate of descent passing 4400 ft. However, from the information produced by the Allen’s Hill Radar, the aircraft were still descending at 4000 ft per minute when the cockpit indicated altitude would be 4200 ft on Regional Pressure Setting (even this figure would be in lag of the real altitude). Craig said this would probably indicate that the pilot had no intention of levelling off and could clearly see the ground, allowing continued descent to low level. This compares with an earlier descent towards Leuchars which was observed as being half the descent rate towards Ben McDui. Craig said that this was the more appropriate rate of descent for aircraft descending, in formation, in IMC.

The Prosecution then commenced his cross-examination by asking questions about Craig’s flying experience. In short, it is considerable – he has flown the F14, F15, F16, F18, Tornado, Jaguar, Lightning, Hawk, Mig 29 and Eurofighter (to mention the main fast jets) plus at least 20 other types including helicopters. Thereafter it became difficult to follow the Prosecution’s line of questioning, which has been a feature of this case. Craig was questioned on his role as a test pilot in what seemed unnecessary detail.

Then there followed confused questions about his experience at low level, particularly display flying, with emphasis on crowd lines and crowd safety. Frankly, we couldn’t see where this was leading – and we never found out.

The Prosecution then tried to discredit eyewitness’s ability to gauge speed, distance, heading and height of aircraft from the ground. Craig said that track could sometimes be difficult to assess unless aircraft flew directly over the witness. We know from previous evidence that this happened to two of the witnesses (who happened to be standing together). We are led to believe that the Court has yet to hear evidence from another eyewitness for the Defence. With regard to witness assessment of heading, Craig said that ± 30 degrees would be normal.

The Prosecution line of questioning then concentrated on the fallibility of eyewitnesses’ statements. Craig made it very clear that although certain elements of any eyewitness’s statements may be fallible, this should not lead to what they saw being entirely discounted.

The Prosecution then went off on another thread implying that witnesses had seen Tornados (rather than F15s), as these were the only other possible aircraft in LFA 14 in the same approximate time period. Craig pointed out that these Tornados had landed at Lossiemouth 30 minutes before the last radar contact was seen on the F15s. It is also known that the Tornados were flying in a 2 mile trail whereas the F15s were seen by all witnesses in close formation. Despite this compelling evidence the Prosecuting Officer, for reasons known only to himself, attempted to persuade the Court that the witnesses could still have seen Tornados rather than the F15s. He even suggested that the route flown by the Tornados (which was supplied by the pilots of the Tornados as an exhibit map in evidence) could have been 5 or 6 kms to the north of what the pilots had stated. Craig looked incredulous at this suggestion and firmly rebutted it.

The Prosecution’s next thread concerned the Bite 21 request to descend to “your Min Vectoring Altitude” (a USAF term not understood by RAF controllers) and the advice to descend to 4000 ft (RPS) by Leuchars. His purpose was to suggest to the Court that this was unsafe advice (as it was below the 100 mile Safe Alt of 6500’) and as a result of this Bite 21 descended in IMC and impacted directly into high ground, in close formation, to the SE of Ben McDui at 4058 ft amsl. It was pointed out by Craig that if the aircraft had levelled at a cockpit indicated altitude of 4000 ft (RPS) as advised by Leuchars, they would have overflown the crash site by some 300 ft and passed to the east of the summit of Ben McDui. He also stated that, if errors are made by air traffic controllers in such circumstances, it is still the responsibility of the pilot to maintain and monitor terrain clearance.

The Prosecutor suggested that the radar track information could indicate support of their case that the aircraft had followed a straight line descent into high ground. Craig countered that this could only be correct if all other evidence (eyewitness, rates of descent, weather etc) were discounted.

The Prosecutor, in trying to establish his view of the cause of the accident then tried to take the various elements of evidence that countered this view, one by one, in isolation. He suggested, for instance, that supposing there were no eyewitnesses then his (the Prosecutor’s) theory was credible. Craig countered that this was not so because he would still have to take into account all of the other elements (weather, rate of descent, planned INS track etc). He persisted in this line of attack and Craig continued to counter it.

The Prosecution, having failed to get Craig to concur with the Crown theory as to the cause of the accident then moved on to attack Craig’s own theory. In summary, this was that the aircraft had let down visually beneath 4000 ft (RPS) and entered their low level phase in the Lairig Ghru, a steep-sided valley that runs in a NW direction towards Aviemore and passes just to the west of Ben McDui. At some point they encountered bad weather and they decided to circumvent the weather and circle back around Ben McDui at low level to regain their original track. To accomplish this, they would have continued to fly at low level using valleys to regain position. Craig said the leader would have been working hard at this point. Because, their exact route is not known until sighted by eyewitnesses, it was hard to estimate the time taken. A best guess was 3 to 5 minutes. Knowing that the Lairig Ghru was probably still blocked with weather he would be looking for another escape route to the north. Several valleys to the east of Ben McDui would have presented such opportunities. It was on the westerly heading that they were sighted by several eyewitnesses, some of them seeing the aircraft at extremely close range. The aircraft were positively identified as having twin tails. Craig assumed that the aircraft turned onto a track towards the crash site, possibly seeing an apparent route to the north which might have been a visual illusion or entered a whiteout leading to disorientation and impact with high ground. The Prosecution suggested that without eyewitnesses Craig’s theory wasn’t credible. Craig replied that all evidence should be considered when coming to a conclusion. He restated the main elements of evidence that drew him to his conclusion:

1. Rate of descent greater that would be expected for a close formation in IMC (4000 ft per min.).

2. The radio call of “that looks good, put engine heat on” could be interpreted as them being happy with the situation and that they were gong to continue with their mission to low level.

3. A radar plot that pointed to the west of Ben McDui (in line with their pre-planned way-points).

4. Craig would not have expected an experienced pilot to continue a high rate of descent in IMC knowing that they were in the vicinity of pre-briefed dominant obstacles (Ben McDui by altitude but not necessarily by name).

5. Eyewitness accounts of F15 aircraft seen in an area other than that indicated by that given by the radar plot.

Once again, the Prosecutor pushed his point suggesting that the aircraft flew into the terrain because they did what was suggested by ATC i.e. descend to 4000 ft RPS. Craig, once again, rebuffed this suggestion.

The Prosecutor continued his questioning under a different tack and I must admit I missed the exact phrasing of the Prosecution question that got Mike Jones QC to his feet to ask for a ruling on a point of law. However, it seems that he had been waiting for the Prosecutor to fall into a trap. We have had several of these rulings over the last three weeks but this one was particularly significant. The Board retired while the JA considered the submission.

The charges against Spot are based on Causation (the most serious) and Negligence. On the Causation Charge (under Section 49 of the RAF Act) Spot is charged on two counts (mirror charges relating to the two individual pilots) of committing an act summarised in the followng phrase from the charge sheet ‘which act caused the loss of life’. It appears that these charges could have included the underlined phrase ‘which act caused the loss of life or is likely to have caused the loss of life”. This was not the case in the charges made against Spot.

I believe the Defence objected to a Prosecution question that intimated an act that was “likely to have caused” the deaths of the pilots as this was not in the framework of the charges.

The JA ruled in favour of the Defence, stating that the cause of the accident must be a “direct cause”. Furthermore, the cause must be proven beyond reasonable doubt and it must not be a “trifling cause”.

We assume the JA will direct the Board on his ruling in private session.

It seems to me, that for these 2 charges to be proven, the Board will have to discount all of Craig’s theories and the eyewitness accounts. Hmmmmmm !!

On resumption, the Prosecutor continued his cross-examination of Craig as to how the aircraft could have routed round Ben McDui to reach the impact point.

Craig was still under cross-examination on conclusion of proceedings for the day.

The Court Martial continues on Monday. More information will follow on Monday evening courtesy of the very kind people at Friendly Computers, Helensburgh, who are allowing us to use their facilities for free.



Dick Doleman and Brian Young
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Old 15th Feb 2003, 11:00
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Many thanks for the updates Dick.

It is pleasing to see that some important progress is being made and that the case for the prosecution is becoming more and more untenable.

Please keep us all posted on this very important event. Justice will be done.
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Old 17th Feb 2003, 18:42
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Hi Folks,

Another good day for the Defence. Sorry if this is rather detailed but, once again, it is important you pick up on the detail . Wording is the key today. Shock,horror – we were told at close of play today that things will not conclude until next week !!! I was banking on this Wednesday!

Craig Penrice and Chris Foster have done excellent jobs for the defence. Chris had rather a severe haircut over the weekend and was doing a very passable impression of Vinny Jones on the witness stand !!

Please excuse any grammatical / spelling mistakes today. Our priority is to get this to you all soonest.

Dick Doleman



SUMMARY FOR MON 17 FEB 03

The CM resumed with Craig Penrice (widely reported to be one of the world’s leading test pilots in the Scottish press) still on the witness stand under cross-examination by the Prosecutor. The Prosecutor gave a brief summary of the finishing statements from Friday. He then attempted to discredit Craig Penrice as a witness, mainly referring to one of Craig’s original documents compiled prior to him having seen:

1. The USAF Safety Investigation Board report.
2. The National Air Traffic Services report on accuracies of radars.

Further to that, he was not aware at the time of his original report that a map introduced by a member of the Board of Inquiry contained a plotted line that had been adjusted from the radar plot analysis to make the Board of Inquiry theory plausible.

Quite why he continued to attack Craig on his initial findings was not clear as Craig repeatedly pointed out that his views changed as new evidence materialised.

He robustly tried to discredit Craig’s theory of the aircraft routing around Ben McDui to regain their original low-level start point. He considered that Craig’s conclusion was illogical. Craig countered that his theory would have given thinking time to the leader of Bite 21 formation in trying to rejoin his planned track. He would also have had an option to pull up out of low-level, which he may have been considering. The Prosecutor stated that if the pilots had seen high ground they would not have flown towards it. Craig countered that they could indeed have flown towards it with the intention of missing it! Quite frankly, the level of questioning often seemed both bizarre and inane.

At one stage the Prosecutor asked Craig to draw on a flip-chart his original theory of how the aircraft came to be seen by the witnesses. As Craig yet again stated this was his original theory based upon the material available at the time. It was only reasonable that he was able to reassess his theory as new evidence became available. He was accused by the Prosecutor of stretching his theory to fit the facts. Craig responded “your words not mine!”. The Prosecutor then said that Craig’s theory was illogical and implausible. Craig’s response was “I don’t accept that”.

Essentially this was the end of Craig as an expert witness. The support team think that he did a truly excellent job and had obviously spent much time and effort in coming to his conclusions. We must thank Craig for drawing together and collating the pertinent witness statements, something which the RAF Board of Inquiry were seriously remiss in choosing to ignore! Would we be here today if they HAD competently investigated the matter in the first place? Craig was released as an expert witness (he is now a free man – he started his evidence last Tuesday!).

Next on the stand was an eyewitness for the defence who had not been able to attend court earlier. He was a cross-country skier of 15 years experience in the
Cairngorms and was an experienced map reader. He had just skied down a hill into a valley and was facing west when two aircraft in close formation flew low over the top of him in an east to west direction. Very significantly, he was only two and a half kilometres west of where two previous witnesses saw the aircraft bank steeply overhead them by an estimated 40 yards and head off to the west. Drawing a line through these two points and keeping other eyewitness reports in consideration gives Craig’s theory of how the aircraft came to the crash site high credence. The time of sighting could not be precise but tied in with other witness statements. He was unable to give positive identification on aircraft type as he had little interest or knowledge of the subject. The Prosecutor was unable to significally challenge this witness.

The final Defence witness appeared as an expert witness. He was Wg Cdr Chris Foster, currently Commanding Officer Swanwick Military. His experience as an air traffic controller is extensive and comprehesive. He had been both a controller and SATCO at fast-jet stations. He had also served on the Air Traffic Examining Board and been an instuctor at the RAF School of ATC. His experience also included tours in Area Radar.

He summarised Spot as an experienced controller who, in this instance, was doing his best to assist the aircrew in achieving their objectives. He felt that the protracted handover to RAF Lossiemouth had been made difficult for Spot by some non-standard responses from the Lossiemouth controllers. He felt that this may have proven to be a distraction at a time when the workload had increased.

Mike Jones QC asked “would you expect a controller of ordinary competence to understand Min Vector Altitude in March 2001”? Chris Foster replied “no”.

Mike Jones then asked “what was is your view on Flt Lt Williams not querying the Min Vectoring Altitude request”? Chris Foster replied that “the most likely explanation was that he didn’t hear it at all or, because of two conversations going on simultaneously, the words may just not have registered with him”.

He stated that he had had similar personal experiences in his career and knew that this had also happened to other controllers. He stated that when plugged in behind (other controllers) “I have heard things that have been said which patently the student or controller being checked had not heard”. He also stated that the same situation occurs frequently with pilots not hearing transmissions, necessitating a further transmission.
It is common for controllers and pilots on hearing a linked phrase (eg climb and turn) to only pick up on one part of the phrase.

He was asked whether he could provide a logical reason why a descent to 4000 ft was given. He replied:

“Williams had already inititated a handoever to Lossiemouth while the aircraft were at FL 80. The pilot of Bite 21 had previously asked how far north they could be seen by radar to maintain their RIS. He initiated the handover to Lossiemouth and the aircraft requested a descent. At the same time the aircraft were rapidly approaching the edge of Leuchars radar range. The physical distance between Leuchars and Lossiemouth was in the order of 80 miles. An initial descent to 4000 ft would be sufficent to keep the aircraft more or less in radar contact with both Leuchars and Lossiemouth. You would certainly keep them in secondary radar, primary a little less certain for both units”.

Chris Foster was asked whether any other controller of reasonably competence, exercising reasonable care, would have done the same as Spot. He replied “I can envisage another controller doing exactly the same thing”.

Several questions were then asked about RIS and RAS with predictable answers. Chris affirmed that a controller need not take into account terrain clearance when advising descent. Controllers providing RIS can provide a service below levels on the the RVC. Aircraft in receipt of RIS can be flying IMC or VMC and be flying IFR or VFR. The controller will not know these circumstances unless told by the pilot. Under RAS, RAF regulations say that if a pilot requests a RAS it is assumed that he is flying in accordance with IFR.

The next question from Mike Jones QC and the answer from Chris Foster may prove to be pivotal in this court martial. The question was:

“Assuming that Flt Lt Williams did something that was the cause of the accident - in your view, ought an air traffic controller of ordinary competence, exercising reasonable care be able to reasonably foresee that, by saying – ‘descend to 4000 ft on the Portree 29.62 ins’ - that it was a likely consequence that they would impact with the ground?” Chris Foster answered “no”.

Mike Jones QC went on to the wording of the charges and asked whether Spot had a duty ‘not to descend the aircraft below 6500 ft’? Chris replied “under RIS – no”. When asked to explain he said “Under RIS, a Min Vectoring Altitude - if it was understood - is an IFR procedure. The pilots had not declared themselves IFR, therefore IFR Min Vectoring Altitudes did not come into play”.

Mike Jones, having completed with his witness passed over to the Prosecutor for cross examination. There followed a series of confusing and, what appeared to be, irrelevant questions of little substance. There was no questioning of any regulation or determination of pilots’ responsibilities while under RIS. Chris Foster held his ground firmly against what sometimes appeared as hostile questioning. Chris was still on the witness stand when matters concluded for the day.

We were then told the court martial might not conclude until Wednesday of next week!! More tomorrow.

Dick and Brian

Last edited by DICK DOLEMAN; 18th Feb 2003 at 16:23.
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Old 18th Feb 2003, 16:20
  #8 (permalink)  
 
Join Date: Jul 2002
Location: Preston,lancashire
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Hi Folks,

The Defence concluded their case today. Tomorrow we move into the summing up for both Prosecution and Defence. After this is complete, the JA will do his summing up which is predicted to last for 2 days. The Board will start deliberating on Monday and that will be the earliest possible end date for the CM.

Chris Foster was an excellent witness for the Defence. He was positive, precise and stood his ground extremely well under some robust cross-examination.

Mike Jones QC put in his normal masterly performance and we are looking forward to his summing up tomorrow.

Dick



SUMMARY FOR TUESDAY 18th FEBRUARY 2003

The Court Martial recommenced with Wg Cdr Chris Foster (ATC expert witness for the Defence) still on the stand and under cross-examination by the Prosecuting Officer. The Prosecutor gave a brief resumé of yesterday’s questions. He then moved on to attack various threads put forward by the Defence. True to form, the Prosecutor then went off at a complete tangent questioning Chris about his aircraft recognition capabilities, his collection of model aircraft and his interest in model aircraft flying. Perhaps all will made completely unclear in the ‘summing up’!

He raised further questions about the phrase Min Vectoring Altitude and the choice of 4000 ft as an initial descent altitude. Chris Foster was adamant that MVA would not have been understood by any RAF controller at the time of the accident and he stuck to his explanation from yesterday as to how 4000 ft could have been a logical choice of interim descent height for maintaining the radar coverage between Leuchars and Lossiemouth at the time of handover. The Prosecutor returned to this subject on several occasions without gaining any discernible advantage. Time and time again Chris pointed out that it was the pilot’s responsibility for terrain clearance under RIS and a controller was quite entitled to select an interim descent altitude for his own purposes (eg radar coverage for handover to another ATC unit).

The Prosecutor then moved on to question a controller’s responsibilities when not sure of the meaning of phrases transmitted to them. Chris said that normally a controller would question something that he didn’t understand – however, in this case he could not be sure whether or not the phrase was actually heard. Furthermore if it had been heard there was a possibility that it had not registered.

The Prosecutor then went on to question as to whether the aircraft ever specifically asked for a descent to low level when the interim descent altitude of 4000 ft was given. It was conceded that hadn’t been a specific request for descent to low level in this transmission but it was clearly understood from previous transmissions that this was their intent.

The Prosecutor moved onto a new line of attack, the relevance of which I could not undertand. He seemed to think that Spot’s reaction to the disappearance of the radar returns was highly significant to the case. Chris made it clear that it not unusual for controllers to express concern whenever there are doubts about aircraft disappearing into low level without informing ATC. He stated that most controllers would have experienced this at various stages of their controlling careers.

At this stage the Prosecutor became more bullish in his questioning and seemed to imply that Chris Foster’s theories had been made late in the day purely to assist the Defence case. Chris denied this. The Prosecutor continued to press his point asking Chris whether he appreciated the importance of his views. Chris replied that he did understand and the Prosecutor then went on to say that, if the Board believed his views, then this might well negate one of the charges. Chris reiterated that he fully understood the importance of his views and that he was standing by them. He was clearly becoming irritated by the Prosecutor’s tone of questioning.

The Prosecutor’s final parting shot was to say “you have stretched your theory to fit the facts”. Chris replied “your words, not mine”. The Prosecutor said “do you accept what I say”? Chris replied “no”. We think it is fair to say that all of the support group feel that this is a case ‘of the pot calling the kettle black’!

Chris was then handed back to Mike Jones QC for further questioning and some highly significant and very important points were elicited:

1. On the R/T tape played in court, the request for descent to Min Vectoring Altitude is reasonably clear. However, Chris was able to point out that such clarity might not have been the case in real-time. This is because the recordings made in ATC are made as separate tracks for R/T, telephones, time-stamps etc. These tracks could be at different volume levels but when a composite tape is made for the purposes of tape transcription everything sounds to be at the same volume.

2. When a controller applies RIS he assumes that the pilot can see suffiently from the cockpit for him to assess and act upon traffic information that may be passed to him on conflicting traffic. Indeed, such information may not always be passed under this service, highlighting the fact that a good look-out must be maintained at all times. If a reasonable look-out cannot be maintained, the more appropriate service is RAS where the controller will offer advisory avoiding action on conflicting traffic.

3. Chris stated that in his experience USAF pilots were normally very quick to ask for RAS when their flight conditions warranted it.

4. Two of the most important questions raised today were:

“IN YOUR VIEW WOULD AN AIR TRAFFIC CONTROLLER OF ORDINARY COMPETENCE NOT SEE AS A LIKELY CONSEQUENCE OR PROBABLY CAUSE THAT THEY (THE AIRCRAFT) WOULD COLLIDE WITH THE TERRAIN”?

and

“EVEN IF THE CONTROLLER HAD HEARD ‘MIN VECTORING ALTITUDE’, WOULD YOUR ANSWER BE THE SAME”?

Chris responded “NO” to both questions.

5. Finally, a question was raised by the Board, and this was – “Could you confirm that had Williams been giving a RAS, then the lowest descent in this case would have been 6,500 ft”? The answer from Chris was “correct”.

This concluded the Defence case, the Court adjourned and summaries from both Prosecution and Defence will be given tomorrow.

More news tomorrow,

Dick and Brian
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Old 19th Feb 2003, 19:53
  #9 (permalink)  
 
Join Date: Jul 2002
Location: Preston,lancashire
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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.
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Old 21st Feb 2003, 06:26
  #10 (permalink)  
 
Join Date: Jul 2002
Location: Shrewsbury
Posts: 82
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
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Old 21st Feb 2003, 15:28
  #11 (permalink)  
 
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Hi folks,

A very short summary today – nice to get a break! On one day we had 22 pages of foolscap notes to summarise, type and post. We hope the CM will conclude on Monday afternoon but it may go to Tuesday. Whichever way, some more support in Court would be nice.

This is a very important moment for Spot and family. It is also a very important moment for the whole of Air Traffic Control in the UK. Personally, I can’t see how Spot can be found guilty of any of the charges, but if he is, the ramifications will be enormous for all of us.

I have also come to the conclusion that the RAF justice system is under trial here. Whether Spot is acquitted or, heaven forbid, found guilty, there is going to have to be an investigation into how the RAF has (mis)handled the whole affair.

The Court Martial system was only recently under investigation by the European Court of Human Rights. This case highlights, once again, that the potential for a serious miscarriage of justice still exists – I refer back to the initial handling of this matter by the Board of Inquiry. Evidence was ‘fudged’ to quote Mike Jones QC and they chose not to interview eyewitnesses. As a result of this, matters were handed over to the RAF Police and charges were laid leading to a CM. Spot was forced into a very expensive defence action to clear his name (of a criminal charge) and in my view, should never have been charged in the first place. The cost to the Crown will also be enormous but the taxpayer will, of course, pick up the bill. However, I assume the DLS operate to budgetary controls like every one else these days. If this is the case, perhaps we will be able to find out exactly how our money has been wasted.

Justice will prevail


Dick Doleman






Summary for Friday 21 February 2003

There is very little to report from the CM today. The JA continued to read his summary of all the evidence into the Court. This will continue until lunchtime on Monday. He will direct the Board after lunch – we will not be allowed in Court while this is happening. The Board will then deliberate and may come to a decision on Monday or Tuesday.


Dick
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Old 23rd Feb 2003, 06:47
  #12 (permalink)  
 
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NOTIFICATION PROCEDURE FOR RESULT OF CM


As previously mentioned, the CM may conclude on either Monday afternoon or Tuesday. We hope it doesn’t stretch until Wednesday !



As soon as we have a result, I will ring ATC Warton who will ring LATCC, Swanwick, SCATCC and Manchester ATCC supervisors (including military supervisors as appropriate). We will request that they cascade the result both internally and to the airfields in their respective areas.



The result will also be posted on both forums of PPRuNe at the earliest opportunity.



I note that we have had over 50,000 visits to the combined forums - absolutely awesome !




Dick Doleman
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Old 24th Feb 2003, 17:16
  #13 (permalink)  
 
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Hi folks,

A very disappointing day as we expected that the Board might have come to a decision fairly quickly.



SUMMARY FOR 24 FEB 03

Regret to report that despite four and a half hours of deliberation the Board failed to come to a conclusion and proceedings were adjourned until 1000 tomorrow.

Dick
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Old 24th Feb 2003, 21:20
  #14 (permalink)  
 
Join Date: Feb 2003
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f15 dcm

Don't know Spot and Sue, but just read everything. Can't believe that the origonal investigation was performed in such an amateurish way and why it got to this stage. Along with everyone in the ATC family, my thoughts are with you.

Last edited by PPRuNe Radar; 25th Feb 2003 at 20:53.
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Old 25th Feb 2003, 11:15
  #15 (permalink)  
 
Join Date: Mar 2002
Location: EDI, LCY
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PA NEWS
Flight Lieutenant Malcolm Williams was found not guilty by a court martial today of causing the deaths of two American pilots who crashed into a mountain.
RAF AIR CONTROLLER CLEARED OVER PILOTS’ DEATHS
By Paul O’Hare, PA News
An RAF air traffic controller was cleared today of the deaths of two US fighter pilots whose planes crashed into a mountain during a snowstorm.
The jury of six senior RAF officers took just over six-and-a-half hours to acquit Flight Lieutenant Malcolm Williams.
Williams, 47, of RAF Leuchars, Fife, was also found not guilty of an alternative charge of professional negligence at a court martial in Helensburgh, Argyll and Bute.
mfl
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Old 25th Feb 2003, 11:29
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Hallelujah!!!!

What about his fees? Do we know if he will have to pay costs?

Point 4
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Old 25th Feb 2003, 11:32
  #17 (permalink)  
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Absolutely the best news possible !!!

My heartfelt congratulations and best wishes to Spot and his family. I am truly glad the nightmare is over and your lives can begin again.

Let us not also forget the sterling work of the Defence Support Team, from Mike Jones, to the expert witnesses, our 'Court Reporters', and all who have given Spot the encouragement and help needed either in person or here through PPRuNe or other means.

Please continue to post all your congratulations and messages for Spot on the OTHER thread so we can leave this one for any further reporting of the proceedings.

Best regards

PR

Spot, hope you have the hangover cures lined up for the next few weeks. I suspect you will need them !!!!
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Old 25th Feb 2003, 12:12
  #18 (permalink)  
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Excellent news!!!

Best wishes to Spot, his family and all the support team.

WF.
 
Old 25th Feb 2003, 12:27
  #19 (permalink)  
 
Join Date: Jul 2002
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Spot found NOT GUILTY on all charges !!!!

Justice has prevailed and this record breaking CM is now over. Before going on to the press releases made separately by Spot , Sue, and the Guild of Air Traffic Controllers, I would like to express some very big ‘thanks’, on behalf of the support group, to the major players in Spot’s defence.

Firstly, our sincere gratitude to Mike Jones QC. We christened him the ‘The Master’ and I don’t think you will ever find a better man to represent a defence case over an aviation issue. Both he and Alasdair Gillies (the lawyer assisting Mike in court) had obviously carried out a huge amount of research prior to the case. They worked magnificently as a team. To watch Mike Jones QC in action was both a joy and a privilege, no wonder this man holds silk in both England and Scotland. To have flown Phantoms in a previous life was obviously an advantage, that aside, he totally outgunned and outwitted the prosecution. His cross-examination technique was something to behold and the atmosphere in the courtroom when he had the stand was electric. Mike Jones QC , we salute you, our ‘learned friend’ !

Secondly, our thanks to Craig Penrice (Test pilot). Craig was the first expert witness for the defence. Craig had delved very deeply into the whole accident and it was he who drew the previously ignored eyewitness reports together. In my view, it was his combined evidence that was pivotal in the prosecution having to change their theory of events in mid CM.

Thirdly, our thanks to Wing Commander Chris Foster (ATC), the second expert witness for the Defence. He answered the crucial questions that were the legal tests of negligence. The Prosecution vilified him for supposedly giving ‘partisan’ evidence on behalf of the defence. This was absolute rubbish! If he could be accused of being ‘partisan’ then it was only in defence of RAF air traffic control as a whole. This man stuck his neck on the block for Spot and the whole of RAF Air Traffic Control. He gave his honest opinion that was in accord with that of every coalface controller that I know. RAF ATCOs have a senior officer of whom they should be very proud.

Lastly, we must thank The Guild of Air Traffic Controllers whose financial support made this defence possible. The Guild has continued to offer the very best of moral support and has pledged to investigate how this case ever got to become a CM. Our particular thanks to Richard Dawson (Guild President) who has taken a very personal interest in this CM.

I know that everyone will want the answer to this question.........The JA has recommended that 'all reasonable' costs should be met by the Crown. He reminded us that the costs incurred in the use of a QC should fall under this heading. This was agreed by the Crown Prosecutor.

Dick Doleman

(Over 50,000 visits to our forums on PPRuNe – awesome stuff ! “Have a good day sir !” )


Press release from Spot……………….

A Court Martial has cleared RAF air traffic controller Flight Lieutenant Malcolm (Spot) Williams of causing the deaths of two United States Air Force pilots whose F15 jets crashed into Ben Macdui during a snowstorm in March 2001.

The Court Martial was held at Helensburgh and lasted for 21 days, the longest Court Martial in history. Following the verdict today , Flight Lieutenant Williams said “My sympathy and thoughts go to the families of the two pilots who lost their lives in this tragic accident; their loss will be inconsolable”.

I am very happy and relieved by today’s verdict. The last two years have been extremely stressful for my family and me and we are now looking forward to returning to some sense of normality.

I am most grateful to my outstanding defence team who represented me throughout this rigorously thorough Court Martial. Through them I was able to answer all the allegations in public, ensuring that the cause of the accident was fully investigated and my innocence established.

I am pleased to emerge from this stressful experience completely exonerated and wish to thank my defence team and hundreds of supporters from all over the world. In particular I would like to express my thanks to my wife, friends and family’.

Spot Williams.


Press release from Sue ……….

“ There are no winners in this Court Martial – two fine fighter pilots have lost their lives and our prayers continue to be extended to their wives and families. Furthermore, my husband and family have suffered extreme anxiety from a range of serious allegations over two years. Thirdly, the good name of the RAF has been tarnished.

We are exceptionally grateful to and humbled by the huge band of supporters - family, friends, colleagues in the RAF and from The High School of Dundee, the defence team, military and civil controllers and pilots from all over the world who have helped us through some very trying times. This massive support system has aided Spot to maintain strength and dignity throughout this ordeal.

I now look forward to participating in the Inquiry demanded by GATCO. This will be the most appropriate forum for me to discuss my thoughts about recent events.

Many people have battled for 23 months to clear Spot’s name. Whilst it has been rather like David fighting Goliath, we always knew that right was on our side and we are very relieved that the long struggle is finally over.”

Sue Williams


Press release from GATCO……


THE GUILD OF AIR TRAFFIC CONTROL OFFICERS

PRESS RELEASE

RESPONSE TO COURT MARTIAL VERDICT

Flight Lieutenant Malcolm ‘Spot’ Williams

The Guild of Air Traffic Control Officers is pleased to have supported Flight Lieutenant Williams throughout his ordeal and delighted that his Court Martial has now ended with him being acquitted of all charges.

He leaves this Court with his professionalism, conduct and character unblemished.

This brings to a close an unnecessary period of stress and trauma for himself, his family and the relatives of the pilots who lost their lives.

The evidence presented during the last four weeks has highlighted a need to revisit the Royal Air Force / United States Air Force arrangements to ensure that adequate safeguards and common procedures are in place for the conduct of low flying training and airspace management in United Kingdom airspace.

The Guild of Air Traffic Control Officers will continue to work with all air traffic service providers, civil and military, to achieve the highest levels of safety.

Finally, the Guild is seriously concerned that evidence available to the Court Martial appears to have been either ignored, or not accurately displayed, when presented by the Prosecution.

The Guild calls for an inquiry to determine whether this was accidental or deliberate.


This statement is issued on behalf of the President and Executive Board The Guild of Air Traffic Control Officers

For Further Comment / Information contact The President, GATCO

Richard Dawson

Tel /Fax 01628 672232
Mobile 07974 311293









DICK DOLEMAN is offline  
Old 25th Feb 2003, 15:26
  #20 (permalink)  
 
Join Date: Apr 2002
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As an ex T/G 9 of 22 yrs. plus and now out of the mob for 7 yrs I have followed this closely
And I am so happy to read of this outcome,,having worked at SCATCC as an Asst I have also missed calls and both the controller and I have made eye contact to express "what did he say" then only to hear the call "c/s.. going en-route goodbye"
Believe me it’s the same now working on a civil airfield, I at time question what I have heard only to be told at times that I am an old woman for checking and I’m not in the RAF now,,but I will continue as I always have,,,at least I still sleep at night
Good luck to all
Matt Ryan
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