BOI into the 2012 Tornado Collision over the Moray Firth

[5 Forward 6 Back]

MoD has this week advised Sir Jeremy Heywood KCB, CVO, Secretary of the Cabinet and Head of the Civil Service, that it should remain an offence to refuse to obey a direct order to make a false declaration regarding airworthiness and financial probity. To issue such an order is not an offence.

To obey such an order is to commit fraud and constitutes misconduct in public office.

Sir Jeremy accepted this advice and personally signed the letter containing his ruling on 28th October.

This still amazes me; do you have a link to a copy of the letter, or is anything regarding this publicly accessible..?

[Wander00]

Have neither this ruling nor its logic been challenged in, nor considered by the higher courts

[baffman]

MoD has this week advised Sir Jeremy Heywood KCB, CVO, Secretary of the Cabinet and Head of the Civil Service, that it should remain an offence to refuse to obey a direct order to make a false declaration regarding airworthiness and financial probity. To issue such an order is not an offence.

To obey such an order is to commit fraud and constitutes misconduct in public office.

Sir Jeremy accepted this advice and personally signed the letter containing his ruling on 28th October.

Important stuff, but I'm puzzled as to what status such a ruling could have.

As you say tucumseh, obeying an order to make a false declaration is likely to result in a criminal offence, including an offence under the Armed Forces Act. Such an order would therefore be an illegal order.

I am well aware that it's not as simple as that in practice, but the law seems straightforward enough on that point, and I don't see what difference a letter from Sir Jeremy could make.

Incidentally, for the present the offence of corporate manslaughter is still available in extreme cases, subject to all the exclusions which apply specifically to the armed forces. However, some campaigners propose that the offence should be removed altogether from the armed forces, including in the UK and in peacetime.

[Distant Voice]

The 2011 version of MAA regulation RA 1210 makes two very clear statements;

"The goal of risk management is to show that safety risks can be tolerated and are at levels that are ALARP; merely identifying and mitigating risks is not in itself sufficient.

AND

"ALARP is essentially the "stopping condition" for risk reduction, so justifying and recording how this is reached is an important and vital step in safety management. A DH is required to make an argument that risks have been made ALARP; however, the validity of this argument can only be decided definitively by the courts, if an accident occurs." [My emphasis]

As AVMs Bagwell and Atha both signed off in 2011 to say that the risk of collision was Tolerable and ALARP, and an accident has occurred, then it is mandated that they should stand up in court and justify their decisions. The place to do that is the FAI.

DV

[Chugalug2]

baffman:-

...the law seems straightforward enough on that point, and I don't see what difference a letter from Sir Jeremy could make.

All the difference in the world I suspect. The MOD has previous regarding sticking to the verdicts of its various kangaroo courts and discounting all evidence to the contrary. Remember the "no new evidence" mantra over the Mull of Kintyre ROs Finding?

Their stance is one of prevarication and obduracy no matter what is put before them. With the unwillingness of the likes of the Provost Marshal and the Thames Valley Police to investigate the alleged issuing of illegal orders by RAF VSOs, it seems that the MOD alone is responsible for enforcing that particular aspect of Military Law. Unsurprisingly it chooses not to do so either. Yossarian would have understood, I'm sure.

[tucumseh]

Thank you for your comments. I could have chosen any number of relevant threads to post Heywood's ruling on, but did so here to highlight the absurdity of the MAA's position in this ongoing Tornado case. The ruling itself is nothing new, and will not change as long as senior staffs are permitted to judge their own case. My point is, the MAA is fully aware of it and, apparently, say nothing. Or if they do, they're quickly put back in their box.

DV rightly points out what the new MAA regulations say (the same as the old regs). The bit about "merely identifying and mitigating risks is not in itself sufficient" is key here, because directly linked to the above ruling is the practice that identifying the Risk in the first place is not to be tolerated; never mind mitigating, validating and verifying the mitigation and keeping correct records of all actions. The same people made that ruling and robustly implement it. On 15th December 2000 the 2 Star in charge of, inter alia, Nimrod MRA4 and Chinook (Mr Ian Fauset CB), used adherence to this regulation as justification for upholding disciplinary action. To many that may seem a lifetime ago, but Heywood's letter (above) actually refers to that case, citing Fauset's ruling. (As MoD point out, I am the only person who disagrees with this ruling, so there can be no objections to naming the people who apparently speak for the entire MoD and Government!)

The contradictions are clear, as is MAA's position, lodged firmly between a rock and hard place. The only way to break free is to be independent. They are headed by a raft of senior officers, up to 3 Star rank, and there is no way in this world any of them will stand up for you in the face of such rulings by their mentors. If any want to prove me wrong, please get in touch and I'll supply ALL the relevant papers. But wait, you already have them because they were provided in the evidence pack to Lord Philip, which you saw before his report was issued. And I KNOW your bosses, past and present, have read it again more recently.

As I've said before, MoD relies on the fact very few current or ex employees have the financial means to take such a matter to court. In the UK the Government offers no assistance in such cases. Corporate Manslaughter? A key component of proving this is identifying a "directing influence". Any reasonable person would consider the above ruling a bit of a giveaway, but Ministers, CPS and Police are willfully blind.

[Distant Voice]

Fitting of TCAS

MoD admits failure to fit Tornado collision devices - The Scotsman

Does anyone know during which scheduled servicing TCAS is being fitted?

DV

[peppermint_jam]

DV, based on the ammount of work needed, I'd guess it'd be either tied in with minor/major if due, or the selected aircraft would be called in to the sheds purely to have the MOD embodied.

[Distant Voice]

“While the introduction of TCAS on Tornado will add an additional layer of safety, there are already a multitude of measures in place to minimise the risk of midair collision.”

MoD, and their advisers, still do not know the difference between "Prevention Controls" and "Recovery Controls".

DV

[Distant Voice]

On 27th Jan, MoD stated,

Trials in the Tornado GR4 aircraft have revealed that modifications are required to existing aircraft hardware and software in order to ensure compatibility with the Honeywell Traffic Alert and Collision Avoidance System II (TCAS II). Work is continuing to resolve these issues and once further trials and testing has been completed we will be in a better position to determine when the full capability will be available. The Ministry of Defence is committed to obtaining early beneficial use of TCAS II and is embodying the system in as many Tornado GR4 aircraft as possible to operate, initially, in Traffic Advisory mode.

Seems as though there is an integration problem, reminiscent of the Tornado/Patriot issue back in 2003. Let's get it right this time (BAE Systems have only had the contract for two years). We do not want the CWS problem to be made worse by the "It worked OK on the bench, Chief, so it must be OK in the aircraft" approach.

DV

[Tester_76]

"It worked OK on the bench, Chief, so it must be OK in the aircraft" approach.

It does work on the aircraft - those in the know can read the 41(R) OpEval and Advice to Aircrew reports which followed BAES trials last year.

[Distant Voice]

Tester you say,

It does work on the aircraft - those in the know can read the 41(R) OpEval and Advice to Aircrew reports which followed BAES trials last year.

,
This seems to be at variance with what MoD and others are saying. It may be working on the aircraft but there appears to be problems with integration. The IFF mode 4 worked on the aircraft back in 2003, but it was not correctly integrated.

DV

[dervish]

Tester 76

Reading the reports, DV is right. OK last year doesn't mean ok in 2003 and 2012. It just means someone might have eventually done their job properly after too many fatalities.

DV Has the legal profession decided if this is to go to fatal accident inquiry yet?

[Distant Voice]

DV Has the legal profession decided if this is to go to fatal accident inquiry yet?

The simple answer is NO.

Fatal Accident Inquiries in Scotland are held in terms of the Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976. There are two classes of inquiry in terms of the Act, mandatory inquiries in terms of Section 1 (1) (a) of the Act which apply to deaths which have either resulted from an accident occurring while the person was in the course of his or her employment or where a person was at the time of their death in legal custody, and Section 1 (1) (b) which covers all the rest and is at the discretion of the Procurator Fiscal.

On the face of it it seems a clear cut case that the Tornado deaths fall under Section 1 (1) (a) and an FAI is mandatory. However, the current debate is about whether or not members of the services are employees. MoD believe they have special dispensation under Scottish Law which places service member in the Section 1 (1) (b) category. That is why we did not have an FAI for the Glen Kinglass accident back in 2009.

This interpretaion goes against the ruling of Lord Neuberger in the Snatch Land Rover case. He declared the members of the services are employees and MoD is their employer.

DV

[Chugalug2]

DV:-

the current debate is about whether or not members of the services are employees.

I wonder if members of the UK Services consider themselves to be employed or not? I certainly did. Perhaps we should get NZ Judge Lowell Goddard to give a ruling, on the same basis that she is investigating child abuse in the UK, ie that she is not part of the British Establishment.

[dervish]

Thanks DV. So, I've been unemployed most of my adult life. Backdated benefits?

Seriously though, does that mean the Mull of Kintyre FAI was in to the passengers and not the RAF crew? It'd explain why MOD thought it could ignore the sheriff.

[Distant Voice]

Seriously though, does that mean the Mull of Kintyre FAI was in to the passengers and not the RAF crew? It'd explain why MOD thought it could ignore the sheriff

That is a possibility. The recent FAI into North Sea helicopter crash went ahead under the mandated route because civilians were involved. The Glasgow Pub accident will go the same route for the same reason.

Lord Neuberger stated, "The duty of care owed by the Ministry of Defence, as employer, to the members of the armed forces, as employees, does exist and has been recognised, without demur, by the courts. It includes a duty to provide safe systems of work and safe equipment.".

As Lord Neuberger is the President of the Supreme Court of United Kingdom, of which Scotland is a part, his ruling must cover all legal systems. In the case of the 2012 Tornado accident MoD (the employer) failed to provide a save system of risk assessment and safe equipment for the three crew members (employees) who lost their lives. The way forward seems clear to me.


DV

[alfred_the_great]

It depends - was it ALARP, noting that "reasonable" includes cost implications.

[Distant Voice]

It depends - was it ALARP, noting that "reasonable" includes cost implications.

Do not understand the point you are trying to make. ALARP has got nothing to do with FAI.

DV

[alfred_the_great]

An Employers responsibility to an Employee on H&S grounds, which is what I think your quote from Lord N referred to (given the "safe system of work" section), is based on a principle of ALARP.