BOI into the 2012 Tornado Collision over the Moray Firth

[airpolice]

Tucumseh needs to get into a position where he can be asked some leading questions which will extract either answers or clear avoidance of facts.

If the decision not to have a FAI into this crash can't be overturned, then some local political pressure needs to be brought into play.

It's election time, some local activists should be getting a commitment from candidates to have this investigated.

AP

[The Old Fat One]

The news is getting some coverage up here but from what I read on pprune this new excuse that the MAA investigation is sufficient doesn't stand up and is at odds with what the Procurator Fiscal and Crown Office have been saying.

In a statement, the Crown Office said: "After thorough consideration of the circumstances of the case, Crown Counsel have concluded that all the relevant issues have been comprehensively examined in the course of the Military Aviation Authority report and could not have been better considered in any FAI.

I guess pprune is a bit off on then?

PS 10 seconds on Google is all it takes guys.

[Distant Voice]

This is about protecting very senior RAF officers who signed off to say it was safe to operate Tornado GR4 (Tolerable and ALARP) in Class G airspace without CWS. They should, according to MAA regs, justify their decision in a court of law. The previous DG MAA stated in a letter to the 2nd PUS in Feb 2011 that their assessment was flawed, and concluded by saying "I feel safe to assume that, were a catastrophic collision occur, those involved in delaying or deleting the programme would inevitably face detailed scrutiny."

Also, the Crown Office needs to bring its interpretation of "employee" in line with Lord Neuberger's ruling in the Snatch Land rover case. The crews were MoD employees, and this mandates an FAI.

DV

[dervish]

TOFO

Not sure what you're getting at there but distant voice's last post and lots more in this thread reveal a contradiction between what the MAA originally said and what the crown office now attribute to the MAA. Both should be required to clarify their position.

[Distant Voice]

In a letter dated 17 Dec 2010, released yesterday as a PQ, AVM Bagwell (AOC No1 Group DH) states that the Tornado collision risk "is currently assessed as ALARP (Temporal) as a CWS solution is due for delivery in 2013".

Sorry, AVM Bagwell, but there is no such thing as "ALARP (Temporal)". This is a state, now used by MoD, where DHs believe that as long as there is some sort of a programme in place, no matter how long, the risk can be considered to be ALARP.

The Temporal element applies to the "R" in ALARP, according to Lord Cullen's guidance in the Edwards v The National Coal Board case. In his findings "time or trouble" are linked and regarded as a "sacrifice", or costs to be borne by a company or organisation in order to achieve ALARP. To view "time" in the manner used by AVM Bagwell and MoD can only be seen as a let out, not a sacrifice.

DV

[Distant Voice]

Not sure what you're getting at there but distant voice's last post and lots more in this thread reveal a contradiction between what the MAA originally said and what the crown office now attribute to the MAA. Both should be required to clarify their position.

I refer to the stance taken by the previous DG, the current DG sees things differently. There have been several meetings between the Crown Office and the DG, but nothing between the Crown Office and families, apart from updates. Families have not had a direct input.

DV

[A and C]

Heads in the sand !

The Miltary are not the only ones with their heads deep in the sand when it comes to collision warning systems EASA is just as bad.

The Idiots at EASA just want to make lots of money from it.

They have already approved the ADS-B system that is about to be fitted to my aircraft for use in a wide range of aircraft with American type certificates, however I am allowed to fit the system to my aircraft but because my aircraft has an EASA type certificate EASA want me to get a supplemental type certificate ( STC ) to switch on this already IFR approved kit.... Cost £15k !!

When you look at the attitude of the UK CAA and NATS the contrast is stark, these organisations are activly pursuing the safely advantages of ADS-B to the point that NATS are running a trial for the use of non- IFR approved GPS units as the sorce for ADS-B, with the UK CAA waving the fees for modification oversight for aircraft participating in this research.
This research has to be done with Annex 2 and homebuit aircraft as for reasons outlined above EASA annex 1 aircraft can't take part.

ADS-B offers real safety benefits for all who use the sky, not only to avoid collisions but I also understand that the security services are keen on it as a way of monitoring uncontrolled air traffic.

While I apologise for taking this thread off topic I want to highlight the appalling attitude of EASA when it comes to the advancment of safety for both civil and military aviators using new but proven technology.

[Chugalug2]

Your point taken A and C, and all that have shelled out the Dane-Geld to whatever authority will no doubt empathise with you but..
did EASA ever set out to deliberately suborn Airworthiness provision, to the extent of issuing illegal orders to do so, and thereafter orchestrate a cover up which protected those responsible?

In a week that, after more than a quarter of a century, finally exposed official lies covering up the death of 96 football fans as due to negligence rather than drunkeness, we may view with jaundiced eyes official inquiries and their like that repeatedly assure us that there is nothing new to see here, move along now, we've all got homes to go to.

Official corruption infests the corridors of power in our land. In the end only the courts can provide a solution.

[EAP86]

"ALARP (Temporal)"

I believe this relates to a policy documented by the MAFTR (MAA predecessor) around the mid-noughties which said that so long as you had a current effective programme in place to address a risk, the hazard could be regarded as ALARP. While the creation of the "Temporal ALARP" concept was regarded as slightly unnecessary, it was recognised that it fitted with the understanding of the ALARP concept. In rough terms, 'instant' risk mitigations may not be possible and it wasn't judged reasonable to abandon defence of the realm, therefore a court would accept that the existence of a current mitigation programme was an acceptable approach.

[tucumseh]

Haddon-Cave, Ch 19.8

‘The ALARP rule is one of the fundamental tenets of safety and a basic concept; and yet there is confusion in some (senior) quarters [of the RAF and MOD] as to the relationship between ALARP and the ‘tolerability’ of risk, and also a lack of appreciation in others as to the temporal and financial flexibility inherent in the ‘R’ in ALARP.

While I never used the term "ALARP (Temporal)", I was certainly always aware of the legal obligation to reduce risk as soon as reasonably practicable, because the clock ran on litigation as soon as a technical solution became available. Our airworthiness letters of delegation were changed in the early 90s to reflect this more forcibly, given the repeal of Section 10 of the Crown Proceedings Act. Training also changed, at Cranwell and in PE. I used the "clock running" argument many times to acquire funding.

Very often the technical solution is known, but not available due to (e.g.) space constraints in aircraft. For example, the LIDAR Wire Strike Avoidance system developed by RSRE Malvern in the 80s was physically too large for Tornado, although it exceeded the distance/wire diameter spec by a huge margin, so ALARP was achieved because no practical solution was available AT THAT TIME. However, there is an enduring obligation to maintain progress, not just forget the risk because it was, at one point, ALARP by default. In that case, MoD stopped funding LIDAR work some years ago and all staff were made redundant; including the inventor. The MAA doesn't mention that when tagging wire strike as a major risk.

While he doesn't explain himself (mainly because he couldn't publish any evidence that contradicted his decision to name and blame those he did) this is what H-C is getting at. The failure of senior staffs to meet this enduring obligation. Related to this, there is the policy that risks can be ignored until they actually manifest themselves. Again, Tornado offers a good example in ZG710 (2003 Patriot shootdown, the specific risk having been notified in 1998 and ignored).

Given the evidence uncovered by Distant Voice, the current risk is unlikely to be ALARP (Temporal) because, by any reasonable interpretation, MoD have not met this enduring obligation to continue unhindered development of CWS. I'd qualify that by saying the Duty Holder may have decided the original agreed mitigation (CWS in a generic sense) is no longer valid, but as the risk to life is obvious I'm sure he has made his obligatory written declaration to this effect and his Service and Political seniors have agreed, also in writing. And that his alternative mitigation is recorded and in hand.

Another factor here is that, fairly obviously, there must be an associated Operational Constraint and/or associated Limitations in the RTS. And the Whole Aircraft Safety Case will reflect all this. Lawyers would have to argue what timescale was reasonable, but given the successful trials were in the early 90s, it is for MoD to prove compliance, not for anyone else to prove the negative. Any gap in CWS/collision avoidance related development would be evidence of non-compliance.

As EAP86 says, the term should be unnecessary and its use indicates an acceptance of H-C's criticism; which in turn was notified to H-C in evidence thus demonstrating prior knowledge within MoD. This prior knowledge is a crucial aspect, so why did H-C present his report as revelations?

[alfred_the_great]

Another factor here is that, fairly obviously, there must be an associated Operational Constraint and/or associated Limitations in the RTS.

Nope. There may be an Operating Constraint, but there will be no Operational Constraint. It is not for the DDH, ODH or SDH to curtail the operational commander's risk.

[tucumseh]

ALF

I suspect we're talking about slightly different things. I'm referring to the Service led process whereby the inability to operate in accordance with the Statement of Operating Intent and Usage is considered by what I know as the Constraints Assessment / Working Groups (chaired by your DEC branch, for each aircraft Mark). Constraints are classified Critical, Major or Minor; with "Safety" appended if necessary. This determines procurement priorities and is the forum at which Front Line can best influence procurement decisions.

DEC is obliged to run requirements for all Criticals. (In practice, Majors and Minors seldom succeed, unless they can be subsumed within the solution for a Critical). This is what prioritises his annual workload. It is during this process that "temporal" may be appended; that is, the reasonable time it takes between identification of the risk and successful mitigation. If DEC's bid fails, then "temporal" must be removed and the risk is not ALARP. At this point, the Secy of State (theoretically) personally owns the risk and he must accept this in writing. This is where I believe the MAA's main role is. Clearly, the original Tornado CWS mitigation failed, so the risk cannot be said to be ALARP. It may be they got round this by "resetting" the risk when they decided to resurrect CWS a couple of years ago. But that would hide the underlying problem, which would seem to be a failure to do anything for 20 years.

If the "issue" is not considered to be a Constraint, then it is a Limitation; and enters the RTS as such. Hence the relationship to the Safety Case and Airworthiness.

Given the background explained by Distant Voice, clearly the lack of CWS has been tagged as a Critical Constraint for well over 25 years, because funding has been endorsed - witness the successful Tornado trials of the early 90s. Had it been a Limitation, no such funding would be available and, by definition, the risk could never be ALARP, temporal or otherwise, without significant changes to the SOIU and all that this entails. The bottom line is that in the early 90s the trials report said "ready to go", yet post-Moray Firth (July 2012) MoD claimed lack of CWS was not a factor because it could never have been in the aircraft in 2012. THAT, I think, is the basic contradiction that concerns Distant Voice. What happened between the early 90s and 2012?

I accept that, almost inevitably, terms will have been changed regularly over the years, but the basic process remains the same. Let us agree on that. The last CAG/CWGs I went to referred to them as Operational Constraints and Limitations. Ultimately, their role is to assist getting the Operational Commander the tools necessary for his task; for example, an airworthy aircraft. Then he can make his Fitness for Purpose (operational) decision. Hence, attaining Airworthiness precedes Fitness for Purpose. We already know the difference isn't really taught in MoD (see XV179 Inquest).

[dervish]

Maybe CWS was delayed for 20 years by some dickwad arguing over 'operating' and 'operational' instead of concentrating on substance.

FWIW, as he's obviously talking about feedback from operational experience I think he got it right.

[alfred_the_great]

Dickwad - smooth.

You going to tell Haddon-Cave that he's a dickwad, and that one of his key recommendations is not, actually, substantial? Para 21.39 allows operators to go beyond the RTS, 21.44 removes the Operational Leadership (i.e. with OPCON and COM) from the Duty Holder Chain, viz.

Such guidance must recognise that Operational Commanders
may be required to make operational decisions at short notice in a highly dynamic and intense environment;

Para 21.44

All seems perfectly sensible to me.

But, of course, you know better.

[Distant Voice]

Twenty-three years of inactivity to put right what was known to be wrong shows a gross breach of a relevant duty of care owed by the MOD, not only to the deceased, but to all those who fly in Tornado GR4 aircraft. Who will bring that charge against them?

Failure to submit an accurate Tolerable and ALARP statement by AOC No 1 Group, which resulted in the loss of life. Who will bring that charge against him?

DV

[baffman]

Originally Posted by Distant_Voice

...Also, the Crown Office needs to bring its interpretation of "employee" in line with Lord Neuberger's ruling in the Snatch Land rover case. The crews were MoD employees, and this mandates an FAI.

Interesting point: in other words, that the Crown Office COULD have initiated a Fatal Accident Inquiry on public interest grounds, but an FAI would be MANDATORY if the deaths were regarded as having occurred "in the workplace".

I suggest this is not exactly the same issue, although related, as the "duty of care" question considered in the Snatch Landrover case.

Presumably this did come up at some stage during debate about the Coroners and Justice Act 2009. It certainly should have done.

Taking up DV's point, if it is not too off-topic I would be very interested to know whether the experts here consider that a fatal service flying accident in the United Kingdom should lead to a MANDATORY inquest/FAI, or not.

[Distant Voice]

I suggest this is not exactly the same issue, although related, as the "duty of care" question considered in the Snatch Landrover case.

I referred to the Snatch Land Rover case becuase Lord Neuberger made it clear that members of the armed services are "employees", somthing that the Crown Office refuse to accept. Neuberger said;

"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."

Taking up DV's point, if it is not too off-topic I would be very interested to know whether the experts here consider that a fatal service flying accident in the United Kingdom should lead to a MANDATORY inquest/FAI, or not.

I do not regard myself as an expert, but in my opinion they should be mandatory. In the event of an accident the SI team is bounded by the TOR set by the convening authority, an FAI/Inquest can operate outside this constraint. It is easy to think that an SI will address all the problems, but experience tells me otherwise. The coroner at the Nimrod inquest uncovered several important facts, overlooked by the Board of Inquiry (now SI), which resulted in him ruling that the Nimrod Mk2 fleet was not airworthy and should be grounded until risks were made ALARP. In the Red Arrow ejection seat case, it became clear during the course of the inquest the the Mk10 ejection seat does not have a safety case.

DV

[Distant Voice]

para 1.4.6.595 of the SI report states, "During the elevation to SDH, further mitigation measures were suggested and discounted due to their severe impact. There is no record of the SDH actively considering futher measures and accepting responsiblity for not taking them. It was this view that nothing more could be done, that supported the belief that the current mitigation was "fit for purpose" and therefore was ALARP".

The SI panel concludes at para 1.4.6.605. a. (5) that the MAC risk mitigations fell short of what is considered Reasonably Practicable, and therefore not ALARP.

Question: Where is the recommendation to put that right, or did the DG disagree with that finding?

DV

[tucumseh]

In the event of an accident the SI team is bounded by the TOR set by the convening authority, an FAI/Inquest can operate outside this constraint. It is easy to think that an SI will address all the problems, but experience tells me otherwise. The coroner at the Nimrod inquest uncovered several important facts, overlooked by the Board of Inquiry (now SI), which resulted in him ruling that the Nimrod Mk2 fleet was not airworthy and should be grounded until risks were made ALARP. In the Red Arrow ejection seat case, it became clear during the course of the inquest the the Mk10 ejection seat does not have a safety case.

I agree. We already know the MAA does not meet MoD’s own criteria for “independence”. The undue influence brought to bear on SIs is reason for components of the inquiry to be overseen by an independent body. MoD has been caught lying far too often and this militates against one of the main aims, to prevent recurrence.



A FAI (or Coroner’s Inquest) offers a better chance of the truth being uncovered. Not because MoD will tell the truth - it never will - but because knowledgeable witnesses can be called. MoD actively prevents this on BoIs/SIs and, with slightly less success, on Inquests.



However, there are still obstacles to overcome. The first, is the cost of engaging decent legal representation. In many countries, the families of deceased servicemen are afforded state funding. A good example is the Sea King ASaC inquest. The QC representing the family of one pilot was pretty good, but MoD witnesses still misled by omission and commission and he never got beyond first base with questions. The Coroner encouraged this by actively supporting MoD and refusing to allow key questions. In fact, the father the QC represented was far more knowledgeable, but the Coroner told him to shut up, in clear breach of the rules permitting family members to question witnesses. In short, the MoD is permitted to treat Inquests like an extension of the BoI. Secretive, obstructive and not interested in the truth if it involves senior officers and officials.



This obvious collusion between MoD and Coroner is common. DV talks of Mr Andrew Walker, the Nimrod Coroner. It looks like he was a rare exception. When he wouldn’t buckle, the Government tried to change the Coroners rules, they gagged supportive MPs (e.g. Sir Roger Gale, who had been making a nuisance of himself on ASaC by asking relevant questions the BoI had avoided) and Mr Walker’s treatment by Haddon-Cave showed the latter in his true light.



I’m afraid it is no coincidence that all the cases we discuss here have been “won” through retirees speaking up. That is a good lesson, and the start should be key posts being one’s final post.

[Chugalug2]

There is nothing that tucumseh has written here that comes as a surprise. On the contrary, as a follower and occasional contributor to the ever growing lists of UK Military Fatal Air Accident threads that fill this forum, I have been aware of everything he says for years now. Despite all that it comes as a shock to see it so succinctly laid out in one post. This is a shocking indictment of a country that was once the standard from which others took their cue and strove to emulate.

If this were merely about financial misappropriation or political corruption then no doubt many would merely shrug their shoulders and say, "Yeah, well, what can you do?". Can anyone here deny that they know now how deeply flawed is UK Military Air Safety, and how many lives its dysfunctional condition has cost, never mind the vast sums of public money squandered? How can it be left to a very few individuals to tackle a monumental scandal that shames us all, and in particular the good name of the Royal Air Force?

I suggest that everyone should look not at this from afar, but inwardly to themselves and ask not, "What can you do?", but rather, "What can I do?". Every effort made to support the fight to reform UK Military Air Safety undermines those forces that actively strive to prevent that ever happening.