Martin Baker to be prosecuted over death of Flt Lt. Sean Cunningham

[roving]

The Judge is in fact the Senior Presiding Judge for the Midlands Circuit. To military types a when a High Court Judge is appointed, after the 'first tour' they are often appointed as a Presiding Judge of one of the Circuits. This a 4 year tour. 2 as Junior Presiding High Court Judges, followed by 2 as the Senior Presiding HCJ. The senior presiding HCJ has both great power and great responsibilities. Amongst other powers is the power to choose which cases they will sit on.

Before appointment as a High Court Judge she was Queens Counsel specialising in professional negligence and product liability.

I suspect that when she posted herself to Lincoln, she did so to take personal charge over what was expected to be a three week very high profile trial, with potential far reaching consequences, especially if MB's defence was that a large part,if not all, the fault lay with the MoD.

She would have been fully aware of all the nuances arising in this case.

However the decision of MB to enter as plea of guilty may not merely have caused admin problems for those who organise her lists, but now requires her to decide what financial penalty must be imposed on this very highly respected company and what observations she must make when sentencing.

Rather her than me.

[Distant Voice]

The Red Arrow Case in a Nut Shell

What do we know ?

(1) Early 1980s, Martin Baker recommend shrouds over firing handles, MoD decide not to fit them.
(2) 1983 MoD offered a retrospective shroud on the Hawk which was refused.
(3) Drogue/Scissor jamming can be caused by a least two events (a) over tightening of the bolt, (b) geometrical lock.
(4) In 1990 gas shackle was being fitted (Court evidence)
(5) Mod offered for Hawk was offered all round the world, none has taken it up. (Court evidence)
(6) MoD regarded risk as being 1 in 115 years (Court evidence)

Now let's join the dots together

(1) Around 1990 the possibility of jamming because of bolt over tightening became known about, so the gas shackle was introduced.
(2) The gas shackle was fitted to all seats leaving the factory from that time. This explains Canadian Hawks and Mirage III fits
(3) Martin Baker offered up a modification to all users for in-use seats; it was not taken up; probably because of costs.
(4) Mitigation was to ensure no over tightening.
(5) Around 1997 it was decided to upgrade the parachute on Tornado seat (Mod 2198). This required re-qualification trial by MB
(6) During the course of these trials (1998) a shackle jam occurred, but this time due to a geometric lock.
(7) This could not be ignored, so gas shackle modification became part of Mod 2198
(8) Gas shackle modification eliminated the two known causes of scissor shackle jamming on RAF Tornado.
(9) 2002, review of the trials programme for Mod 2198 issued by QinetiQ. Customer Ref No. suggests that tasking was made in 1997.
(10) Gas shackle modification not read across to RAF Hawk T1s flown by Red Arrows ( suspect cost and low risk; 1 in 115 years)
(11) All RAF Tornado a/c modified (Mod 2198) between late 2007 and early 2012 (latest). No mention of gas shackle just parachute upgrade.
(12) 8th Nov 2011, Flt Lt Cunninghan initiates ejection sequence after strap misrouted through firing handle.
(13) Flt Lt Cunningham died when parachute failed to deploy because of one of the jamming causes (over tightening of bolt)
(14) November 2011 (after accident) MB issue SIL 704, making it clear that there was not an issue with gas shackle seats.
(15) SI panel examines evidence including references to Tornado zero/zero ejection problems and gas shackle.
(16) Final SI report, supervised by MilAAIB, makes no reference to Tornado ejection problems and gas shackle.
(17) No mention of Tornado ejection problems and gas shackle at inquest.

Bottom Line

Had Flt Lt Cunningham's seat been fitted with a firing handle shroud the ejection sequence would not have been initiated. Had his seat been fitted with a gas shackle he would have survived the ejection, perhaps with two broken legs, but he would have survived.

What has Martin Baker done wrong? Martin Baker hold the Ace, King and Queen of trumps, so why did their Defence QC not play them on 13th Feb 2018? Was someone holding a gun under the table. Sincerely hope that the Judge sees through this farce.

DV

[Chugalug2]

DV:-

Sincerely hope that the Judge sees through this farce.

I wouldn't hold your breath. Everyone who has officiated in the long running scandal of UK Military Airworthiness has failed in their duty, with the honourable exceptions of the Oxford Coroner and those who have testified in this forum. Apologists, VSOs, MPs, Ministers, a Deputy Chief Constable, an RAF Provost Marshal, QCs, the RAeS, all have known which side their bread is buttered and decided that it was someone else's problem despite the overwhelming evidence supplied to them that RAF VSOs subverted UK Air Safety in the late 80s/early 90s to such an extent that it is still utterly dysfunctional and unairworthiness affects the entire UK Military Airfleet. Sean Cunningham was the 74th person to die in airworthiness related fatal air accidents featured in this forum because of this scandal. Thanks to the MOD's continuing cover up of the scandal he sadly will not be the last.

[roving]

Distant Voice, the QC would have been acting strictly in accordance with his instructions. If MB took the view that commercial expediency outweighed any other considerations, that was their decision and their's alone.

[airsound]

roving, I agree with you when you say

the QC would have been acting strictly in accordance with his instructions.

After the hearing I asked the defence barrister, Richard Matthews QC, if he had known about the 2002 QinetiQ report (the one that included the words “… failure of the main parachute system to deploy due to ... scissors shackle … [was] successfully eradicated by … GS drogue bridle release system …” (the so-called ‘gas shackle’)), and he said he had seen it. But it had not been mentioned in the hearing.

I had sat through both days of the hearing, the prosecution on the Monday and the defence on the Tuesday, and the judge’s summary remarks when she said that this had been a most unusual sentencing event. Indeed, she admitted she wasn’t sure how she was going to progress. Which was presumably why she is taking ten days to decide on sentence.

May I take a little diversion here? If, like me, you sometimes look at the pages of PPRuNe and despair of your fellow aviation professionals, then this page of this thread is exactly the thing to renew your faith. It is packed with thoughtful and experienced expertise, the like of which you would be hard put to find in the same place anywhere else.

Keep up the good work, troops!

airsound

[Distant Voice]

If MB took the view that commercial expediency outweighed any other considerations, that was their decision and their's alone.

That could be the case, but this trial, brought about by HSE has to be about serving public interest. It is not in the public interest, or most importantly those of the Cunningham family, if the judge does not take action. I am not a lawyer, but it is my understanding that;

(1) As the law stands at present the judge (or magistrate) are permitted - and sometimes expected - to intervene on their own initiative when it is necessary to prevent the normal adversarial process resulting in inaccurate fact finding and consequent injustice.

(2) Where after a guilty plea the prosecution and defence present an "agreed version" of the facts for the judge to sentence on, he/she may reject it if he/she thinks it is implausible and have his/her own investigation.

DV

[Distant Voice]

After the hearing I asked the defence barrister, Richard Matthews QC, if he had known about the 2002 QinetiQ report

You bet he did. Clyde and Co were sent a copy of the report on 31st Jan and Martin Baker on 30th.

DV

[roving]

Originally Posted by Distant Voice

(2) Where after a guilty plea the prosecution and defence present an "agreed version" of the facts for the judge to sentence on, he/she may reject it if he/she thinks it is implausible and have his/her own investigation.

DV

To draw an analogy. Back in the day when someone was charged with murder, the DPP or the Attorney General had to approve any proposed plea to a lesser offence, for example manslaughter on the grounds of diminished responsibility. If the DPP or the Attorney General gave his approval, that was the basis of the case. I know of only one case where a Judge has refused to accept such lesser plea. That was the Yorkshire Ripper case, where Mr Justice Boreham refused to approve it. Ultimately there was a trial and Sutcliffe was convicted of murder.

When, in 1981, it was reported that the attorney general Sir Michael Havers had accepted the consensus of medical opinion that the Yorkshire Ripper Peter Sutcliffe should be allowed to plead guilty to manslaughter on grounds of diminished responsibility, it was not a course of action attractive to the general public, who believed that Sutcliffe had "got away with it".
Nor did it appeal to the trial judge Sir Leslie Boreham, who has died aged 85. He thought that Sutcliffe might have deceived the doctors, and that the medical evidence should be tested by a jury. After several hours of legal argument, Havers changed his position, and the trial ended with Boreham sentencing Sutcliffe to 20 terms of life imprisonment, recommending he should serve at least 30 years.

https://www.theguardian.com/news/200...dianobituaries

[tucumseh]

Roving is right about the QC. My opinion is that M-B were not served very well by their solicitors.

It is also my opinion that any law firm ostensibly specialising in health and safety, and representing a military aviation firm, should ensure their solicitors have at least heard of the Nimrod Review. If they have not, one can put very little of the evidence in this case in context. That gave me a sinking feeling at the time. I'm glad a good friend was there to witness it, because no one would believe it.

Well said airsound.

[dragartist]

I think someone should be charged with Perverting the course of Justice.
Can’t see how justice is served by MB taking one for the team.

[Lordflasheart]

Quote 7th November 2017 -

“The Directors are saddened that a case against the Company has been brought by the Health and Safety Executive (HSE). The case relates to the circumstances surrounding an accident with an ejection in November 2011. The ejection seat concerned was designed in 1972 and delivered in 1976. In the intervening years the seat had been maintained under RAF control with none of the servicing being performed by the Company, however the HSE alleges that the Company had a duty to warn about risks in the procedures used in the maintenance and operation of this type of seat.

On the evidence presented by the Prosecution as at 11 October 2017, it is the legal opinion of both Clyde & Co and Defence Counsel that there is a realistic prospect of the Company successfully defending itself at trial and that it is probable i.e. more likely than not, that the Company will be successful at trial. The trial is listed for 5 weeks at Lincoln Crown Court commencing on 21 January 2018. A not guilty plea has been entered and the matter is being fully prepared for trial.”

LFH
.................

[Just This Once...]

Some of that list is dubious or positively misleading. The mitigation for the seat firing with the pin in was not the shroud - it should have been designed so that the pin could only be inserted in a safe position (although I have never been keen on pins in the first place).

The shroud was an awful idea, previously used on earlier seat designs before being modded out as it made the seat handle difficult to grasp - a massive safety issue. The original Mk10 handle was also pathetically small in the first place and it took the burning to death of one very fine chap before the size was increased (mid-90s) with a bigger loop so that it could actually be grasped with the stick fully aft.

Finally, the gas piston design change on the Tornado was not driven by the shackle issue. The original shackle issue should have been mitigated at the design stage with a shouldered bolt or similar. Fitting a different shackle/bolt combination would have been a cheap and simple forward line fix. Heck, if MB really did have concerns they could have retired the old design on safety grounds and only supplied a shouldered bolt design.

Oh and probably worth remembering the other ejection seat deaths with the heavy hand of MB design issues (Harrier, F-3, GR4, Spanish Typhoon to name a few), or the near-misses spotted by MB during post-accident inspections but not passed to the accident investigators or end users. If MB had fought this case the scale of the wider issues would have come tumbling down.

[Distant Voice]

If MB had fought this case the scale of the wider issues would have come tumbling down.

That is what everyone wants.

DV

[tucumseh]

The shroud was an awful idea, previously used on earlier seat designs before being modded out as it made the seat handle difficult to grasp - a massive safety issue.

This highlights the compromises needed in such a design. And it is not a normal iterative design. You hope not to have repeat cycles to analyse. The fact is their basic design evolved to a point, 28 years ago, when the risk that materialised in November 2011 was eliminated altogether. M-B changed their base design for new seats, but could not do this retrospectively. MoD needed to adopt it, but didn't. There may have been good reason, but MoD tried to hide it, actively concealing evidence. The HSE admitted they had not seen it.

What few seem willing to accept is that if the seat is needed, it means all the other layered defences have failed. The only difference here is it was an uncommanded ejection. The parachute should still have deployed. If the assembly instructions, trade training and good old common sense had been followed, it would have. That doesn't make it a bad design. The other defences broke down. All were MoD liabilities. MoD admitted this.

As DV says, those wider issues need to be exposed. As matters stand, the root causes have been swept under the carpet, again.

Mrs Justice Carr says she has a problem determining what to do. I suggest she speak to Charles Haddon-Cave.

[Distant Voice]

Some of that list is dubious or positively misleading. The mitigation for the seat firing with the pin in was not the shroud - it should have been designed so that the pin could only be inserted in a safe position (although I have never been keen on pins in the first place).

Every statement on that list can be backed up with hard evidence, it is not opinion. The shroud was not meant as mitigation for the pin, but to prevent misrouting of the straps through the firing handle. What mitigation was put in place once the MoD/RAF decided to remove it? I understand that customers around the world accept Martin Baker seats with shrouds in place to mitigate the risk created by misrouted strapping.

Since Flt Lt Cunningham's accident, improvements to the shroud have been designed by Martin Baker and offered to the UK MoD for the Hawk but were rejected. As of April 2014 two further revised shrouds had been presented to the UK/MoD for evaluation but had not been accepted.

Finally, the gas piston design change on the Tornado was not driven by the shackle issue.

Clearly, you have not read the 2002 QinetiQ report covering the testing of Tornado modification 02198. In addition to what Airsound said earlier, the report makes it clear that, "Due to the failure of the MBA trial in mid October 1998, the scissor shackle mechanism was replaced with a GS a drogue bridle release system, incorporating modifications to the BTRU and GFTDU"
The introduction of the gas schackle became part of modification 02198.
DV

[EAP86]

Just for a bit of context on the seat mods for Tornado, during the latter half of the 90s there were many Tornado seat mods going through the system; I think the term used internally was "the six pack".

The main driver for these mods was the fact that many RAF pilots fell outside of the 3%ile to 99%ile cleared anthropometric range. When the problem had first arisen, the RAF had approached MBA for an assessment and the immediate outcome was a strangely shaped envelope in the RTS limiting where ejection was cleared. The mods, including a new main parachute (GQ5000?), had to be embodied to return to the larger, simpler cleared envelope for all aircrew.

Its around 20 years since I looked at the mod documentation and I confess I have no recollection of issues with the scissor shackle. Part of the problem may have been due to the RAF dealing directly with MBA and not via the Panavia Partner with design responsibility for the ejection system. This did cause difficulties with respect to trying to consider the interests of the other Tornado operators.

I can't say I recall a 2002 QinetiQ report on this subject but the date suggests it was finalised a fair time after the various mods were designed and qualified. Perhaps the Panavia/MBA records might help substantiate the QQ assertion wrt to MOD02198's purpose?

EAP

[Distant Voice]

I think the term used internally was "the six pack".

Mod 02196 introduced a taller headbox and a new head pad with improved impact attenuation properties. Mod 02196 also saw the introduction of steering lines to the GQ1000 Mk1 parachute which resulted in the GQ1000 Mk2.

Mod 02200 saw the introduction of a simplified restraint harness with a parachute steering facility, to permit integration of the GQ1000 Mk2 steering lines (Mod 02196) and allow the aircrew to strap in unassisted.

Mod 02197 involved the replacement of the primary and secondary ejection gun cartridges.

It would seem, according to the BOI report into the loss of Tornado ZA554, that mod 02198 was split into mods 02198A and 02198B. Mod 02198A introduced a new drogue withdrawal line and protective top flap. Mod 02198B introduced a new parachute (GQ5000), a gas operated shackle and associated pipework, and a gas fired BTTDFU and associated timing mechanism. It should be pointed out that the gas shackle and modified BTTDFU, which became known as the GFTDU, where not part of the original MoD 02198 but became necessary after the scissor shackle failure in Oct 1998.

DV

[lsh]

There is so much knowledge on this, and the previous, page - I do so wish it could all be submitted to the court.

As to the root cause - I feel there are several root causes.

When that seat fired, the poor man should not have lost his life.
He (and others) may have made contributory errors; but the event should have been survivable.

lsh

[WHBM]

As a prominent QC once said to me (and others in a presentation) :

"Do not confuse the Law with Justice. It is a game played between skilled professionals, each with their own agenda which generally do not coincide, where those who were actually involved merely are spectators".

He also made the point that where the various participants may include more than one department of government (eg the Min of Justice appointing/promoting judges, and another Ministry being part of the story) that the permanent secretaries of the two ministries are likely longstanding chums and have probably sewn up between them what is best from the perspective of the government, how their own departments are seen within it, and what impact any adverse press comment coming from the case might have on them.

An upside here is the Lady Judge is very unlikely to be a mason.

[The Old Fat One]

"Do not confuse the Law with Justice....

Indeed, and don't confuse either of those with "the truth". As anybody who has seen the internal processes of a British Court of Law (military or civil) will swiftly agree.