Martin Baker to be prosecuted over death of Flt Lt. Sean Cunningham
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Correct - I was on Jury Duty once and we asked the Judge why no-one had produced notes of a telephone call to the Police - he said pretty much what Crab said - if it isn't put forward as evidence you are to assume it doesn't exist and/or is not thought to be relevant
The 'unsolicited evidence' (proving MoD knew of the risk of over-tightening before 1990, and of the mitigation that eliminated it altogether), was provided to the judge, HSE and Lincolnshire Police. MoD had denied knowing of this at any time to 2011. The charge and judgement were based on this false premise.
As she said, the judge chose not to read it, but passed it to the HSE for comment - specifically asking about disclosure of evidence. (MoD had denied the existence of the QinetiQ report that formed the bulk of this 'unsolicited evidence', and had even briefed Philip Dunne MP to say in Parliament that MoD knew nothing of the alleged content).
The HSE replied (and this is in writing) that the evidence (of innocence) was irrelevant, although of course they didn't say 'of innocence'.
Thus, the judge was seriously misled (by omission), and many of her remarks are tainted by not having read, or been advised by HSE of, this exculpatory evidence.
In furtherance of their stated strategy of not upsetting MoD, it would appear (again, HSE's statement) that Martin-Baker concurred. Plainly, the company didn't think it irrelevant, but chose not to use it in their defence. That is, they took the hit.
The judge's remarks make if clear (at least to me) that she understood something was very wrong here, and she makes a point of criticising the fact that vital evidence was not put to her, due to the guilty plea. However, it was, but she didn't read it.
As she said, the judge chose not to read it, but passed it to the HSE for comment - specifically asking about disclosure of evidence. (MoD had denied the existence of the QinetiQ report that formed the bulk of this 'unsolicited evidence', and had even briefed Philip Dunne MP to say in Parliament that MoD knew nothing of the alleged content).
The HSE replied (and this is in writing) that the evidence (of innocence) was irrelevant, although of course they didn't say 'of innocence'.
Thus, the judge was seriously misled (by omission), and many of her remarks are tainted by not having read, or been advised by HSE of, this exculpatory evidence.
In furtherance of their stated strategy of not upsetting MoD, it would appear (again, HSE's statement) that Martin-Baker concurred. Plainly, the company didn't think it irrelevant, but chose not to use it in their defence. That is, they took the hit.
The judge's remarks make if clear (at least to me) that she understood something was very wrong here, and she makes a point of criticising the fact that vital evidence was not put to her, due to the guilty plea. However, it was, but she didn't read it.
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The judge's remarks make if clear (at least to me) that she understood something was very wrong here, and she makes a point of criticising the fact that vital evidence was not put to her, due to the guilty plea. However, it was, but she didn't read it.
I'm sure you're right, airpolice, when you say
But where expert opinion not directly connected to the presentation of the case holds factual evidence, how should they get that process followed? It seems that the principle actors, prosecution and defence, were able to class that evidence as irrelevant without any possibility of redress, even from the judge.
airsound
That process was not followed
airsound
airpolice
What process was not followed? The police were told, and they (I believe) are obliged to pass evidence to the prosecution. They didn't. The prosecution were advised. The slightly unconventional direct approach (to the judge's clerk) was forced by the late plea, and the knowledge that vital evidence would remain concealed. The judge did not complain, perhaps content that it had been sent to the prosecution; which she did anyway.
What process was not followed? The police were told, and they (I believe) are obliged to pass evidence to the prosecution. They didn't. The prosecution were advised. The slightly unconventional direct approach (to the judge's clerk) was forced by the late plea, and the knowledge that vital evidence would remain concealed. The judge did not complain, perhaps content that it had been sent to the prosecution; which she did anyway.
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In practical terms, the parties involved have got away with it.
A simple fine, paid for by the company from their massive reserves, and the ability of their sales people to openly tell existing and future clients, that MB took one on the chin to spare the client.
Where, as in this case, the crown decides not to present evidence to the court, the court must not go looking for it. Every player has their part, and each must do their own. Shortcomings (to be kind to them) on the part of the Police & Prosecution, are not matters for the public to resolve. Tragic isn't it?
They all get to sweep this under the carpet. I suggest that anyone who is really concerned about this should subscribe to Private Eye and read, every two weeks, about the eye watering waste of public funds, and abuses of process happening all the time.
I know that in this particular case, we are talking about the death of a fellow pilot, but the same scandals that keep that from being addressed, keep everything else under wraps as well.
If you don't like the fact that the Judge was not able to consder the evidence, then complain to your MP, that's how the system is supposed to allay your fears. An independent judiciary however, must (they say) be protected from political interference. So your MP can't change what a Judge decides to do or not do. You don't get to vote for Judges, only Judges do.
On a local level, even if everyone in your village, town, county, decided that they wanted stronger sentencing for offenders, you can't get that. The courts are independent of the elected representatives of the people. Remember the people? Those who suffer at the hands of criminals. Those people who know what they want to see happen to the bad guys.
You can lobby your local Councillor or MP, (who can't do anything about it) but whatever you do, don't try to lobby a Magistrate, Sheriff or JP. That's a different offence entirely.
The independent (there's that word again) judiciary, are protected from your interference, by law.
On the other side of the Atlantic, there is a big country with plenty problems of it's own, but they do get some things right. Particularly the process of voting for Judges. Where a court is not dishing out the sentences that a community wants to see, the voters have a chance to make their displeasure felt.
With the passage of time, this event will be consigned to a false history, like many others.
He died because his parachute failed to open.
The police helicopter in Glasgow crashed because it ran out of fuel.
ZD576 hit the ground because the were flying too low.
XV230 crashed because it caught fire.
Titanic sank because it hit an Iceberg.
The American civil war was about slavery.
Time passes, most people forget, more people die.
That's just the way it is.
Tucumseh, the process is that the Prosecution lay out their case before the court, and the Defence do their best to refute the allegations. We simply cannot allow the public to be shouting from the sidelines.
The irrefutable truth of what they are shouting, is not, legally, relevant.
A simple fine, paid for by the company from their massive reserves, and the ability of their sales people to openly tell existing and future clients, that MB took one on the chin to spare the client.
Where, as in this case, the crown decides not to present evidence to the court, the court must not go looking for it. Every player has their part, and each must do their own. Shortcomings (to be kind to them) on the part of the Police & Prosecution, are not matters for the public to resolve. Tragic isn't it?
They all get to sweep this under the carpet. I suggest that anyone who is really concerned about this should subscribe to Private Eye and read, every two weeks, about the eye watering waste of public funds, and abuses of process happening all the time.
I know that in this particular case, we are talking about the death of a fellow pilot, but the same scandals that keep that from being addressed, keep everything else under wraps as well.
If you don't like the fact that the Judge was not able to consder the evidence, then complain to your MP, that's how the system is supposed to allay your fears. An independent judiciary however, must (they say) be protected from political interference. So your MP can't change what a Judge decides to do or not do. You don't get to vote for Judges, only Judges do.
On a local level, even if everyone in your village, town, county, decided that they wanted stronger sentencing for offenders, you can't get that. The courts are independent of the elected representatives of the people. Remember the people? Those who suffer at the hands of criminals. Those people who know what they want to see happen to the bad guys.
You can lobby your local Councillor or MP, (who can't do anything about it) but whatever you do, don't try to lobby a Magistrate, Sheriff or JP. That's a different offence entirely.
The independent (there's that word again) judiciary, are protected from your interference, by law.
On the other side of the Atlantic, there is a big country with plenty problems of it's own, but they do get some things right. Particularly the process of voting for Judges. Where a court is not dishing out the sentences that a community wants to see, the voters have a chance to make their displeasure felt.
With the passage of time, this event will be consigned to a false history, like many others.
He died because his parachute failed to open.
The police helicopter in Glasgow crashed because it ran out of fuel.
ZD576 hit the ground because the were flying too low.
XV230 crashed because it caught fire.
Titanic sank because it hit an Iceberg.
The American civil war was about slavery.
Time passes, most people forget, more people die.
That's just the way it is.
Tucumseh, the process is that the Prosecution lay out their case before the court, and the Defence do their best to refute the allegations. We simply cannot allow the public to be shouting from the sidelines.
The irrefutable truth of what they are shouting, is not, legally, relevant.
Airpolice
Thank you, and what you say is of course true.
But there have been exceptions. In the XV230 case, Des Browne had the integrity to, in face of MoD denials and lies his junior Ministers, order the Nimrod Review. The legal establishment did its best to protect MoD, but there was a result of sorts.
Likewise, Liam Fox had the integrity to keep the promise to set up a Review, and Lord Philip accepted ‘third party' evidence that, yet again, MoD lied.
The Coroner accepted ‘third party’ evidence in the XV179 case – proof that MoD had lied about when it knew of risk mitigation, which is the central point on XX177. Here, MoD has learned, and withheld the SI report until after the Inquest, so denying the court and family independent expert advice.
The families involved might consider these successes in isolation, but if the truth was heard in court, the likes of Mr Cunningham would surely be asking why the same old failings had not been corrected, even after these Reviews.
I believe that, when sentencing, a judge is required to consider aggravating factors, including:
· Deliberate concealment of the illegal nature of an activity
· Poor health and safety record
· Falsification of documentation
In this case, all were committed by MoD, not Martin-Baker. And, importantly, repeat earlier failures. That’s not just my opinion. It is fact, set out by the above Reviews and/or the RAF Director of Flight Safety. Mrs Justice Carr may have been entitled to ignore third-party evidence. She was certainly misled by both defence and prosecution. But she did not mention consideration of these aggravating factors.
I still wonder what would have happened if Haddon-Cave had heard the case last year, as planned. He would have looked utterly stupid if he overlooked the lack of a Safety Case Report. And I’m pretty sure the MAA wouldn’t have been so keen on their man being HSE’s ‘star witness’.
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But yet, the crown has not put anyone from Mod in the firing line.
A blind man, running for a bus, could see that there are people, not jobs, who need to be on trial here. It's never going to happen.
Everyone seems content to blame the MoD, as if the building was making the decisions, when in fact they were made by people who are now living the good life, on serious pensions.
Just think of the legacy this leaves us with. Why bother doing it right? They never come after you anyway.
A blind man, running for a bus, could see that there are people, not jobs, who need to be on trial here. It's never going to happen.
Everyone seems content to blame the MoD, as if the building was making the decisions, when in fact they were made by people who are now living the good life, on serious pensions.
Just think of the legacy this leaves us with. Why bother doing it right? They never come after you anyway.
Air Police:-
The "parties" were just the bit players to the elephant in the room, the MOD. It is the MOD that has got away with it, yet again.
Its apologists will once again be congratulating themselves on a hand well played, and thus perpetuating the cover up.
As long as the cover up continues Military Airworthiness remains broken.
As long as it is broken avoidable accidents continue.
The more they continue then the needless deaths go on happening.
And all because of a hand well played...
In practical terms, the parties involved have got away with it.
Its apologists will once again be congratulating themselves on a hand well played, and thus perpetuating the cover up.
As long as the cover up continues Military Airworthiness remains broken.
As long as it is broken avoidable accidents continue.
The more they continue then the needless deaths go on happening.
And all because of a hand well played...
airpolice
You made this point last week, and you are correct. It was also pointed out that those who initiated the quite conscious rundown of airworthiness management have been identified. That publication asks the question 'Who or what is MoD?' and a decision was taken to avoid naming anyone below 2 Star, for stated reasons. I think that correct, given the available evidence and imperative.
To name individuals, publishers tend to require written, irrefutable evidence (and I think it only right to apply this to pprune). Accompanied, ideally, by these people putting themselves on record in the media and, if possible, recordings of this. On Mull of Kintyre we had all of this evidence, so no problem.
In this case, some names have been released - read the Inquest reporting from 2014. But I would certainly never repeat them, because everyone knows MoD would never allow someone in the witness stand who actually knew anything. Yes, we heard from one chap who insisted - probably truthfully - he'd never been told not to over-tighten the Drogue Nut. But he was a diversion. We never heard from his seniors as to why he wasn't trained; not just in how to fit a nut, but in how the device worked in the first place. Or their seniors, who decided to change the seat maintenance policy without ensuring training and pubs were updated. Or their seniors, who issued a directive that pubs and training were not to updated, as it was a waste of money. Or their boss (suddenly, singular) who issued the policy to waste the money, that made paying for this work difficult. Very quickly you get back to the same people who were named first time around; and whose policies begat Nimrod, C-130, Sea King, Tornado and all the other avoidable deaths. These are not sh*t happens deaths. Their root causes were predictable, predicted, notified (often years in advance) and ignored. The names of those who ignored these direct, face-to-face warnings, backed up by written warnings, are very well known and already in the public domain.
To me, the original legal failure in this case was that of the CPS, who decided that MoD's admission was not sufficient grounds for prosecution. When it admitted serious offences in the SI report; repeated from previous cases? The prosecution of M-B was a diversionary side-show. Expect a few names from the HSE in a future Honours List!
Everyone seems content to blame the MoD, as if the building was making the decisions, when in fact they were made by people who are now living the good life, on serious pensions.
To name individuals, publishers tend to require written, irrefutable evidence (and I think it only right to apply this to pprune). Accompanied, ideally, by these people putting themselves on record in the media and, if possible, recordings of this. On Mull of Kintyre we had all of this evidence, so no problem.
In this case, some names have been released - read the Inquest reporting from 2014. But I would certainly never repeat them, because everyone knows MoD would never allow someone in the witness stand who actually knew anything. Yes, we heard from one chap who insisted - probably truthfully - he'd never been told not to over-tighten the Drogue Nut. But he was a diversion. We never heard from his seniors as to why he wasn't trained; not just in how to fit a nut, but in how the device worked in the first place. Or their seniors, who decided to change the seat maintenance policy without ensuring training and pubs were updated. Or their seniors, who issued a directive that pubs and training were not to updated, as it was a waste of money. Or their boss (suddenly, singular) who issued the policy to waste the money, that made paying for this work difficult. Very quickly you get back to the same people who were named first time around; and whose policies begat Nimrod, C-130, Sea King, Tornado and all the other avoidable deaths. These are not sh*t happens deaths. Their root causes were predictable, predicted, notified (often years in advance) and ignored. The names of those who ignored these direct, face-to-face warnings, backed up by written warnings, are very well known and already in the public domain.
To me, the original legal failure in this case was that of the CPS, who decided that MoD's admission was not sufficient grounds for prosecution. When it admitted serious offences in the SI report; repeated from previous cases? The prosecution of M-B was a diversionary side-show. Expect a few names from the HSE in a future Honours List!
Given MB have plead guilty, might there be scope for civil proceedings by the victims family?
A further ordeal on top of an already terrible ordeal for them, for sure, but no scope for the two sided in the trial being "hand in glove" .....
A further ordeal on top of an already terrible ordeal for them, for sure, but no scope for the two sided in the trial being "hand in glove" .....
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Falcon900
An interesting proposition. I wonder if some legal minded contributors could say if this could go ahead given MoD admitted liability and settled with the family before the Inquest? My opinion of this is that MoD knew what was in the SI report and wanted it settled, before anyone realised the extent of the offences committed. I also think, at that time, MoD didn't believe for one minute that someone else would be blamed. Their guilt was so obvious and openly admitted, and the judge made it clear she was completely baffled by M-B's guilty plea.
Edit - EAP got in first, but it doesn't change my post.
An interesting proposition. I wonder if some legal minded contributors could say if this could go ahead given MoD admitted liability and settled with the family before the Inquest? My opinion of this is that MoD knew what was in the SI report and wanted it settled, before anyone realised the extent of the offences committed. I also think, at that time, MoD didn't believe for one minute that someone else would be blamed. Their guilt was so obvious and openly admitted, and the judge made it clear she was completely baffled by M-B's guilty plea.
Edit - EAP got in first, but it doesn't change my post.
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Addressing the question of compensation, it is in England & Wales governed by legislation.
https://www.legislation.gov.uk/ukpga/1976/30/section/1A
Where a claim arises consequent upon a fatal accident caused by the fault of a third party or parties, there are three elements:
(1) Damages for "Bereavement" fixed by law. It is currently £12980 -- it may have been a lower sum in 2011.
(2) Funeral Expenses.
(3) Damages awarded to those financially dependent on the deceased at the date of his death. That is a slide rule exercise. A percentage of the diseased annual earnings is assumed to reflect the diseased's contribution to maintain those financially dependent upon him. Widows not in employment and children being obvious examples. The rule of thumb when I dealt with such cases, was two-thirds of the diseased's net income. That sum is then multiplied by a number set out in a table reflecting the diseased age, the dependent's age and the current yield on 10 year Gilts.
The hard and fast rule in England and Wales, is that fatal accidents are far cheaper for the insurers of the third party held negligently responsible than, for example, causing serious and permanent disability.
In a fatal accident case where any of the dependents are children, i.e. aged under 18, any settlement, including the sums apportioned for the children, has to be approved by the Court.
There can be only one settlement!
A settlement may not preclude the third party who has paid out, later seeking to recover a contribution from another party also considered responsible. There may, however be costs implications for bringing any separate claim. An added complication is that there are strict time limits for claiming a contribution. I may be wrong but I have a vague feeling it is (or was) 2 years.
https://www.legislation.gov.uk/ukpga/1976/30/section/1A
Where a claim arises consequent upon a fatal accident caused by the fault of a third party or parties, there are three elements:
(1) Damages for "Bereavement" fixed by law. It is currently £12980 -- it may have been a lower sum in 2011.
(2) Funeral Expenses.
(3) Damages awarded to those financially dependent on the deceased at the date of his death. That is a slide rule exercise. A percentage of the diseased annual earnings is assumed to reflect the diseased's contribution to maintain those financially dependent upon him. Widows not in employment and children being obvious examples. The rule of thumb when I dealt with such cases, was two-thirds of the diseased's net income. That sum is then multiplied by a number set out in a table reflecting the diseased age, the dependent's age and the current yield on 10 year Gilts.
The hard and fast rule in England and Wales, is that fatal accidents are far cheaper for the insurers of the third party held negligently responsible than, for example, causing serious and permanent disability.
In a fatal accident case where any of the dependents are children, i.e. aged under 18, any settlement, including the sums apportioned for the children, has to be approved by the Court.
There can be only one settlement!
A settlement may not preclude the third party who has paid out, later seeking to recover a contribution from another party also considered responsible. There may, however be costs implications for bringing any separate claim. An added complication is that there are strict time limits for claiming a contribution. I may be wrong but I have a vague feeling it is (or was) 2 years.
Roving, the problem with this tragedy is that it represents merely the tip of an iceberg which has accounted for 74 deaths in military airworthiness related fatal accidents featured in this forum alone. Airworthiness for which the MOD by itself or via its subsidiary authority is responsible. The real death toll is probably many times higher. By presiding over this farrago of a trial, the judge allows the iceberg to carry on the carnage unencumbered. Given the renowned independence of the judiciary, frowned upon by airpolice (though I am not so convinced), surely she could have ordered a mistrial if she were beset by the doubts her remarks seem to imply?
Having read her remarks, as a professional do you find they raise more questions than they answer?
Having read her remarks, as a professional do you find they raise more questions than they answer?
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Going back some weeks, I commented "rather her than me".
This is an unusual case before the Crown Court.
1. The only punishment (sentence) available was a fine.
2. The "defendant" was a highly respected company.
3. In the background was the Government Ministry with responsibility for the safety of Royal Air Force. For reasons I set out many moons ago, they could never have been a "defendant" by reason of Crown Immunity.
4. MB admitted guilt on the narrow basis that it knew that if the nut was overtightened it could cause the very event which happened. MB accepted that it should have given formal written advice to the MOD/RAF of that risk. The High Court Judge sentenced on that basis.
5. Because the MOD could not have been a defendant, the question as to whether it in fact knew or should have known of the risk, irrespective of whether MB informed them, was for the purposes of this case, irrelevant. Why? Because MB owed the deceased pilot a duty of care, and two wrongs do not make a right.
If MB had, as it originally intended, maintained its "not guilty" stance, no doubt it all would have come out in the wash. But for reasons we can only speculate about MB changed its plea to guilty. So, as often happens, there is a feeling that the outcome is not satisfactory. But there is nothing that the Judge could have done about that. She had to deal with the Guilty plea before her, not speculate on what may have come out in the wash, had there been a trial.
This is an unusual case before the Crown Court.
1. The only punishment (sentence) available was a fine.
2. The "defendant" was a highly respected company.
3. In the background was the Government Ministry with responsibility for the safety of Royal Air Force. For reasons I set out many moons ago, they could never have been a "defendant" by reason of Crown Immunity.
4. MB admitted guilt on the narrow basis that it knew that if the nut was overtightened it could cause the very event which happened. MB accepted that it should have given formal written advice to the MOD/RAF of that risk. The High Court Judge sentenced on that basis.
5. Because the MOD could not have been a defendant, the question as to whether it in fact knew or should have known of the risk, irrespective of whether MB informed them, was for the purposes of this case, irrelevant. Why? Because MB owed the deceased pilot a duty of care, and two wrongs do not make a right.
If MB had, as it originally intended, maintained its "not guilty" stance, no doubt it all would have come out in the wash. But for reasons we can only speculate about MB changed its plea to guilty. So, as often happens, there is a feeling that the outcome is not satisfactory. But there is nothing that the Judge could have done about that. She had to deal with the Guilty plea before her, not speculate on what may have come out in the wash, had there been a trial.
Guilty Plea
On the basis that those with knowledge of the 'complete situation' also know that the wrong company was being tried; MB (no doubt after a very careful review) took a 'commercial decision' to limit the ongoing 'open wound' situation that a major investigation would have started.
At the end of the day the British public (or media) are not seemingly outraged by all this and the failings of the RAF/MOD/ RAFAT, is not something that sells more media.
MB would have ended up having to expose its 'customer*' and its* lack of attention paid to a very important and highly technical piece of survival equipment, and at the same time try to protect its name from being dragged through the process which was not of their making.
However what surprises me is that their legal team did not manage to convince the HSE that MB was not at fault and therefore the case was not at all in the public interest as the real culprit was the Government equipment user in this case.
As far as the 'Man on the Clapham omnibus' is concerned MB make excellent survival equipment, and the RAF are pleased to use it. I would have thought the HSE would be better tasked with dealing with the appalling state of many road surfaces and associated incidents, plus the ongoing deaths at rail crossings that still continue.
At the end of the day the British public (or media) are not seemingly outraged by all this and the failings of the RAF/MOD/ RAFAT, is not something that sells more media.
MB would have ended up having to expose its 'customer*' and its* lack of attention paid to a very important and highly technical piece of survival equipment, and at the same time try to protect its name from being dragged through the process which was not of their making.
However what surprises me is that their legal team did not manage to convince the HSE that MB was not at fault and therefore the case was not at all in the public interest as the real culprit was the Government equipment user in this case.
As far as the 'Man on the Clapham omnibus' is concerned MB make excellent survival equipment, and the RAF are pleased to use it. I would have thought the HSE would be better tasked with dealing with the appalling state of many road surfaces and associated incidents, plus the ongoing deaths at rail crossings that still continue.
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If we want something done the only answer is a "Crusade" in a newspaper - pref the Torygraph but the Wail can get very dirty
The Politicians listen to no-one else................
The Politicians listen to no-one else................
RLE
I think the answer, or much of it, may be in roving's reply. The HSE are on record as saying evidence that MoD knew both before and after 1990 is 'irrelevant'. The exam question was - did MB provide a piece of paper in February 1990. MB admitted it didn't. The fact it wasn't required to (!) was also deemed irrelevant. (That's a longer explanation, and about zero people in MoD today could explain it. I'm a dinosaur, and still had to check with someone much older to get the details right in my head. He was down as a witness, but.....).
Another factor might be that, for all practical purposes, this was a joint HSE/MoD prosecution, as their main witness was a (now retired) MAAIB investigator. I was really looking forward to him being asked if he thought safety cases 'irrelevant', as well as evidence of innocence. (It's all in the SI report. They call it 'non germane'). But HSE have behaved so appalling, they may very well surprise us all with a censure. (They were asked, but didn't reply).
I think the answer, or much of it, may be in roving's reply. The HSE are on record as saying evidence that MoD knew both before and after 1990 is 'irrelevant'. The exam question was - did MB provide a piece of paper in February 1990. MB admitted it didn't. The fact it wasn't required to (!) was also deemed irrelevant. (That's a longer explanation, and about zero people in MoD today could explain it. I'm a dinosaur, and still had to check with someone much older to get the details right in my head. He was down as a witness, but.....).
Another factor might be that, for all practical purposes, this was a joint HSE/MoD prosecution, as their main witness was a (now retired) MAAIB investigator. I was really looking forward to him being asked if he thought safety cases 'irrelevant', as well as evidence of innocence. (It's all in the SI report. They call it 'non germane'). But HSE have behaved so appalling, they may very well surprise us all with a censure. (They were asked, but didn't reply).