Lawyers and Wokkas – revisited

Mull of Kintyre Lighthouse © Patrick Mackie

On 2 June 1994 RAF Chinook HC2 ZD576 crashed on the Mull of Kintyre, killing all twenty five passengers and all four crew.  The two pilots, Flt Lt Jonathan Tapper, 28, and Flt Lt Rick Cook, 30, were found by the RAF to have caused the accident by their “gross negligence“, despite that fact that the initial RAF Board of Inquiry did not find any evidence to prove pilot error to any standard (civil – balance of probability, criminal – beyond all reasonable doubt, gross negligence for deceased aircrew under RAF Manual of Flight Safety – absolutely no doubt whatsoever).  In my post on this and other legal questions concerning RAF Chinooks (Lawyers and Wokkas) I speculated that the air officers who reviewed the Board of Inquiry findings and made the gross negligence finding were either extremely badly advised on the legal aspects of what they were doing as reviewing officers, or did not take appropriate legal advice.

Yesterday the Mull of Kintyre Review set up by the Secretary of State for Defence, Rt Hon. Dr Liam Fox on 16 September 2010, published its report.  It’s core finding that the finding of gross negligence be set aside was accepted immediately by the Secretary of State.

What caught my eye was the section in the report dealing with the Reviewing Officers.  It would appear that one of the air officers did receive legal advice, which appears to have been incorrect, whereas the other did not.  Paragraph 6.2.15 of the report states:

Both Reviewing Officers agreed that there was little point in making findings of negligence against deceased aircrew but, standing the Regulations in force at the time, considered that they had no alternative but to do so. In fairness to them, we do not consider that the application of the unfamiliar standard of proof was an easy task for professional aviators with no legal training. Sir John Day very properly sought legal advice, something which we were told had not previously been done in connection with a Board of Inquiry. Regrettably, the effect of the introduction of paragraph 9 of Annex G had not previously been the subject of careful consideration by the RAF Directorate of Legal Services. The result was that the legal advice provided to the Reviewing Officers did not for the reasons we have already explained assist them in their task. It provided them with comfort when it should have emphasised the restriction on their powers.

It gives me little pleasure to say that my initial assessment made in 2009 was right.  Sometimes there is no substitute for getting proper legal advice.

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Lawyers and Wokkas

RAF Chinook HC2

RAF Chinook HC2

“Wokka” is the RAF nickname for a Boeing Chinook helicopter (you’d know why if you heard one).  It’s a heavy lift helicopter, vital for RAF logistical support in difficult territories such as, currently, Afghanistan.

So what is the connection between wokkas and lawyers?  There are two cases involving RAF Chinooks that demonstrate that occasionally the use of appropriately experienced lawyers should not be avoided.

ZD576 Crash Site

ZD576 Crash Site

Our first example is the sad case of RAF Chinook HC2 ZD576, which crashed on 2 June 1994, killing all twenty five passengers and all four crew.  The two pilots, Flt Lts Jonathan Tapper, 28, and Rick Cook, 30, were found by the RAF to have caused the accident by their “gross negligence“, despite that fact that the initial RAF Board of Inquiry did not find any evidence to prove pilot error to any standard (civil – balance of probability, criminal – beyond all reasonable doubt, gross negligence for deceased aircrew under RAF Manual of Flight Safety – absolutely no doubt whatsoever).  From our reading of the case, it would appear that the air officers who reviewed the Board of Inquiry findings and made the gross negligence finding were either extremely badly advised on the legal aspects of what they were doing as reviewing officers, or, as we suspect, did not take appropriate legal advice.  The result is that the families of the pilots continue to live under a deeply unsatisfactory finding, heavily criticised by, amongst others, the House of Lords. (For an excellent legal analysis, see the Opinion of Michael Powers QC and, for balance, the MoD reply.)  As a result of the gross negligence finding, as Powers QC describes in his opinion, it is arguable that other possible causes of the crash of ZD576 were not properly investigated, including engine run away as a result of failure in the engine control system software, FADEC, which itself may not have been properly specified and certified to UK military standards for safety critical software.

The second example is the case of the procurement of eight RAF Chinook HC3s in 1995, which are only just coming into service by being retrofitted to be HC2/HC2As, despite being desperately needed to support operations in Afghanistan.  The eight HC3s were supposed to cost £259 million and be in-service by November 1998 (defined as delivery of the first six). They were in fact delivered in 2001, but could not be granted airworthiness certificates as safety critical avionics software could not be certified to UK military standards, mostly as a result of serious omissions from the procurement contract (as determined by the National Audit Office).  The final programme is likely to cost in the region of £500 million by the time the helicopters enter service.  It is exactly these sorts of contractual omissions that experienced commercial/procurement lawyers involved in all stages of major procurement projects are trained to spot.