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.