Their Greatest Disgrace - The campaign to clear the Chinook ZD576 pilots
Mull of Kintyre, 2 June 1994
'Superbly written, extremely readable, a true tour de force'
Tony Cable, Senior Air Accidents Investigation Branch Inspector, Chinook ZD576, Lockerbie Pan-Am, Air France Concorde.
'My mother has been lied to by the MoD. It treated my family with utter contempt following the crash and despicably tried to enact the Warsaw Air Carriage Act to limit payouts to the widows and families. Hardly the actions of a moral outfit.
Even after we overturned this obscene effort they forced my mother to produce receipts for the clothes my father wore on the day of his death, and list how many potatoes he would eat in an average year as part of their quest to limit compensation. The callousness was breathtaking and displayed a complete lack of integrity.
Quite frankly we were treated like Irish peasants by uncaring, absentee feudal landlords and the disdain was palpable.'
Captain Niven Phoenix, son of Detective Superintendent Ian Phoenix, RUC (late Parachute Regiment)
My submissions to the Mull of Kintyre Review can be found at the bottom of this page.
Their Greatest Disgrace attracted what is quite possibly the longest book review on Amazon, by Omar Malik a retired RAF officer and airline Captain.....
Their Greatest Disgrace: The campaign to clear the Chinook ZD576 pilots
A Book of National Importance - Brilliantly Frank and Frankly Brilliant
Their Greatest Disgrace is a book of national importance. It raises fundamental constitutional issues: about the agents of the state, about the ethos and credibility of those agents, and about how to control them. It is a detailed account of unrelenting injustice, and of the sustained failure to remedy that injustice. All with an interest in prevailing British standards of governance should read it, as should anyone with an interest in air safety. For thoughtful pilots, military and civil, it is a must.
RAF Chinook ZD576 crashed on the Mull of Kintyre on 2 June 1994. Twenty-five of N Ireland's most important counter-terrorism agents and the RAF crew of four were killed. The Chinook struck a sloping hillside; it bounced twice, disintegrating into small fragments. It was not fitted with an Air Data Recorder (black box), nor with a Cockpit Voice Recorder. Investigators had little on which to base their investigation. The RAF Board of Inquiry was “unable to determine a definite cause”. The Reviewing Officers, two Air Marshals, replaced this official finding with their own opinion, “gross negligence of the pilots”. The RAF's standard of proof for the attribution of negligence to deceased pilots is crystal clear, “only in cases of no doubt whatsoever”. In this case there were huge doubts and no positive, verifiable, evidence. Allow me here to declare two interests. First, I was an RAF pilot, and I was closely involved in the campaign to expunge this verdict. Second, I met David Hill late in the campaign; he was a senior engineer working in MoD Procurement; he has become a good friend. The book is not just about the Air Marshals' opinion, or about the campaign to overturn it. It is more but about the RAF and MoD responses to that campaign. Its argument is that these responses involved grave misconduct.
The process of decision-making is a fascinating study, still in its infancy. A simple model is that of a three-legged stool. Each leg is essential to keeping the stool upright. The first leg is Information – is there enough Information to inform the decision? The second leg is Intelligence – have we the Intelligence, ie. the ability, to process the Information? The last leg is the Imperative – What Imperative is driving the decision (truthfulness, benefit of the organisation, of me, of my boss, etc), roughly, cui bono – who benefits? Apply this 3I's model to the Reviewing Officers' opinion, remembering the required standard of proof.
This takes us to the understanding of airworthiness. To be safe on the roads, first a car must be well-designed and soundly constructed; call this roadworthiness. Second, to establish that it has not developed any faults, it must have a current MoT; call this serviceability. To take to the roads, a car must be both roadworthy and serviceable. To take to the air, an aircraft must be both airworthy and serviceable. Airworthiness assures the safety of aircraft, crew, passengers and those whom it overflies. Any air crash, military or civil, is a public interest matter.
The establishment of airworthiness is a very complex process. Due process had established that the Chinook was not airworthy, identifying serious design flaws that precluded the grant of a (valid) airworthiness certificate. Under RAF Regulations, ZD576 was not airworthy when the pilots were ordered to fly it. Nor were they informed that its navigation and communication systems were not for operational use, nor that Boscombe Down, the highly respected RAF aircraft test unit, had declared the automatic engine control system to be “positively dangerous”. All of which is unbelievable. But true.
David Hill writes extremely well, but the airworthiness process is tricky to comprehend. Each essential step of the airworthiness process must be completed and signed off. Simplified, the steps are:- Build Standard (describes the whole aircraft in detail), Safety Case (establishes the physical and functional safety of the aircraft), Controller Aircraft Release (mandates the proven status upon the RAF), and finally Release to Service (RTS). When the RAF signs the RTS, it is confirming to aircrew that there is valid Safety Case for the current Build Standard, and that the aircraft has been proven airworthy. It is valid only if the requirements of every step of the due process have been met. For Chinook ZD576 they had not. The senior signatories should have known; some of the most senior officers in the RAF were involved.
The invalid RTS set up a situation ripe for disaster. A basic model of accident causation steps down the command chain. It has three categories of causative factors:- first, situational factors; second, factors in organisation regulations and practice; third, factors in the operators'/pilots' actions. The first two categories constitute orders imposed on the pilots by the command chain. They were tasked to fly through mountains in unsuitable weather, in a helicopter that was not airworthy, that was not permitted to climb to its safety height because its icing limit (where dangerous icing might occur) was lower. An accident was possible, even probable. Compounding that, incredibly the senior ranks of invaluable N. Ireland counter-terrorist expertise were all placed on the one helicopter.
The father of Flt Lt Rick Cook, co-pilot of ZD576, was Captain John Cook, a senior and distinguished BA management pilot. He was talented and much respected, (and a long-standing personal friend of mine). Ironically in the 1970's he had master-minded the introduction of Air Data Recorders and Cockpit Voice recorders to British civil airliners. Twenty years later RAF Chinooks did not have them. When he was informed of the Air Marshals' opinion he immediately recognised the miscarriage of justice. He founded the Mull Group to campaign for the annulment of their gross negligence verdict; it succeeded in 2011. Sadly John died in 2005.
In 2001 the tireless first chairman of the Group, Lord Chalfont MC, obtained the establishment of a Select Committee of the House of Lords to review the Air Marshals' opinion. The five eminent Lords unanimously declared the verdict unsafe. They had no formal authority over the RAF, which simply ignored their finding, probably to their considerable surprise. The Group continued the campaign. Of the successive, mostly lamentable, Labour Secretaries of State for Defence, only Des Browne responded positively. He set a valuable precedent by ordering a review by Charles Haddon-Cave QC of the loss of Nimrod XV230 (Afghanistan, 2006). The Group received from Conservatives David Cameron and Liam Fox, then in opposition, promises of a review by a High Court judge when they returned to office. They kept their promise, establishing a review under Lord Philip. Philip sharply dismissed the Air Marshals' opinion. Liam Fox wisely obtained the support of the Defence Council for Philip's findings, thereby overruling the protesting Air Marshals.
Their Greatest Disgrace catalogues the 16 year RAF and MoD blocking operation of lies, evasion, and obfuscation. Their responses were often discourteous, even to parliamentary bodies and former ministers. The existence of documents was regularly denied, including to Lord Philip – whom we helpfully furnished with copies. The denial of the existence of the invalid RTS to Dr Susan Phoenix, widowed by the crash, David unmasked as a lie, prompting Lord Philip to intervene and force an apology. The RAF and MoD clearly never expected to be held to account for their master-class in mendacity.
They sought to avoid any legal examination of their conduct. They argued that Scottish Fatal Accident Inquiries (FAI's) did not have jurisdiction over service deaths. They sought, sometimes successfully, to have key issues excluded from coroners. And after some coroners had uncovered embarrassing truths, they sought to prevent coroners inquests into service deaths. When the crew of Tornado ZG708 were killed in a crash at Glen Ogle on 1 September 1994, the circumstances appeared to mandate a FAI. The local Procurator Fiscal's office assured me that it had received no report of those circumstances from the RAF. Following sustained and successful representations by Flt Lt James Jones, a lead engineering adviser to the Nimrod XV230 Inquest and Review, the Scottish Parliament has recently mandated FAI's for service fatalities.
The legal costs of the RAF and MoD, and of their most senior ranks, are met by the unknowing taxpayer. Conversely, bereaved families may be bankrupted by their legal costs. Of this the RAF/MoD are well-aware. A Royal Australian Air Force navigator was killed in Hercules XV179 (Iraq, 2005). The costs of his bereaved were met by the RAAF. This enabled the retention of Bernard Collaery, a superlative Australian solicitor. He destroyed the RAF case in the coroner's court, forcing them to withdraw their defence. Otherwise the MoD/RAF was generally successful in avoiding their richly deserved censure; many British barristers representing bereaved families did not appear to warrant their huge fees.
To address long-standing concerns about RAF Boards of inquiry, in 1982 the RAF set up a Working Party under Air Cdre Derek Hine. He wrote the RAF Regulations' words “only in cases of no doubt whatsoever”. The ZD576 Reviewing Officers did not pay great attention to them. Lord Philip did.
The highest ranks of the RAF and MoD appeared to believe that their self-jurisdiction was paramount, that the law of the land should not apply to their conduct or processes, those very processes that the book shows were controlled or massaged at will. Lack of accountability is at the heart of RAF/MoD maladministration and misconduct. It explains why they misled ministers and parliament, and browbeat and/or obstructed judges and all investigations of their conduct. It explains their sheer nastiness, some quoted in the book. They thought that they were untouchable. They were very nearly right. With the honourable exceptions of Des Browne and Liam Fox, all ministers who followed Malcolm Rifkind defended their ministry blindly.
Few serving officers spoke up, some perhaps unworthily to protect their careers, some more worthily, because they equated their oath of loyalty to an oath of total obedience. To his great credit, David Hill flatly refused orders to sign off as safe systems that he, an expert engineer, deemed unsafe. These orders were illegal and in conflict with David's legal obligations. He took the question “who is at fault, he who issues an illegal order, or he who refuses to obey it?” up through the highest ranks of the civil service. Unbelievably numerous Ministers for the Armed Forces and two Heads of the Civil Service upheld that only the refusal is an offence.
Could it happen again? The answer is yes, and most certainly will, until the disordered organisations are brought under control. The RAF has made changes to its Board of Inquiry system, and a new Military Aviation Authority (MAA) has been established to oversee military airworthiness, but their failing, their subordination to the vested interests of RAF senior officers, remains unchanged. In 2014 the civil service refused to withdraw its edict that the refusal to obey an illegal order is an offence. Thus the three systems that have failed so seriously are still ripe to fail again. What should be done?
It is in the natural order of the world that persons, machines, systems and organisations decay. In the cases of the last two, it is a manifestation of entropy, disordered energy within; it serves its own purposes, not those of its system or organisation. Unremitting endeavours are required if it is to be kept in check. The systems and organisations of this country are now old. Because they were once exemplary, they were not adequately monitored. Entropy, unchecked, has made them dangerously self-serving. The same can be seen in our banking, regulation, and healthcare, all are in serious decline. Our new Prime Minister, Theresa May, has declared herself and her government on the side of the ordinary man. She cannot address all our major problems at the same time. What should she do?
She should protect and thereby empower the ordinary man. First, she should broadcast her intentions and resolution by awarding a high decoration to David Hill. A soldier on a different battlefield, his gallantry has cost him dear. Second, she should provide those who insist on meeting their legal obligations with real protection. Their pensions should be made inviolable. An independent, expert court should judge all cases. Their maltreatment should carry a mandatory prison sentence. Third, she should cap legal fees, so that the ordinary man can exercise his legal rights without facing bankruptcy.
Then she should turn her attention to government establishments that have failed the country. The Prime Minister herself is the Minister for the Civil Service. First, she should make this office strong-minded and strong-armed. Second, she should look long and hard at Public Inquiries. Effective in postponing action, often an expensive pantomime, they rarely serve the country's purpose. The civil service are masters of rigging their terms of reference, and of appointing a chairperson inherently sympathetic to the establishment. The RAF rewards with promotion officers who find no fault in their superiors; similarly the civil service rewards with honours those who find no fault in it. The Reports of Haddon-Cave and Philip both failed to remedy the systemic failings of the airworthiness process. Philip barely addressed them. Contrast this with the impact of other Reports. Lord Cullen's Report on Piper Alpha reset the management of safety, Justice Moshansky's Report transformed the administration and practice of Canadian civil aviation safety, Mr Justice Mahon's Report eviscerated the management of Air New Zealand after the Mt Erebus crash. To be fit for purpose, the Inquiry, its leader and the follow-up must all have brains, backbone, and teeth.
Laws must be changed. The state must retake control of its agents. All the systems that have been abused, or that are open to abuse, must be modified to make abuse near impossible. Specifically, armed service Boards of Inquiries should, for all serious cases, be placed under the independent control of a new court of High Court judges; the new MAA should be overseen by independent, non-service experts, as should the new Military Air Accident Investigation Branch. Nothing will change unless the due processes of the law mandate, and enshrine in law, the necessary changes.
One viewpoint holds that these due processes can come only from a public examination of the evidence presented by Their Great Disgrace. With this I have much sympathy, but I disagree. When an air accident occurs, its occurrence is an ineradicable fact. The primary objective of the investigation must be to prevent any further accidents from the same cause. In my view, this principle applies to any system failure. The common factor in all three failed systems was the lack of accountability of their most senior ranks; they withheld details from ministers; they scorned the Select Committee of the House of Lords; they answered to nobody until the Defence Council endorsed Lord Philip's findings. Senior civil servants have not had to answer for their egregious edict on refusal of an illegal order. In matters of maladministration, the holders of the highest ranks have indeed been effectively above the law.
The objective must be to put the systems right. It will be much quicker and cheaper to achieve this sub rosa. The most senior ranks will undoubtedly resist these recommendations strenuously. Their alternative is a public inquiry into the evidence of Their Greatest Disgrace. Reputations and knighthoods will be at stake. Injustice has no expiry date.