Chinook ZD576: The Concealed Evidence

On 2 June 1994 RAF Chinook ZD576 crashed on the Mull of Kintyre in Scotland, killing all 25 passengers and 4 RAF crew. The deceased pilots were found negligent to a gross degree, the equivalent of manslaughter. There followed a 17-year campaign by their families and members of the public. The Mull of Kintyre Review recommended the findings be set aside. Defence Secretary Dr Liam Fox convened the Defence Council, it agreed, and on 13 July 2011 the findings were quashed.

This reference book is intended for those wishing to understand the detailed evidence that persuaded the Review. It is technical and procedural by nature, the essential point being the RAF investigation did not look at any of the matters discussed; and therefore neither could the Fatal Accident Inquiry in 1996. It is not a critique of the Board of Inquiry’s report. It reveals, and explains the significance of, what was actively concealed from it by the Ministry of Defence (MoD) and the RAF; specifically, the Air Systems Controllerate and the RAF’s Air Staff.

After the pilots were cleared, Defence Equipment & Support conceded the accuracy of my submission. No longer prepared to deceive, they contradicted the official statements made in Parliament. Similarly, after many years of denial and accusing the RAF Odiham Unit Test Pilot of lying, and actively preventing his involvement in the investigation and the Fatal Accident Inquiry, the Air Staff conceded his opinion as to most likely cause was entirely valid - a control malfunction denying the handling pilot full control of the aircraft. There are a number of reasons this can occur; and it has done, both before and since the accident. I explored them in the second part of this trilogy, The Inconvenient Truth (2021). But despite these admissions, MoD and Parliament have not updated the official record. That remains a lie.

The investigations, and the campaign to clear the pilots

The RAF Board of Inquiry consisted a Wing Commander (pilot) and two Squadron Leaders (pilot and engineer). They were required to examine all Legal (and hence Illegal), Technical and Airmanship matters; and determine, if possible, cause, and offer opinion on human failings. However, the Board did not look at Legal, and largely avoided Technical. Their immediate focus was on Airmanship. They prejudged the matter saying the aircraft Captain (the co-pilot) made an error of judgment, but was not negligent; and that no blame could be attached to the handling pilot.

Taking no further evidence, the two Senior Reviewing Officers disagreed. They found both pilots guilty of gross negligence. The standard of proof required to find deceased pilots negligent is extraordinarily high - beyond any doubt whatsoever. The reason is they cannot defend themselves. The senior officers admitted they speculated, and had ignored the Air Accidents Investigation Branch (AAIB), but saw no conflict in this.

It emerged later that the Board president was severely criticised by the Chief of the Air Staff for refusing to call negligence. He later became Chief of the Air Staff himself, and expressed deep regret that he criticised the aircraft Captain. He also placed in writing his gratitude to those civilians who had campaigned for better aviation safety management. He is the only one in MoD to do so.

Details emerged piecemeal over a number of years, it being MoD policy to withhold all papers from families and even its own staff, except a heavily redacted extract from the Board of Inquiry report. This, one must bear in mind, was before MoD had networked computers or e-mail. Families relied on personal contacts and leaks, primarily to MPs. This assumed greater import a few years later, with the House of Lords Select Committee disallowing evidence obtained in this way that was prejudicial to MoD.

With the advent of the Freedom of Information Act 2000, MoD’s default position was swiftly established - automatically refuse requests, or claim the requested information could not be found. Often it denied its very existence, despite being cited in Ministerial correspondence. Most commonly, it breached the 20-day limit for replying; often by months, even years - in part explaining why the campaign took so long. Many requests remain unanswered to this day. Matters were exacerbated when the Information Commissioner’s Office confirmed the Act does not require truth or accuracy.

The first indication that something was amiss was the Board’s report, signed-off in March 1995. It contained nothing to suggest negligence to any degree. Most obviously, the lack of a Cockpit Voice Recorder meant nothing could be known of events in the cockpit. Similarly, lacking an Accident Data Recorder the status of key aircraft systems was unknown. There was little physical evidence to go on - 80% of the aircraft had been destroyed, and 20% completely obliterated. But the Senior Reviewing Officers had construed this absence of evidence as evidence of absence. This was not an inadvertent error. It remains the official MoD and Government position, no matter how illogical.

Gradually, it became apparent that what was initially thought to be a poor decision was much more. Obfuscation became obstruction, and then outright lies. Each time the families and campaigners submitted evidence to MoD, it replied that it was ‘not new, as it was available to the Board of Inquiry’. The obvious deceits were:

·      It was not made available, the Board lacking the insight to ask for it.

·      It was not for the families to prove innocence, but for the RAF to prove guilt. They could offer no evidence to justify the findings, while every submission by campaigners raised overwhelming doubt; expressed by experienced pilots and engineers, and eminent legal experts. That is, only the campaigners addressed Legal, Technical and Airmanship.

·      The RAF and MoD actively concealed evidence of organisational failings, prior negligence, and the probability of technical malfunction.

Over time, a number of further concerns arose:

·      There was clear evidence of both faults and defects in ZD576, where MoD claimed there was none.

·      The Board’s findings, and those of the AAIB, had been misrepresented by MoD and the RAF in a manner detrimental to the pilots.

·      Witness statements were missing, and others had been altered by MoD.

·      The Reviewing Officers had used the evidence of hill-walkers in ground-hugging mist as absolute proof of what the pilots saw from the cockpit.

·      Physical evidence had been removed from the scene by security services before the arrival of the Board and AAIB. This has never been examined.

·      MoD lied to the Fatal Accident Inquiry in 1996, and later Inquiries by the House of Commons and House of Lords.

To those who understood these arcane matters, one thing became crystal clear. The subject MoD always lied about was airworthiness. This was my specialism, and provided focus for my efforts.

The leaked papers, from MoD’s aircraft testing establishment at Boscombe Down, were significant. It was only when they could be fully analysed in 2009, and compared with the official reports, that one could discern with certainty the nature of the cover-up. When read together, the significance of what the Board had dismissed as minor or irrelevant became clear. The entire Mk2 fleet, not just ZD576, was unairworthy, and the RAF had been given prior warning in August 1992 by their own Director of Flight Safety. In November 1993 they had been placed under mandate that the Mk2 was not to be relied upon in any way whatsoever. It could only be used for ground training and familiarisation. In the face of this mandate, the Assistant Chief of the Air Staff issued the Master Airworthiness Reference, telling aircrew the aircraft was airworthy, and instructing them to fly it. He was one of the two senior officers given the warning in August 1992; the report being concealed from all Inquiries, and even MoD’s own staff. The other recipient was an active campaigner against the pilots, and remains so.

MoD claimed matters had improved between end-1993 and the accident. In fact they had got far worse, with Boscombe twice grounding their trials aircraft as airworthiness concerns intensified. Flying ceased again only days before the accident, with Boscombe recommending the RAF do likewise. Once again they were ignored, and were not allowed near any Inquiry to give evidence of this.

What could be worse than critical safety of flight concerns? The flat refusal of the RAF to pay heed, and the denial of resources to resolve the issues. And, not least, complaints from senior RAF officers that civilian and serving staff in the project offices and at Boscombe were refusing to ignore their legal obligations. This is a difficult concept for the man on the street to grasp. Most campaigners, the majority directly involved in aviation, refused to believe it. But it had been the cornerstone of my evidence to the Nimrod Review in 2007-09, which Mr Charles Haddon-Cave QC (now KC) had reiterated.

Had the above been available to the 3-man Board of Inquiry, it is inconceivable they would not have mentioned it, and taken it into account. However, it is doubtful this would have helped at that time, because the Senior Reviewing Officers and Air Staff, who knew all this, were part of the cover-up. They were allowed to judge their own case, despite being the prime suspects. MoD and Government confirmed they could not be wrong by virtue of their rank. They were above the law.

More depraved, if that were possible, a series of Government Ministers gladly joined in. Many were legally trained and knew MoD’s position was indefensible, both morally and in law. All knew that had a court taken this stance, for example on the rules of disclosure, any conviction would be overturned upon appeal.

The families’ legal representatives were faced with a situation they would seldom, if ever, have faced. Their perfectly valid submissions were rejected out of hand. Legal principles, and the law itself, were cast aside, by the country’s law makers. It fell to campaigners to produce even more new evidence.

In January 2010 I revealed to BBC Newsnight that one of the Boscombe reports from late-1993 described the implementation of the safety critical software controlling the fuel computers as ‘positively dangerous’. Without knowing this, the AAIB report had confirmed in 1995 that the software had remained unchanged at the time of the accident; proving false MoD claims it had been updated. Moreover, a succession of Ministers had been lied to, and then misled Parliament when claiming the software was not safety critical. Every national newspaper, and the broadcast media, ran significant pieces on this revelation. The pressure on the Government and MoD was immense. But still it resisted, and it was only after the General Election in May 2010 that the new Coalition Government, led by David Cameron, announced a legal review under Lord Alexander Philip.

The Mull of Kintyre Review (2010-11)

The public were invited to make submissions in early October 2010, and given a 4-week deadline. I was encouraged by the Review’s secretary to send everything I wanted to, and I did. In the event Lord Philip asked me for more, because (as above) MoD claimed it could not find key policy documents, including the one containing the legal test for gross negligence. Lord Philip took a dim view of this. He was being hindered by a Department of State, and one outcome can be seen in parts of his report not aligning with the evidence.

While Dr Fox agreed with the Review, he too was misled, even lied to. The official reason he gave for setting aside the findings was ‘poor legal advice’ to the Senior Reviewing Officers, by a Squadron Leader in RAF’s Legal Services. This could not be reconciled with numerous MoD and Government statements over the years, that the legal advice was sound and the senior officers clearly understood it. Their remarks in other fatal accident reports reinforced this. What is there not to understand about ‘no doubt’?

Strangely, there has been no rush to review their decisions in these other cases. Yet that is precisely what would happen if a judge or magistrate was found not to understand a fundamental point of law.

The case was declared closed, but there is no legal basis for doing so. The original findings have not been replaced; and the aim of the investigation, to prevent recurrence, has not been met. If one asks MoD for the official record, it will supply the original report. Negligent to a gross degree. The families’ voices must be heard, especially in the face of Lord Philip’s disparaging:

‘(Air Chief Marshal) Sir John Day’s approach places the onus of disproving negligence on the deceased, which is also wrong’.

The evidence

What was the new evidence I submitted? This books sets it out, and it resulted in the key passage in Lord Philip’s report, at paragraph 2.2.8:

‘Having considered all the advice available the Controller Aircraft, Sir Donald Spiers, issued an INTERIM Controller Aircraft Release for the HC-2 on 9 November 1993 which contained (and therefore mandated) these recommendations. This was followed shortly after by Assistant Chief of the Air Staff, Air Chief Marshal (ret) Sir Anthony Bagnall, issuing the HC-2 Release To Service. The two documents were essentially identical carrying forward the mandated restrictions of the INTERIM Controller Aircraft Release’.

The key words are ‘INTERIM’ and ‘mandated’. What Lord Philip omitted was an explanation of what was mandated…

Briefly, the Controller Aircraft Release is the statement by MoD’s Controller Aircraft to the Assistant Chief of the Air Staff (ACAS) that the aircraft is airworthy at a given build standard, subject to stated Limitations. It is mandated upon him. He is not permitted to change a single word. This statement is not authority to fly the aircraft - ACAS provides that in what is termed the Release to Service, the Master Airworthiness Reference.

If asked to demonstrate an aircraft type is airworthy, the first exhibit is a valid Release to Service, underpinned by a valid Safety Case. If asked to demonstrate a specific aircraft is airworthy, the first exhibit is proof the aircraft is at the build standard set out in the Master Airworthiness Reference. Here, MoD could not produce any of that evidence.

‘INTERIM’ is not a temporal term, but a type of clearance providing ‘Switch-On Only’ approval. It means the equipment it applies to is not to be relied upon in any way whatsoever. What did the mandate apply to? Among other things, the Navigation, Electrical and Communications Systems in their entirety. The Automatic Flight Control System, and, critically, the fuel computers and hence the engines. The Secretary of State’s strict rules meant any one of these prohibited the Mk2 being accepted off-contract, never mind flown. The biggest outstanding legal question is Who waived these mandates?

This can only be resolved by a full independent review: but a clue lies in who Lord Philip named in his report, and what they were responsible for. Airworthiness. That was no coincidence. This lack of airworthiness was the only new evidence mentioned by the Review. It is what met the Government’s criteria, so there can be no doubt it is what prompted the quashing of the findings. ‘Poor legal advice’ was a lie.

The concealed evidence

But that is not all. There is also the evidence we know of, but have not seen. For example, eye-witness testimony from fishermen and a yachtsman. And priests at St Killian’s College, who were the last to see ZD576 head out over the North Channel. Their evidence, referred to briefly just once in the House of Lords, wholly contradicts that of the then Chief of the Air Staff; who remains insistent the pilots were ‘off course by some miles’. This implies incompetence, but one wonders why he chose to withhold this opinion until almost three years after the accident. He has not revealed his source, has not said if they were left or right of his ‘correct’ track line, and no other participant has even suggested such a thing. This fallacious claim reveals all you really need to know about the RAF’s campaign against the pilots.

Moreover, it has emerged that physical evidence in the form of personal electronic devices was removed from the scene by security services, and withheld from both the Board and the AAIB. Also, personal possessions, such as wrist watches, have not been returned. In an accident where MoD’s claims of excessive speed relied on precise timing of take-off and impact, this is dubious and untrustworthy behaviour. It is more than that. It defeated the ends of justice.

The next steps

My opinion is that MoD’s denials and lies were (and remain) an attempt to protect known individuals, both serving and civilian, by concealing their refusal to correct known deficiencies in both the aircraft and the wider Safety Management System.

Elsewhere I have offered my conclusions, based on known facts, that the aircraft was suffering from a cascading electrical failure, and the pilots experienced an Undemanded Flight Control Movement. I cannot say one caused the other in ZD576, but it most certainly did in a subsequent Chinook Mk2 accident. (Chinook HC Mk2 ZD981, 5 October 1999, at RAF Odiham, where the crew lived to tell the tale). That accident should have immediately forced a review of the ZD576 case.

The Board must be reconvened, by order of the Defence Council. It must take cognisance of the known facts, and re-issue its report. The remarks of the original Reviewing Officers no longer have any place in it, and must be replaced. Until then, this mandated safety process is incomplete.

Similarly, the Fatal Accident Inquiry must be re-opened; the Sheriff, Sir Stephen Young, now 3rd Baronet of Partick, recording that he, too, accepts the ‘new’ evidence; and updates his determination.

Either would have profound knock-on effects. Police Scotland’s current position is the same as the London Government’s. The case is closed, as the guilty are known. They are dead, so no further action is necessary. But most of the guilty are not dead. Lord Philip’s report, and the quashing of the findings, demand that the police inquiry be re-opened. (If there ever was one to begin with, of which there is no evidence and about which Police Scotland refuses to comment).

And what of the once proud organisations to which the deceased belonged? The British Army. The RAF. The Security Service, MI5. The Royal Ulster Constabulary George Cross, now the Police Service of Northern Ireland. What is it that persuades them to ignore the deaths of their comrades, and carry out no investigation whatsoever?

No legal system should be allowed to ignore 29 unexplained deaths, especially when known individuals have committed offences under both civil and military law. The disposition of the case rests with the Lord Advocate in Edinburgh, the senior law officer in Scotland. Successive incumbents have refused to re-open the Fatal Accident Inquiry, or instruct the police.

That is bad enough; but they have in the process wilfully ignored the known facts and their sworn obligations, content in the certain knowledge their 1996 Inquiry was lied to. That said, the Crown Office and Procurator Fiscal Service, who act on behalf of the Lord Advocate, have considered the new evidence; albeit briefly. Their decision was that, despite the accident and deaths occurring in Scotland, this was a matter for the Metropolitan Police in London, as that is where the offences took place. (Primarily, the decision to issue the illegal Release to Service). The Met have not replied to formal complaints. This impasse needs resolving at a political level.

Today, on the 30th anniversary, MoD and the RAF have reverted to type. They now say (a) they accepted the Mull of Kintyre Review report, and (b) it raised no safety issues. The statements are contradictory. If they have accepted the Review, then by definition they accept its paragraphs 2.2.2 - 2.2.10 and the entirety of Section 7, which relate to the failing safety culture and the aircraft not being airworthy; culminating in the worst failure imaginable - a false declaration to aircrew by the Assistant Chief of the Air Staff. History is being rewritten again. It is why books like this are necessary.

Meanwhile, the bereaved families, all 29 of them, are in limbo. Who caused the death of their loved ones? It is clear some accepted the findings against the pilots, and moved on as best they could. Others have always taken a keen interest in the facts and sought to understand them, consumed by grief and the deceits perpetrated upon them.

This case is not over. Not by a long way.