WEDNESDAY 7 NOVEMBER 2001

AIR CHIEF MARSHAL SIR JOHN DAY AND AIR CHIEF MARSHAL SIR WILLIAM WRATTEN

  1100. Your predecessor in title, perhaps?
  (Sir William Wratten) I think it was my predecessor but two, who unfortunately died.

  1101. Could I return to Lord Hooson's point about the standard of proof, because that is basically what the investigation is about. We used to have a rule in law called the `last opportunity rule', it was the last thing you could do to avoid an accident, driving or whatever. And the approach of Sir John and Sir William is, in this accident there came a stage at which a competent pilot should have realised he would avoid danger by taking a particular manoeuvre. And the question may arise, for us to consider, about whether that is the right time to start, and I want to test the logic of your position with a question. Supposing, in this accident, your analysis of the Waypoint and the arc, and so on, holds good, if there was actually evidence of a malfunction that caused the crash, the logic of your position would be, despite that malfunction which caused the death of these pilots, we should find them negligent because they failed to avoid that risk by not moving further at the Waypoint. That seems an extremely severe application of the question of negligence?
  (Sir John Day) I am sorry, can you just go through it again, just to make sure I do not answer the wrong question?

  1102. I am trying to keep it as simple as I can. We know what your analysis is, and we also know that there is no evidence that there was not a malfunction, or control jam, or whatever, there just was not evidence of it. And I am taking the logic a step further, to invite you to consider whether, on this sort of hypothesis of what this aircraft did, if the evidence had actually shown a malfunction that caused it to crash, despite the pilots having breached the basic rules, you say they should, on your logic, even though they were killed because of the jam, or whatever, they would still be liable to be found negligent, because they should have avoided that risk by moving out. And that is the point I was making. Is not that very severe?
  (Sir John Day) I totally take your point. It is a hypothetical situation that you are giving me, but would not that be the same as if you were driving a car at 70 miles an hour in thick fog, and you came across a lorry 100 metres ahead of you and you go straight into the back of it, because actually your brakes have failed? But I am afraid you gave me a hypothetical situation.

  1103. That is an alarmingly graphic analogy to what I was putting. But the point is, you are saying, as I understand it, whether or not there was a malfunction, they were negligent; and my test of the logic is, if there was, would you still have found them negligent, and the logic must be yes?
  (Sir William Wratten) I am sorry, I thought that was the answer I gave to the Lord Chairman a few minutes earlier. It was, it was precisely that, and if I may further—

  1104. I am asking you if you consider that is too severe an application?
  (Sir William Wratten) It is severe, it is extremely severe, and I accept that entirely. But I also totally support Sir John's analogy there, which, again, the records will show, I have actually used in public, and it came in for the similar criticism, Lord Brennan, that you attribute to it. But the facts of the matter are the facts of the matter, and, without repeating myself, wherever we can find any reason to avoid such a finding which will stand scrutiny then we will. But, equally, we are not going to present a finding which manifestly does not; and we put this through the sieve of lengthy and detailed staffing discussion, in two separate headquarters, with a lot of staffs, and ultimately the decision for the finding rested upon Sir John Day and then me[16]. And notwithstanding Lord Hooson's comment that we have since heard different evidence as to visibility and weather, for example, and that evidence has clearly been in both directions, Mr Holbrook, in particular, changed profoundly what he said to the FAI from what he said to the Board of Inquiry. He also used the term, in evidence to this Committee, that my finding turned on his evidence, which was simply not so. We have also since seen, I must say, at the instigation of a question regarding the Sea King, the Sea King crew members' log, written of a sortie 45 minutes after this crash, in the most gruesome weather conditions imaginable, where the aeroplane in question needed, what was quoted as, `excellent internal radar assistance' to enable it to land. So any suggestion that we have since heard different evidence as to visibility goes certainly in both directions.

  Chairman: I think, in fairness to Mr Holbrook, it should be said that before the Board, I think, he was asked two or three questions, and that was about it; before the Sheriff, he was subject to cross-examination by counsel for the Ministry of Defence and others, so his evidence was tested far more. And, just in case it is thought that he had an interest in this matter, he came here because we asked him to, and he did not ask to appear, or anything, we asked him out of the blue.

  Lord Hooson: And we saw the statements he made to the police.

  1105. And we saw the statements he made, yes.
  (Sir William Wratten) I did make the point, my Lord Chairman, that the Board of Inquiry had to come to a conclusion on the evidence presented to the Board of Inquiry.

  1106. Of course; whether they probe it or not is no doubt a matter for them.
  (Sir William Wratten) Indeed.

  Chairman: Sir John, Sir William, thank you very much indeed for coming to assist us in these matters. As at present advised, we have no plans for further hearings; we shall, of course, report our views to the House in due course. And can I issue general thanks to everybody who has come here, sometimes on more than one occasion, to give us their views and to assist us in this far from easy matter. Thank you.