Both the advocate depute and counsel for the remaining families raised the question whether the decision of Flt Lt Tapper to fly the outward leg of the sortie to Inverness at low level so as to gain training value from the flight had been a causative factor in the accident. In my opinion, the simple answer to this question is that this decision was probably not a causative factor in the accident in light of the weather conditions which prevailed at the time at the Mull and which would in any event have forced the aircraft to fly at low level if it had been intended to proceed at that stage in the sortie under VFR rules. But since the matters canvassed by counsel raise potentially wider questions of public interest I think that it would be desirable to rehearse the evidence of both G and H which bore on this particular topic.

  It was during G's evidence about his meeting with Flt Lt Tapper on the morning of 2 June 1994 that the fact that training considerations had played a part in the decision to fly the outward leg of the sortie at low level first came to light. G was asked: "Q.—Obviously the journey out was envisaged as being at low level; is that right? A.—That is correct. Q.—Why the difference on the return leg? You say it was envisaged he would return at a higher altitude? A.—The low flying system in the United Kingdom is open only for certain periods of time to avoid too much interference with the local populace living in that area. On his first leg the LFA was open and therefore he was going to make use of the low flying tasks to gain some valuable training from what was going to be a fairly routine trip. The flying was such that on the return flight—I would have to take technical advice on the exact time—I understood the low flying system would be either closed or closing at around that time, and, therefore he would not be able to fly in the low flying system after that period, therefore it necessitated the flight returning back to Northern Ireland to be above 500 feet, or if it was starting to get dark, which was not envisaged to be the case, it would have to be over 2,000 feet. The low flying system extends up to 2,000 feet at night. Q.—Obviously by the nature of the flight it would be undertaken by Visual Flight Rules; is that right? A.—That is correct. Q.—And specifically on the outer leg going to be low flying; is that right. A.—Yes Sir. Q.—Any justification for that? A.—I am not sure what you mean by justification. There is nothing which precludes him doing so. If he could gain training value from the trip then it was perfectly legal for him to do so. Q.—Was that the way it was discussed, it was partly the value as a training trip? A.—Yes, because of the cost involved in training hours we maximise the use of aeroplanes in all circumstances to increase our experience, and therefore there was justification in one sense that he could gain training value from low flying over an area of land over which he did not normally fly. Q.—Were you aware at that stage of the number of passengers that were envisaged to be on the flight? A.—Yes. Q.—Were you aware of their....? A.—I was aware of the nature of the passengers, yes". Then G was asked: "Q.—What is envisaged by a low level sortie, in your understanding of the words? What sort of heights were they planning to fly at? A.—The lowest authorised height for low level operations for transit flying would be 50 feet with two pilots in the front cockpit. This would be up to a height of 200 feet by day. This is classed as low level. Strictly speaking, below 500 feet is described as low flying...Q.—As far as the return flight was concerned, at medium level, from what you have said, the sort of altitudes being flown on that journey would be what? A.—From 1,000 to 1,500 feet. We did not specifically discuss what height would be flown. Q.—But that is what you took from that description; is that right? A.—That is correct". G was then asked whether there was any security consideration that made it necessary to fly at low altitude over Northern Ireland and he replied in short that there was none that he was aware of. The questioning continued: "Q.—So to all intents and purposes it seems as if they could have flown medium level out as well as back? A.—Yes. Q.—Please help me with this. I am finding some difficulty in understanding this. We have a situation in which an aircraft has to take 25 mixed civilian and military personnel as passengers to Inverness, and the decision seems to be to fly that journey as a low level sortie; is that right? A.—That is correct. Q.—By definition one would have thought a low level sortie is more risky than a medium level sortie; is that a fair point? A.—Yes. Q.—The obvious risks being potential and possible impact with either obstacles or with the ground? A.—You are in close proximity to both therefore it could be argued that the risk is higher, yes. Q.—Is it not extraordinary that in that situation that was the decision that was taken, to fly that low level flight with all of these passengers on board? A.—I wouldn't consider it extraordinary. The passengers are military or military-related on flights which originate over Northern Ireland terra firma.They would be routinely flown at low altitude. The transit from Northern Ireland to Inverness was chosen to be at low level to maximise the training value to the crew of a flight over that distance. Q.—Really is that your position, that training considerations were relevant as to the level at which this journey was to be flown? Is that your evidence? A.—Training considerations were part of the decision-making process, yes. Q.—Training by definition being presumably to give the crew experience in the particular flight conditions? A.—To either give them initial experience—but that was not the case in these circumstances—or to keep their experience level up to a required point. Q.—Was that not obviously potentially hazarding not only obviously the crew but also the 25 passengers? A.—I wouldn't consider it was hazarding the passengers. The crew were trained to operate at low level. There were no rules and regulations which precluded that flight being undertaken with these passengers on board. In fact sorties of that nature had previously been flown, not necessarily with the individual passengers on this sortie on board, but they will have flown on low altitude on other sorties".

  Later on G was asked: "Q.—In relation to the choice of this as a low level sortie, do you know whose choice that was? Mr Tapper talked to you about it, but is there a possibility that it was anyone else's choice to be a low level sortie? A.—It is always possible but it is unlikely. The crew would discuss the composition of a sortie as a crew, particularly where low level flight is involved, to maximise the benefit for both pilots in front. It would be unlikely that it was an individual's choice. Even if it was an individual's choice, the composition would still have been discussed by the crew as a whole. Q.—But it would essentially, as I understand it, be a crew decision on this occasion as you understand it? A.—Yes. Q.—To choose it as a low level sortie to Inverness, is that right? A.—To gain value from the sortie, yes. Q.—And at the end of the day it was your duty to approve the method of flight selected, is that right? A.—Not strictly true". G went on to explain in short how it was the responsibility of Flt Lt Tapper to authorise the flight at low level to Inverness.

  In cross examination G was asked: Q.—You were asked whether you thought it extraordinary that a normal tasking operation of the Chinook should also carry a training possibility or benefit. What is your reaction to that? A.—The operating costs of the aircraft or of any aircraft in the Royal Air Force are quite high and therefore to fly dedicated training sorties is an expensive way of training. In order to maximise the return and the value of any sortie that we fly, if there is an opportunity to gain training value from it the crews will take that generally speaking to offset the costs of dedicated training. Q.—And that is also assuming that there was a period of dedicated training available to Chinook crews in Northern Ireland? A.— Regardless of whether there is any dedicated training available in Northern Ireland, the crews have to train on a regular basis and therefore that was either to augment or supplement the training that they routinely had either in Northern Ireland or back on the mainland with their parent squadron". Later on G was asked: "Q.—did you tell the Board of Inquiry that the decision had been taken that this would be a low level training exercise of the kind you have mentioned? A.—I discussed my conversation with the Board of Inquiry. I stressed this was not stipulated as a training mission, this was a task which was being undertaken at the request of Headquarters Northern Ireland and we were taking advantage or the crew were intending to take advantage of the sortie to gain some experience of a training which they couldn't do in Northern Ireland on a routine basis". In re-examination G was asked again about this subject: "Q.—Looking again at the decision to fly a low level sortie to Inverness carrying 25 passengers, several aspects of that flight are evident from what you have told us. First of all, the crew were going to be flying over terrain with which they were not particularly familiar; is that right? A.—That's correct, yes. Q.—They were in flying such a low level sortie going to be engaged in what you have described as a demanding exercise? A.—Yes, Sir. Q.—Flying not only over sea, because of the difficulties in gaining indication of their altitude—is that right? A.—I have no knowledge that they intended to low fly over sea in these circumstance. Q.—Your impression was that it was over the land; is that right? A.—Yes. Q.—But over land demanding, because of, in the eloquent way you put it, the short range notice you have of obstacles and terrain that you might impact with; is that right? A.—Yes, Sir. Q.—Again, it is implicit in this exercise that there are on board 25 persons who perhaps might not normally expect to be taken on such a sortie. Would you agree with that? A.—They will all have flown on such sorties previously, therefore I have no knowledge of whether they had an expectation of flying at low level on this particular sortie, but it would not have been unusual for them to have done so. Q.—But there are obvious hazards in such a sortie, would you not agree with that? A.—That is why we do training, to minimise those hazards. Q.—Did it make sense to expose 25 persons as passengers to the risks of such a low level sortie? A.—The risks of the sortie are dependent upon the crew who are flying it. Flt Lt Tapper is a very experienced or was a very experienced low level operator. There was no risk in the sortie as he reported it to me being flown with passengers. Q.—Is there not another inherent risk in the presence of 25 passengers, who in themselves might constitute some form of distraction from what on one view seems to have been a training sortie? A.—A sortie that was used for training. The passengers in the back, I have no knowledge of how they may or may not have reacted. They have all flown or will all have flown to the best of my knowledge on similar sorties previously; and if they were flying in other helicopters in Northern Ireland they will have flown at low level in what I would have described as more aggressive manoeuvring than they would have experienced in this sortie.

  H was also asked about this matter as follows: "Q.—The other reason we were told is that it was intended that this flight be used to practise low level flying skills on the part of the crew. Were you aware of that? A.—To practise? I have to be careful in what I say here. I think I can see where you are trying to lead. I would not use the word "practise". I think to gain benefit or to gain value would probably be more appropriate. Every time we fly... we practise. One is always learning and one is always honing one's skills. Q.—In particular, G was suggesting this was to be a low level training mission? A.—He may have thought that, but it was certainly not authorised as a low level training flight. Q.—Did G tell you that is what he thought? A.—I would need to look at his evidence. Certainly the information I would have gained from the evidence of G was that this was going to be an operational task from Aldergrove to Fort George, and if there was an indication there was a training value to be gained that would be very much secondary to the operational task. I think every time any pilot flies he is gaining a "training value" from that sortie. Q.—So were you in your experience as a pilot surprised at the decision that this flight might be flown at low level with these passengers? A.—No". Later H was asked: "Q.—Would you agree, in general terms, that if an RAF helicopter is transporting a passenger payload of mixed civilians and non-civilians from point A to point B, purely with the aim of getting them from point A to point B, not for any military purpose, then the overriding priority must be and should be the safety of these passengers? A.—May I say.....the safety of the passengers is always paramount in any RAF aircraft and in any aircraft. I would also suggest that the safety of the pilot is also fairly important. Q.—I don't disagree with any of that. I asked the question the way I did because there may be certain military situations where operational requirements require the pilot and the passengers to be placed in a situation of potential danger? A.—There is a balance of risk in various operations, but in my experience in the Royal Air Force flight safety is always paramount. It has always been my understanding that if you lose an aircraft and crew from flight safety you are doing the job of the enemy, and we are brought up to place flight safety above anything else. Q.—I was simply trying to explore the situation where in a time of war, say, a flight takes place in a situation of danger? A.—Yes: but flight safety even in time of war is important. Q.—Oh, indeed. There is no question of anything of that nature applying to this sortie from Aldergrove to Inverness, however, is there? A.—No. Q.—So it follows that anything which unnecessarily compromised the safety of the flight should be avoided? A.—Correct. Q.—And even leaving aside this obvious overriding priority as a generality, I think we know as far as this flight was concerned there was a clear public interest in the safety of these particular passengers, viewed with hindsight, obviously? A.—In terms of safety of the passengers and the crew we considered as a Board that the nature of the passengers would not have been a factor to the crew. We don't apply safer regulations to some and not others. Q.—I was not suggesting you were. I am wondering whether you would agree that there was a public interest in the particular safety of these particular passengers, given the nature of their occupation? A.—Yes. Q.—We have been told earlier in the inquiry by G that transit from Northern Ireland to Inverness was designed to be at low level to maximise the training value to the crew of a flight over that distance, and that training considerations were part of the decision-making process? A.—I believe...I answered this question yesterday, in that it was an operational task, and any training requirements of the crew would have been entirely secondary and purely incidental to the main task that was required". Then H was asked: "Q.—If we assume that G's evidence is accurate and that a low level transit was chosen to maximise the training value to the crew so far as this particular flight is concerned, do you...view that decision with equanimity? A.—Would you explain "equanimity" to me? Q.—Does it cause you any concern? A.—No. Q.—You are completely untroubled by it? A.—Indeed.... Q.—So it is normal practice in the RAF to use flights carrying amongst others civilian passengers for crew training purposes? A.—Indeed. Passengers are flown—I don't know why you use the term "civilian". We could have cadets or servicemen. We fly passengers on training sorties, yes. Q.—So the fact that there may be civilian passengers on board would have no influence upon the decision whether or not to use the flight for training purposes. A.—We are going over old ground here. This was an operational sortie, flown as such, which would have included training for the benefit of the crew, but it was not a training sortie with civilian passengers on board; it was an operational task". Finally H was asked: "Q.—I really just want to be clear about this. Is it a possibility that a desire to maximise the training value of this flight could have been a factor in the minds of anybody in the cockpit at the time they were approaching the Mull? A.—In my opinion absolutely not... It is my understanding that the crew, from the information we had, that their first priority would have been the task that they were flying".

  It was in light of this evidence that the advocate depute submitted that it was very questionable whether it was appropriate in all the circumstances surrounding this flight, with 25 personnel from the Army, the Royal Ulster Constabulary and civil servants from the Northern Ireland Office, that they should have been carried on such a flight, and he invited me to consider whether the decision to fly the sortie in this way was appropriate and whether it could have been a causative factor in the accident. Counsel for the remaining families pointed out that there had been no suggestion that any of the passengers on board the aircraft would have been aware of, let alone acquiesced in, the training motivation for choosing a low level as opposed to any other level of flight. He stressed that it was not his submission that what had been planned as a low level flight could not in any circumstances have been flown safely to Inverness and he accepted that plainly such flights took place on a regular basis free from mishap. He posed the question whether the training aspect of the flight had directly influenced the conduct of the crew of the aircraft as it approached the Mull of Kintyre and the poor weather conditions that prevailed there. He acknowledged that H had discounted this, but he pointed out that it was the decision to fly at low level on the outward leg of the sortie which had put the aircraft at low rather than medium level as it approached the Mull. He then posed the further question, whether, if the flight had been planned as a medium level sortie throughout, that would have allowed the aircraft to avoid flying at low level at the Mull of Kintyre and would have allowed any decision to overfly to have been taken from a higher starting point. Counsel then suggested that consideration should be given to the question whether any lessons could be learned for the future and, while accepting that H had been at considerable disadvantage in attempting to deal with the issue in his evidence inasmuch as for whatever reason the Board of Inquiry had not considered it, he submitted that it was not reassuring to find that H was untroubled by the decision to use a sortie of this kind to gain training experience for the flight crew. Counsel further submitted that the use of passenger flights by the RAF to give training to pilots, including the practising of techniques carrying a degree of extra risk to safety, gave rise to legitimate concerns which were all the greater where, as in the present case, the aircraft was being used to transfer a large number of Security Services personnel in Northern Ireland, including some very senior members.

  It is true, that, had the aircraft as it approached the Mull of Kintyre begun to climb at a rate of 1,000 feet per minute from medium rather than low level, the accident would not have occurred. Likewise, had the aircraft been at medium level as it crossed the North Channel (and until it was seen by Mr Holbrook there is no saying that it was not) it is possible that a decision to abort to IMC might have been taken some time before the aircraft approached the Mull of Kintyre. On the other hand, in view of the cloud levels present at the Mull at the time it is I think clear that, had it been desired to proceed with the flight under VFR rules (and plainly on the later stages of the sortie there would have been no option in light of the aircraft's icing clearance but to do so), the aircraft would probably have had to descend to low level in any event in order to investigate whether or not further VFR flight was possible. In the circumstances I doubt that the decision to fly the outward leg of the sortie at low level can be said to have been a causative factor in the accident. But I agree with the advocate depute and counsel for the remaining families that the evidence raised some important general questions in regard to the carrying of passengers by the RAF. In light of the evidence I do not think that it would be appropriate for me to express an opinion on these questions since they clearly raised issues of policy and security which were not canvassed during the inquiry, and moreover involved decisions by persons who were not called as witnesses. But I should perhaps stress that on the evidence I do not think that any criticism can be directed against either Flt Lt Tapper or G in respect of the decision to fly the outward leg of the sortie at low level. They were both evidently aware, at least in broad terms, of the identity of the passengers. But there was no suggestion that they had been given any instructions as to the particular form of flight that should be selected to transport them to Inverness. Likewise, there was no suggestion that the decision to fly the outward leg at low level to maximise the training value of the sortie was otherwise than in accordance with normal practice authorised by their superiors.