A legal challenge against the Ministry of Defence (MOD) over the 1994 RAF Chinook helicopter crash should be allowed to proceed, the High Court has been told, amid concerns over the airworthiness of the aircraft.
Twenty-nine serving military personnel died when the Chinook HC-2 helicopter crashed into the Mull of Kintyre in south-west Scotland on June 2 1994, with a 2011 inquiry concluding that an initial decision to blame the pilots was incorrect.
The Chinook Justice Campaign (CJC), which is made up of more than 55 family members of 25 of the victims, is now seeking to challenge the MOD’s “ongoing failure” to set up an “independent and effective investigation” into the crash, which it says breaches human rights.
Lawyers for the group told the High Court on Tuesday that information regarding the Chinook’s airworthiness “raises a more than arguable claim that… those individuals who died in the crash were placed on an aircraft known to be unsafe”, and that the legal claim should be allowed to proceed.
The MOD is defending the legal bid, with its barristers telling the court that the claim has been brought too late and that human rights have not been breached.
Sam Jacobs, for the CJC, told the court in London that there were “profound and stark” concerns as to airworthiness, but that no investigation had ever considered the issue despite several probes into the crash.
He said: “It is historic, but it is also extraordinary, that the bereaved families of 29 individuals… still face unanswered questions into the circumstances of what is often described as the RAF’s worst peacetime disaster.”
He continued: “What the bereaved families want is candour from the MOD about what the MOD does know about what opportunities it appears may have existed to avoid such a major loss of life.”
Speaking outside the Royal Courts of Justice on Tuesday, Andy Tobias, whose father Lieutenant Colonel John Tobias MBE died in the crash, said it was a “hugely momentous day”.
Several relatives of those who died attended court, some of whom wept during the hearing.
The helicopter was transporting 25 intelligence experts and four special forces crew from RAF Aldergrove in Northern Ireland to Fort George near Inverness when it crashed in foggy weather.
In written submissions, Mr Jacobs said that the crash came two days after the helicopter was delivered, following a “fraught upgrade and introduction”.
He continued that the MOD was suing Boeing over the upgrade before the crash, and that a safety-critical engine control system on the helicopter was described by the Aircraft and Armament Experimental Establishment as having a “density of deficiencies”.
Mr Jacobs also said that the helicopter involved in the crash needed one of its engines replaced three times in the months before the incident, with issues also reported with its second engine.
He said: “It is plainly arguable that airworthiness caused the crash; indeed, arguable that the HC-2 should not have been flying at all.”
He continued: “There is nothing before the court to indicate that the imperative to deploy the HC-2, at that time, was so severe, and the concerns as to airworthiness sufficiently mitigated, that the decision to deploy is immune from reasonable criticism.”
The incident was first investigated by an internal Board of Inquiry in 1995, which concluded that there was an error on the part of the pilots, Flight Lieutenants Jonathan Tapper and Richard Cook.
A Scottish Fatal Accident Inquiry and the House of Commons Public Accounts Committee both reached different conclusions, with the Board of Inquiry’s findings overturned following the 2011 review, although this did not determine the cause of the crash.
Daniel Beard KC, for the MOD, said in written submissions that the crash has been the subject of “extensive investigations”, and that the CJC has not “raised any information even arguably capable of reviving any investigative obligation”.
He also said that the Boeing litigation was “not relevant to the crash” and that the CJC’s case was based on “vague assertions” about the helicopter’s airworthiness, without explaining why the legal challenge had not been brought sooner.
He added: “The claimant suggests that further investigation of the crash circumstances is still possible today.
“Yet given the paucity of evidence and the passage of time, it is unlikely that further meaningful investigation is possible, or that further investigation would serve a practical purpose.”
He continued: “The claimant understandably wants to bring the full facts to light.
“However, that aspiration must be considered in view of the evidential limitations, the civil claims that have been resolved, the lessons that have been learned and the transformed operational context.”
The hearing before Mr Justice Butcher is due to conclude later on Tuesday.
