Hawker Hunter Display Pilot acquitted of Gross Negligence Manslaughter

On 22 August 2015, A Hawker Hunter jet (Registration GBXFI) piloted by Andrew Hill crashed on to the A27 road near Shoreham airfield, West Sussex.  11 people were killed but the pilot, who was thrown clear of the aeroplane,  survived despite suffering considerable injuries.  It was not until 2018 that Mr Hill was charged with the manslaughter by gross negligence of the 11 who died.  He was also charged with endangering an aircraft, contrary to Article 137 of the Air Navigation Order 2009 - The Guardian 21 March 2018.

The accident and AAIB report:

The crash was investigated by the Air Accident Investigation Branch (AAIB) which reported on 3 March 2017.   This is a characteristically detailed and lengthy report.  It is important to note that the sole objective of AAIB investigation is the prevention of accidents and incidents and not the apportioning of blame or liability.  As part of any investigation, the AAIB is able to make Safety Recommendations. These are addressed to regulatory authorities, manufacturers, operators, maintainers, government or others with the intention to improve aviation safety by preventing similar accidents from happening again.

Mr Hill was an experienced former RAF pilot and Flying Instructor.  At the time of the accident he held an Airline Transport Pilots Licence and a Class 1 Medical Certificate.  He had amassed 14,249 flying hours.  This included a modest 43 hours on the Hawker Hunter.  In the 90 days preceding the accident he flew in 33 displays or practice displays including 6 flying the Hunter.

The Hawker Hunter T7 is a single-engine, swept-wing, military jet trainer capable of speeds close to the speed of sound.  G-BXFI was built in 1955 as a single-seat aircraft, but was modified in 1959, with two pilot seats installed side-by-side, to become a T7 two-seat trainer.  Both pilot positions were fitted with ejection seats.  It was transferred to the civil register in 1997.

The pilot's Display Authorisation stipulated a minimum height (above ground level) of 500ft for aerobatics.  The display involved a "bent loop" manoeuvre in which the aeroplane enters the loop flying in one direction (heading) and exits the loop in a different direction.  The manoeuvre is well illustrated graphically in a video on this AAIB webpage.

The AAIB report noted that the manoeuvre started approximately 900 m from the display line at a height of 185 ±25ft above ground level and that the pilot’s declared minimum entry speed for the manoeuvre was 350 Knots Indicated Airspeed (KIAS).  The aircraft entered the manoeuvre at approximately 310 KIAS.  The aircraft did not achieve sufficient height at the apex of the accident manoeuvre to complete it before impacting the ground because the combination of low entry speed and low engine thrust in the upward half of the manoeuvre was insufficient.

Although it was possible to abort the manoeuvre safely at this point, it appeared the pilot did not recognise that the aircraft was too low to complete the downward half of the manoeuvre.  The manoeuvre was continued and the aircraft struck the ground on the northern side of the westbound carriageway of the A27 close to the central reservation with a ground track at a slight angle to the direction of the road. When it struck the ground it broke into four main sections.  Fuel and fuel vapour released from the fuel tanks ignited. In its path were vehicles that were stationary at, or in the vicinity of, the traffic lights at the junction with the Old Shoreham Road, and pedestrians standing by the junction.

The criminal proceedings:

Court proceedings against Mr Hill appeared at the Old Bailey in May 2018 and he entered not guilty pleas.  The trial was set to commence on 14 January 2019.   Mr Hill was granted bail.  A pre-trial review took place on 8 January 2019 where Mr Hill indicated that his defence was to be that he had been disabled by g-forces during the flight.

The trial was before Mr Justice Edis and a jury.  The jury were shown video of the accident that had not been previously released to the media.  The prosecution alleged that previous incidents Mr Hill had been involved in showed that he appeared to have a "cavalier attitude" to safety and played "fast and loose" with the rules.  On 4 February, the court went to the Gatwick Aviation Museum which has a Hawker Hunter on display.  Jurors were shown the aircraft's controls and the instruments were explained to them.  They were given the opportunity to sit in the cockpit of the aircraft and touch the flying controls.  Both prosecution and defence provided an expert witness to assist the jury.  Mr Hill did not attend the museum.  Not guilty verdicts were returned on Friday 8 March 2019. - BBC News 8 March 2019.  Mr Hill was also formally acquitted of the count - that was not put in front of the jury - of negligently or recklessly endangering the safety of an aircraft.

Gross Negligence Manslaughter:

The elements of the offence of gross negligence manslaughter are set out in the speech of Lord Mackay of Clashfern LC in Adomako [1995] 1 AC 171 at page 187B-C.  The prosecution have to prove the following elements:

i) In accordance with the ordinary principles of negligence, the defendant owed the deceased a duty of care.
ii) The defendant was in breach of that duty of care.
iii) A reasonably prudent person would have foreseen that the defendant's actions or omissions constituting the breach of duty had exposed the deceased to an "obvious and serious" risk of death. The Court of Appeal (Criminal Division) in Misra and Srivastava [2004] EWCA Crim 2375; [2005] 1 Cr App R 21 and Yaqoob [2005] EWCA Crim 2169 confirmed that that the relevant risk to be reasonably foreseen is nothing less than the risk of death.
iv) The breach of duty either caused, or made a significant contribution (i.e. a contribution that was more than negligible) to, the deceased's death.
v) The departure of the defendant's conduct from the proper standard of care incumbent upon him, involving as it must have done the risk of death, was such that the breach of duty can properly be characterised as gross negligence and therefore criminal.

Item (v) is problematic.  Lord MacKay in Adomako admitted that there was "an element of circularity."  His Lordship said - "It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that it is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission."

The offence is discussed in some detail by the Court of Appeal in Rose [2017] EWCA Crim 1168 and also in the excellent Crown Court compendium (December 2018) at paragraph 19.3.

On the point of "Grossness" the compendium states:

"The question is whether the risk would have been obvious to the reasonably prudent and skilful doctor, anaesthetist, electrician, etc. The courts have recently emphasised that to repeat the word ‘gross’ is insufficient.  The jury need to understand that they must be sure of a failure that was not just serious or very serious but ‘truly exceptionally bad’.  The offence does not require mens rea. There is no need to prove the defendant’s state of mind and in particular their foresight of the risk of harm or death.  However, the courts have held that there may be cases in which the defendant’s state of mind is ‘relevant to the jury’s consideration when assessing the grossness and criminality of his conduct’.  This approach has been endorsed on a number of occasions, and it has been recognised that it may operate in the accused’s favour."  [My emphasis].

In these difficult cases what is truly exceptionally bad is inevitably a matter of opinion and it is the jury's opinion, based on all the presented evidence, which is determinative.

Other outcomes:

The AAIB issued Safety Bulletin SB 1/2016, published on 10 March 2016.  This considered the risk management of flying displays, minimum display heights and separation distances, regulatory oversight and piloting standards.  It contained a further 14 Safety Recommendations, and was published to inform the air display community ahead of the 2016 air display season.

  
Thr AAIB conclusions go beyond criticism of Mr Hill.  They are critical of the Civil Authority and also the Display organisation.  Some of the conclusions appear to be problematic.  For instance, conclusion 48 - "the CAA did not require persons outside the area controlled by the organisers of the Flying Display to be protected from the hazards associated with it."  Hard to see how this can be satisfactorily complied with at any airfield in the UK short of not holding a display at all !

It is reported that the Shoreham Accident is a factor in the decision not to hold a public weekend at the Farnborough International Airshow - BBC News 5 March.   Organisers said the Shoreham air crash had "expedited" the decision, which comes amid a "dwindling number" of spectators.  A spokeswoman said organisers could "no longer provide an airshow the public want".

Flight Global 3 March 2017 - Pilot Error caused Shoreham disaster, AAIB concludes

Latest Guidance:

On 28 January 2019, the CAA published Issue 16 of Civil Aviation Publication 403- Flying Displays and Special Events: Safety and Administrative Requirements and Guidance.
 
To reminisce:

Aviation enthusiasts cannot fail to be moved by the splendid aerobatic performances of the Red Arrows - the RAF Aerobatic Team.   Those of a certain age - such as myself - will remember the predecessor of the Red Arrows - the BLACK ARROWS or 111 Squadron with the superb displays of 1956 - 1961.  The Black Arrows achieved a loop with a formation of 22 Hawker Hunter fighters.  See this Youtube Video.