RACHEL FISK — SERVICE INQUIRY REPORT

By Mark Briggs CMIOSH

Editorial Foreword

This article was provided to Hermes by Mark Briggs CMIOSH, who served with 3 PARA and Airborne Forces and who is the author of the guidance document Health and Safety in the Parachuting Sector, drafted for the Health and Safety Executive in the wake of the death of RAF PJI Sergeant Rachel Fisk.

Mark Briggs also consults to major multinational companies as well as the film and television industries. In private life, he is the co-founder with Ian Marshall — ex-1 PARA Pathfinder Platoon and Red Devils — of the Pegasus Display Team, whose members must have passed P Coy or SAS Selection, BPC at 1 PTS and have carried out at least 100 military jumps.

Challenging the Health and Safety Executive

On 2nd September 2023, the Oxford Mail carried the headline: “Two years on from RAF parachute death HSE investigation continues”.

Just a few weeks prior, the national press reported in response to the release of the much-delayed Service Inquiry Report (SIR) into the tragic death of 32 year-old RAF Parachute Jump Instructor Sergeant Rachel Fisk who fell 12,000 feet to her death whilst skydiving at Weston-on-the-Green (WOTG) in 2021.

A senior RAF source said; “It was a freak accident” and “a military investigation has found that she did not die in vain.”. The propaganda, perhaps, is compelling, until it runs into harsh facts, at which point reality wins!

Undoubtedly any investigation can be a complex process, often requiring the application of specialised techniques. However, the objectives remain the same: to identify the immediate causation in conjunction with any contributory, affecting or compounding factors that led to the occurrence and, arguably and most importantly, the underlying, risk control and management failures; the root causes. Obviously, every element of a 212-page document cannot be comprehensively reviewed within this commentary therefore only key particulars are highlighted to enable cognisance of circumstance.

To enhance the process, technical opinion was sought from a number of experienced and appropriately competent former Airborne Forces personnel from across the UK parachuting sector. Probably the most succinct response came from the legendary Ian Marshall, formerly of 2 PARA, Pathfinder Platoon and The Red Devils.

Ian told Hermes: “I believe we all agree that Rachel’s death was eminently avoidable in that the design faults, failure modes and functionality issues with this type of equipment in the configuration as utilised have long been known and understood. Several of these matters were previously highlighted in the Bad Lippspringe Service Inquiry Report in 2015 and have never been addressed. Put simply, the safety of the type of rig used by Rachel had already been called into question by an official report.

“The weak and unimaginative SI panel has contrived to misrepresent in a blatant attempt to misdirect the uninformed observer, and to mitigate the highly questionable manner under which the RAF Robson Academy of Resilience JSAT WOTG functions, alongside the Improvement Notice for Crown Employers issued for evasion of Health and Safety law and associated systemic management failures.

“The fallacious and useless recommendations in the SIR provide little more than an exercise in window dressing. The ramifications arising from this tragedy extend beyond MOD into the civilian domain and relate to public safety, which in turn is a matter of public concern. Hence it falls to HSE as the national Health and Safety regulator to shine a light upon the truth and duly inform all relevant stakeholders and the public in general as to the real reasons for Rachel’s death.”.       

That said, there is a need to take a step back, view matters from an impartial perspective and apply an element of critical thinking, as the various issues are multi-fascinated and nuanced. The SI is not about justice, nor is it about morals or emotion, it is about due process, and the incumbent obligations of the duty holder to undertake a structured investigation into a fatality arising from work-related parachuting activities.

The report, in turn, forms the basis on which legal arguments will be constructed and, potentially, a defence case derived; a defence at law which the RAF has every right to formulate. Although, some may assert that investigations are in essence a search for the truth, ultimately, along with justice, this matter falls to the Courts to determine.

The critically important first step for the Service Inquiry was that of due diligence; a process to establish circumstance, situational context and relevant precursors in respect to work-related parachuting activity undertaken by the Robson Academy of Resilience (RAR) Joint Services Adventure Training (JSAT) WOTG. Therefore, it was necessary for the Panel to conduct a legal and literary review.

The Civil Aviation Authority (CAA) website, states that: “All parachute dropping carried out from civil registered aircraft over the UK is regulated by the CAA and must be conducted in accordance with the requirements of the Air Navigation Order.”.

However, there are no specific instructions to follow in the Air Navigation Order 2016 (ANO) in respect of aircraft parachute dropping operations. Article 90 of the ANO simply requires that the relevant ‘parachute dropping [flight] operations’ of the aircraft operator shall be conducted under and in accordance with the conditions of a Parachuting Permission granted by the Civil Aviation Authority (CAA).

The CAA General Aviation (GA) unit policy duly clarifies matters: “According to the ANO, with the exception of emergencies no person shall be dropped from an aircraft unless the operator of the aircraft has been granted a Parachuting Permission by the CAA.”. The CAA details the terms for issuance of Parachuting Permissions in Civil Aviation Publication (CAP) 660 – Parachuting. The document states: “CAP 660 is applicable to all operations conducted pursuant to Parachuting Permissions granted under Articles 89 and 90 of the ANO.”.

CAP660 defines the ‘operator’ as; “A person, organisation or enterprise engaged in or offering to engage in an aircraft operation — in this publication the word is used to denote the Permission holder, who is the person having overall control of the parachuting operation — the Permission holder will usually be the person who at the relevant time has the management of the aircraft and will therefore be the operator as defined in Article 4 of the Air Navigation Order.”.

Typically, the conditions of a Parachuting Permission require that: “All operations […] shall be conducted in accordance with the relevant provision of the British Skydiving Operations Manual for the time being inforce and which has been submitted to the Civil Aviation Authority and the applicable requirements stated in CAP660.”.

Precedent establishes that the recipient of a Statutory Notice (usually the relevant duty holder) must follow any lawful and rational instructions formally detailed by the Enforcing Authority otherwise it shall be considered a breach of Statutory provision particulars, in this instance ANO Article 90.

CAP660 continues: “The British Skydiving Operations Manual, as amended, represents the accepted standard for sport parachuting in the United Kingdom (UK) and British Skydiving Parachute Training Organisations (PTOs) and Display Teams must adhere to the provisions and guidance in that manual in order to achieve an acceptable level of safety in the conduct of their operations.”.

However, the CAA General Aviation Unit policy states: “Those people carrying out the parachuting operation (i.e. the pilot, aircraft owner and/or operator) remain directly responsible for compliance with both UK and European law.”.

“British Skydiving controls all aspects of skydiving on behalf of the Civil Aviation Authority (CAA).”.

 British Skydiving website

The Civil Aviation Authority-British Skydiving Memorandum of Understanding (MOU) states: “In so far as the CAA has granted an approval to the BPA for the administration and oversight of sport parachuting operations conducted by BPA affiliated Parachute Training Organisations (PTOs), the CAA will, in respect of its duty to ensure that such operations are conducted according to applicable EASA regulations.”.

EASA Air Operations Regulation (EU) No. 965/2012 specifies regulatory requirements for implementation in respect to parachute dropping aircraft in-flight operations. Further clarification of aircraft operations is provided by revision 19 of the Easy Access Rules for Air Operations which incorporates the Acceptable Means of Compliance and Guidance Material.

Subsequently, the SI Report advances the prevailing narrative, stating: “Sports parachuting was understood by the panel to be regulated by the Civil Aviation Authority (CAA) and British Skydiving which operated as the United Kingdom National Governing Body (NGB).

“Defence has deliberately followed BPA regulations rather than military parachuting regulations because the former are generally more lenient.”.

Email from Group Captain [redacted] Robson Academy

The only reasonable rationale for this contention is that [work-related] parachuting activity falls in-scope for legislation enforced by the CAA, and is thus an aviation matter. The SI continues by expanding on the superstition by postulating that RAR JAST fulfils incumbent obligations (‘duty of care’) by way of contracting to British Skydiving (BS), and subsuming the governance and control of WOTG PTO under the auspice of this amateur sports body.

“If British Skydiving did not exist […] there is a danger the HSE would likely carry out the role.”.

Letter from BS Chief Operating Officer Tony Butler to PTO Association

Shortly after Rachel Fisk’s death, however, the Health and Safety Executive (HSE) sanctioned the RAF by serving a Crown Improvement Notice on WOTG, stating failures pursuant to Section 2 and Section 3 of the Health and Safety at Work etc. Act 1974 (HSWA) and Regulation 3 of the Management of Health and Safety at Work Regulations 1999 (MHSWR).

Subsequent to issuance, HSE, unusually, made several statements to the national press, including: “It is important HSE completes the investigation into Rachel’s death to determine the cause of this incident […] HSE will draw upon the evidence gathered so far and call upon its own specialist investigators and independent support in what is likely to be a complex investigation.”.

“[HSE] do not have a particular expertise in our [skydiving] activities per se.”.

Email from Flight Lieutenant [redacted], JSPC(W), Weston on the Green

These [currently] active investigations are highly likely to be far wider-ranging than originally envisaged and more [legally] complex than HSE may have understood, at that time. Considerations, are now, potentially, confounded by the SI Report, whose findings implicitly challenge the scope of the Health and Safety at Work Act; they infer that issuance of the Crown Improvement Notice by HSE is ultra vires or otherwise negatory.

This trail of thought is not necessarily without merit in that legally and lawfully work-related parachuting activity cannot and must not fall in-scope for two distinct sets of legislation. Statutes are governed by bounds established within the Instruments themselves, duly providing mutual exclusivity across the interface; ‘no man can serve two masters.’.

Consequently, to follow the SI Panel’s contention to a logical conclusion, HSE has prima facie acted unlawfully; contrived to construct circumstance of absurdity, inconstancy and repugnancy that may, should this be the case, ultimately, require a Judicial Review to resolve.

Or, perhaps, HSE is not perplexed by promulgated circumlocution that has discombobulated the credulous. Perhaps, HSE possesses the necessary attributes to see through the façade of convoluted and officious bureaucracy. Perhaps, HSE have the capability to pierce the corporate veil and hold those culpable to account.   

“[HSE] would likely contract the work out to British Skydiving (as the only relevantly experienced approved organisation).”.

Letter from BS COO Tony Butler to PTO Association

If you are going to ‘play the game’ then first of all you better make sure that you know all the rules of the ‘game’.

The burden of proof under Health and Safety law generally falls to the accused; subsequently the Howe [case law] precedent — now incorporated into Court protocols in respect of considerations for reduced sentencing — requires that the relevant duty holder must accept culpability for applicable breaches of incumbent obligations, explain what went wrong and why, and provide demonstrable evidence that robust corrective actions have been taken to adequately control risk and prevent re-occurrence.

“British Skydiving is here to protect you!”.

Statement by Tony Butler BS COO to PTO Associate

Or otherwise, the accused may plead not guilty and refute any or all charges, a risky strategy based upon HSE prosecution success rates, although there are a few exceptions. Therefore, such an approach should only ever be adopted if there exists a high degree of certainty founded on sound legal interpretation supported by case law. The advisory team to legal counsel needs to be talented, possessing a deft understanding and sophistication that is only derived from experience and an in-depth knowledge and understanding of law.

“Your employees are not ‘at work’; the Health and Safety at Work Act is not applicable.”. 

Statement by BS COO Tony Butler to PTO Associate

In his book about narrative economics, Noble Prize winner Robert Shiller warns against underestimating the power of a narrative that persists and grows, and spreads. In epidemiology there is the SEIR model: Susceptibility, Exposure, Infection and Recovery, with the difference between I and R being the number of people that die. The model is mathematically based and empirically validated on how viruses spread exponentially; it is also used to forecast the spread of infectious disease. Robert Shiller transposes the SEIR model into an economics narrative, equating it to something that spreads like a virus.

“You can only parachute under the RAF or British Skydiving.”.

Statement by Squadron Leader [Redacted], 16 Air Assault Brigade Air Cell

A narrative does not necessarily have to be true or false; eventually, like a virus, it will die out or reverse. However, it can be very powerful in the meantime, especially when endorsed by allegedly credible organisations and bodies — often motivated by vested interests — that have bought into the falsehood and promulgated the narrative. Ergo, the disease spread by the virus.

“[RAF JSAT WOTG] operate under the auspices of British Skydiving (the National Governing Body (NGB) who externally assure our parachuting activity.”.

Email from Group Captain [redacted], Robson Academy

As the above statement shows, it subsequently becomes a self-fulfilling prophecy when enough people believe, and the narrative is accepted as reality or certainly the perceived truth.

“We [MOD] are indeed ultimately regulated by the BPA [British Skydiving], a branch of the CAA, under which all UK aviation is regulated, including military aviation.”. 

Email from Major [redacted], JSPW, Netheravon

All is good and everyone is happy even though the prevailing narrative, the propaganda, arises from a false premise, a paradigm lacking substance and foundation in law; thus, a baseless postulation. Whereas reality is akin to cold hard facts in the real world; something that is far harsher.

In this instance, the reality concerns a natural living person, a young lady in the prime of her life, Sgt Rachel Fisk, plummeting 12,000 feet and impacting the ground at a terminal velocity upwards of 120 miles per hour, at which point the situation rapidly crystalises and the harsh reality comes into focus.   

“JSAT Parachuting in comparison to other JSAT disciplines is unique in that MOD, through the JSAT Steering Group, has chosen to affiliate with the National Governing Body because of the strict regulatory and statutory framework governing UK air activities.”.

Email from Flight Lieutenant [redacted], JSPC(W), Weston on the Green

Everyone is equal under the law, and the law applies to everybody equally. Offences under the law arise from acts and omissions, against which ignorance of the law is not a defence in law: ignorantia juris non excusat.  

“Your qualifications don’t count; how will you demonstrate your competence to a court if someone is killed?”

Statement by Flight Lieutenant [redacted], JSPC(W), Weston-on-the-Green  

If you are confident in your position, if you have done your research and undertaken adequate due diligence, if your interpretations of Statutory provision and the Law are sound and based on relevant precedent, if you have sufficiently assured yourself that you are going about your business lawfully and all your documented arrangements are in order and legally compliant, then it is not necessary to obfuscate. You can deal with matters in a forthright manner — robustly and transparently — in order to obtain definitive outcomes and conclusively close out any issues arising. Otherwise there exist certain assumptions in law; for example: the assumption of guilt for refusing a drink-driving breath test.   

Therefore, HSE should have been immediately and robustly rebutted in respect to lawful powers and relevant jurisdiction to take enforcement action in respect to work-related parachuting activity. Where is the evidence to demonstrate and substantiate that particulars fall in-scope for legislation enforced by HSE. The response to the HSE notices should have been: ‘prove it!‘.

“Attempts by the Health and Safety Executive (HSE) to exercise control over parachute equipment standards and investigate skydiving incidents and accidents; a move which finally resulted in negotiating a memorandum of understanding whereby the HSE relinquished their position and acknowledged the expertise of British Skydiving (then BPA) and CAA in matters of skydiving regulation.”.

British Skydiving website

Or, perhaps, there is reticence, a lack of conviction, a lack of confidence. Perhaps, there is — to borrow British Skydiving’s COO Tony Butler’s terminology — a “danger” that HSE can ‘prove it’. Perhaps, it is actually the CAA misrepresenting and acting ultra vires. Under such circumstances this ‘game’ will quickly become very interesting, indeed.

In this regard it is reasonable to note that the Fisk Service Inquiry fails to adequately explore and sufficiently address or otherwise has totally ignored critically important Statutory provision and official documentation and, in turn, appropriately recognise the significant implications thereof. When the ideology or cause is more important than the system, then the system fails. Thus, it surely follows that when the rule of law no longer applies, chaos is pursuant.

“It’s the law!”.

Statement by Flight Lieutenant [redacted], 2 Group, Weston on the Green

In a future article, we will critically review Service Inquiry Exhibit 7: CAA-British Skydiving document CAP660 – Parachuting.