Rex Tedd QC and Bernard Thorogood, representing the Health and Safety Executive, conducted the prosecution of Martin Baker Aircraft Co. Ltd [Martin Baker]. This high-profile case was heard by the Senior Presiding Judge of the Midland Circuit. Martin Baker pleaded guilty, admitting that it was in breach of safety law. A fine of £1.1m was imposed. In addition, Martin Baker had agreed to pay prosecution costs of £550,000.
In recognition of the role of Bernard Thorogood in this case, the Times newspaper designated him as “Lawyer of the Week”. The case attracted very considerable public interest.
The prosecution arose from an incident on 8 November 2011 at RAF Scampton, the base of the Royal Air Force Aerobatic Team (the Red Arrows). Five Hawk fast-jet aircraft, each piloted by a Red Arrows pilot, were stationary, with engines running, seconds before they were due for take off. One of the Hawks, XX177, suffered an inadvertent ejection, which threw its pilot, Flight Lieutenant Sean Cunningham (who flew as “Red 5”) into the air, still strapped into his Martin Baker ejection seat. Because two shackles jammed together, the main parachute failed to deploy, with the result that Flt. Lt. Cunningham fell to the ground, still strapped into the ejection seat, and was fatally injured.
Martin Baker admitted that it was in breach of Health and Safety at Work Act 1974, s.3(1), by failing to conduct its undertaking in relation to the Mark 10b ejection seat in a way that did not expose non-employees, including Flt. Lt. Cunningham, to risk.
Martin Baker also admitted that its breach was a substantial/significant cause of the death of Flt. Lt. Cunningham.
In opening the prosecution case at Lincoln Crown Court on 12th February 2018, Rex Tedd QC told the Court that investigations after the fatal incident revealed that there was a risk that shackles might jam, and thus the main parachute fail to deploy, if an ejection seat was activated when a Hawk aircraft was stationary on the ground (a state known as “zero/zero” conditions) or was travelling below about 50 knots, as would be the case during the early stages of take-off, or when decelerating after landing.
Rex Tedd QC said that queries about the ejection seats had been raised in the early 1990s, and that in response Martin Baker had sent warnings to the air forces of several foreign countries, but Martin Baker failed to send any warning to the Royal Air Force or Ministry of Defence.