Chinook families to attend High Court hearing as Government accused of using “Kafka-esque” legal technicality to avoid answering serious questions over crash cover-up

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Lawyers say families should not be denied justice because they only recently discovered they had been misled by MoD

The families of those killed in the RAF Chinook crash on the Mull of Kintyre have secured a court hearing in their bid for a Judicial Review, with a judge ordering legal arguments to be heard in open court.

The hearing, scheduled for July 14th at the High Court in London, will consider whether the families' application should proceed.

It comes a fortnight after the former Defence Secretary Sir Liam Fox delivered a letter to Downing Street, with the families, calling for a fresh review into the case, independent of the MoD - saying he believed a cover-up may have taken place.

Lawyers acting for the families say one of the principal arguments advanced by the Government to oppose the Judicial Review is that the case has been brought too late. Government lawyers claim it should have been brought in 2011 when the pilots were cleared.

The Chinook Justice Campaign says any move to time-bar the case would be a profound injustice, given that critical information concerning airworthiness and the circumstances leading up to the crash has only emerged gradually over many years.

Human rights lawyer Mark Stephens, who represents the families, said: "At the heart of this case is a deeply troubling proposition. The facts were hidden, families were kept apart and they were not told the truth. 

“The Government's position appears to be that families who were repeatedly misled and denied access to critical information should somehow have realised much earlier that they had grounds to challenge those decisions.

"They are effectively saying these families should have spotted that they were being misled. That they should have spotted a cover up over the circumstances surrounding the crash. That cannot be right.

"The law exists to provide justice, not to reward concealment or to allow public bodies to avoid scrutiny by relying on the passage of time."

He added: "If the state has failed to act with candour, if information has been withheld and people have been misdirected, it cannot then turn around and say: 'You are too late.'  That would be a travesty of justice piled on top of a cover up."

The families have also appealed directly to the new Defence Secretary Dan Jarvis. In a letter congratulating him on his appointment this week, they urge him to agree to a fresh inquiry and to set aside any arguments which would time bar the case.

The Judicial Review application into the government’s failure to order a public inquiry into the crash under Article 2 of the Human Rights Act was lodged at the High Court last year by a pro-bono legal team from Howard Kennedy LLP and Doughty Street Chambers.

It seeks a fresh examination of the circumstances surrounding the crash, including evidence concerning the airworthiness of the Chinook Mk2 helicopter which had been described as “positively dangerous” by the MoD’s own test pilots and engineers who refused to fly it. 

The families only discovered the aircraft had been grounded days before the crash, and that files had been locked away for 100 years, in a BBC documentary broadcast to coincide with the 30th anniversary in 2024. 

Today, Lord Bruce of Bennachie, who sat on Lord Philip’s Mull of Kintyre Review which cleared the pilots, has added his voice to calls for a fresh inquiry. 

In an opinion published in today’s Scotsman, he states: “The government’s lawyers should firmly set aside the argument that this case is time barred. There are ample precedents. 

“If there has been a cover-up it must be exposed. Telling bereaved families that they are unable to get to the truth because they’ve taken too long, would be piling injustice on top of a travesty of justice.”

Sorcha Eastwood MP, who leads the cross party group of parliamentarians supporting the case, said: "It is virtually unprecedented to have former ministers and members of previous review panels, like Sir Liam Fox, Baroness Liddell and Lord Bruce, saying that they themselves now believe they were misled and did not appreciate the extent of what had been withheld from their official review.

“They themselves have only discovered this recently thanks to evidence compiled by the campaign. So how on earth were the families meant to find out earlier?

"Reasonable people can only act on the information available to them. That is precisely why this case must be heard fully in court and the government must immediately stop trying to hide behind time limits and legal technicalities. The truth must come out.”

Pete Weatherby KC, from Hillsborough Law Now, the campaign group fighting for a new legal duty of candour on public bodies, said: “It is Kafka-esque to cover something up and then rely on the cover up to time bar bereaved families. The Government should withdraw this shameful argument and stop delaying Hillsborough Law. A statutory duty of candour would prevent cover ups of this kind.”

The Independent Public Advocate Cindy Butts, who joined the families for the 32nd anniversary commemorations in Lisburn earlier this month, said: "The experiences of the Chinook families demonstrate why bereaved families need a statutory duty of candour.

"No family should find themselves in the position of discovering decades later that information may not have been fully disclosed, only then to be told they have run out of time to seek justice. That cannot be how a fair and compassionate system operates."

Andy Tobias, son of Lieutenant Colonel John Tobias MBE, who died in the crash, said: "We have spent 32 years trying to understand why our loved ones were allowed to board an aircraft which evidence shows was not fit to fly.

"It is hard to comprehend that after decades of unanswered questions, the response could simply be: 'You should have discovered the truth sooner.'

"We hope the court will recognise that this case is not about delay. It is about whether truth and accountability can ever prevail when information has been hidden for so long."

The hearing will take place at the Royal Courts of Justice in London on 14 July.