Oral evidence: Beyond endurance? Military exercises and the duty of care, HC 598
Wednesday 25 November 2015
Ordered by the House of Commons to be published on 25 November 2015.
Written evidence from witnesses:
– Service Prosecuting Authority
– Ministry of Defence (MEX 0003)
– Ministry of Defence (MEX 0009)
Watch the meeting – Beyond endurance? Military exercises and the duty of care
Members present: Mrs Madeleine Moon (Chair); Richard Benyon; Mr James Gray; Johnny Mercer
Questions 1–139
Witness[es]: Andrew Cayley CMG QC, Director of Service Prosecutions, Dr David Snowball, Director of Field Operations, Health and Safety Executive, Air Marshal Richard Garwood CB CBE DFC RAF, Director General, Defence Safety Authority, Air Marshal Paul Evans CB RAF, Surgeon General, Major General Christopher Tickell CBE, Army Recruiting and Training Division, Air Commodore Warren James CBE RAF, Head of Training, Education, Skills, Recruiting and Resettlement, and Major General Simon Brooks-Ward CVO OBE TD VR, Deputy Commander Field Army, gave evidence.
Chair: Good morning, and welcome to the first evidence session for the Defence Sub-Committee inquiry into military exercises and the duty of care. The purpose of this inquiry is to examine the overarching policies, practices and guidance of the Ministry of Defence and the Armed Forces in respect of the health and safety of service personnel during training, exercises and selection events, and whether effective processes exist for capturing lessons from accidents and deaths that have occurred during such events. For the avoidance of any doubt, let me make it clear that we will not be looking at individual cases—and we do not want to hear evidence in relation to individual cases—or making any comment on them. We will also not be making any media statements until we publish our report.
Can I say good morning to our two first witnesses.
Dr Snowball: Good morning.
Andrew Cayley: Good morning.
Chair: We have a number of questions that we need to get through and I hope that you can give us clear and succinct replies.
Andrew Cayley: Madam Chair, may I just make one announcement? I know Robert Stewart. I led him in evidence in a trial in The Hague about 12 or 15 years ago. He is not a friend of mine but he knows of me and I know of him. We spent quite a bit of time preparing the evidence.
Mr Gray: Who is Robert Stewart?
Andrew Cayley: Bob Stewart.
Mr Gray: Oh Bob. He’s not here, so that’s all right.
Chair: Thank you for that information. Johnny Mercer will start the questioning.
Q1 Johnny Mercer: The general agreement between the MoD and the Health and Safety Executive is signed by the MoD’s permanent secretary and the Health and Safety Executive’s chief executive. Should it also be signed by a senior member of the Armed Forces to indicate their commitment to the duty of care to service personnel, in your view?
Dr Snowball: The MoD includes the uniformed services as well as the non-uniformed services, so if I said yes to that, I think you would need to look and see which other bits of the non-uniformed bits of the MoD would also wish to sign it, such as the DE&S or the Defence Science and Technology Laboratory and so forth; but it is a valid point. I think it would signal a commitment. At the minute it is done at equivalence level: the chief executive of the HSE and the second permanent secretary at the MoD sign it.
Q2 Johnny Mercer: There is routine liaison between the MoD and the Armed Forces at senior levels. How do you maintain that liaison at junior levels? In particular, across the top of the MoD there will clearly be quite a lot of interaction. When it comes to the interaction at intermediate and junior level where exercises are conducted and, generally, the body of risk is carried, what is the interaction like between the HSE and those levels of command?
Dr Snowball: The individual responsibility to investigate an incident or carry out an intervention with the MoD at inspector level will be managed through the line via a principal inspector and a team; but we do realise that for many of our staff, the first contact, or even routine contact, with the MoD often requires a sensible degree of assistance to get through that MoD architecture, if you like. So we have a sector responsibility—our MoD sector within the public services part of HSE, whose sole responsibility is to provide routine liaison, routine contact, to ease those sorts of challenges, and in things such as explaining how the structure of the organisation works, how the rank hierarchy works, who best to see, and so forth. So there is a routine front-line interface between the HSE and the relevant bits of the MoD as necessary, but behind that there is, if you like, a support mechanism, which enables people to see and chart their way through some of the challenges that that might create.
Q3 Johnny Mercer: And you are happy that that provides you with the reach, and a feel for what exactly is going on?
Dr Snowball: Yes, I am, because I have routine conversations and routine catch-up and liaison with the people in the sector and we routinely exchange notes, and that sort of thing.
Q4 Johnny Mercer: Great. The HSE says the Health and Safety at Work etc. Act is “flexible and responsive and does not set out to eliminate all risk but to reduce it so far as is reasonably practicable, thus requiring proportionate risk management”. Can you give us a couple of examples of how this concept of proportionate risk management could be applied in practice?
Dr Snowball: Yes. I will explain the two terms to begin with: hazard is the intrinsic capacity of something to create harm, and risk is the likelihood that that harm will arise. So a military vehicle, for example, is intrinsically hazardous—it could run you over; it could crush you—and the extent to which that is a risk very much depends on the degree of maintenance of the vehicle, the quality of the driver and the circumstances in which it is used. Proportionate risk management means taking precautions directly in proportion to the risk created, so that in the same way that you do not undermanage risk, you should not overmanage it either. The key phrase in the Health and Safety at Work etc. Act is “so far as is reasonably practicable”, which implies that flexibility and that degree of sense and common interpretation of what is reasonable.
Q5 Johnny Mercer: And that gives the user, or the owner of that risk, a bit of freedom of manoeuvre as to what they see as reasonable, what is acceptable and what is not?
Dr Snowball: Yes, and I would add the word “responsible” before “manoeuvre”. It is not an open invitation to take undue risk; equally, it is not an opportunity to hide behind it and say, “Risk-averse is the way to go.”
Johnny Mercer: Sure. Thank you very much.
Q6 Mr Gray: I do not know much about this—nothing new there. Crown immunity applies to the MoD and therefore you cannot enforce things because of it. I do not quite understand what Crown notice and Crown censures are and whether they apply to individuals in the Armed Services. If they do not, should they?
Dr Snowball: They do not apply to individuals. The Crown notice is an exact analogue for the non-Crown notice and the Crown censure’s closest analogue is a prosecution. To answer the question in terms of our regulatory approach to the military and to everybody else, our primary function in HSE is to look for evidence that an organisation has conceived of and properly applied risk management in a corporate way; therefore the conduct or behaviour of individuals within that framework is subject to the organisational standards, norms and expectations that it creates for its employees. We would never, for example, prosecute an individual, either in the civilian or the military world, if we thought that the primary failure—the primary, underlying reason for failure—lay at organisational level. There is one specific point to make, though, which is that military staff are still subject to individual responsibility under the Health and Safety at Work etc. Act, even though they are not exposed to Crown notices or Crown censures.
Q7 Mr Gray: If a company were not living up to the standards that you expect and if there were deaths as a result, would they not be guilty of corporate manslaughter?
Dr Snowball: They could be, yes.
Q8 Mr Gray: Does corporate manslaughter apply, because of Crown immunity, to the Army, Navy or Air Force?
Dr Snowball: The police take the lead on corporate manslaughter and gross negligence manslaughter, and the police and the CPS would look at that in relation to individual military deaths, yes.
Q9 Mr Gray: Has that ever occurred? Has there ever been a prosecution of the Army because systemic failings in the structure has resulted in Army deaths?
Dr Snowball: Not gross negligence manslaughter, no, but we have censured the military.
Q10 Mr Gray: Your answer as to why Crown immunity works and why you do not use Crown censure or Crown notices is that you do not do that for individuals; you look at systemic failings in businesses and the same would apply here. However, businesses are much more liable to civilian law and, basically, the Army, Navy and Air Force are not, so by what means can you enforce your recommendations? You can do it in civilian life, but the Armed Services rise above that—they get through that. By what means can you enforce your decisions?
Dr Snowball: As the Act is currently written, Crown notices and Crown censures are the only tools we have.
Q11 Mr Gray: But you do not use them.
Dr Snowball: No, we do. I beg your pardon. We serve Crown notices and we censure the military, but we have not censured individuals because we cannot censure individuals.
Q12 Mr Gray: I see. Can that not be changed? Shouldn’t it be changed?
Dr Snowball: I think that is for Parliament to decide, really. It would require—
Q13 Mr Gray: I know, but we are Parliament and we are asking you whether you think we should do.
Dr Snowball: My opinion is that if you want to achieve parity between the civilian and the military role, that would be a worthwhile thing to look at.
Q14 Mr Gray: Moving on, what are the most common ways in which the MoD or Armed Forces have systemic failings that result in deaths? What sort of things might the MoD or military do that would lead to a Crown censure or Crown notice being issued?
Dr Snowball: Very similar sorts of things to the mistakes and—
Mr Gray: Particularly as regards training, exercises and selection, which we are looking at—arduous training in particular.
Dr Snowball: There are three general areas I would talk about. In any well planned, well executed, well delivered piece of work—whether training or otherwise, but I will use the example of training—there are three basic concepts: prevent risk where you can, control residual risk that remains, and have arrangements to mitigate the consequences if something untoward happens. So a basic line of sight—prevention, control and mitigation—is the golden thread that runs through good risk management. At the interface between those things—between planning and implementing, and implementing and recovery—tends to be where organisations find out if their processes work, whether their people step up. That is the general area.
Q15 Mr Gray: Sorry to be rude and interrupt you, but without reference to any particular case, which we are avoiding, can you give me an example of the kind of thing that the Armed Services might have done which might lead to a notice of censure?
Dr Snowball: Failure to plan. Failure to monitor implementation of a plan. Failure put in appropriate arrangements to recover if the plan went wrong.
Q16 Mr Gray: That is still general; I want some ideas. What sort of thing? For example, a battalion taking part in initial training that results in a death—what sort of thing might happen?
Dr Snowball: I will give you a specific example because it is in the public record. There was a death about 10 years ago when an Army Cadet drowned in a training incident. We censured the MoD for that, because they had not planned it properly; they had not used the right equipment; they had not implemented the plan, which was flawed to start with; and their recovery left a lot to be desired. As a result, a 17-year-old Army Cadet died. It was that sort of planning and implementing arrangement—
Q17 Mr Gray: So you look at the outcome of the inquest, the coroner’s results and then you might conclude from that that something went wrong for which you would issue a censure.
Dr Snowball: Yes. Also, we had been involved leading up to the inquest in investigating it anyway—we were not separate from the inquest. It was a fatal accident inquiry in Scotland and we were actually involved in that in a parallel route.
Q18 Johnny Mercer: When you censure the Army, what does that mean?
Dr Snowball: There is a Cabinet Office procedure, which is a very choreographed process. We identify a failing that we think in civilian life would lead to a prosecution in the magistrates or Crown court. We tell the military what we are going to do. We invite them to a hearing. We deliver the censure to a senior military officer and they are obliged to tell their Minister what has happened. We issue a press release and the military issue a press release, so it is in the public domain, and we record that on a public database. It is a very choreographed process.
Q19 Johnny Mercer: And that’s it? In terms of holding an individual, group or organisation to account, that’s it—a letter of censure.
Dr Snowball: Not necessarily. There may be issues that we would want, in the routine course of business, to follow up. If we had censured the military for something and there was a serious systemic failing that we wanted to follow up, we would then go through one of the routes I have described, which would be that, at either senior or operational level, we would say, “We need to know that that’s happened now. We’ve censured you for some quite serious failings. We need to know the extent to which you have remedied those and we would like to see some evidence that you have done that.” In the same way that in the civilian world it does not end with the court case, fine and prosecution, we would do a routine follow-up to see to what extent the same applies.
Q20 Mr Gray: Let me be clear. At the moment, Captain Bloggins fails to do what he ought to be doing and there is a tragedy in some night exercise—someone falls off a cliff because of Captain Bloggins’s failures. At the moment, you would issue a general notice of censure to the Army, or to the MoD—
Dr Snowball: If the evidence was there, yes.
Mr Gray: —and, leaving aside internal consequences, from the point of view of the HSE, Captain Bloggins would not be touched.
Dr Snowball: Captain Bloggins could be prosecuted under the Health and Safety at Work etc. Act, but not under a Crown censure or equivalent arrangement.
Andrew Cayley: And Captain Bloggins could also be investigated by the service police and potentially prosecuted for gross negligence, manslaughter or a military offence.
Mr Gray: Right. So he is not exempt, but under the HSE—
Q21 Johnny Mercer: But that has never happened.
Andrew Cayley: Are you asking whether anyone has ever been prosecuted for a military offence or for gross negligence manslaughter?
Johnny Mercer: Yes.
Andrew Cayley: No, that is not correct. I said there have been prosecutions. Obviously you do not want to know about specific cases.
Mr Gray: Perhaps from years ago.
Andrew Cayley: My difficulty is that the Service Prosecuting Authority was formed in 2010. Prior to that, there were three separate service prosecuting authorities and the records of those authorities are not available electronically. The records of the Service Prosecuting Authority are available so we have gone through them from 2010 and I can tell you there have been seven prosecutions when there has been death or injury in training or adventurous training.
Q22 Johnny Mercer: By the service authority?
Andrew Cayley: By the Service Prosecuting Authority, yes. All those cases were referred. There were three different charges: flying dangerously causing loss of life, manslaughter by gross negligence, and neglect of duty resulting in death. There was a conviction for dangerous flying—three service personnel were killed and a number were injured. For all the other cases, the Service Prosecuting Authority charged negligently performing a duty, which is a military offence with a maximum penalty of two years’ imprisonment. In other words, when the service police had referred manslaughter gross negligence, the determination was made at the time that the evidence was not sufficient for that charge, so the military offence was charged instead. It is a serious charge. It is not manslaughter, but it is a serious military offence.
Johnny Mercer: Sure. Thank you.
Q23 Richard Benyon: Before I come on to Mr Cayley, I want to work this one to death, if you will allow me. Parliament, in its wisdom, Dr Snowball, included the words “so far as is reasonably practicable” If I am a factory manager making widgets, I can pretty easily see a line that I could cross and fall foul of the law if an accident happened. It is conceivable that an organisation like one of the Armed Services might use that phrase to assist a culture where, in certain circumstances, corners might be cut, because someone might say, “We are training for war.” A culture could build up. Is that fair or unfair?
Dr Snowball: I think it is unfair. The beauty of “so far as is reasonably practicable” is that it finds its own level, depending on the organisation. What is reasonably practicable for the military to do when it is organising realistic training for sending people to war is very different from what it is reasonable to do in a small factory making widgets and where the most serious thing to happen might be a machinery accident, for example. That “so far as is reasonable” threshold moves according to the level of risk that it is appropriate to manage and to take to produce the end results, which is this case would be fully trained, fit, healthy fighting staff. The same would apply in the police and fire services. They face similar challenges: how do you prepare people to rush into a burning building to rescue other people without making it so ineffectual or unrealistic that you are not preparing them for anything?
Q24 Chair: We must move on. To clarify, is there is a risk that individual commanding officers might interpret the definition of “reasonably practicable” differently?
Dr Snowball: Yes, there is.
Q25 Chair: So how do we overcome that?
Dr Snowball: A global answer would be that the organisation sets expectations and norms of behaviour, and that cultural expectation is the way to moderate the definition of “so far as is reasonably practicable”. A very risk-averse organisation would create a higher threshold for “so far as is reasonably practicable” and you would expect people to take no risk. Organisations such as the military are so unlike most civilian activities that the definition of how people take risk and holding people to account for taking risk receives a huge amount of attention, particularly things such as the duty holder concept to which Sir Charles Haddon-Cave referred in the Nimrod report. The way the organisation establishes those norms of behaviour is a good way of answering that question. For example, a good starting point for a staff training college course might be: what do we understand “so far as is reasonably practicable” to mean, and what exactly are the traps and pitfalls we might fall into if we over or under-interpret that, because our job is to provide a military capability?
Q26 Richard Benyon: Thank you. That is really useful. Mr Cayley, are you always notified of fatal or other significant training accidents?
Andrew Cayley: No, only if a case is referred to my authority by the service police or the commanding officer.
Q27 Richard Benyon: Do you think you should be, or is that probably the right level of engagement?
Andrew Cayley: I think I have the right level of involvement. As I explained, my responsibility is individual, personal criminal responsibility. There are other mechanisms in place to monitor these things. I am an independent prosecutor, so I only, essentially, address those cases that are referred to me in accordance with the Armed Forces Act. Serious cases, where there is a death or an injury, often do end up before me or with the Health and Safety Executive. So I think the current statutory framework is absolutely satisfactory.
Q28 Richard Benyon: I think you have answered my next question, which was how often persons are prosecuted under service law. You said there had been seven cases since 2010. I suppose the next question is, have there been many more on the cusp—where there has been a fine line between whether you prosecute or not, or has that been a fairly clear, binary issue?
Andrew Cayley: I think the statistics I have given you probably represent that.
Q29 Richard Benyon: Thank you. Are the service law arrangements for specialist military units the same as for other units? Do such units have any exemptions? With specialist units, we are talking about—
Andrew Cayley: I know what you are talking about: that the Special Forces are exempted. The Armed Forces Act, essentially, incorporates domestic criminal law into the service justice system, and there is also a group of special military offences that apply only to service people. There are no exemptions for any part of the Armed Forces under the Armed Forces Act in terms of the application of domestic criminal law and those military offences.
Q30 Chair: Mr Cayley, can we examine a little more the issue of service law? How are the different provisions of service law and administrative action, such as AGAI 67, brought to bear where there may have been a failure to properly follow a duty of care in training, exercise or selection events?
Andrew Cayley: As I have explained, I am responsible only for addressing criminal and military offences. The chain of command can also take administrative action against an individual. In civilian life, if an employee of a company had committed theft, and they were prosecuted for theft, the company that employed them could—whether or not they pleaded guilty, or were found guilty or not guilty—still take administrative action over their conduct. That is exactly the way it works in the Armed Forces. I can prosecute somebody for a criminal or military offence; they may plead guilty, and they may be found guilty or not guilty at a trial, but the chain of command can still take administrative action, and there are a number of sanctions available to it.
The chain of command is separately legally advised on that by other military lawyers, so that is not part of my organisation. A commanding officer would receive legal advice before taking administrative action and imposing an administrative sanction on somebody. So for the kinds of events we are talking about, yes, there could be both a prosecution for a criminal or a military offence, and administrative action taken against somebody.
Q31 Chair: Is there any tension between those two different routes?
Andrew Cayley: I don’t think so, at least in terms of my knowledge—as I say, I do not administer that scheme, but I don’t think there is any at all. As you have identified, there is a different standard of proof. Within the military criminal justice system, a board, which is the equivalent of a jury, has to be sure beyond reasonable doubt. Within the administrative sanctions system, it is decided on the balance of probabilities—the civil law standard.
Q32 Chair: How do you ensure that someone does not go to the lower standard of punishment—of company action or AGAI 67—when it should in fact have come to you? What are the safeguards to ensure that the appropriate level of prosecution or punishment is undertaken?
Andrew Cayley: I understand your question. I don’t want to be long-winded about this, but let me identify for you how a case can get to me. In essence, when the service police investigate an alleged offence and it is what is called a schedule 2 offence within the Armed Forces Act—schedule 2 offences are all serious matters, including manslaughter—that has to come to me. It is a statutory obligation on the service police: they have to send that case to me.
If it is a non-schedule 2 offence—I will not give you all the complexities of that—it would go to the commanding officer of the individual who had allegedly committed the offence. The commanding officer will get legal advice from a military lawyer—in the Navy, a naval lawyer; in the Air Force, an Air Force lawyer, and in the Army, an Army lawyer. The commanding officer will be advised and that legal adviser will advise the commanding officer that he might deal with the offence summarily—summary dealing. I know you have had a lot of dealing with the forces and you understand that. A commanding officer has the authority to deal with lesser offences, but if the lawyer who is advising says, “Look, even though this is not a schedule 2 offence, it is sufficiently serious that I think you should go to the director of the Service Prosecuting Authority,” that is what happens.
There are a lot of safeguards in the system. The commanding officer is receiving independent legal advice. He is not making these decisions by himself. It would come to me. I am assured that the safety mechanisms work properly. That is why the Armed Forces Act and the SPA were created—to make sure that things were being properly dealt with.
Q33 Chair: Have there been occasions where that has happened—where the person giving legal advice to the commanding officer has said, “No, I think this needs to go to the service prosecutor”?
Andrew Cayley: I cannot give you any examples off the top of my head, but I can certainly look into that if you would like me to.
Q34 Chair: That would be very helpful, thank you very much. Can service personnel appeal against a commanding officer’s administrative action?
Andrew Cayley: I do not know the answer to that question.
Q35 Chair: Thank you. Can you explain to us the different standards of proof—“beyond reasonable doubt” and “on the balance of probability”? Do they complicate things? How are they weighed in a judgment, both by the commanding officer, if you have any insight into that, and by the Service Prosecuting Authority?
Andrew Cayley: I do not have any insight into how a commanding officer would weigh up a balance of probabilities. I can advise you that the commanding officer is advised by a lawyer. Even though a lay person is making the decision, somebody who is legally qualified and experienced is giving the commanding officer advice on the evidence available and explaining exactly what the balance of probability means.
It is quite difficult to explain, as I think you know. The standard of criminal proof is much easier to understand. You need to be satisfied beyond reasonable doubt. In terms of cases dealt with at the court martial level, in a case like this, a judge advocate would advise the board—the equivalent of a jury—on the standard and burden of proof, in exactly the same way as happens in a Crown court. He would explain it in the way that I have just explained it: “Members of the board, you need to be sure that Captain Bloggins committed this crime.” He would also explain the elements of the crime.
If the commanding officer was dealing with a military offence under the Armed Forces Act summarily, he would, again, be advised by a qualified legal person who would be giving him written advice on the charge. Commanding officers go on courses. When they become a commanding officer, they are trained by lawyers on what “beyond reasonable doubt” means. They are not doing this as a lay person, with no training or advice. They get plenty of training and advice.
Q36 Chair: What are the different levels of outcome, of punishment, that could be issued? Is it a lower level of punishment? Can you give us examples?
Andrew Cayley: Yes, I can set all this out for you in writing. In essence, a commanding officer has quite limited powers of punishment. He can award limited periods of detention or a limited fine. I can give you all these figures. In respect of a court martial, that has all the powers of a Crown court, up to and including life imprisonment.
Q37 Chair: Can we be clear: are records kept of the administrative action, and where cases might relate to training and exercise incidents?
Andrew Cayley: You would need to ask the chain of command, because I do not administer that scheme, but I am sure that they do keep records of administrative action. Units must keep them, and that must be centrally compiled, but again if you ask the chain of command for the three separate services—because they all administer the same scheme separately—they will have those records.
Q38 Chair: That is most helpful. Can you set out how service law and the duty holder concept are related?
Andrew Cayley: Yes, I can. As I have already explained, the Armed Forces Act is in large part domestic criminal law together with military offences, so there is absolutely no difference between a charge of gross negligence manslaughter brought in the service justice system, and one in the civilian justice system. It would be dealt with in exactly the same way; there is no difference.
Q39 Chair: How do the special provisions of service law change the duty holder concept from that in civil and criminal law, and does one take precedence over the other? For example, in the investigation of a training fatality, which has precedence?
Andrew Cayley: In essence, there is no precedence of one over the other, because the Armed Forces Act includes domestic criminal offences and also special service—if you like, military—offences. The only difference between the civilian system and the service justice system is that there are these military offences. The one that is most obvious, in terms of what we are talking about, is neglect of duty, which is a military offence, and which the service police would have in mind if they were investigating an allegation of gross negligence manslaughter. They would also have that military special offence in their mind. Indeed, if the case were referred to me—if it was gross negligence manslaughter, it would have to be—we would consider both manslaughter and the offence of neglect of duty, which does not exist in the civilian world. I emphasise that neglect of duty carries a maximum penalty of up to two years’ imprisonment; that would apply in the kinds of examples that you are talking about.
Q40 Chair: Dr Snowball, do you want to come in? I saw you making notes and wondered whether you wanted to comment.
Dr Snowball: On the duty holder concept, that established a very interesting and clean hierarchy for responsibility. My only comment is about the extent to which sometimes that might leapfrog a few layers of rank within the military. The operational duty holder, the strategic duty holder and the front-line duty holder, the delivery duty holder—that is three layers, but the rank system in the military of course spans many more layers than that. I think that is a very interesting development.
Andrew Cayley: We would do all the frontline, and you would deal with the others under the health and safety—
Dr Snowball: Yes.
Q41 Chair: Mr Cayley, were you consulted at all on the design and application of the duty holder concept?
Andrew Cayley: No.
Q42 Chair: Do you think you should have been?
Andrew Cayley: I don’t think so, because I think my responsibility is different. The Armed Forces Act very clearly states that I am responsible for the prosecution of service personnel, and other persons who are subject to service law, for criminal or military offences, so it is not part of my role as the Director of Service Prosecutions.
Q43 Chair: In your opinion, how well are duty holders versed in the legal aspects of risk assessment and their responsibility? Do you have any role in making sure that that—
Andrew Cayley: No, I have no role in that.
Q44 Chair: Who would undertake that role?
Dr Snowball: I think it would be a part of the general training that the military would give all their front-line supervisors and commanders. You could argue that the essence of good planning, good training and good delivery in the military is actually a bundled version of risk assessment. If you ask an operational front-line commander, “What is it you do?”, one of the things they would probably say is, “I assess the risk to my platoon, my soldiers, and I take action accordingly.” Sometimes a particular interpretation is put on risk assessment, but it is no more and no less than well-planned, well-executed, competent activity.
Q45 Chair: I agree with that. We risk assess every day we walk out of the front door.
Dr Snowball: We do indeed.
Chair: You are risk assessing, every step you take.
Dr Snowball: You are doing it now.
Chair: Indeed.
Mr Gray: This isn’t very risky.
Chair: There is reputational risk, I suppose.
Q46 Richard Benyon: This is probably more a question for the next panel, but when I was a platoon commander, admin was not something that should have troubled me; I was supposed to be doing planning, welfare and all those other things. The platoon sergeant’s responsibility was administration, and I suspect in those days—the 1980s—I probably relied on him to say, “Boss, I wouldn’t do that. It’s a bit dangerous.” Can you say whether that has changed? It should be something that everybody does. It should have been something I was much more conscious of doing then, when saying, “We’re doing some live firing today.” In those days, I would have let my platoon sergeant do a lot of the organisational stuff. Of course, if I saw something going wrong, I would say, but there was very much a culture in those days that it was the non-commissioner role to do that. Does that ring true in anything you have seen?
Dr Snowball: Two things: a piece of paper never saved anybody’s life; and one of the greatest disservices done to risk assessment and risk management in general, let alone the military, is to over-process and over-bureaucratise. What you described to me sounds like looking at the outcome and saying, “Was it actively carried out safely? Answer: yes.” How much of that do we need to codify?
The challenge for anybody whose day-to-day business is effective implementation, effective planning or good risk assessment is to minimise the paperwork to the core that is absolutely necessary to get the task done. Unfortunately, a general characteristic across industry in general is to assume that if something is written down, it is happening. The opposite is often the case, I’m afraid, which is why, in terms of routine involvement with the HSE, one of the things we drill into our inspectors is, “It isn’t what’s written down; it’s the effect of what’s written down. Check that, and then decide if the paperwork is faulty. Don’t check on the paperwork and then see what’s happening.”
Q47 Chair: Mr Cayley, do you have any contact with families to explain decisions as to whether or not to prosecute? Do you take any role in advising them?
Andrew Cayley: We do. There has been a massive change recently in the law. There is an EU directive on the treatment of victims that also applies to families. Particularly where the victim is deceased, we do liaise with the family and explain to them whether we are prosecuting or not. There is a right of review now, so my decisions can be reviewed, either internally with other lawyers—or we send it out to the criminal bar, to a specialist barrister who can advise us if our decision is challenged.
Q48 Johnny Mercer: Mr Cayley, over what time period were the seven prosecutions you described?
Andrew Cayley: That is from 2011 to 2015.
Q49 Johnny Mercer: Right. One of those breached the threshold for a civilian offence. Am I right?
Andrew Cayley: No. They are all military offences, actually. Sorry; I didn’t want to confuse you. Two of them were referred upon the basis of gross negligence manslaughter. In the end, we charged a military offence—negligently performing a duty.
Q50 Johnny Mercer: Essentially, since 1 January 2000, 125 people have lost their lives. Not a single one has been prosecuted under a civilian offence. Is that correct?
Andrew Cayley: When I saw those figures and the distinction between the two—it was the first time I had seen them—I was surprised, as you are, but I can only talk about the cases that have been referred to me. I cannot comment on cases that have not been referred, for whatever reason, to the SPA.
Q51 Johnny Mercer: In a previous answer, you spoke about the families. We go through these reports and see phrases like “gross negligence”; it would be fair to take a view on how it looks to our service personnel’s families that not a single one of those cases has resulted in a civilian prosecution. How does that look, in your view, to the families?
Andrew Cayley: We need to be clear about this. There has not been any conviction for a criminal offence, but a number of people have been convicted of a fairly serious military offence: neglect of duty.
Q52 Johnny Mercer: But it is still a military offence; it is not a civil offence.
Andrew Cayley: It is. It is not gross negligence manslaughter. I feel I need to be careful in what I say, because I am an independent prosecutor. If you are asking me, looking at the figures, is there a disparity, yes. Why is that? I don’t know, because I have not read the files that did not reach my office. As for the files that are supposed to reach my office, they do, under the legislation.
Q53 Johnny Mercer: Does that not mean that there is some sort of endemic problem here? We are reading these reports that indicate serious failings that are resulting in the loss of life, and no one is being prosecuted.
Andrew Cayley: Not no one. Individuals have been prosecuted—
Q54 Johnny Mercer: Under a civilian offence.
Andrew Cayley: For the offence of gross negligence manslaughter.
Q55 Johnny Mercer: Surely that must trigger something: “Hang on a second, are we are not prosecuting these people well enough?” Something is falling down. Then there is the subsequent deterrence to other people. If you are a commander and you are taking a bit of a tokenistic approach to health and safety, and you see all these people are dying and that no one is actually being prosecuted—you know, “Hey ho.”
Andrew Cayley: I do not mean to be unhelpful, Mr Mercer, but I would need to know what those other cases were about. There may well have been service inquiries in respect of those other cases, but what I can tell you is that I am assured that if those particular episodes looked as if they gave rise to serious criminal allegations, they would find their way to my office.
Q56 Johnny Mercer: But still, none of them has resulted in a conviction. Let us take the example of the wife of a serviceman who has died as the result of gross negligence—“We have trained him in the military, and trained him properly, but because of gross negligence he has died”—it will not be good enough to say to her that there has been some service censure, or someone has been AGAIed. There seems to be a lack of understanding. We need to hold people to account, not only to deter future lax application of health and safety, but to give some sort of closure to the family: “Actually, yes, this has happened, and these individuals have been properly addressed.”
Andrew Cayley: I can understand that families would be concerned—I completely accept that; but I think you need to make sure in this environment that we are talking about, which is very different to a civilian environment, that we are actually applying the right kind of censure to people. Yes, if it gives rise to consideration of a serious criminal offence or a military offence, that has to be considered, but it is a different environment from the civilian environment. You know that. I do not need to explain that.
Q57 Johnny Mercer: So, finally, in answer to “Why has no one been prosecuted on a civilian offence and convicted?”, would you say “That’s a surprise; I don’t know”?
Andrew Cayley: It is a surprise. It is a surprising figure, but I cannot give you specifics because I do not know about those other cases. I cannot say to you that the evidence in those other cases would give rise to a criminal prosecution, or a prosecution for a military offence, or that it would not, because I do not know the contents. I do not know the subject matter, or the evidence, so I cannot really give you a view on that.
Q58 Chair: Dr Snowball, have you ever come across a case where you have felt that there should have been a civilian prosecution but one has not taken place?
Dr Snowball: No. I have delivered three censures to the military in the last 10 years—two for fatalities involving vehicles, one for a death involving a Cadet—and I thought in each of those cases the responsibility lay corporately with the relevant bit of the MoD at the time. I thought that the investigations that we did surfaced the reasons for that. I thought we identified where individuals were part of a system and the system had let them down, or the system had not been right in the first place.
I think it was very clear to me that the interface between the conception, the planning and the implementation and so on in each of those cases pointed very strongly towards corporate failings that amplified the failings of individuals in the system, albeit that those individual failings were not sufficient to get to the stage that you just asked about.
Q59 Chair: There is always a need to have different levels of learning; you can get corporate learning, but are you confident that learning moves down the military to lower levels? Have you any comment to make on that—whether or not the lessons that are learned corporately actually filter down into the whole of the organisation?
Dr Snowball: There is a very good question there, Chair, about the extent to which we follow up on the routine censures or the routine notices that we apply to the military. One of the things that this inquiry has prompted us to think about is whether we have been as thorough and as diligent as we might be in drilling down to some of the aftermath of some of these events. The real evidence of whether an organisation fully gets health and safety is not in the conversations with regulators, where they show them their homework and their homework gets marked. It is actually seeing the activity in the round. It is having a chance to dip in and see whether the internal regulators are doing a good job, and how they do all of that. An honest response to that would be, “We can do better.” An honest response to the questions you have been asking us is that we will consider how better we do that in future.
Q60 Chair: The Committee is planning to observe an exercise and talk to people. Does the HSE ever do that?
Dr Snowball: Not routinely. I have to say that the bulk of our interaction with the military is on a reactive basis. It may seem odd to say that in the context of the conversation we have been having, but there are more dangerous activities outside the military to which we devote proactive attention: construction, waste and recycling, heavy manufacturing. If the military does not figure on that priority list, it is not because we do not think the military are having serious accidents. Unfortunately, it is because other sectors of industry are having more serious accidents, and we devote more of our time to proactive inspection there.
Q61 Mr Gray: I want to ensure that I have the headline figures right; I have not been listening as carefully as I should have been. Am I right, broadly speaking, following Johnny Mercer’s question, that in the last 10 years there have been 121 deaths in training exercise? HSE has produced three censures.
Dr Snowball: Fifteen. I have done three.
Q62 Mr Gray: Okay. There have been 15, of which you have done three. And there have been seven—
Andrew Cayley: Seven prosecutions for military offences.
Q63 Mr Gray: Roughly speaking, 20 outcomes, as it were.
Andrew Cayley: What we do not know, which you will obviously need to ask others about, is the administrative action that was taken against them. That may well have happened.
Q64 Mr Gray: But as far as both you gentlemen are concerned, broadly speaking, 20 cases have been prosecuted one way or another. That means that 100 have not.
Andrew Cayley: But only since 2011 for the SPA, so not the last 10 years; for the last four years. I cannot give you the statistics for the period; I think you are looking at a 15-year period, are you not?
Johnny Mercer: Yes.
Andrew Cayley: So, from 2000. You are looking at 15 years.
Q65 Mr Gray: The figures don’t quite match.
Andrew Cayley: I can unfortunately give you information for only five years.
Q66 Mr Gray: Even so, broadly speaking, assuming that the sums work out in a similar way, there will be a very large number of these deaths for which there have been no consequences at all.
Andrew Cayley: Again, I would not say that, because we just don’t know. There may have been administrative action. That may have been taken against people.
Q67 Mr Gray: But you cannot deal with that. As far as you are both concerned, there would be a very large number of 121 for which there has been no consequence.
Dr Snowball: Some of those, I’m afraid, would have happened overseas, and we would not be able to investigate those if they are outside the UK baseline of health and safety at work.
Q68 Mr Gray: It seems absolutely bizarre. If you are injured in the British services serving in Germany, that does seem odd. All right, my understanding of the headline is correct. Broadly, there have been quite a large number of these service deaths under exercise and training for which no consequence has been suffered.
Andrew Cayley: Can I clarify that? I do not want to leave the impression that there are no consequences at all, because we do not know that. What we can say is—I can talk only of the past five years—that of the people you are talking about, in the past five years, there have been seven prosecutions for criminal or military offences.
Q69 Johnny Mercer: Forgive me, but I think what Mr Gray is hinting at is that we are aware, as are my colleagues, that we are looking at some incidents where something has happened, a recommendation has been put in place, and that has not been followed through, and more people have died.
Andrew Cayley: In terms of changing practice.
Q70 Johnny Mercer: Not only changing practice. There is obviously an element of that, but there is also an element of deterrence. If you do not do what you have been trained and asked to do—look after your men or women—you will be subject to a civilian prosecution, as anybody working in a civilian industry would. You are accountable. Administrative action means very little to anybody outside the military. I know you understand that. Within a civilian company, if you were to behave in the way that some commanders have, which has resulted in the death of our servicemen and women, you would be prosecuted. It appears that that is not the case in the military.
Andrew Cayley: Please don’t get me wrong, I am not trying to protect the system.
Johnny Mercer: Absolutely.
Andrew Cayley: I am a prosecutor. I can only tell you about what I know; I cannot tell you things beyond my knowledge. My statutory function does not include the administrative process that we are talking, but I understand your concern.
Q71 Chair: Mr Cayley, can I check something? You said that you have engagement with families when there is a service prosecution decision on whether to proceed or not. Are you aware whether there is the same liaison with families when there is administrative action?
Andrew Cayley: Off the top of my head I don’t think so, but I do not know. You would have to check with the chain of command.
Q72 Chair: I will make a note to ask our later witnesses. From hearing each other’s responses and the questions, is there anything that you would particularly like to bring to the notice of the Committee or to re-emphasise in your evidence?
Dr Snowball: The thing that comes across quite strongly to me is that the nature of health and safety legislation in the UK allows people to set the standard according to risk, so a fundamental appreciation of what proportional risk management means is absolutely integral to the military—who, by the way, as we all know, put people in harm’s way deliberately. That is a really high responsibility, with which comes a huge accountability in comparison. It strikes me, with the sort of question that we have been talking about this morning, that we have to recognise that they start from a different place from an awful lot of other organisations, but the core of what they do well should be good planning, good implementation and good mitigation. Those are the key ingredients of an effective, well structured, and well health and safety-managed military.
Andrew Cayley: Nothing from me. Thank you, Chair.
Chair: Thank you both for your evidence and for the work you do.
Examination of Witnesses
Witnesses: Air Marshal Richard Garwood CB CBE DFC RAF, Director General, Defence Safety Authority, Air Marshal Paul Evans CB RAF, Surgeon General, Major General Christopher Tickell CBE, Army Recruiting and Training Division, Air Commodore Warren James CBE RAF, Head of Training, Education, Skills, Recruiting and Resettlement, and Major General Simon Brooks-Ward CVO OBE TD VR, Deputy Commander Field Army, gave evidence.
Chair: Good morning. May I ask you to individually identify yourselves and your areas of responsibility and expertise? Air Commodore, could we start with you?
Air Commodore James: Yes, hello. I am Air Commodore Warren James. I am head of Training, Education, Skills, Recruiting and Resettlement—it is a policy branch—for Chief of Defence people in the Ministry of Defence. I have a previous background in training.
Major General Brooks-Ward: Major General Simon Brooks-Ward. I am Deputy Commander of the Field Army and the Senior Army Reservist.
Air Marshal Garwood: Air Marshal Dick Garwood., Director General of the Defence Safety Authority at the MoD.
Air Marshal Evans: Air Marshal Paul Evans, Surgeon General.
Major General Tickell: Major General Chris Tickell, General Officer Commanding of the Army’s Recruiting and Training Division, so I am responsible for all Army training, individual and collective.
Chair: At the beginning of the session, I emphasised that we are looking particularly at the health and safety of service personnel during training, exercise and selection events and whether effective processes exist for capturing lessons from accidents and deaths that have occurred during such events. We are not looking at individual cases. I wanted to reiterate that before we start.
Q73 Mr Gray: Air Marshal Garwood, may I start with a general question about the relationship between the MoD and the HSE? That comes under a general agreement, which is signed, I think I’m right in saying, by the second permanent under-secretary and the chief executive of the HSE. Should there not be a military co-signatory to that?
Air Marshal Garwood: It has historically been the permanent under-secretary, because he has been the Department’s senior official for safety, and of course, he sits on the Defence Board. In terms of good safety governance, we need an official at the highest level of Defence, so it really needs to be a Defence Board member. The document that you refer to is one that details the administrative relationship and responsibilities between the HSE and the Ministry of Defence, so it is probably not an appropriate vehicle—
Q74 Mr Gray: I recognise that, but would it not be sensible to have military sign-off? It is the military who are potentially taking these risks in training. Would it not be sensible to have military involvement alongside the permanent secretary?
Air Marshal Garwood: I think quite the reverse. I think it is healthy to have the permanent under-secretary hold the military to account in that respect. Indeed, the permanent under-secretary takes part in the holding-to-account sessions of the TLBs and the commands, of which, as head of the Defence Safety Authority, I feed him information on a monthly basis to challenge the single services. So I believe that there is an element of health in having the PUS as head of safety and therefore logically signing off that document.
Q75 Mr Gray: Moving on to the figures that we requested and have been given about individual deaths in the three services during training, and particularly arduous training, may I ask you just a couple of questions? First of all, there is no breakdown between Regular training and Reserve—incidentally, I want to declare an interest. Major General, you may not remember this, but last time we met, we were manoeuvring a 25-pounder on the Salisbury plain. We were both gunners in the HAC together.
Major General Brooks-Ward: Good reminder—I remember.
Mr Gray: So this might be one for you. Can these figures reasonably be broken down between the Reserves and the Regular forces?
Major General Tickell: From the Army’s point of view, of the 88, 17 were Reservists.
Q76 Mr Gray: Right. It would be quite useful perhaps, in that case, to have them broken down in terms of units as well, in the same way as you have done for the Regular forces. Perhaps that is something that you could provide in the other two services as well. In terms of the Army, you have given us a very good breakdown with regard to individual regiments and corps. It might be helpful to know which of them were Regulars and which were Reserves, so we can see if any pattern emerges.
One thing you have not included in the figures—I would be interested to know whether you feel that this could usefully be done—is information for specialist military units, except for those who are sharp-eyed and see words such as Hereford cropping up and can read between the lines. But by and large, you have not given us any particular breakdown with regard to specialist military units. Would that not be possible?
Air Marshal Garwood: I gather that is being worked on this morning, so I suggest that comes to you in a written response. Of course, it will need to look at the definition of which type of activity is conducted by the specialist military units, but I was told this morning that that work will follow to the Committee.
Q77 Mr Gray: That would be helpful, thank you. Sticking with specialist military units, and bearing in mind that we do not discuss some of these things in too much detail, there are parts of arduous training for specialist military units that are more arduous than for the ordinary services. Should there be a separate joint service publication for that particular type of training? At the moment, it comes under the same JSP as ordinary training. Should we not have a specialist JSP for that kind of extreme, arduous training?
Air Marshal Garwood: I believe there should be one document covering all, which indeed there is. As you rightly say, training has varying degrees of severity. In that case, it comes down to the risk assessment done by commanders, who should look at the type of activity and put mitigation in place accordingly. If you have arduous training conducted by a specialist military unit, you are clearly pushing people a lot further than you would, for instance, on an Air Training Corps or Army Cadet hike. The risk assessment would therefore look at better mitigation. If, for instance, you are sending people over the top of a mountain range, you would not rely on mobile phone coverage; you would use proper radios and have proper medical cover, et cetera. For me, it is down to the risk assessments, stemming from the common document. I can see no reason why, in the total force concept, we would have a series of documents especially for Reserves. I think that would probably work against.
Q78 Mr Gray: Not Reserves. I am talking about specialists.
Air Commodore James: Yes, the design of the training policy covers Reserves and Regulars, regardless of whether it is a specialist military unit. What changes is how the course is designed for that particular cohort. Your framework documents actually allow for the ability to do that and then introduce more robust training, with an increased risk appetite and the increased risk mitigation that goes with it—you tailor accordingly. The JSP enables anything across that range.
Q79 Mr Gray: Let us do this from a different angle. Of all the things we do in all three Armed Services in terms of training, what are the most dangerous?
Air Marshal Garwood: I can give you the type of activity that would most likely result in a death.
Q80 Mr Gray: Not all 121, but I would be interested to know what sorts of things they were doing.
Air Marshal Garwood: Around 31% of those deaths happen in MT-style accidents, not necessarily from driving but from vehicle crushings, et cetera. Probably one of the most hazardous activities is around our vehicles.
Q81 Mr Gray: But in arduous training—the sort of thing that we are looking at—what are the kinds of things that would be viewed as being the most hazardous?
Major General Tickell: It is fair to say that adventurous training, if you look at the statistics, is self-evidently dangerous, but it is governed by exactly the same processes and policy as anything else.
Q82 Mr Gray: So of 121 perhaps 30% have been vehicle crushings and other MT driving accidents. What sort of percentage would be adventurous training?
Major General Tickell: From the Army perspective, 15 out of the 88.
Q83 Mr Gray: That is roughly—
Major General Tickell: 17%.
Mr Gray: Okay. So we are roughly more than half with the MT and adventurous training, and 40%-odd are therefore other forms of training. Of that 40%-odd, which bits are the most dangerous? Leaving aside vehicles crushings, vehicle accidents and adventurous training, which we can understand, of the balance—arduous training for war fighting—what are the most dangerous bits?
Major General Tickell: Again, from the Army perspective, there were nine deaths from live firing. I can go through them all.
Q84 Mr Gray: Accidents on the range?
Major General Tickell: Accidents on the range, et cetera, but there is a pretty wide spread, from an individual drowning through to parachuting accidents and other activities. There is nothing really beyond the specific areas I described.
Q85 Mr Gray: Sticking with that, I have one last question. You might find this one difficult to answer. The variety of deaths that you describe came about as a result of a wide variety of different errors, some by the individual concerned and some no doubt by sub-unit commanders. How many of them would you say are culpable in systemic terms? How many of them would you say—we are going to discount what you say, because you are probably being defensive—could be culpable against the system, as it were? How many of them could have been avoided if the system had been different? That might be another way of looking at it.
Major General Tickell: If I may, I can talk about what has gone on in the division since I have been in command, which is just over two years. Inevitably, there have been a number of incidents, although happily very few. Every incident is investigated, as you know, and we may want to go into that in more detail in due course. That investigation will apportion blame if that is applicable. What I can say is that during my time, I have removed one independent sub-unit commander from command as a result of a safety incident. I will not go into any more detail, but we have done that.
Of course, at a lower level in terms of failing to deliver the requisite duty of care to our trainees, whether it be in phase 1 initial training or phase 2 training, there are occasional incidents and absolutely people are removed from command if they are culpable. The mechanisms are absolutely there, but clearly you have to weigh up whether people have wantonly disregarded the policy or whether human factors have played their part. That is, as you would understand, what we need to do.
Air Marshal Garwood: I think it would be fair to say that, historically, the accountability was less well defined. This came out of the Nimrod review, as part of which we put into place the duty holder concept, which I am sure you will come to later, but that is relatively new. In aviation across all three services you can date this back to about 2011, and in the rest of our activity, it is dated around—the JSP certainly came out in November 2013.
Mr Gray: We are coming back to duty holding in a moment.
Air Marshal Garwood: Yes. That is how we now define the true accountability for injury or death—through the duty holder concept, which is new.
Q86 Mr Gray: Can I just ask you, Major General, second to last, about arduous training? Of the 121, how many of those deaths would be attributable to arduous exercises or training?
Major General Tickell: Forgive me, but it slightly depends on what your definition of arduous is, and in what context.
Mr Gray: We do not want to go into any individual cases, but in terms of either initial training of new recruits or—in my old regiment, going back 30 or 40 years, which Major General Brooks-Ward and I were in together, our bit was the soft bit, but the hard bit used to go out on difficult, tough training exercises. The gun troop did not, but the other half of our regiment did. We took it easy, didn’t we, Simon?
Major General Brooks-Ward: I could not possibly comment.
Mr Gray: But you know the kind of thing I mean. Without going into too much detail, to what degree is arduous training or exercise dangerous? To what degree should we be doing something about making them less dangerous?
Major General Tickell: I think absolutely all the systems in place make it less dangerous, because there is this dynamic risk assessment process in play. Once you have absolutely nailed the risk assessment before an activity happens, there is a requirement to dynamically risk assess during that activity. Therefore that means that it is beholden on the commander, the DDH—duty delivery holder—to reduce the risk if he feels that either the training audience or the environmental conditions are taking it outwith the boundaries that are safe. That absolutely plays into the duty holder construct, which we now enjoy.
Q87 Mr Gray: So heat and cold, and that kind of thing?
Major General Tickell: Yes. I can give you examples from within my division as to how we play environmental conditions and, frankly, the start state of the training audience in order to play tunes with what our output standard will be. That is what I expect my commanders to do, and as the ODH—official duty holder—for what goes on in my division, that is what I am responsible for, ultimately to CGS, to make sure that we are governing it in a safe way.
Q88 Mr Gray: Finally, Surgeon General, do you think there are the correct medical supplies and safeguards in place in these arduous training exercises to minimise risks and to ensure that where incidents occur, they are sorted out as quickly and as well as they possibly can be? You are going to say yes, but I want you to try to avoid just saying yes.
Air Marshal Evans: I would say yes. I think the policy is right and I think I would look at that in two ways in terms of medical policy. One would be the preliminary medicals or assessments that are done to see that individuals are fit to do whatever level of training is proposed. That will differ according to the level, depending on—arduous is the word used before. That is one component and I am very content that that is sound. One would expect that to be followed in any exercise format that is taking place.
The other area is more specifically environmental things: obviously heat is one, cold is another and noise is another. These elements are all things that are covered very well in policy. I do not know whether as part of the Committee you have seen JSP 539, but that is a very comprehensive document that covers, from both the commander’s and the medical officer’s perspective, the sort of questions that one should be asking in order to formulate that risk assessment that was mentioned earlier.
Q89 Mr Gray: I am confident that our learned advisers have seen JSP 539, but I have to admit that I personally have not.
Air Marshal Evans: It is quite a refreshing read. Of course, I read it again in the last 48 hours and it is quite detailed.
Mr Gray: I apologise, because I have to go and see the Moderator of the Church of Scotland, who is taking a service. So I am leaving now—forgive me.
Q90 Chair: That is fine. Before we move on to the duty holder concept, Can I come back to you, Air Marshal Evans? We talk a lot about the duty of the people who are setting up the exercises and the risk assessments undertaken across the military. What about the duty of the individual—is that spelt out anywhere in terms of their need to protect themselves? For example, if they are given water because they are expected to keep themselves hydrated, and their duty to report illness or feeling unwell or areas of pain. Is that set out anywhere? How much is that emphasised—the individual’s personal responsibility as opposed to the military’s overarching responsibility?
Air Marshal Evans: I think it is, obviously depending on the circumstance, but if we talk about heat and cold there is quite clear instruction given as part of the pre-briefing for the commanders to indicate to individuals, first, that they should be fit and report any sudden change in fitness. Obviously, as I said earlier on, medicals may be done several months before an activity is taken, and in certain circumstances that is quite acceptable, but clearly if you have flu or other illnesses, these may predispose to some of the conditions that we are considering here. So it is quite important that, in that pre-briefing, individuals are given every encouragement to come forward and, indeed, in some situations they have to self-declare that they are still fully fit before they undertake the activity.
Q91 Chair: How long before the exercise does that pre-briefing take place? Is that the same day, the day before or a week or two months before?
Air Marshal Evans: It varies, depending on the exercise. My colleagues here will give you a more definitive answer to that.
Major General Tickell: If a unit or sub-unit is deploying to Kenya, for instance, the pre-briefings will happen well in advance, but that does not mean that there will not be a refresher all the way through up until the moment they deploy and then when they do deploy, because if you are suffering from a heat or cold injury, actually the individual may not be the best person to spot it and, therefore, again you are beholden on the chain of command taking that duty of care interest in the individual. I know you are not suggesting otherwise, but it is absolutely a meshing of both the individual’s responsibilities as well as our collective responsibilities through the chain of command.
Q92 Chair: Major General Tickell, why are there more Army deaths in individual training rather than collective training? As a layperson, I would have thought that collective training was more complex.
Major General Tickell: I think it is more complex, but if you look at the population that go through individual training versus collective training, last year within my organisation we trained upwards of 60,000 individuals through an individual training course and collectively we trained 20,000. So many more are going though individual training courses than are going through collective training courses; ergo, there is that disproportion in terms of the numbers.
Chair: Thank you. Richard Benyon is going to look at the duty holder concept.
Q93 Richard Benyon: Before I do that, may I seek to see whether there has been a culture change? Going back to my own experience in the 1980s, the relationship between a platoon commander and a platoon sergeant, and the relationship between a company commander and a company sergeant-major, would have been that the commissioned officer plans and had overall responsibility for the welfare of the men, but things such as health and safety were considered to be pretty much an admin role and were dealt with by the platoon sergeant, or by the CQMS and the company sergeant-major. I suppose what I am really looking for you to say is that that has changed and there is now a universal responsibility for commanders at every level to—I am sure you are going to say yes again—
Major General Tickell: I will answer it from the Army perspective. I think the cultural change has been huge, to be quite honest. I took over this job just prior to the construct coming in, and it has been really interesting how the sea change even in that relatively short space of time—just over two years—has meant how fundamentally different we are at approaching those activities. That is not to say that we were laissez-faire about them before, but the fact that, from the Army’s perspective, it has reinforced the chain of command’s responsibility absolutely holds people’s feet to the fire. So, again, as the two-star ODH within the training world, that means I take a very close interest in my delivery duty holders, who are—
Q94 Richard Benyon: It trickles down, does it?
Major General Tickell: Absolutely. I know intimately all the two-star risks that I am holding, and I take a very close interest in them because I am ultimately responsible and accountable if something goes wrong. And I know that my commanding officers, who fundamentally are the DDHs, take that duty very seriously—frankly, for exactly the reasons we’re here this morning—because we know, and rightly, that we will be held to account if things go wrong.
Q95 Richard Benyon: Moving on to the duty holder concept, the MoD’s written evidence talks about a key outcome of the Haddon-Cave report being “the need to clearly identify and mark out the senior duty holders that have both the authority and legal responsibility with respect to the operation of military equipment”. Is the multi-service nature of joint organisations able to follow the duty holder concept? I can understand it in terms of a unit, but where there is a joint service activity how does it work?
Air Marshal Garwood: Absolutely. It works in the same way. There are exactly three levels of duty holder—senior duty holder, operating duty holder and delivery duty holder—and they are well defined, and those simple principles apply in any joint organisation. An example would be the Joint Helicopter Command. If we look at support helicopters within the command, the Chief of the Air Staff is the senior duty holder. If we look at the operating duty holder, that is a two-star Army officer currently—the commander of Joint Helicopter Command. And if we go down to the delivery level, out on the stations, that, in terms of the support helicopters, would normally be a Royal Air Force group captain. This works well with those three levels and can either be coincident with the chain of command or outwith the chain of command.
Major General Tickell: I have joint units in my organisation and, as the Air Marshal said, the ODH/DDH construct is exactly the same.
Air Marshal Garwood: I think it would be fair to say, however, that there are degrees of maturity in this regard across all three services. In aviation the duty holder construct has been around since early 2011, so it is very mature and very well defined, and people clearly understand their role. It’s far, far newer in the land domain, where it has come in over the last year or so, so to be fair it’s still settling down. But we are seeing a real cultural change. Basically, if the two-star is interested in safety, then people around him and below him are interested in safety, and we are seeing that. It is an approximate figure, but we are assessing, certainly in aviation, that those operating duty holders at two-star level are probably putting up to about 25% of their time into the duty holding role and concept. In aviation I would define it as the jewel in the crown of safety.
Q96 Richard Benyon: May I ask General Brooks-Ward whether there is any added challenge for a Reserve unit, compared with a Regular unit? The Regular unit will be getting up to do soldiering every day of the week, and the Reserve unit will be doing it for some of the week or some of the month. Are you able to seamlessly spread the culture and the responsibility of duty holders across both types of unit?
Major General Brooks-Ward: As far as the Reserves are concerned, we adhere to it, because of the time factor as well. There is a policy that goes down from GOC RTD to the units, and it is well-enforced. We are now integrated and have the same standards, the same training platforms and so on. That in a way dictates that we are exactly the same as our Regular counterparts. We are fully tuned into what GOC RTD is talking about in terms of duty holding.
Major General Tickell: If I may add, we do training in Kenya—forgive me for using Kenya again as an example; I could use Canada—where we integrate Regular and Reserve. Going back to the dynamic risk assessment piece, it is about understanding the start state of the individual soldiers, be they Regular or Reserve, and tempering the training to take account of where they are in their training progression, as well as the environmental factors. The construct and the theory of the policy is exactly right in terms of taking into account different standards at different times.
Major General Brooks-Ward: It is honest. It is an honest system.
Q97 Richard Benyon: That is very reassuring. This next question is for anyone who wishes to answer it. I am trying to get my head around the letters issued to operating duty holders and delivery duty holders. Should they include a description of the action that could be taken against them if they do not comply with the requirements set out?
Air Marshal Garwood: If I can take that one, the letters absolutely should not set that out, because we cannot predict the level of severity in a failing, ranging from death through injury. What is crystal clear in those letters—they are all individually hand-crafted, often by the Chiefs of Staff—is that the senior duty holder is holding his operating duty holders personally accountable and responsible for the activity within their area of operations. That is not delegable; you cannot start passing out that accountability to blame someone below you. We are now crystal clear, but it would be wrong to try to put a sanction up front against a situation where we do not know what will happen.
Q98 Richard Benyon: Do we have a copy? I am looking at the Clerks. We do. Okay. That will be helpful. Could you compare the duty holder concept in two different joint organisations, such as the Joint Helicopter Command and the specialist military units group? Is one stronger than the other? If so, why? Do they have a parity of severity, if you like?
Air Marshal Garwood: They are identical, but I go back to my point about the maturity in various areas. Taking the Joint Helicopter Command, the duty holder construct, the three levels, the letters, the behaviours and the culture are all very mature. There is no doubt about that. This has been rolled out later to land. Indeed, the Royal Navy are still doing some final understanding of what they would expect at the delivery level. There are lesser degrees of maturity away from the aviation domain, where this came to fruition.
As part of the defence safety regulatory review that we are conducting now, which will go to the Defence Board early next year, we are doing what is called re-enshrining the duty holder concept. We are looking at the whole concept to make sure that outside aviation this is fit for purpose, which I believe it is.
However, one size will not fit all. An example would be the numbers of duty holders we are talking about. If we go to aviation, there are three senior duty holders, five operating duty holders and 27 delivery duty holders. That is clear. If you go into the land domain, the Army has around 600 delivery duty holders. So we need to look at how the letters are promulgated, if that is the answer, and how this is handled at that level, because they are not quite the same.
Q99 Richard Benyon: Thank you. Can you give me an example of where commanders fulfil their responsibility to reduce risk to as low as reasonably practical—the concept of ALARP?
Major General Tickell: The collective training environment is probably a reasonable example, because it is related to heat as well, whether it is our training in Canada, Kenya or other locations. Often the ambient temperature in those locations is above the guidelines within the JSP. In theory that means that we would be doing very little training, which is clearly counter-intuitive.
We therefore have to go through a process whereby we drive down the risk to the ALARP standard. It is not just about heat, because when you are talking about heat and people are having to operate in body armour and helmets, because they are live firing, you are then combining the challenge of policy constraints in terms of live firing—articulated in something called Pamphlet 21—with constraints about heat.
The requirement is then for us to look at what is in the JSP and adjust it, and adjust it so much that I as the two-star ODH am prepared to sign off that waiver. The way we adjust it, in theory, is that you have two-hours work, one-hour rest. We reverse that to one-hour work, two-hours rest. We stop in the middle of live firing and allow soldiers to ventilate—that is, take their helmet and body armour off in order to cool down. That is all after the acclimatisation process, which takes quite a lot of time anyway.
That and a number of other measures allow us to conduct live firing at an ALARP standard. There is clearly still a risk, which is why it sits with me rather than the commander in Kenya or Canada or wherever it happens to be. As a consequence of that activity, we then sent out a multidisciplinary team to all those locations to make recommendations back into the JSP, in order to amend it. While the JSP is continually amended, from my parochial point of view those amendments are about to come out in print early in the new year, I think. They will allow me not to be holding the two-star risk, because I will be operating within the policy, if that makes sense.
Q100 Richard Benyon: Are there any special provisions in the duty holder concept for junior entrants aged 16 to 17 and a half?
Major General Tickell: No, the provisions are the same, because if you go back to the safe system of training and risk assessment, part of it is understanding the audience—in this case, they are younger—and then adjusting what we do, but there is no different mechanism for them.
Q101 Richard Benyon: I think you have answered part of my next question, which is around the role of the duty holder concept for individual and collective training. Does it include any responsibility for specialist military units?
Major General Tickell: I have no responsibility for specialist military units, in terms of how you are describing it.
Q102 Richard Benyon: You have not?
Major General Tickell: No, because they are part of the Joint Forces Command, not part of the Army.
Q103 Richard Benyon: So how would we find out about how they adopt the duty holder concept?
Air Marshal Garwood: The Joint Forces Command has the same three-level structure. The commander of Joint Forces Command is senior duty holder. A specialist military unit will have a two-star director, who is the operating duty holder. In the field, you will have a commanding officer, who is the delivery duty holder. Again, it is exactly the same.
Q104 Richard Benyon: Air Marshal Evans, as Surgeon General, what role do you play in the duty holder concept within the MoD and Armed Forces?
Air Marshal Evans: That needs a slight explanation. Although I am the senior duty holder for my own HLB, as the senior responsible officer for Headley Court, it is my Defence Safety Authority role that is more relevant. That is my responsibility for the overall delivery of healthcare in the firm base and in the operational deployable space. My job is to assure commanders that that system is working as effectively as possible.
Q105 Richard Benyon: Are there any training activities where you have had concerns that the policy, or its application, is not where it should be?
Air Marshal Evans: Our medical reporting system is very much about significant event reporting, and the encouragement of medics on the grounds to report incidents. That allows my Inspector General’s team to look at individual cases, but also at trends, if they are relevant to a particular exercise or operation. If we go back to Afghanistan for a minute, that was certainly a very attuned process, whereby we were looking very quickly and very directly at incidents and trying to make improvements where we felt that was necessary. It was creating a feedback cycle and feeding back into the system fairly effectively.
Q106 Richard Benyon: That is the key point: feeding back into the system. If you were noticing a trend, you would be talking to your colleagues, such as Air Marshal Garwood and others.
Air Marshal Evans: Absolutely. We do that regularly.
Air Marshal Garwood: From a Defence Safety Authority point of view—again, this goes back to the duty holding concept—we would describe the Surgeon General as the “duty holder facing”. He would provide policy support, assistance and advice to the duty holder on their duty of care responsibility, but that responsibility, in terms of a death or an injury, does not chop across the Surgeon General; it remains with the nominated duty holder. The Surgeon General, in that instance, would be duty holder facing. It is the same within the DE&S. There are many people in the DE&S who are duty holder facing towards the aviation duty holders and the land equipment duty holders.
Q107 Chair: Air Marshal Evans, can I come back to you on the issue of individual responsibility, and the responsibility of the duty holder, and those working under them, regarding risk assessment? One piece of evidence we received suggested that there is a tension between the individual doing the reporting, who could have adverse things happening to them as part of the exercise—for example, they could have wet feet—which could result in longer-term damage to their capability to continue, and the need to man up. How do you balance that? You talked about significant events reporting. We might actually not be talking about a significant event, but the long-term consequences—trench foot, for example—could be very serious. How do you balance a situation where a problem is highlighted that could have serious consequences, and the need to continue the exercise? Where is that balance?
Air Marshal Evans: I think you have to create a culture where you get a level of responsibility from the individual, so that they are confident enough to report against a training background that, as you have heard, could be very arduous, including where they are keen to complete the course as best they can—if it is a selection course, for example. You have to create a culture where that happens.
Colleagues have described—I will not go over it—the change that has happened in the last two or three years, with the introduction of the duty holder concept. Very clear guidelines are passed down, ultimately, to the commanders in the field, who are responsible for risk assessment to manage their people correctly. That is what I would expect. An important shift has got to happen so that individuals are confident enough to come forward and say, in your case, “Yes, I have trench foot. My feet are wet, and I think I am getting a problem.” Clearly, as you know, the sooner medical help is given, the better the outcome. That is part of the culture. You say that in many circumstances, by coming forward early, you minimise risk and potential long-term damage, which could ultimately be the pass or fail of their staying at the level of activity they are in, whether it is in the military or another field of activity. Creating a culture in which people are confident about coming forward with an injury or an illness is really important.
Major General Tickell: Our philosophy, to use a rather dull phrase, is to train in, rather than select out. That is the mantra we use in the Army and in the other services as well. It is absolutely in our interest to get everybody to pass whatever course it is, because it is a waste of individual time and, frankly, collective resources for them not to pass it. I know that when I first joined the Army, that was not necessarily the culture. There was a rather different approach to arduous training courses—or any course, for that matter. From me down to the most junior NCO, the whole purpose of what we do is to get people through the training engine to success, as opposed to the opposite. It is beholden on the individual, but it is absolutely beholden on the training staff to have a duty of care to the individual, to make sure he or she can continue to get to the end state.
Chair: Thank you. Let us move on to Johnny Mercer.
Q108 Johnny Mercer: This is to all of you. Are you aware of anyone having faced disciplinary or administrative action as a consequence of a failure in the design, delivery or supervision of training?
Air Marshal Garwood: Yes, absolutely.
Q109 Johnny Mercer: Could you give us any sort of sanitised—
Air Marshal Garwood: From a Defence Safety Authority point of view, we distance ourselves from blame. If we spot criminal activity or a service offence, we hand that to the command chain. It is very important that people talk to us without fear of retribution. There are many well-publicised events that are in the open press. One this week is the beasting of the soldier. You have got the Puma at Catterick, when one of the pilots received a suspended prison sentence. You have got the case of Kaylee McIntosh, which resulted in a Crown censure of the MoD.
Q110 Johnny Mercer: When you last came before this Committee, we had a conversation about whether or not a commander had lost their job. At the time, you said the answer was no, you were not aware.
Air Marshal Garwood: I said I was not aware from the date that we set the Defence Safety Authority up, which was 1 April 2015. Clearly, in response to your question I have looked at a couple of articles in the newspapers. They were the ones that first came to mind. We have also reported service offences to the chain of command regarding our aviation activity, including the case of the Red Arrows, which involved several people, and the case of the Lynx in Afghanistan, which was reported to the command chain as a potential service offence. To emphasise, we then hand those cases over.
Q111 Johnny Mercer: That is not your job; I understand that. Out of 125 deaths since 2001, we have still not seen a single civilian prosecution. Is that correct?
Air Marshal Garwood: I do not have those figures. You mentioned the 131 deaths, but we should remember that—off the top of my head—about 30 of those were from natural causes in training.
Q112 Johnny Mercer: Absolutely, but there are very clear cases where an incident has happened, a report has been picked up, action has not subsequently been taken and further individuals have died. If that were to happen in a civilian company, there would be prosecutions.
Air Marshal Garwood: Yes, but it is also quite complex. It depends on magnitude and their involvement. For instance, we clearly have the service justice system, but if the severity is less, then this failing, or shortcoming, let us say, could be reported in someone’s annual report.
Q113 Johnny Mercer: Forgive me, but insertion into an annual report—is that fair if someone has lost their life due to negligence?
Air Marshal Garwood: No, sorry; I am talking about all issues here, not just loss of life. No, obviously that is absolutely not appropriate, but for a minor failing—and it could be a minor failing—that is one end of the scale. The other end of the scale, clearly, is to go to a criminal or service prosecution. I do not have further examples, and I cannot answer your question about those 131. I suggest that you write to the MoD.
Q114 Johnny Mercer: The answer is none. We have just had the Service Prosecuting Authority in here, and the answer is that none of those have resulted in a civilian prosecution. Seven have resulted in service sanctions, but none has resulted in a prosecution.
Air Marshal Garwood: I should also add—I have made the point a couple of times—that the duty holder construct came out of our failings in Nimrod and now gives us a better way of holding people to account. There is now clarity there.
Q115 Johnny Mercer: When did that come in? Two years ago?
Air Marshal Garwood: In aviation, across all three services, it came in in 2011, and in the Navy, other than aviation, probably about a year later. Land, the Army, was the last. I saw the op order recently; it was February 2014.
Q116 Johnny Mercer: February 2014. And what specifically precipitated that coming in? What were the identified shortfalls that led to that concept being brought in?
Air Marshal Garwood: I will look at it the other way: the success in aviation across all three services made it logical for the MoD to roll out the duty holder construct into all the other domains, which it has done; that is why they follow on from aviation.
Q117 Johnny Mercer: So, by extension, was there a slight vacuum of accountability at an individual level within the Army, which is what we are particularly looking at here, before 2014?
Air Marshal Garwood: I would not call it a vacuum, but I think that accountability would have been held at multiple levels across a command chain, potentially a five-deep command chain. That responsibility would have lain in there and been less clear, and the people in that command chain would not have had that personal accountability letter placed on them by their chief. The clarity is now there.
Major General Tickell: I was a commanding officer in 2003 to 2005, clearly before this construct came in, and I knew absolutely that I was responsible and accountable when I took my regiment out training. I expected to be held accountable if I got it wrong, but this construct has absolutely tightened it up so that it is—I will not say watertight; mistakes do happen, but it is much better now, from my perspective, than it was before. There is no question about that.
Q118 Johnny Mercer: Just to clarify that last point, you are aware of individuals being formally removed from post, or losing their job, as a result of health and safety breaches?
Major General Tickell: Since I have been in command, yes, I am.
Q119 Johnny Mercer: Are you concerned by the ratio of Regular to Reservist deaths in any of the three services?
Major General Tickell: I can answer from the Army’s perspective and General Simon may take over. If you split down the statistics, I think we have had something like 18 Reservist deaths. I think nine were from natural causes, three were from the Brecon incident, one was in Afghanistan, and that takes you to about five.
Q120 Johnny Mercer: In percentage terms, that is about right, is it?
Major General Tickell: It is about right; ergo, while every death is self-evidently an absolute tragedy, no, I do not think that there is a disparity.
Major General Brooks-Ward: I agree.
Q121 Johnny Mercer: The MoD says that neither the Army nor the RAF take any specific additional measures to ensure the health and safety of Reservists on training and selection exercises. Given that Reservists generally carry out far less training than their Regular counterparts, why are there not specific policy provisions to account for the different start states of Reservists before arduous training?
Air Commodore James: There are in policy. This comes back to the point that my colleagues made earlier. You will design your policy around the cohort that you are going to. The reason why there is no difference is that they are treating the whole force as the same whole force, but the start state will be different for Reservists, so you will design that course start state for them if they need more pre-training. The feedback may say that there must be pre-training prior to the main training, and it will be done in that design phase, so the Reservist might get a different course and treatment, but the policy that governs it would be identical, and that would be true for junior soldiers and Cadets. It is not the policy that covers it that is not doing that; it is the design of that cohort. In essence, it is being aware of who you are designing the guidance for.
Q122 Johnny Mercer: If you were asking Regulars and Reservists to achieve the same standard, is there not a mandatory build-up process that you would require Reservists to do, so that you, under the duty holder concept, have the confidence that these individuals have had the correct training to enable you to ask them to achieve the standard?
Air Commodore James: Yes. As part of the design of that course, it would do exactly that.
Q123 Chair: A number of witnesses want to come in on that. Major-General Tickell, did you want to?
Major General Tickell: I think we are all going to say the same thing. It is about whether it is the individual space or the collective space. We are doing more and more integrated training now. If I look at some of the weapons courses that we run at Brecon now, we have Reservists doing them alongside their Regular counterparts. There are different issues. There is the start standard, in terms of their familiarity with the weapons system, whatever it happens to be, as well as their physical fitness and all the rest of it. All that is assessed on day one, and we then regulate the training, all being well, to get the Reservists to the same output standard, but ultimately if he or she is not going to get there, they are not going to get there. That is what dynamic risk assessment is all about.
Q124 Johnny Mercer: Is there therefore a different stream that a Reservist would go through? If all attendees turned up on day one, and some passed the CFT and some did not, and you took them forward, would there be a different stream for Reservists to go through to get that build-up training?
Major General Tickell: We would adjust the training and give the individual remedial training, if it was going to be worthwhile over a relatively short period. Clearly, they will turn up for a two-week module in the context of a wider Regular course. If someone is physically unable to pass something like a CFT, he or she is probably not going to be able to do it within two weeks, ergo it is not worth it. But you could identify a training deficiency when that individual finishes. If he or she is competent in that weapons system, he or she will get the pass, but there will be a training deficiency that will go back to the unit, and the unit will have make good on that over time.
Q125 Johnny Mercer: Is there any follow-through to make sure that that particular sub-unit brings up that training deficiency?
Major General Tickell: That qualification will not be put into JPA until the training deficiency has been met.
Q126 Johnny Mercer: And who assesses that?
Chair: May I ask Major Brooks-Ward to come in? I can see him twitching and wanting to respond.
Major General Brooks-Ward: Not really. My colleague is doing very well on our behalf. You must bear in mind that the constraint is time; we are looking at the same standards, but it may take longer to get there. You cannot lie on JPA; the time of fudging facts and figures has gone. We understand what the training delta is—the deficiency of our Reservists, if there is any.
Q127 Johnny Mercer: On a broader point to finish, the first question from James Gray was to you, Air Marshal Garwood, about the permanent under-secretary holding the military arm to account, as we essentially do in any democracy. Do you feel—this is to all of you—that there is a general problem with accountability, or is that something that just doesn’t exist? It is very clear today that the systems in place now are pretty good. The duty holder concept has been proved to work across aviation and has now been put across to the other services and that is great. We have seen before in this Committee and in other Committees instances of quite serious neglect by individuals who are responsible for the planning and delivery of training. So, without a single civilian prosecution, do you think that accountability is really happening?
Air Marshal Garwood: It would be wrong of me to sit here and say that there have not been failings, because we all know there have been failings over the years. That is unquestionable. We have heard and seen and studied the coroner’s reports on these and there have been failings. I do believe the culture has changed. I think the measures that you have articulated that we have now put in place will actually really home in on those that are accountable. For example, if there is an accident in a land domain now—certainly if there is a fatality—my very first phone call is to that operating duty holder, which is often GOC 1 or GOC 3 Div. That is my first call and we discuss with him what type of investigation will be going on.
So I do think we have seen a cultural change. Some of this has come from external sources—no question. I have seen up to a two-star officer having to give account of himself in a coroner’s court. Our commanders and people responsible are now being called into those situations, which probably would not have happened 10 years ago. I think society expects more from us; and I hope we are living up to that. I think since Sir Charles Haddon-Cave’s Nimrod report we now have far better processes in place.
Clearly, we all sign up to the fact that every death is a deep tragedy, but when you look at the statistics for deaths in training and on exercises and take out natural causes, and consider that over 15 years that is six and a half or seven a year. Per 100,000, the military is on my reckoning on a par, in terms of deaths, with the waste disposal industry. We are at half the rate for agriculture and farming. I would like to see some credit for where the MoD has taken this, and how seriously it takes it. Maybe the figures that we have heard this morning—and every one is a tragedy and we must make sure we drive those figures down—
Q128 Johnny Mercer: Absolutely, and I guess of the two things that we are focused on—we come back to this question of prosecuting people. It is not about hanging people out to dry. It is about making sure lessons have been learned. For example, we have a very clear case of an individual dying on a course that I was on, and recommendations from that not being put in place, and then three more people dying. What we are looking to do is to make sure things like that do not happen, and secondly that the deterrent is there—for individuals to take responsibility for that individual.
Air Marshal Garwood: I can assure you now, the mechanism is in place; those recommendations would be taken seriously and, in the case of death, each recommendation, of which there may be many—I think in aviation in the last five years we have had something like 600 recommendations. I personally sign each one of those off when I have the evidence that is presented to me at a board we do every six months. I can absolutely assure you that process is now in place. Perhaps it was not in the past.
Q129 Chair: During the evidence that we had from Mr Cayley we were told that everything that went for prosecution came through him, but that things might go for administrative action. Does anyone have any overall monitoring responsibility for those cases of injury or incidents that would go through administrative action, to see what has in fact been dealt with at that level? Is anyone monitoring that?
Air Marshal Garwood: I am sure the single services certainly will be, because that is casework that will be directed their way. It is certainly not done at Defence Safety Authority level—not for the admin action. We look after the safety recommendations, absolutely, but as I said earlier, we do distance ourselves from the admin action, so it will be the single services.
Q130 Chair: Mr Cayley also said to us that where there was a decision to prosecute or not, he would have conversations with the family in relation to the prosecution. Again, this might be something that goes back to the individual services. At administrative action level, is that conversation also taking place, do you know?
Air Marshal Garwood: With the families?
Chair: Yes.
Air Marshal Garwood: I don’t know. I would be surprised if it was, but I don’t know.
Q131 Chair: Major General Tickell, has the operation of the office of duty holder meant that the exercises that you are able to undertake have reduced the effectiveness and quality of training? Do you have any concerns that the health and safety legislation is limiting your capacity to train and to provide a realistic experience for the personnel that you are training?
Major General Tickell: The short answer is no. The policy is there and it keeps us within the guidelines, but if you go back to the dynamic risk assessment et cetera, you can absolutely play tunes within that policy to make sure that if the training audience is of a certain standard—a high standard—you can make it as demanding as they need. If you talk to any soldiers when they come out of Kenya or Canada, they will certainly feel as though they have had a good time.
Q132 Chair: So it is not less arduous; it is just that the overarching responsibility for monitoring—
Major General Tickell: There is a better construct in place.
Q133 Chair: Thank you very much; that is extremely helpful. Is it harder to ensure that Reservists report illness and injury prior to starting training events? Is that something that you are aware of? Because they are so keen—they have actually got there and they want to do this training—is it likely that they will not report?
Major General Tickell: Well, they are responsible for self-declaring, so yes, we are beholden on the individual saying that he or she is carrying whatever injury it is or whatever, but I think it’s pretty difficult to hide an injury or illness for more than a few hours. I think very quickly the training staff understand the limitations of the individual.
Q134 Chair: Air Marshal Garwood, what mechanisms and matrixes do you have for ensuring that the recommendations of coroners’ reports, service inquiries and police investigations are actually implemented?
Air Marshal Garwood: This is a process we have much improved since 1 April this year. For a fatality now, we will conduct a service inquiry. One has not always been conducted in the past. Often the service inquiry in the past was convened and then it sat back and waited for various other reports. I believe and have decided that we can run parallel investigations, because we are only interested in safety and preventing recurrence and so we have to get in quickly and look at this. We now run parallel safety investigations that are extensive and can last up to a year, many of them, where there is any complexity.
The recommendations in that report—it is not staffed by anyone outside the Defence Safety Authority, so when I have that report complete, I sign it off and present it to the Secretary of State. It is not staffed in the MoD or the single service commands, so my word is final on that. The newly formed Defence Accident Investigation Branch was formed on 1 October. Those recommendations will be tracked. They always have been for aviation; they will now be tracked for all deaths across the service and they will be signed off individually by me when they are ready.
That is at the high level. We then have the non-statutory inquiry, maybe for a lesser issue—maybe a life-changing injury, but not a death. If they are led by the accident investigation branch, they will follow the same process in monitoring. If they are led by the commands—we often delegate this down into the commands, to, say, a duty holder, or the command chain rather than the duty holder—then their lessons would go into their own lesson management system: NLIMS, DLIMS, ASIMS. Those are all information management systems that look after those lessons accounts. As we further grow this branch, I would like to take in all of those lessons, even at the lower level, as one central lessons bank. We are now looking at how we could have an IT system that could handle all of that, but the important ones I look after.
The coroner would write a rule 28 letter to the Secretary of State. The recommendations that the coroners put forward will be broken out into the duty holder and front-line command areas and dealt with and tracked at that level. Again, I would eventually like to track those centrally. The only ones we do not handle are the police ones, because the police are not doing a safety investigation; they are doing a criminal, judicial investigation, and that is something that the Defence Safety Authority do not deal with at all. So we would not track that type of recommendation, and we would not expect the police to come out with key safety recommendations. Clearly, if they found one, they would come and tell us and we would track it, but routinely they have a different part of the parallel investigation.
From 1 April we have revised this process. It is much better, much tighter, and, most importantly, it will provide lessons across all of the front-line commands. Perhaps in the past we were guilty of one single service investigating one event, and perhaps those lessons were not disseminated as widely across the other areas. I can assure you we now have a very good system in place.
Q135 Chair: The system you outline is suitably lengthy and arduous as you try to collect and examine all the issues.
Air Marshal Garwood: Yes.
Q136 Chair: Do you keep the families of the deceased involved as the process evolves?
Air Marshal Garwood: Yes. I see that as a key priority. We will have an event and convene the service inquiry, which is the legal convening when I bring the president and his team—there are three of them—in front of me. One of the very early things that I ask the president to do is to make contact with the families—if they wish to have contact—to explain his process. Normally they are very receptive. Normally the president will go and brief the family on the service inquiry process. At some point, as the inquiry progresses, we will give an update to the families and then, when the inquiry is finished, we will provide the families with an unredacted copy of the report, which is hand delivered by the visiting officer and is followed by a briefing from the president. We find it is best to let them read it with the visiting officer and then the president to come in and answer their questions.
Then we respond to all manner of asks from the family. Recent examples have been to view wreckage, to have photographs of the wreckage, and to acquire elements of flying clothing that were used. So we respond to that. Although my role is not that of the visiting officer, as that care is with the single service command, I do see that I have a key role as the investigator—the independent investigator; we make that point—in making sure the family is looked after.
Q137 Chair: One of my colleagues needs to go, so I want to ask two questions very quickly, and I would be grateful if you could give brief answers. If you want to follow it up with written evidence afterwards, that is fine.
Air Marshal Garwood and Air Marshal Evans, Child Soldiers International has told us that recent data have demonstrated that junior entry recruits are twice as likely to be medically discharged with training-induced injuries as standard entry recruits. Does military training put junior entrants, whose bodies are still developing, at undue risk of harm? Please answer very briefly and then, if you wish to, follow up with additional comments.
Major General Tickell: I am responsible for the junior entry. In the training year 2014-15, 2.62% of our junior entry were discharged through muscular skeletal injuries. In the senior entry, it was 3.2%. I do not recognise the statistics that CSI is providing but I am happy to get into more detail if somebody could give that to me.
Q138 Chair: Air Marshal Garwood, you are happy with that?
Air Marshal Garwood: indicated assent.
Q139 Chair: Finally, Air Marshal Garwood, how will you measure the success of the duty holder concept and the Defence Safety Authority? Do you have parameters to measure success and are you aware that you will be reviewing progress?
Air Marshal Garwood: We are, but it is hard for me to answer. We have the defence safety regulatory review, which is going on now and reports just before Christmas. That will look at our measures of effectiveness. Currently we don’t have—we can work on the HSE statistics, many of which have been put on the table here today, and we can make comparators to where our fatality rate and major injury rate sit. Indeed, we pass that to the Defence Board every month but it is a fairly coarse measure. It is an area I would like to develop and will be part of our review in the new year.
Chair: Thank you. In that case, I thank you all for your evidence, and for the changes you are making and implementing.
Oral evidence: Beyond endurance? Military exercises and the duty of care, HC 598 31