The 2011 public inquiry into the deaths of former rally world champion Colin McRae (and three others) in a 2007 helicopter accident has now been concluded. The Inquiry was instituted by the Lord Advocate under the discretionary provisions of the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976 and was conducted at Lanark Sheriff Court by Sheriff Nikola Stewart between January and August this year. The full determination can be downloaded here: http://www.scotcourts.gov.uk/opinions/FAI41.html
More details of the case can be also found in our original blog post about the 2009 Air Accidents Investigation Branch Report (AAIB): https://sportslawnews.wordpress.com/2009/02/12/mccrae-flying-licence-expired/
Essentially, while both the AAIB Report and the Inquiry determination were unable to conclusively determine the exact cause(s) of the crash, both reports conclude that McRae was ultimately at fault.
HOW THIS CONCLUSION WAS REACHED
Although a ‘black box’ style flight recorder was not fitted to the helicopter (it is not compulsory to do so for private helicopters), and there were no witnesses to the crash (although multiple witnesses did view aspects of the flight), it is possible to piece together all but the last few seconds of the flight from contemporaneous video filmed by one of the passengers.
Weather conditions were generally favourable with good visibility , the flight was only a short (6 minute, 8 nautical miles) return trip from a friend’s farm nearby, and the G-CBHL helicopter in question had been regularly serviced.
This effectively left five probable causes for the accident:
- Sudden onset technical malfunction (no evidence of this despite a scrupulous investigation by AAIB)
- Accidental interference by the passenger with the dual-flying controls (cannot be ruled out)
- A Bird strike (no evidence)
- Pilot disorientation or misjudgment as a result of low flying at speed in difficult terrain
- Servo transparency failure of the helicopter leading to or contributing to deviation
The problem for McRae is that the inquiry held that any / all of the above possibilities could have been avoided or mitigated had McRae given himself a greater margin of error by flying higher or at a lower speed .
Particularly damning for McRae was the finding that: “The episodes of extremely low level flying and the excessive manoeuvre parameters, particularly the descent into the [Mouse] valley by Larkhall, all as captured on the video recording, are indicative of an aircraft being flown imprudently, without due regard to the principles of good airmanship, and in such a way that normal safety margins would be reduced.” 
McRae also repeatedly breached the Rules of the Air Regulations 1996 (1) Rule 5 (2)(b) by unnecessarily flying below the minimum 500 feet clearance requirement on multiple occasions in order to create significant g-loading for the enjoyment of his passengers , indeed on one occasion the helicopter deviated from its intended route to manoeuvre over a farm building at only 205ft! 
McRAE’S INVALID PILOT LICENCE
The previous findings against McRae’s conduct are further exacerbated by McRae’s failure to hold a valid pilot licence at the time of the accident, in breach of Art.26 of the Air Navigation Order 2005 which required all pilots to hold a:
- pilot’s licence (McRae’s had expired on 14 February 2005 and had not been renewed)
- validated with the type of aircraft to be flown (his AS35OBS type rating had expired 16 November 2004)
- through an annual Licence Proficiency Check (“LPC”) (expired March 21 2007 – six months before the accident)
- a valid relevant medical certificate (which McRae did possess, ).
At the inquiry, evidence showed that non-compliance with this licensing system was not an isolated occasion, as McRae had previously allowed both his type rating and medical certificate to expire on several occasions, despite his continuing to fly the helicopter during these periods of invalidity .
While there is no evidence to suggest that he was medically unfit, or incompetent to fly either during these times or on the day of the accident, the Sheriff Stewart found that these lapses indicated a “cavalier attitude to the safety regime imposed by the Civil Aviation Authority (CAA)”  and could invalidate his insurance.
Further safety issues were also highlighted by an out-of-date flight manual, which failed to contain updated guidance on maintenance issues, particularly in relation to servo failures. While there is no evidence to suggest that McRae knew that this advice was out-of-date or that updates were available, the responsibility for ensuring that the manual was still current lay with McRae (as owner and pilot) .
The final issue in the case, which also has wider implications beyond the immediate families, was the lack of parental consent for Ben Porcelli (6yrs old) to be carried as a passenger in the helicopter. Ben was a friend of Colin’s’ son, Johnny McRae (5yrs old) and the two boys had been playing together on the farm until the helicopter ride.
The key point here is that McRae did not take any steps to ask either of the Porcelli’s for consent for Ben to be a passenger during the unplanned trip. While the inquiry ultimately held that there was insufficient evidence to determine whether Ben would have been granted or refused parental permission to ride in the helicopter, McRae’s failure to consult on such a deviation from the original plan resulted in considerable pain for the Porcelli family, but ultimately no legal culpability .
This begs the question, to what extent do parents have a right to be consulted on issues like this, or is parental consent implied by the generic loco parentis during the supervision, and consenting to deviations is merely a social expectation rather than a legal obligation? Although this issue was touched on previously by the Court of Appeal in Harris v. Perry  EWCA Civ 907 (in relation to a failure to consult with the parents of two young boys before allowing them on a bouncy castle), it seems we are still not clear on to whether such a consultation duty exists….