Infringement injustice - is the CAA acting justly?
PUBLISHED: 12:09 06 November 2020 | UPDATED: 12:09 06 November 2020
As complaints mount from pilots who feel they have unjustly been accused of infringing controlled airspace, we ask if the CAA is acting fairly & lawfully
Triggered by one specific complaint from a pilot who had been contacted by a CAA official in connection with an alleged airspace infringement, this investigation has widened following conversation with a growing number of complainants, including respected professional pilots and at least one air traffic controller. These individuals have provided compelling evidence of serious problems with the way NATS and the CAA classify and gather evidence of airspace infringements, and raise fundamental questions about the way the aviation authority deals with those it accuses of offending.
Before we go any further, though, let’s be clear about one thing: none of us would seek to defend the kind of pilot who, thanks to ill-preparedness and poor airmanship, causes disruption and hazard to Commercial Air Traffic through blundering into controlled airspace. Quite the opposite; we deprecate such incompetence. However, catching such miscreants and giving them some further training is one thing, but falsely accusing and harassing innocent pilots is another.
While we have heard of third parties reporting infringements on the basis of ground observation (which can be highly subjective) or even casual monitoring of one of the flight tracking apps (where the data presented may be subject to all manner of errors), most airspace ‘busts’ are highlighted automatically by CAIT, the controlled airspace infringement tool used by NATS. CAIT sounds the alarm when it spots a primary radar contact that has entered a control zone laterally or picks up a transponder return that indicates an aircraft is infringing, based either on horizontal position or altitude apparent from Mode C or S. (It should be noted that CAIT has no transponder tolerance so, as we will see, the word ‘apparent’ is used advisedly.)
Once CAIT’s unblinking eye perceives an aircraft without established contact or clearance to be entering controlled airspace, controllers are obliged to create a vast ‘safety bubble’ five miles horizontally and 3,000 feet vertically from the offending machine. (Here the system almost appears to have been designed to maximise the disruption caused by even a minor infringement−and vectoring commercial aircraft out of that bubble cannot be without its own hazard, one would have thought.)
Generation of a Mandatory Occurrence Report is also automatic. If the offending aircraft has penetrated controlled airspace deeply, that MOR is entirely appropriate, as we’d all agree. However, a number of light aircraft pilots claim that they’ve had an MOR raised against them when they felt certain they’d not infringed, particularly in respect to altitude keeping. How could this be?
Former airline, and highly-regarded display pilot, flying instructor, examiner and licensed engineer Pete Kynsey provides an answer; it is very likely to be a result of precision errors in the instruments and systems fitted to the typical light aircraft. As far as pressure altitude is concerned, not only is your altimeter likely to be telling fibs but your transponder is probably committing perjury – and CAIT might not even be calculating altitude on the same QNH!
As Kynsey concludes from his ‘catalogue of errors’ above (p.37) the difference between the altitude at which you believe you are flying and CAIT’s perception could be as much as 500ft. “The CAA is in denial of most of these errors,” he tells Pilot. “If you are accused of infringing its only concession is to allow you to have your transponder checked−at your expense−and if it is proven to be inaccurate, that will be take into account. This test is done on the ground, sometimes six months after the reported infringement. All the other errors are conveniently ignored.
“NATS should allow for these errors so that CAIT only declares an infringement when one has definitely taken place. Any apparent infringement of less than, say, 400 feet should be ignored as likely to be due to measuring errors.”
The human factor
As spelled out by the CAA, examples of when an air traffic control officer may be required to file an MOR include, but are not limited to: infringement of controlled airspace; low flying; and failure to comply with ATC instructions. On the face of it, a sensible component in what is intended to be a ‘just culture’.
Indeed, as our experience suggests, if you’re wearing a listening squawk and listening out, or the controller can see your registration from Mode S, they can (and usually do) just usher you out and that’s an end to it. Sometimes you might even get a call because you look like you’re heading for trouble.
There are, however anecdotal claims that ATCOs have been urged to file a MOR where they would previously have made a judgment that an incident was so minor that there’d been no endangerment to ‘an aircraft, its occupants or any other person’ (the trigger defined in European Regulation).
Controllers are highly professional lot and we’ve noted previously in Pilot their willingness to accommodate GA as far as their (until recently) very heavy workload allows. However, they are also human and so, once in a while, can bring subjectivity to what should be an objective process and file MOR precipitously (see ‘The display pilot’s story’, below).
Opaque investigation and kangaroo court
However good or bad the evidence (and we’ve shown that coming from CAIT−or an ATCO having a bad hair day−that it might be deeply flawed) once a Mandatory Occurrence Report has been generated, an investigation is set in motion.
The CAA’s first step, rather like police establishing who was at the wheel when a speeding vehicle triggered the camera, is writing to the aircraft owner, seeking information on who was at the controls.
Step two is ‘informal’ phone contact with the pilot−and this is where CAA practise diverges from police procedure, as no caution is given and this is the point that an individual may unwittingly incriminate themself.
If the suspect−and this is the correct term−is reluctant to provide information it appears that the official concerned (all the complainants contacted by Pilot name the same person) can be quick to threaten them with ‘licensing action’−punitive licence suspension−which has led to one group of individuals pursuing legal action against the authority on the basis that this is unlawful, contravening the European Convention on Human Rights as implemented in the UK through the Human Rights Act 1998.
As our display pilot, Alex Garman reports, the ‘court’ that decides whether punishment, in the form of further enforced education, should be meted out sits in secret, the ‘defendant’ is not allowed any representation and the evidence is not revealed.
As the CAA makes the rules, polices and investigates them, and acts as prosecutor, judge and jury it is hard to escape the conclusion that the whole process is an utter travesty of justice.
Time to speak out
Because of the sword of Damocles that is the threat of licence suspension, many of those who have spoken to Pilot about disputed infringement actions have asked for their names to be withheld. Indeed, a CAA source warned that there was a potential legal action pending against one of the magazine’s respondents because he ‘has made serious and totally unfounded allegations against a CAA member of staff which we feel amount to defamation’–make of that what you will.
The trouble is that the way the authority and its allegedly defamed official is, as one pilot puts it, “treating alleged infringers like serial killers” (without the prospect even those monsters have of a fair trial) is undermining the whole safety system that the CAA’s claimed ‘just culture’ should represent.
“This an issue for the aviation community at large as opposed to it being just a concern for me,” observes Alex Garman. “the CAA has [actually] created a fear culture, where trust and respect is rapidly being lost between the regulator and the people they are supposed to serve. [It has generated] a toxic and unsafe atmosphere in the aviation community.”
One unintended consequence is that more and more private pilots are muttering about turning off their transponders−a move that we could not possibly condone. There’s an obvious safety bonus in everybody knowing where everyone else is, which makes it all the more extraordinary that NATS and the CAA have made detecting and dealing with alleged infringers such a witch hunt that pilots fly in fear of being falsely accused and are even are tempted to do such a thing.
Many would argue that the CAA’s culture is very far from ‘just’, that the way it deals with alleged infringers is palpably unjust and it is time for the authority to mend its ways or be brought to account. On the evidence we have uncovered over the last few months−equipment errors making it all too easy to appear to infringe without having done so, minor infringements potentially causing excessive disruption to commercial traffic, no distinction being made between minor infringements where no one was put in danger and serious ones where they were, no challenge to specious MORs being allowed, evidence being withheld by the authority, pilot interviews being conducted under the threat of licence suspension and no appeal against the decision to force an individual to undergo further training at their own expense−Pilot can only agree.
A catalogue of errors
So, you think you know your altitude and your transponder will be giving reliable data. Read on! Pete Kynsey lists the precision errors that can so easily lead to an apparent infringement
1. Transponder error. Transponders are tested only every year at most. The CAA requirement is plus or minus 125 feet. Checks (not true calibration, note-Ed.) are done on the ground and do not therefore take into account errors generated in flight when the transponder is connected to the aircraft’s static system. Some manufacturer’s continued airworthiness requirements do not require any repetitive checks.
2. The aircraft’s static system. This is never checked in the air for private aircraft so is an unquantifiable error. Commercial traffic operating in RVSM (reduced vertical separation) airspace are required to have extremely low static errors. However, evidence collected by the European Regional Monitoring Agency reveals that in some cases the error increased from fifty to 150 feet within twelve months, whereas it was previously thought to be constant. The error is likely to be far higher in non-RVSM aircraft.
The transponder may not even be connected to the same static source as the altimeter. Some take their pressure from behind the panel, others from their own static source. Wherever it originates, the accuracy of the static pressure provided to the transponder at varying airspeeds and attitudes, including yaw, is never measured in GA aircraft. The transponder of an aircraft I recently flew passed the ground check, but was 340 feet in error in the air.
3. Altimeter error. ICAO sets an international standard for Altimetry System Error (ASE) of 245 feet (ICAO document 9574). That means that the altimeter reading when set to 1013hPa can be up to 245 feet from the aircraft’s actual pressure altitude and still be acceptable. This error will be made up of altimeter error and static pressure error. The pilot is required to fly by the altimeter, not the transponder which may be sending out an entirely different figure.
4. No allowance for any of the previously stated errors is made by Controlled Airspace Infringement Tool. For it to convert the Flight Level it receives from your transponder into an altitude so that it can detect infringements where the base is defined as an altitude, CAIT must have a QNH set into it. If you are flying beneath CAS you are obliged to use an ‘appropriate QNH’, for example that of a nearby airfield. There is no guarantee that this is the same as the one CAIT is using, generating another error.
The display pilot’s story (Alex Garman)
I received a CAA Mandatory Occurrence Report (MOR) notification letter via the owner of the aircraft I had been flying. The MOR arose from an alleged airspace infringement during the return flight from an airshow at which I had been displaying. On the day the weather had rapidly deteriorated, so I elected to divert to nearby Sleap airfield. I spoke to RAF Shawbury Approach to announce my inflight weather diversion and was surprised when the ATCO denied me access through the ATZ, despite there only being one aircraft in the circuit. I was given clearance to enter the MATZ but given instructions to turn north immediately, where the tops of the hills were hidden behind low cloud and drizzle-definitely not VMC! I told the controller that conditions were not VMC but in spite of that she became irate and continued to give me unsafe instructions to turn north immediately into non-VMC conditions. Fortunately, I used common sense, judgement, and airmanship to avoid this potentially lethal instruction and elected to track round the edge of the ATZ as much as VFR conditions allowed.*
I did consider filing an MOR myself about the incident but it was very difficult to find the relevant procedure on the CAA website. (Perhaps someone in the know should submit an MOR about the difficulty of a GA pilot filing an MOR!)
When I responded to the infringement MOR, I expected to receive the CAA’s sincere apologies and an explanation as to how this controller was able to behave in such a dangerous manner. Instead, I received an email saying the Infringement Group had reviewed my case and that I was to go on an airspace awareness course within a few weeks, at my own expense, at any one of a number of locations that were all several hours away from my home.
Initially I thought there had been some mistake and contacted the CAA for clarification. A CAA staff member confirmed that the decision was correct and that I would indeed be required to go on a course - incredible!
I requested a copy of the MOR report, relevant transcripts, details on when the Infringement Group met, who was in the group and asked why I had not been invited to attend the meeting in order to give my explanation of events. All my requests were refused. When I questioned this further, the same CAA staff member phoned me, again refused to answer my requests, and said if I didn’t attend the course then my licence would be suspended, along with all my associated ratings. Utterly unacceptable, threatening and abusive behaviour, I would say.
As a flying instructor with several students, I had no choice but to accept this and went on the 400-mile round trip to my ‘local airspace awareness course’.
Overall, I found my experience with the CAA very disheartening. I felt I was not taken seriously and, with no direct discussions allowed between myself and the Infringement Group, I was never given a fair chance to question the MOR or indeed know if my good name and character were being brought into question (which certainly appeared to be the inference). The overall attitude of the regulatory authority seems to be we are the CAA, we refuse to engage with you and if you don’t accept that, then we shall revoke your licence.
*Just to be clear; MATZs (military air traffic zones) are not part of the UK civil airspace structure. Requesting a MATZ penetration is good, polite practise, but not a legal requirement. The ATCO at Shawbury had every right to protect the ATZ but no authority to give instructions to Alex when he was flying in the surrounding MATZ.