Does UK ATC come under Criminal Law?

[fireflybob]

A simple question (I hope) concerning ATC in the UK:-

Do the actions of ATCOs come under the criminal law. i.e. if a controller makes a mistake which leads to a major accident then can he be tried under the criminal law and end up going to prison?

Thanks for any replies.

[Timothy]

Yes.

W

I wanted just to say "yes", but I am not allowed, so here's some padding.

[Whipping Boy's SATCO]

WC, how about "Most definitely"?

[DFC]

If a controller preplans and executes a scenario where by they intentionally aim two aircraft at each other so that they collide and manage to score a direct hit without being shown to be mad then they are indeed a criminal.

If they were mad, then they are mad.

If they made a mistake then they made a mistake.

To err is human, to pull off the first case above in the current system is a miracle!!

:E

regards,

DFC

[zonoma]

If they made a mistake then they made a mistake.

Erm, well not really. If it was unintentional but some circumstances show a lack of attention, lack of competence, or something similar then any unfortune is also punishable in the court of law.

See the definition of manslaughter.........

[fireflybob]

Thanks for the replies.

I realise that the parallel is somewhat tenuous but there have been times in the past when railway signallers have ended up behind bars because of the consequences of their actions.

Has this or could this ever happen to an air traffic controller?

[vintage ATCO]

have you met my lawyer . . . . ? :D


VA

[TrafficTraffic]

In the Netherlands I believe it happened in Schiphol Tower, with a Coach and Trainee both being found guilty.

[Timothy]

WC, how about "Most definitely" Nah! Apparently 15 words is the minimum (or was it 15 characters, I forget)

W

[DtyCln]

I think it is fairly safe to say that you would be charged with 'Manslaughter' if any passenger dies as a result of ATC error. You, your Competency Manager, your Watch/Unit Manager and almost certainly the Chief Exec, would all be charged. It would be up to each individual charged to prove that he/she did nothing negligent or could have put in place a procedure that would have prevented the incident. This is the assumption I have always taken each time I plug in.

See link below for an example. ATCO made an error, everyone gets done.

http://news.bbc.co.uk/1/hi/world/europe/2962962.stm

[Timothy]

It would be up to each individual charged to prove that he/she did nothing negligent or could have put in place a procedure that would have prevented the incident I think, pedantically, that it would be up to the prosecutor to prove he/she was guilty, rather than the burden lying with the defendant to prove innocence.

All that has to be demonstrated is that there is "reasonable doubt" that they are guilty, not that they are innocent.

This may be small comfort as you don the cans, but it is an important principle of English law, and this thread is about the principles of English law.

W

[Arkady]

I think DtyCln is closer to the mark, for coalface ATCOs at least.

Proving who pulled the trigger will be straight forward, proving who loaded the gun, rather less so. In the event of a collision, the moment when a potentially dangerous situation turned into a lethal one would probably be obvious, particualy if it hinged on an ATCO issuing an executive instruction. The onus would then fall to the ATCO to prove that the instruction he issued was the correct one, given the information available to him/her at the time, prevelent conditions, established procedures and level of training.

[bjcc]

Cln/Dty
To prove manslaughter the CPS would have to show that there was some act or ommission which caused the death, and that it would be reasonable to assume that that act or ommission was made through negligence knowing that death or serious injury could result. I fail to see how therefore an ATCO doing, or not doing something would lead to an "All Star Production" in court, unless it could be shown that management failed to prevent it. Working on your princible, then if say an Ambulancewere involved in a fatal accident, then the driver, the former instructor and everyone up as far as the Health Minister would be gripping the bar at the local Crown Court.

Time to don my tin hat I think!!!!!!!!!!!!!!!!!

[Timothy]

Wasn't just this the case re the mid-air over Switzerland? That the controller might have the finger pointed tactically, but that strategic decisions were also questionable? (I am talking eliptically for obvious reasons)

W

[Unwell_Raptor]

Driven by tabloid pressures the criminal justice system has moved on from punishing wicked acts to punishing acts of carelessness to punishing simple human error. In recent weeks a schoolteacher whose misjudgement allowed a boy to drown (even though the boy's mother was at the scene) has been imprisoned. A doctor whose error killed a young patient was given a prison sentence.

If I were a commercial pilot, I would keep my lawyer's phone number written on a blank page in my passport. Vengeance rules.

[Timothy]

Unwell_raptor

So you would remove Careless Driving from the statute book?

W

[Jerricho]

Justice system??? Can depend upon the day of the week it seems. Look at the instances of some little b@stard who steals a car and plows down somebody walking down the street, 100 hours community service and a driving ban for 3 years.

I do find it amusing that Human Factors are always ready to classify circumstances regarding an incident - workload, time since last break, cognitive errors involved. And I'm sure this is all compiled and stored in a database somewhere. And not being a legal type, is cognitive error (we are human) a sufficient defence?

An instructor of mine once coined a phrase that will always stick with me ........ Tin plate your a$$.

[Timothy]

I'm sure that no-one wants a long discussion on the CJS here, that's what Jet Blast is for, and why I don't bother to visit it, but the fact (yes FACT ) is that prison/youth custody doesn't work. It is far less effective in reducing offending than community penalties, and often increases offending behaviour.

This isn't a political opinion, it's fact based on the best statistics we have. Daily Mail readers can huff and puff all they like, on this issue they are basing their opinions on prejudice and belief, not fact.

If custody increases liklihood to offend, and middle England doesn't want community penalties, what realistic alternatives are there? Hand-chopping? Flogging? Showing kids that violence is wrong by committing an act of violence on them?

We in the CJS would love to find a way to reduce criminality...that is our raison d'etre...but no-one seems to have found the magic solution yet.

W

[Jerricho]

Sorry, getting off the topic a bit with the driving thing.

However, looking at incident reports, many "holes" line up to leading to the situation. And when investigation is completed, it is very scary sometimes to read percentages of blame and who has deemed to have done or not done what.

Emails from staff from a certain ATS provider end with "Ultimately, saftey is everybody's responsibility". Following this, does this mean that everybody in the company is responsible in an incident?

(Edited for typo)

[fireflybob]

I think one of the salient points here is that it must be an independent body who investigates any accident/incident and publishes it's findings together with their conclusions.

As a pilot the incident which comes to mind was around the time of Lockerbie when a BA 747 was involved in a near incident at LHR. As I recall, due to pressure on AIB and the fact that there had been no loss of life etc., there was no formal inquiry yet the Captain was taken to court and it was then up to a jury to make a decision based on technical aspects rather than the findings of AIB etc. (As an aside, subsequent to this incident the Captain concerned committed suicide, sadly).

I actually believe that any accident is a product of the "system" and it is unfortunate for those on duty who are involved. Can you put your hand on your heart and say that the training you received was perfect in every respect, that the equipment you use is faultless, that the environment you operate in is perfect. The answer is often no, yet it is you that may end up carrying the can. Another thread running on PPrune lists concerns of First Officers who do not want to make waves concerning certains Captains who violate the Company rule of No Smoking on the Flight Deck. There are still some organisations around where personnel are afraid to raise issues for fear of repercussions and yet they are the people who are in the front line should anything go wrong.

I know I have rambled on a bit here but it concerns me that in many walks of life where safety is an issue staff seem to be under more and more pressure to perform on a continual basis. I can work in overload for short periods successfully but not all the time. Incipient amendments to legislation as a result of harmonisation of rules across the EC do not give me cause for encouragement.

[ozm8]

I'm not sure they'd immediately throw the book at you, even if someone died, and even if they could prove the elements of manslaughter. They're probably more likely to sue the ATCO, or his/her employer (in some cases, it's the Government) under the tort of "negligence" or "breach of statutory duty". In other words, you'd get sued, rather than charged. (And I'm talking here from an Australian point of view, and our legal system is based on the English system.)

"Negligence" is obvious, and they need to show three elements:
- that a duty of care was owed
- that the duty of care was breached, and
- that the breach of duty of care caused the damage.

And these elements need only be shown "on the balance of probabilities" - since this is a civil, rather than a criminal, matter.

It's generally accepted that ATC owes a duty of care to everyone aboard the aircraft, but the pilot-in-command also owes a duty of care to everyone else on the aircraft. The ATC duty of care does not nullify the pilot's duty of care. As such, the pilot may also be negligent, since it is the pilot that actually flew the aircraft into the accident. The level of the pilot's negligence will depend upon how reliant s/he was on ATC. Obviously with zero visibility in IMC, the pilot will be totally reliant on ATC, so will have no negligence. However, in VMC there may be some contributory negligence on the part of the pilot, who may see the other aircraft in time to avoid the collision. This means that the damages bill may be spread over a number of parties (ie, the ATC provider and the airlines). The airlines are covered by the Warsaw Convention on international flights, so its liability is limited. ATC, however, is not covered, so I suppose its liability is unlimited!

"Breach of statutory duty" is similar to negligence (isn't it?), but only applies to statutory authorities. There are some limitations, like the immunity for policy decisions, but that doesn't affect an ATCO stuffing up.

Now, this may all be totally incorrect, since I'm not a lawyer by any stretch of the imagination. This was covered in a lecture at university - I'm studying aviation, and aviation law is one of my subjects.

Are there any lawyers out there who want to comment?

ozm8

[Jerricho]

Obviously with zero visibility in IMC, the pilot will be totally reliant on ATC, so will have no negligence.

While I agree totally with what you're saying ozm, playing devil's advocate, how does TCAS (and given what has unfortunately occurred of late) fit into the equation?

[ozm8]

I think I see what you're saying, Jerricho. If a pilot follows the ATC instruction instead of the TCAS RA, and the other pilot disregarded the ATC instruction to follow the RA, who's negligence led to the accident? Is it the ATCO (for allowing the aircraft to get that close in the first place), is it the pilot who followed the ATC instruction (for ignoring the RA), or is the pilot who followed the RA (for ignoring the ATC instruction), or is it some combination of all three? What if it was clear day? Would it be different?

Whilst none of us, I dare say, wish to see another such accident happen, it would be interesting to see how a court would handle such a case. If I were to venture an opinion, and this is really what I think Jerricho was getting at, all this new instrumentation (like TCAS, and GPWS even - we haven't really touched on CFIT yet), gives the pilot better information than just looking out the window. It may even be argued that the pilots may even have better "eyes" for the situation than the ATCO, even in full IMC conditions, due to their TCAS.

That argument may even stick better when we consider GPWS, because (and correct me if I'm wrong) a radar controller can't see the height of the terrain, they just have a good idea where it is. In situations where it is found that the pilot had better "eyes" for the situation, the pilot may even be found to be more negligent than the ATCO. However, the ATCO will still share some negligence precisely because they have a good idea where the terrain is, and they shouldn't have let the aircraft even get close to hitting it.

I'm not all that familiar with the accident that involved the TCAS (it was in Germany, wasn't it?), but wasn't it found to be the ATCO's fault? An English, or other Common Law, court may decide to follow that precedent, but they may also see what has changed even since then, and find that the pilots share the negligence because they should have followed the TCAS.

ozm8

[Jerricho]

Ozm, that's exactly what I was getting at (sorry, very tired at the time!!). But also, I have seen situations where pilots following an RA in a hold have caused other jets to get RA's as well. The poor ATCO can only sit there and watch, passing traffic like a b@stard. Now, this is probably getting to the realms of fantasy, but the law seems to love proportioning blame. Who would like to deal with this one?

And on the other side, is TCAS as infalliable as people make it out to be. Last week I had a jet swear he had traffic 2 miles ahead of him same level......nothing was there. His reply "We'll have to get this thing checked!".

I hate the law sometime.

[rotornut]

In order to be convicted under the Criminal Code of Canada, the controller would have had to have shown "wanton or reckless regard for the lives or safety of other persons" - s. 219. The test for this is known as an objective one - what would a reasonably prudent controller do in the same circumstances. A consideration must be made of the facts existing at the time and the contoller's perception of those facts.

This is Canadian law but I imagine UK law is not terribly different.

[rotornut]

Should be "wanton or reckless DISregard..."

[bids]

Tasic went to jail after the Zagreb accident in '76...apparently he was sentenced to 7 sears but was released after 2 due to controllers campaigning for his release.

http://members.ozemail.com.au/~abrkic/

link gives an account of what happened....maybe (hopefully) this incident would have been more fairly tried if the same situation happened in the uk today.

[Jerricho]

One would hope you're right Bids.

However, from what I have seen from some incident reports, it seems in some investigations a bag is filled with sh*t, a hole is cut in it, and somebody swings it above their head.............

[Llamapoo]

Not related to the law debate, but the NATS human factors group try to get involved in incident investigation (depends on local management's attitude), because the attribution to 'cognitive error' really doesn't explain anything. Their approach has been picked up by Eurocontrol and the FAA (although still at research stages). As has been rightly pointed out, the holes have to line up throughout the whole system for an error to occur, so trying to pin blame on one or two people is pointless.

I'm not sure if the HF unit's investigation would ever be called into a prosecution, and I don't believe NATS would allow them to look into an incident involving loss of life. However, the trick would be to get the CAA's incident investigation to require a more detailed look at the human factors (so changing the relevant regulations). I'm sure their incident report is used as evidence.

Let's hope we never even have to worry about this though.

[Porge]

Gents

I draw your mind back to the recent Courts Martial of the military controller involved in the F-15 crash in 01 that filled these pages earlier this year. His case went through civil police investigation first and could have gone to court

Porge

[bjcc]

Another point as this thread is about UK (in the case of the Mil ATCO Scots as opposed to English Law would apply) The Police would investigate the circumstances surrounding a death on behalf of HM Coronor. The fact that Police investigate does not mean they are aiming to charge someone. For instance if a person drops dead in the street it is investigated by a Police officer.
In the case of Joe Public any evidence of a criminal act gathered during a Police invstigation would be presented to the Crown Prosecution Service (Proculator Fiscal in Scotland) and they would decide if any prosecution would continue. In the case of the RAF I understand a similar system applies, where the evidence is presented to their Director Of Legal Services, who then decides as with the CPS if there is Prima Facia evidence and whether to prosecute. In some cases certainly with the CPS there may well be sufficent evidence, but they decide not to continue a prosecution as it is not in the public interest. A decision to charge someone does not mean they are guilty, just that there is sufficent evidence to support a charge. It is then for a court to decide guilt. In the case of the RAF controller, yes there does appear to have been sufficent evidence to take him to court (I say appear as obviously all I saw was the evidence presented on here) A court, (court marshal in this case) having had the evidence explained decided, rightly that there was not sufficent evidnce to convict. Thats the way the justice system works, whether it be a going through a red light in your car or the Ripper....

[Legalapproach]

The law in England and Wales relating to manslaughter by gross negligence involves the following questions:

1. Whether a duty of care was owed to the deceased.

2. Whether there had been a breach of that duty

3. Whether the breach had caused or contributed to the death.

4. If so whether the breach should be characterised as gross negligence and therefore a crime.

Evidence as to a defendant's state of mind is not a pre-requisite to a conviction and the breach may arise out of either an act or omission.

[TrafficTraffic]

...I thought you meant UK ATC was criminal........;)

[Jerricho]

One guy at TC is related to criminals! :p