Punitive "Justice"

[kiwiblue]

This was published recently...

Originally Posted by The Australian newspaper, Friday October 12, 2007
by: Geoffrey Thomas.

A Swiss court's decision to find four air traffic controllers guilty of negligent homicide over a 2002 mid-air collision that killed 71, mainly Russian children, has bought into sharp focus the intense debate over aviation accident blame.

Three managers were sentenced to one-year suspended prison terms, while a project manager was fined. The four employees of Skyguide -the air traffic control company- were found responsible for the July 1, 2002 collision of a Bashkirian Airlines TU-154 and a DHL 757 cargo aircraft over Uerberlingen in southern Germany. The two cargo pilots and everyone on the passenger plane were killed.

The air traffic controller on duty, Peter Nielsen, was later stabbed to death in front of his family by a Russian whose wife and children had died in the crash.

Prosecutors claimed that a culture of negligence and lack of risk awareness were contributors to the accident and that it was not solely Nielsen's fault.

But more than 100 years of flight has taught the aviation industry one unshakeable truth -virtually no accidents are caused by failures of individuals, but are the result of a conflux or alignment of multiple contributory system failures.

Yet it was the Russian Captain's decision to ignore repeated warnings from his traffic collision avoidance system (TCAS) to climb to avoid the DHL plane that was the direct cause of the accident.

In aviation where most accidents are caused by "human error", it is imperative that the industry understands -as quickly as possible in a free and open exchange- what circumstances conspired to cause humans to err.

Working against that ideal is the passion in many countries to charge those responsible -typically pilots or air traffic controllers- with a criminal offence.

According to Sidney Dekker, from the Swedish Centre for Human Factors at the Linkoping Institute of Technology, "it is critical to understand why people did what they did, rather than judging them for not doing what we now know they should have done".

Alarmingly, the list of accidents where the opposite view is taken is growing and the long-term negative impact is being felt across the industry.

The increase in the criminalisation of airline accidents -most recently highlighted by the prosecution of the air traffic controllers and pilots in the 737 mid-air collision in Brazil in September last year- is "profoundly disturbing and threatens the extraordinary safety record of the airline industry", Flight Safety Foundation President Bill Voss says. The Foundation is leading the industry charge for the decriminalisation of airline accidents.

In an unprecedented move, it joined with the Royal Aeronautical Society and Acadamie Nationele de l'Air et de l'Espace on October 18 last year to issue a 5-point resolution calling for the establishment of causes and contributory factors to be the first priority following aviation accidents, rather than the criminal pursuit of aviation employees.

At the same time, the safety foundation points out that even an organisation that promotes a "no blame" culture cannot tolerate irresponsible or careless acts, such as has happened with several pilots caught -on the flight deck- under the influence of alcohol.

The airline industry, Voss says, has demonstrated that with a free flow of safety information -combined with technological advances- enormous strides have been made in airline safety.

Since 1960, the crash rate of jet aircraft has improved from 60 accidents per million departures to just 0.73 -excluding Russian-built aircraft- and virtually all of those are 1960's and 1970's era jets.

But while the accident rate has plummeted the propensity to criminalise airline accidents has soared on the back of over-zealous prosecutors and government officials who are often covering up system shortcomings.

These prosecutors, many under Napoleonic law, where the pursuit of a guilty party is essential, take their lead from what Dekker terms the "old view" of accidents.

This view espouses human error as the cause of most accidents, putting forward the idea that the systems are safe. Further the "old view" says progress on safety can only be made by protecting these systems from unreliable humans through automation, training and punitive discipline.

However, the "new view" -and that of most in the airline industry- "sees human error not as a cause but as a symptom of failure", Dekker says. The problem is simple. If pilots and others fear they will be prosecuted, they will naturally withold information that will be critical to preventing the same accident from re-occurring.

The most high-profile criminal prosecution was that of SabreTech's involvement in the ValuJet DC-9-30 crash in the Florida Everglades on May 11, 1996 which killed 110 people.

A new benchmark in the aggressive pursuit of criminalisation was set in 1999 by Katherine Fernandez-Rundle, Dade County state attorney, when announcing a 220-count indictment against SabreTech.

She claimed at the time that "hopefully the chilling reality of criminal charges -murder and manslaughter charges- will send a very clear message to the aviation industry that will save lives in the future."

The decision to bring criminal charges was made despite the fact that the National transportation Safety Board determined that the crash was caused by three major factors and four contributing factors, not all of them attributable to actions by SabreTech.

Former NTSB chairman Jim Hall stated at the time: "The ValuJet accident resulted from failures all up and down the line -from federal regulators to airline executives in the boardroom to workers on the shop-room floor."

The wash-up of the criminal investigation was that SabreTech's employees were acquitted of all criminal charges and most of the charges against the company were dismissed, or overturned on appeal.

But the charges and media exposure forced SabreTech, once the third-largest independent repair station, out of business, according to Kenneth Quinn, partner of Winthrop, Stimson, Putman & Roberts, counsel for the airline.

Giving evidence in 2000 before a US House of Representatives aviation subcommittee, Quinn also expressed deep concerns at the aggressive action of prosecutors citing raids on facilities, unlawful seizure of privileged documents, late-night doorstop interviews of employees by homicide detectives and charges of murder and manslaughter before interviews or discussion with counsel.

One final explanation for the drive for the criminalisation of aviation accidents is put by Dekker, who says: "Faced with a bad, surprising event, we seem more willing to change the players in the event (by destroying their reputations) than to amend our basic beliefs about the system that made the event possible."

Rather interesting I thought. If we compare the public blood-letting of our industry (from FAA/CAA/CASA on down through every level of industry, including PPRuNe) to the circumspection, sobriety and privacy of the medical profession for example, we are our own worst enemies. We are very quick to publicly destroy the reputations of our peers, without thought or care of the long-term consequences of those careless words on the victims of our vitriol. Often it is those who have the most to gain that are quickest to judge and point the finger of blame at those vastly more experienced -and then usually without benefit of possession of all the relevant facts, and all the while howling for the blood-letting to begin. You don't need to look far for the evidence of my claim -there is a thread running here wrt a recent Partenavia incident that illustrates that point, amongst many, many others. I'm not passing judgement on that incident in any shape or form, rather pointing out where I see deficiencies in many of the posts associated with that and similar threads, amongst many thousands of similar threads, here and in other forae.

Back to the article: The example given of the tragedies directly and indirectly associated with the Bashkirian/DHL crash might serve as a metaphor -and warning to us all- for virtually every aircraft incident/crash of recent times. I have harsh personal experience of both minor and (on the fringe of) major, multiple-fatality aircraft incidents, as I suspect do many of the posters in here. I have been personally lied to and about by CAA investigators, TAIC investigators, Police, peers and others involved in investigations after the event, as much as my words have been distorted by their stifled prose to fit their off-the-wall contentions. I have read with gob-smacked amazement preliminary reports that draw conclusions so wildly off the mark as to be entirely incomprehensible, often insupportable. I have seen PROVABLE FACTS go unreported, apparently because those facts would of themselves make a nonsense of the underlying contentions. I have seen lies reported as facts, used to create a lasting impression of lack of due care, irresponsibility, criminality and in some cases outright character assassination... in all aided and abetted by an irresponsible media that cares for nothing other that sensationalism. I have spent hours, days, weeks writing responses to these spurious, unsupportable contentions and "findings". Many more hours, days and weeks writing and rewriting company documentation to "fix" things that don't need fixing or merely meet some arcane political agenda. Often I find the regulator can't even tell me what they want -they just know what they don't want... and we in industry are left to muddle our way through as best we can until we meet that undefinable "requirement".

To my way of thinking, the telling passages of the article above are these:

But while the accident rate has plummeted the propensity to criminalise airline accidents has soared on the back of over-zealous prosecutors and government officials who are often covering up system shortcomings.

These prosecutors, many under Napoleonic law, where the pursuit of a guilty party is essential, take their lead from what Dekker terms the "old view" of accidents.

This view espouses human error as the cause of most accidents, putting forward the idea that the systems are safe. Further the "old view" says progress on safety can only be made by protecting these systems from unreliable humans through automation, training and punitive discipline.

However, the "new view" -and that of most in the airline industry- "sees human error not as a cause but as a symptom of failure", Dekker says. The problem is simple. If pilots and others fear they will be prosecuted, they will naturally withold information that will be critical to preventing the same accident from re-occurring.(added emphasis KB)

The criminalisation of aircraft incidents/crashes as I see it is a function of political will, driven by a perceived expression of public will, formed and distorted by a mis-informed, irresponsible, sensationalist media. Rampant political correctness. "Something's happened, someone's responsible, let's get the bastard". The pack mentality. It exists in all levels of society: government, regulator, public and sadly industry. "The pursuit of a guilty party is essential".

Systemic failures: we've all seen them, sometimes suffered the consequences whether minor or very serious indeed. The regulators however, appear to be of the belief their systems are infallible, accurate and the primary indicator of an individuals or organisations fitness to be an ongoing participant within the aviation system. As I see it, there is a reason these systems are referred to as current best-practices (CBP's). You guessed it -the key is in the Current. These practices are currently those that best fit the societal, political, and industry needs of the minute. There is however in the term CBP, an implied commitment to continually review and revise these practices, with the intent of the practices growing and improving to reflect societal, political and industries changing and growing mores and needs! How much easier and more effective would that process be if we could entirely remove the need to comply with current and changing political will. Systems that actually reflect the best interests of industry, which by implication alone will reflect the best needs of society...

Punitive discipline: while there continues to be a minority "lunatic fringe" of miscreants within industry, there will be a need for some level of punitive discipline -groundings, loss/suspension of licence, loss/suspension of operating certificates... to apply that brush too broadly (as is currently the case) damages industry irrevocably. Good, experienced people are being hounded out of industry, with their professional reputations in tatters and in some cases personal character destroyed. Here we need to take a leaf from the book of the Medical profession. They do not allow their participants to be judged by those ignorant of what they do or how they do it (Police, Train drivers, political appointees, the media or public.) -no, in cases of misconduct, impropriety or misadventure, they are judged by a professional body of their peers who may if necessary, refer the process to the civil authorities. Why are we as a professional body allowing ourselves to be treated any differently??? How can we as practising professionals expect to be treated justly by a system that has no knowledge or understanding of how we do what we do, or why??? Those charged with investigating our activities with a view towards criminal proceeding first have to be educated to a minimal level of understanding of what we do!!! How bizarre is that?

The new view: "sees human error not as a cause but as a symptom of failure"... "If pilots and others fear they will be prosecuted, they will naturally withold information that will be critical to preventing the same accident from re-occurring."

'nuff said.