This is a fascinating discussion.
Originally Posted by PBL
I suspect that many non-deliberate cases form a relatively easy part for many of us.
Originally Posted by Flying Lawyer
That’s interesting.
I say that because I find instances where someone did not intend to cause death, injury or damage (even though that was the result of his actions/inactions) more difficult than instances where someone intended to cause death, injury or damage.
I mean the following. Pilots, like other operators and all human beings, fail to follow SOPs sometimes, fail to notice salient operational data sometimes, are subject to all the slips and errors cataloged by Reason and others. This is normal human behavior which humans, in a broad sense, can do little about, and I feel strongly that criminal law has little or no reasonable application here. That's why I say this part is easy to figure out.
However, what do you do with, say, the first officer of Egypt Air 990, or the captain of MI 195, should they have survived? And with the captain of GIA 200? How do you handle the investigation and interviews? Troubled people (one may presume), with mental pressures and attitudes that may have caused them to do some very unusual things which harmed others.
Do you bring them in with a psychiatrist and start off with a Miranda warning? Good luck in finding out anything useful. Do you interview them in confidence, encourage them to spill the beans, and read the headlines in the Sun four weeks later: "Confessed killer of dozens walks out scot-free" and then spend your next years trying to explain to the public who has entrusted you with this task how this has aided aviation safety?
What exactly *do* you do? I don't know. I find it difficult, I imagine others do also, and it is partly in consequence of that (wrt GIA 200) that this discussion started.
You put the argument for the conflict between criminalisation and aviation safety well, yeronna. Let me put it in my own words:
1. If you are going to use people's testimony in evidence, they must be warned in advance (e.g., Miranda).
2. If they are Miranda-warned, they have every right to turn up with a lawyer and say nothing.
3. If you put accident participants through this, this is likely to aid a factual investigation much less than having people freely tell you what went on.
4. Investigations which are as factually complete and accurate as possible are essential to future aviation safety.
I agree with all of these four statements. This is directly applicable to rail accidents in Germany. You can't find out anything useful because the participants don't remember anything because the investigation has judicial consequences.
This interacts with structural inertia to lead to some pretty absurd situations. There is a particular signal (an "auxiliary signal" attached to a main signal) which has a positive meaning even when nothing on it is lit. In a particular case it meant: "you may only proceed past this signal at a maximum of 40 kph". The driver was in the process of accelerating to 120 kph and subsequently derailed when he hit the points. My colleagues point out that the information previously available to the driver, which in part was inconsistent, nevertheless entailed he should have restricted himself to 40 kph anyway. My colleagues have the benefit of all the data, and hours to reconstruct it; the driver had at most minutes, had just been subjected to an inconsistent sequence of speed-limit information, and unlike my colleagues was not necessarily hired for his expertise in evaluating accident scenarios. It was pitch dark. It is easy to imagine that had this unlit black construction on the side of a main-signal mast been more visible, he might have thought "oh, maybe I should still be proceeding at 40". Had he been able to say to the investigation "actually, I didn't notice the auxiliary signal", then maybe the Deutsche Bahn would have had immediately to go out and frame all their auxiliary signals in train-headlight-reflective tape to make them easier to see when unlit, as the Austrians did. Instead of which, DB is still thinking about it, 8 years on. And one of the track-side workers responsible for erecting some temporary speed-limit signals apparently cannot remember how he had done so, or which side of the track he may or may not have installed them. All in all, a mess, from which it is not clear that even the simplest lessons have been learnt.
Or take the maglev accident at Lathen. The state prosecutor, in charge of the investigation, said on the same evening "we are working on the presumption that it is human error", even though he had not even had the chance to read through the ops manuals to see if they were consistent and complete or not. The journalists were a little sharper. Two days later, they noted that there were some obvious holes in the system. For example, the maglev itself had a "technical protection system" (anti-collision), even though it was guaranteed that only one of them could be operational at any time. The service vehicles had no technical protection, only procedural protection, despite that there was at least one on the track on every morning when there was a maglev run planned. One might well ask, as did the journalists, and as employees of the operator apparently had done two years before, what the point is of equipping just *one* vehicle with an anti-collision system. And having one radio comms system for it, and another one for everything else. Operated by two different controllers. With positional indicators in two different places in the control room.
Nevertheless, it is the controllers who are in the dock. Didn't follow procedures, you see, just as the state prosecutor intimated on the evening of the crash.
Originally Posted by Flying Lawyer
Re the 5th paragraph of the JR: ............
The signatories do not concede gross negligence as an exception.
That is why I said, two days ago:
Originally Posted by PBL
I was less than satisfied with the CANSO/FSF/RAeS statement in 2006 ........
Originally Posted by Flying Lawyer
I note (post 72) you think exceptions for gross negligence manslaughter might have to be made also.
Let me emphasise the important word "might". As I noted above, I find this subject very difficult, in contrast with dealing with straightforward Reason-type human error. I am grateful for the contributions of others who know more than I do about the potentially-applicable legal concepts.
PBL