Orographic
"only if they have someone to translate what is going on. Do you really expect 30 some Joe Publics, to have even the faintest idea what is going on for the pilots of an aircraft in trouble. " We saw the video but I didn't understand what was going on, and they must have been negligent, I mean the plane crashed didn't it?"
It is the job of the lawyers and the expert witnesses to explain to a jury what the case is about and a number are quite capable of doing that. I make reference to a case below in which there were a number of complex technical issues and the analysis of an FDR. The jury in that case proved themselves capable of cutting through the prosecution's sensationalist and headline grabbing allegations and seeing the real picture.
This thread raises a number of issues and although some of what follows has been mentioned by previous contributors here are a few thoughts.
Should pilots ever face prosecution for their actions?
For recklessness – clearly the answer must be yes.
For negligence? Again the answer should be yes but in appropriate circumstances. Most other forms of transport (road, rail and maritime) are subject to laws relating to careless or negligent behavior and there may be times when the actions of a pilot deserve to be marked by a prosecution. The argument that a pilot's actions are motivated by his own self preservation has a superficial attraction but equally applies to other activities and one can imagine circumstances in which a pilot's negligence poses no or no significant risk to himself or his aircraft but does pose a risk to others.
Why should pilots be treated differently from say aircraft engineers. A pilot would say that engineers should be encouraged to do their job properly because it is someone else's life that depends upon them but a pax or person on the ground might say the same about a pilot.
In truth, aviation is (wrongly) perceived by the general public as a risky exercise and public confidence in air transport would be severely dented if the public became aware that unlike any other form of transport, pilots were exempt from the consequences of their actions.
It follows that an ability to prosecute should exist but, as is the case now, be used sparingly. Pilots can take some comfort in the fact that although there are many, many instances of negligence arising, prosecutions are in reality few and far between (cf the number of prosecutions for driving without due care and attention).
The more interesting aspect of this thread is the issue of what evidence should be used in such a prosecution.
CVR's
On basic principles a CVR recording would be admissible in evidence in a UK court. It is real evidence. Whilst there is a statutory bar at present on the use of telephone intercepts, other forms of recording including covert recording (placing bugs in suspected criminal's cars, flats and even in telephone boxes) have been admissible for a number of years. The CVR is not a covert device; pilots are aware of its existence and there is nothing unfair about its presence. In prison, prisoner's personal telephone calls are routinely monitored and recorded, prisoners are made aware of this and the recordings are used in evidence in court. Other forms of surveillance are used constantly in the UK (e.g. CCTV) and there is no issue over the admissibility of the product of such surveillance being used in court. Why should the same not apply to a CVR?
The more important question is whether in the case of CVR's and FDR's there should be some public interest argument for not using them.
A tachograph is fitted to a lorry specifically in order to enforce legislation. CVR's and FDR's exist in order to record information that may be of use in a subsequent accident investigation. There is some international agreement that FDR recordings should not be used for prosecuting purposes save in the case of reckless endangerment. That being said, I can well imagine that an investigating body in possession of such material and intent upon pursuing a negligence charge would try and use it if it supported their case. They would argue that although the primary purpose of the equipment is safety, once the material has been created it should be available for any purpose.
In a recent case of causing death by dangerous driving, the car involved was a road legal rally car fitted with a telemetary recording device. This provided the prosecution with a record of the speeds driven by the vehicle and this evidence was used in proving the allegation against the driver. Although not directly involved in the case I do not believe that there was any issue over admissibility.
If there is a public interest reason for excluding such evidence, should it be excluded in all circumstances? Flying Lawyer made reference above to a case in which he and I were both involved in which the FDR recording actually confirmed what the pilot said and substantially assisted in securing a not guilty verdict on a reckless endangerment charge.
As an aside, during the course of the investigation the CAA asked for a copy of the FDR printout. The pilot took advice from BALPA who told him not to release the data without a court order and quoted the international protocol. The pilot followed Balpa's advice. During the subsequent trial the prosecution told the jury that this refusal showed the pilot had something to hide and that this was evidence of his guilt – this being despite the plain evidence on the FDR printout and a letter from BALPA's legal department setting out the advice that had been given and why! Fortunately the jury saw sense.
However, returning to the topic, if such material is admissible to exonerate an innocent pilot why should it not be available to convict a guilty one?
A more worrying issue is the use of material gathered by accident investigators such as the AAIB or NTSB. Such bodies are not tasked with criminal investigation and their prime concern is the maintenance of safety. There is a clear public interest in their ability to collect as much information as may be available. This clearly includes the accounts of those involved in an accident. I have put to one side any issue of admissibility due to lack of proper caution etc but look instead at the public interest argument for exclusion.
A clear conflict arises if statements made in accident investigations or boards of inquiry were to be used in subsequent prosecutions. In most jurisdictions there is a rule against self-incrimination. The AAIB would wish for pilots and others to be frank and candid with them. This will only happen if witnesses can speak without the fear of the material being used against them. If accident investigation material is used in prosecutions then the flow of that material will dry up as most solicitors will advise people to say nothing. Further, the AAIB will have to start cautioning witnesses and that will involve formal interviews and PACE (Police and Criminal Evidence Act) considerations.
Accident investigations should be separate and distinct from criminal investigations. Bodies such as the AAIB should not be forced into becoming an arm of the police or the CAA Investigations Branch. There are clear and I would suggest over-riding flight safety considerations that should exclude accident investigation material (in the form of potentially self-incriminating statements) from any legal process, both criminal and civil.