Aviation safety jeopardised by judges?
Since 1946, ICAO’s annex 13 has been the worldwide guiding reference on aircraft accident investigation.
Article 3.1 stipulates that:
The sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability
The latter is of great importance as this is what allows us aviation professionals to candidly supply all our help when we are connected in any way to an accident or incident in order that the cause can clearly be found and measures taken to avoid recurrence.
It is based on this that CVR’s and FDR’s were mandated on aircraft, and not with judiciary purposes in mind.
This, together with national reporting systems, is one of the main pillars that aviation safety has been built upon since the fifties, until reaching todays’s unquestionably outstanding levels.
The nature of accidents themselves implies that in today’s world, a judiciary investigation will subsequently occur. However, such investigation is clearly one whose goal is to determine responsibilities and apportion blame, as expressly excluded from Annex 13.
It is therefore key that the judiciary investigation and that of annex 13 are carried out separately, as recommended by Annex 13 itself (art 5.4.1):
Any judicial or administrative proceedings to apportion blame or liability should be separate from any investigation conducted under the provision of this Annex
However, as the facts originating both investigations are the same, it is unavoidable that some connection will exist, and Annex 13 itself recognizes it as such:
The State conducting the investigation shall recognize the need for coordination between the investigator-in-charge and the judicial authorities...
This is in my opinion a VERY gray area. It is becoming apparent that the judiciary investigations that are being carried out in Spain re the Spanair accident, is having access to the data AND maybe analysis (this is where the issue is) from the Annex 13 investigation, if what is being leaked to the press is correct.
We have seen such type of interference in the past (see Concorde accident report and UK AAIB comments)
In a judiciary process, in order to preserve your rights, if you have any responsibility in connection to an accident, most western countries’ constitutions recognize the right of citizens not to testify against themselves. This is of course very different from the idea of Annex 13, where we would gladly supply all useful data knowing that it is not supposed to be used against ourselves.
For years we aviation professionals have been candidly reporting our own and our organisations' errors and mistakes in an effort to help aviation safety…we have every right to stop doing that if the separation of both investigations is not clearly emphasized. The way this and some other recent investigations are carried out will pave the way for either:
a) Increasingly diminished aviation safety as aviation professionals become more and more aware of the liabiliaties incurred in candid reports, and in operating aircraft with increasingly comprehensive recorders.
b) Strengthened aviation safety through stronger ruling protecting the constitutionary rights of us who carry the responsibility of people’s lives in air transport.
In the case of a), the irony is that the rights of the same citizens that the judiciary system is trying to protect will be decreased through jeopardised aviation safety.
Can we let it happen that way?
Apologies if this subject has been dealt with in this forum before. Mods please feel free to direct this post there if so.