GenghisIt was a very interesting, and well attended, seminar.
No vote was taken but my impression, based upon audience response to the various invited speakers and contributions to the debate from the floor, was that the large majority considered that the use of AAIB reports in court proceedings would do nothing to enhance aviation safety and has the potential to erode it.
NB: The issue relates to the use of the AAIB report itself (the document) as evidence - not to witnesses (expert or other) giving evidence in court.
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Courtney Mil
Come to think of it, wasn't the precedent that was set last year to use the reports as evidence? Flying Lawyer, where are you?
Yes, there was a significant change (in 2014) relating to the use of AAIB reports in civil proceedings.
Criminal proceedings
No change.
Extracts from AAIB reports setting out non-contentious factual findings are sometimes used in evidence provided that prosecution and defence agree.
Most prosecutors don't even try to adduce entire AAIB reports in evidence to the jury.
Objections include:
- AAIB reports are hearsay, not direct evidence.
- They are anonymized documents - not all the authors are named.
- They contain accounts given by un-named witnesses whose accuracy, objectivity and honesty has not been tested.
- Opinions are expressed by un-named individuals whose expertise (or lack of) is not known.
- Findings are reached on the basis of evaluation and elimination of evidence, but the process by which evidence was relied upon/eliminated by the AAIB is not disclosed.
- The evidence discarded during that process is not disclosed.
- The risk that juries will attach too much weight to the opinions of unknown AAIB inspectors simply because they are AAIB inspectors. They are generally very good but, in common with the rest of us, they are not infallible.
- 'Public Interest' objections: See below.
Historically,
extracts from AAIB reports dealing with non-contentious findings have been used in evidence by agreement between the parties.
In 2014, the UK Court of Appeal concluded that AAIB reports (the entire document) are admissible in evidence in civil proceedings even where one or more parties objects – subject only to judges' discretion to exclude in exceptional circumstances.
NB: The report is admissible as evidence - even though the people who created/contributed to it are not called as witnesses and, accordingly, not cross-examined about their findings/conclusions.
In very brief summary, the Court of Appeal rejected the objections set out in the section above in so far as they relate to civil proceedings tried by a judge (no jury). NB: The decision does not affect criminal proceedings (prosecutions).
Public Interest: Flight Safety
Given the importance of the issue being considered, the Court of Appeal allowed the Secretary of State for Transport and IATA to make representations. The Secretary of State submitted a statement from the Chief Inspector of the AAIB.
The Chief Inspector expressed a number of fears which, in summary, were that if reports were frequently used in Court proceedings, people who may assist the AAIB might be deterred from doing so; people may fear being called as witnesses or fear being sued; they might be encouraged to speak with their employer before speaking to the AAIB, who would in turn refer to their lawyers, slowing down the investigation; the quality of volunteered information may decline, or dry up completely; AAIB investigators may face additional pressures if they fear having to justify their conclusions in Court.
The Court of Appeal rejected those objections, concluding that people are well aware of the vital role of the AAIB and were unlikely to be significantly deterred from co-operating if reports were allowed to be used in civil proceedings.
Only time will tell if the Court's confidence was well-founded.
Although it is well known that the AAIB's role is not to apportion blame, parties and their advisers inevitably consider liability implications when assisting the AAIB. Most people/corporations are understandably reluctant to incriminate themselves/provide information which might lead to their being sued and, in the case of individuals, potentially being ruined financially as well as professionally. Lawyers are obliged to advise/warn their clients about the potential risks and, in particular, about the effect of the 2014 development. Failure to do so would be incompetent at least and arguably amount to negligence.
Widely held informed opinion is that the 2014 decision will increase such concerns and may well, entirely understandably, diminish people's desire to help - with a consequent adverse effect upon the AAIB’s ability to do its valuable job.
The 2014 decision was not further appealed so will remain the law unless/until it is reversed by the Court of Appeal or the Supreme Court in some future case – or changed by Parliament.
Interestingly, there is a statutory restriction upon the admission of reports produced by the Marine Accidents Investigation Branch (MAIB). I haven't researched the point but wonder whether the difference was oversight rather than intentional.