Criminalisation of Accidents [Archive]

rubik101

7th Feb 2008, 10:09

The suggestion from some posters seems to be that prosecution of individual pilots in these circumstances will result in a reduction of aviation safety. I assert the opposite is true. If you are of the opinion that negligence should go unpunished, then just wait until the reckless driver slams into one of your children.

The principle of apportioning blame and applying punishment after actions by an individual or company resulting in loss of life or injury is long established in law. It is enshrined in civil law for a long time, many centuries in fact.

If, after several warnings and urgings from the FO, the Captain of this particular flight continued an ill advised course of action then he must be accountable for the subsequent damaging results.

Trial and punishment under these circumstances will show others that their actions might be held to account in similar circumstances. If this leads to one pilot changing his mind and seeking the safer option then the trial of this pilot has been worthwhile.

As for hordes of pilots pulling Circuit Breakers, it is just not going to happen. The lack of recorded data will become apparent very quickly to our engineering colleagues and it would not be long before the very inept and stupid pilot was invited for tea and biscuits.

Attitudes to this type of incident/accident vary around the world, as we know, but if a uniformly harsh and critical approach to criminal negligence was adopted universally, flying would ultimately be a safer industry.

Accountability must apply to everyone, and particularly to those who have the responsibility of the lives of fellow human beings, be they pilots, doctors or the PM, but that is another argument.

4Greens

7th Feb 2008, 10:39

At this stage there is no evidence to show why the Captain did not go around. The issue is that punishing this one individual, if indeed he was guilty of some deliberate violation, will lead to an overall reduction in flight safety in the future. This is because reporting systems will be far less effective. It is not just CVRs that are involved, it will include Quick access recorders (FOQA in the US) and many confidential reporting systems worldwide.

As soon as the reporting system is compromised, it loses its effectiveness.

Punishing this pilot for this accident is not worth the price we pay for reduced safety if this prosecution goes ahead using CVR data.

PK-KAR

7th Feb 2008, 10:43

1. Can the Captain, but then leave the first officer alone despite him failing in his duty too? No speed check? Not informing the Captain he didn't deploy the flaps as requested?
2. The accident investigation stated the captain suffered from fixation. Now, will such a finding in the criminal case be accepted by the court or not? if Not, it's a sham!
3. There is no "I am Captain therefore I am God" shown in the accident report. In fact, the F/O did not do enough to raise the attention of the captain of the impending danger (ie. F/O failed to recognize incapacity).
4. There is no intention to do harm in this case. The Captain was channeled in his attention in how to get on the ground but with minimum casualties. Stress levels and the fixation prevented his mind from realizng this was not the right thing to do.
5. No one seems to pick up the fact that JOG's operating license can actually be deemed invalid and therefore, the primary cause of death can be the negligence by the airport instead... Sorry, if JOG airport complied with the recommendations set out in its limited license release in 2005, leaving the paved surface at the reported 55kts would not result in the same extent of death!

ask yourselves if you would feel the same had a member of your family been killed on this flight?
I know 5 people on the flight, 2 were hospitalized... 1 was killed. Do they and the family of the person killed want people to go to prison because of this? No, they want to know why it happened. Those who want to redress the damage can do so through litigation... But then, most signed up to the "no litigation" papers from Garuda to take the damages payout.

Several litigation attempts have been thrown out in court, and I wonder if this criminal investigation will be accepted by the court.

Over the last 2 years, police attempts to criminalize air accidents have been quite bizzare over here!

Anyways, IFALPA has stated its concern, and everyone is wondering why the Captain has to be in confinement pending his trial. The police has said that they fear he would go missing or destroy evidence, something that even the minister of communications have doubted as the real reason. Why confine the guy if he's not endangering the public (there was no criminal intent causing the accident), and has been cooperative with both the accident and criminal investigations in the past? Political pressures from within and outside Indonesia on the police is strongly suspected. They're not even charging him on "committing a mistake resulting in an aircraft accident with loss of life", but has gone for manslaughter... perhaps for the heavier punishment...

PK-KAR

green granite

7th Feb 2008, 10:46

Punishing this pilot for this accident is not worth the price we pay for reduced safety if this prosecution goes ahead using CVR data.

So pilots must be put above the law because flight safety comes first?

There is of course a simple solution, make anything said to the air saftey investigators not admissible in a court of law. The black box recordings (voice and data are another mater though.

rubik101

7th Feb 2008, 10:55

4Greens, I can't follow your misguided and somewhat naive logic. If we allow this individual to walk away unpunished then surely we are giving a green light to all and everyone to carry out any unsafe action, regardless of the consequences. This is patently obviously wrong. This pilot made a fundamental and negligent error. He wantonly disregarded all the advice, warnings and evidence which would have led to a safe alternative, yet he pressed on regardless, resulting in many deaths. DEATHS, not a dent in the wing, deaths. Are you suggesting that human life is worth less than the supposed supremacy of the present flight safety regime?
If it takes the imprisonment of this individual to show others that they will be responsible for their criminal actions then all well and good. I hope he gets the maximum sentence, assuming he is found guilty that is.

expat400

7th Feb 2008, 11:41

PK-KAR:

Absolute rubbish! You are trying to defend a situation where complete idiots who never should be allowed close to an aircraft can continue to threathen the lives of innocent people.

The guy should get 20 years in prison. Minimum.

The greatest threat to flight safety would be if this guy doesn't get punished.

Blame it on the FO? You're pathetic! Must be your friend sitting there...

Capn Bloggs

7th Feb 2008, 11:50

Rubik101,

if a uniformly harsh and critical approach to criminal negligence was adopted universally, flying would ultimately be a safer industry.

You seem to be assuming that every accident is caused by criminal negligence. They are not. How many are actually caused by criminal negligence where every other pilot needs to be taught a lesson? Very very few. But throw a pilot in jail and the aviation world will become a more dangerous place.

All your policy will do is clam the whole system up, with everybody refusing to utter a word, and flight safety will go down, not up as you predict. Your black and white big stick approach will not achieve what you think.

rubik101

7th Feb 2008, 12:20

PK-KAR, you wrote as point 4;

There is no intention to do harm in this case. The Captain was channeled in his attention in how to get on the ground but with minimum casualties. Stress levels and the fixation prevented his mind from realizng this was not the right thing to do.

in Law, negligence does not consider intent. If you intend to do something dangerous then you will be charged with recklessness, or reckless endangerment, a more serious charge than negligence. If you do something for which the unforeseen circumstance is death or injury, then you are liable. The charge brought will be decided by the prosecutors based on the degree of intent and the subsequent degree of culpability will be decided by the court. This does not remove the need to prosecute this individual, whatever his intentions.
If, as you suggest, he was trying to land the aircraft with the 'minimum of casualties' then he should certainly be charged with recklessness.

Fixation and stress are not a defense in this instance. If it were, most landings would result in crashes!

Capn Bloggs, you cropped my quote and so altered the meaning to suit your point of view. Very amateur and not very ethical. Please explain why you did that? I absolutely did NOT say what you chose to quote. Try writing your own argument instead of cropping and pasting mine.

I said,
Attitudes to this type of incident/accident vary around the world, as we know, but if a uniformly harsh and critical approach to criminal negligence was adopted universally, flying would ultimately be a safer industry.

You said I said,
if a uniformly harsh and critical approach to criminal negligence was adopted universally, flying would ultimately be a safer industry.

I am talking about the attitude to criminal negligence, not the causes of accidents. Try re-reading the post carefully.

lomapaseo

7th Feb 2008, 12:27

The problem that we have here is the fundamental use of tools whose sole purpose is to learn and to prevent accidents (black box recorders and/or forensic analysis ) being usurped by criminal probes and thus taken out of the hands of the crash investigators.

Personaly I would rather await the decoding and analysis of the data before handing it over to a criminal investigation. And then only under defined aviation law of what constitutes criminal negligence in the operation of a flight for hire.

In the case of suspected simple or compound negligence then I would prefer that no interference with the investigation until after it has been fully completed (I'll admit that there needs to be a definition of what fully completed means)

I'm kind of hoping that defined aviation law in my imaginary image doesn't assign criminality to a pilot having a mental block that day on a specific flight but does have to consider past history.

I'll support the interests and expertise of the Flight Safety Foundation in this subject to sort out a better compromise

joehunt

7th Feb 2008, 14:24

cwatters & rubik101

The CVR CB need not be pulled as the cockpit mic can be muffled discreetly and temporally and would be hard to prove which crew was responsible, unlike pulling a CB. So that keeps the engineers happy too!;)

armchairpilot94116

7th Feb 2008, 17:20

One group of people feel professional negligence resulting in death should be punishable by jail. Others feel that pilots need this noose over their necks removed so that the truth can be known when there is an accident. When pilots can be free to give testimony and perhaps may not do so if the threat of being jailed may depend on what they say.

Taiwan authorities were close to jailing the crew of the Singaporean 747 that crashed on takeoff in Taipei. But they were persuaded otherwise by the outcry from pilots worldwide and the Singaporean government. They probably would've been jailed had they been pilots on a Taiwanese carrier.

However, jailing pilots for say five years after a crash that is proven to be their fault. That doesn't decrease the risk of air transport. Very few pilots actually want to crash and he/she wouldn't be able to predict whether he/she would even survive such a crash.

A jail sentence serves no real purpose here in my opinion. It doesn't deter crashes from happening and it's of no help in obtaining reliable testimony from the flight deck.

GXER

7th Feb 2008, 17:53

It's absurd to argue that pilots should be immune to the consequences of professional negligence, including possible criminal charges.

At the same time, it's clear that a 'no blame' approach of accident investigation authorities is conducive to further improvements in aviation safety.

I see no inherent contradiction in what I understand is the legal status quo in the UK: the purpose of an investigation is to determine causation without apportioning blame but, once that has been determined, the question of culpable negligence, whether on the part of flightcrew, operating companies and/or others, falls to be assessed by law enforcement authorities.

I can see an argument that CVR should have a legally privileged position of non-admissibility but I don't find it compelling. I do think, in the case of flight crew, that an inherent self-interest in error avoidance can be presumed, and that should influence the charging standard. I hope, in the UK, it would do. The situation in other countries may be different and, since a large proportion of flight crew are necessarily exposed to a variety of legal jurisdictions, I can understand and sympathise with the apparent unease about what does seem to be an increasing propensity to pursue criminal charges.

I hope that cool heads will prevail ....

SR71

7th Feb 2008, 18:04

PBL or some other knowledgeable guru,

Can someone post a link to the ICAO document/statement which deals with the matter and to which signatories, therefore, ought to adhere.

Thanks.

DK_FCI

7th Feb 2008, 18:16

http://dcaa.slv.dk:8000/icaodocs/Annex%20XIII%20-%20Aircraft%20Accident%20and%20Incident%20Investigation/an13_9ed.pdf

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.

Mad (Flt) Scientist

7th Feb 2008, 18:21

That's just the rule for an investigation under ICAO rules.

Being a signatory to that in no way constrains a government from enacting its own laws with regard to negligence or similar.

To take an extreme example: if an investigation were to determine that an airliner were shot down, is anyone seriously suggesting that those responsible would be somehow immune to prosecution just because there had been an ICAO investigation?

Fangio

7th Feb 2008, 18:27

Has anyone experienced the German Authorities approach to an aviation incident. Some years ago, a Dan Air aircraft on a scheduled internal service was involved in an air-miss with a USAF fast jet over Germany. Upon arrival at Saarbrucken, the police were waiting.The Dan Air aircraft had the CVR and the FDR removed by the base engineer and handed over to the German police. The Saarbruken traffic police then visited the captain at the hotel and breathalysed him. This apparently is standard practice in Germany.The F/O was already in the pub. The subsequent enquiry revealed that the Dan Air aircraft was operating with civil controllers on VHF and the fast jet had no knowledge of the UK aircraft because he was on UHF.

To compound the problem, the captain had enjoyed an ALD in his room!

Techman

7th Feb 2008, 18:40

At my company there are an increasing number of people who base their operational decisions not on what is the most sensible, optimal or safest, but on what covers their backside. I see no safety benefit at all.

Trojan1981

7th Feb 2008, 19:39

PK-KAR 1. Can the Captain, but then leave the first officer alone despite him failing in his duty too? No speed check? Not informing the Captain he didn't deploy the flaps as requested?
2. The accident investigation stated the captain suffered from fixation. Now, will such a finding in the criminal case be accepted by the court or not? if Not, it's a sham!
3. There is no "I am Captain therefore I am God" shown in the accident report. In fact, the F/O did not do enough to raise the attention of the captain of the impending danger (ie. F/O failed to recognize incapacity).
4. There is no intention to do harm in this case. The Captain was channeled in his attention in how to get on the ground but with minimum casualties. Stress levels and the fixation prevented his mind from realizng this was not the right thing to do.
5. No one seems to pick up the fact that JOG's operating license can actually be deemed invalid and therefore, the primary cause of death can be the negligence by the airport instead... Sorry, if JOG airport complied with the recommendations set out in its limited license release in 2005, leaving the paved surface at the reported 55kts would not result in the same extent of death!

I agree with your logic. An aviation accident is NEVER the result of the failure of one person or component of a system. It is usually the culmination of a series of failures in different areas that has led to safety margins being erroded to the point where an accident occurs.
Prosecution of flight crew or ground crew who have done their job in good faith and to the best of their ability will not help air safety at all. This will only lead to crew covering their tracks and not co-operating with investigators (Remember the Canadian Pacific collision in Sydney).

This is a slippery slope the Indonesian Govt has embarked upon. Indonesia's air safety record is appalling and Indonesian operators are, I believe, still banned from flying into the EU. The prosecution will do nothing to help their cause.

HarryMann

7th Feb 2008, 20:19

An aviation accident is NEVER the result of the failure of one person or component of a system. It is usually the culmination of a series of failures in different areas that has led to safety margins being erroded to the point where an accident occurs.
Prosecution of flight crew or ground crew who have done their job in good faith and to the best of their ability will not help air safety at all.

I think NEVER is taking it a bit far...

and ' Prosecution of flight crew or ground crew who have done their job in good faith '

pushing it a bit for this situation...

1) Warning one that any professional would take note of when entering a responsible position in charge was... 'I am stressed, I have had another argument with the missus (or so it was said)... I shall be doubly careful at this time, and rely more on my FO's abilities and team work to keep safe (whatever words I use will be criticised, but don't all say a pilot's self-check list shouldn't include a brief moment of reflection when entering his 'office')

2) I know I am diverging a long way from SOP, but I will continue... as this will get 'some' of my passengers down safely.. Mmm...

3) Someome else above is suggesting this pilot, after travelling across the threshold nearly 100 kts too fast, can take comfort in that should he run off the end, criminal responsibility will lie with the aiport operators, as they have a very tenuous hold on their licence, and the run-off is jknown to be dangerous... :rolleyes:

IMHO, Accident Investigation History and a study of classic cases should perhaps be given more prominent attention in commerical pilot training, worldwide.

The one I hear litttle of these days, yet was pretty salutary at the time, was the terrible Trident/Staines deep-stall on take-off circa early 70's... pre-flight argument/stress/ignoring the aircraft's built in safety devices

I know it hit BEA hard at the time and the lessons permeated their flight-crew selection and training, lessons which have borne fruit in the longer term and no doubt still influence BA's thinking.

Captain_djaffar

7th Feb 2008, 21:39

My point of view is that it was definitely negligence from the pic.
Its not a mere turbulence which they have encountered...its a crash.
And the capt seemed to have opted for a definite landing rather than the best-and-needed alternative=to go around (even after the first bounce)

Recently an Air mauritius A340 bound to hong kong encountered severe CAT-turbulences well before approach descent. Many people were injured.
That was it...a clear air turbulence..but yet so many people wanted the head of the capt and were on the process of suing.(even the capt was injured)

There is a logic upon to whom responsibility is to be attributed a crash or severe incident.
In the 737 case...neglecting 15 warnings recorded on FDR and first officer 'recommending' an alternative (recorded on the CVR) already burns your alibis:}

4Greens

8th Feb 2008, 00:36

krujje

8th Feb 2008, 00:52

When somebody is injured or suffers some sort of financial loss as a result of an accident, restitution must be made... somebody has to pay. That's a given.

Criminal prosecution of pilots is one way to make such a payment. But it is not the most effective. I personally do not believe that putting the pilot in jail will increase the level of safety in aviation.

Civil litigation seems to be the best compromise, in that victims are compensated, investigators get their evidence, lessons are learned, and pilots don't spend useless years in prison.

In addition, financial penalties such as those imposed by civil courts hit the entire system which produced the accident, one way or another, instead of creating a scape-goat out of the people who were, at most, only the last line of defence before the accident.

Capn Bloggs

8th Feb 2008, 01:16

rubik,

Capn Bloggs, you cropped my quote and so altered the meaning to suit your point of view. Very amateur and not very ethical. Please explain why you did that? I absolutely did NOT say what you chose to quote. Try writing your own argument instead of cropping and pasting mine.

I said,
Attitudes to this type of incident/accident vary around the world, as we know, but if a uniformly harsh and critical approach to criminal negligence was adopted universally, flying would ultimately be a safer industry.

You said I said,
if a uniformly harsh and critical approach to criminal negligence was adopted universally, flying would ultimately be a safer industry.

I am talking about the attitude to criminal negligence, not the causes of accidents. Try re-reading the post carefully.

I utterly reject your comments. Unethical indeed. Did you or did you not write "if a uniformly harsh and critical approach to criminal negligence was adopted universally, flying would ultimately be a safer industry."?

I did write my own argument after I quoted text that you wrote. It is attitudes like yours that will wind back air safety, not advance it. The vast majority of accidents are mistakes, and taking a black/white of criminal negligence is shallow but typical of lawyers and people who don't understand complex aviation systems who just want somebody to blame.

Or maybe I've got it all wrong. Perhaps you could explain exactly why "if a uniformly harsh and critical approach to criminal negligence was adopted universally, flying would ultimately be a safer industry." Is it because pilots will stop crashing aeroplanes because they (or anybody else in the aviation supply/support chain, right up to the leaders of government, for that matter)?will never break any rules?

barit1

8th Feb 2008, 01:32

When is an accident not an accident?

When a pilot's (or dispatcher's, or technician's...) behavior is so egregious as to place persons at unnecessary and unreasonable risk of life and limb, and expert witnesses validate this charge, why should other pilots be complicit in shielding an offender from prosecution?

I know some countries would try pilots as scapegoats, but there are ways to counter this through sanctions. And there is room for an international aviation tribunal, and reason to believe this might improve international safety and execution of justice.

lomapaseo

8th Feb 2008, 01:37

Lets have a go at getting back on track.

The issue is what constitutes admissable evidence. International protocols protect evidence from an accident investigation being used in criminal proceedings. Countries that are members of ICAO agree to this and their regulatory authorities incorporate it into their system.

The issue is NOT whether or not pilots can or cannot be prosecuted for negligence, it is the question of what evidence can be used in court to prove this. CVR's cannot be used to prove innocence either.

Illegal phone tapping constitutes and produces similar issues, there are a number of other examples.

Removing these protections or ignoring them reduces the ability of investigators to get at the causes of accidents and thus prevent the next one.

Fair summary and worthy of focus in this discussion, however not completely factual

The issue still revolves around what you seem to have mistated below

Countries that are members of ICAO agree to this and their regulatory authorities incorporate it into their system.

This is not necessarily true. Under ICAO Annex 13 the member states plus other states outside of ICAO that agree to abide by Annex 13 may selectively choose and/or excise which parts of Annex 13 their State is willing to adopt. Thus if the laws of the state give preference to criminalization of accident investigation then that state may simply state that it abides by ICAO Annex 13 as a signatory except for: articles such and such.

This is the best compromise that could be worked out between all the differences in societies among states. In reality we ain't quite a United Nations yet.

So while I support your call for focus in this thread, we must at the same time keep aware of the complexity of the issues

DC2 slf

8th Feb 2008, 02:11

They ask why so many ship captains are arrested after accidents when so few airplane pilots are given that treatment!

doubleu-anker

8th Feb 2008, 02:35

Certain countries, India being one that comes to mind, the authorities down load CVR data and store it, whether the a/c is involved in an incident or not.

Summing up, everything that is said on flight deck of an Indian registered a/c from the word go, is recorded and stored.

Watch your back!

PJ2

8th Feb 2008, 06:27

Re post #38
...and the lessons permeated their flight-crew selection and training, lessons which have borne fruit in the longer term and no doubt still influence BA's thinking.

Fine post, HarryMann.

It is a lesson very few here indeed show has been learnt, but having said that, one can sure tell the aviators. Aviation safety is unique in that it's principles are beyond the individual. Aviation safety rests upon principles such as the willingness to be wrong once in a while so long as one is right most of the time. Beancounters hate that and are more and more successful at eradicating such "wasteful" thinking. Your comment therefore, could not be more appropos, nor closer to the truth, and of course, as I know you would know only too well, it goes far beyond crew selection.

Skill, native ability, intelligence and momentary capacity all play a role in the moments, hours and years either in preventing an accident, or leading up to an accident. Like a watercourse, the "causes" meander quietly and largely unseen by those who don't understand aviation, around the hard, resistant places but the soft places yield to their pressures and sooner or later they come together in a stream or river of causes. Momentary human incapacity meets Newton so to speak, and human failing in the form of what looks like negligence, causes an accident. Once in a while it really looks like negligence and it is SO easy to stop the question at that point because we are understandably deeply angry and deeply hurting. But to what end is punishment sought? What is the ultimate resolution in terms of future safety? Is the response personal, or is it for others?

Those who don't truly understand aviation leap to punish the "perps", wholly ignorant of the antecedents and aviation's (and to a lesser degree, only because they can pull over and think, rails' and shippings'), unique basis of safety principles. In the end, aviation safety has not achieved it's remarkable record through the proceedings of "crime and punishment" but through intelligent analysis of it's mistakes, technical and human, (something which the medical profession could certainly learn from) and designing and placing safety programs which collect and examine the very data which says, "there is an accident waiting to happen here". After all, "investigation" only prevents the second accident.

Aviation's biggest challenges do not come from the ignorance of other professions or, however innocently, those who don't comprehend aviation, of how aviation deals with its problems and disasters but, curiously, from internal ignorance of the bean-counters and those who otherwise believe that shareholders and profit are more important than conducting the business with the aforementioned principles in mind. After all, ignoring these principles can only make a manager look good for so long.

Take a look at the four major incidents, (with no fatalities) which have occured already, all in one month - January. Highly trained, highly experienced crews in every case. What is their collective worth to their employer now? Yet such a system is on the way to being dismantled in favour of quick training, huge pressures to increase production, ignoring fatigue issues and thin fuel reserves, to cite just a few examples. But who will come to the profession to earn $26,000US/year after obtaining a university degree and spending time in the bush packing fish and pumping floats? Not this generation. They are going elsewhere for more than twice the money and better, more secure, less picayune futures. This fact along with the others discussed here portend a crisis in aviation far beyond the nonsense over cancelled flights because of "no crews". But the antecedents will be long gone by the time the statistics show an increase in the accident/fatality rates.

Aviators' resistance, indeed outright hostility, towards those who judge from afar, is borne not of arrogance or haughtiness even though it looks and feels like it, but from a certain knowledge borne of experience, or, to put it succinctly, large, multiple squirts of adrenaline over a career.

As a qualifier to be an aviation manager in whatever capacity but especialy one who has his/her eye more on the books than on the safety data, one ought to have one or two such "raw" experiences before being permitted a computer, a pencil and a comfy office with a title on the door...

4Greens

8th Feb 2008, 06:37

IOMAPASEO:

Nations that do not accept this are required to file a notice of difference with ICAO. Check this out with Indonesia

PBL

8th Feb 2008, 07:24

Folks,

I forgot to note that before my Bieleschweig talk, David Evans published a couple of pages (pp6-7) on some of my views in
Air Accident Digest 1(4) (http://www.aviation-safety-security.com/images/stories/0207newsletter.pdf)
in February 2007.

Thanks also to Fangio for his anecdote about Germany.

In response to SR71's request, the URL to Annex 13 was immediately posted. I think the salient comment for this discussion is Recommendation 5.4.1: "Any judicial or administrative proceedings to apportion blame or liability should be separate from any investigation conducted under the provisions of this Annex."

That's it, folks. No ICAO agreement prevents any use of any material for any local-judicial purpose at all. It just says that you can't do a single investigation and, on the one hand, produce an ICAO report from it, and on the other, produce a prosecutor's opening note.

Indeed, it would be hard to imagine most of the nations in the world agreeing to let an international agreement usurp their sovereignty over their own laws. That principle of sovereignty was established, at least in the so-called Western world, by the Peace of Westfalia in the 17th century, agreed some 40-70 kms away from where I am now writing, and it has worked well so far.

So much for history. Back to the present.

If somebody flying for a UK airline made a final approach into, say, Manchester, at, say, VREF+100, put his wheels on the ground and ran off the end, killing large numbers of people, does anybody here seriously doubt that heshe would be prosecuted for gross negligence and jailed if found guilty? And what would you imagine would be the reaction in England to, say, an Indonesian WWW site on which Indonesian aviators pontificated about how the prosecution in England was going to affect the progression of aviation safety?

Laws governing accidental deaths and negligence have been around a lot longer than airplanes and they are there for very good reasons, from which aviation is not immune.

I am more with rubik101 and GXER on this one. Yes, do not criminalise accidents inappropriately, but on the other hand one cannot overlook behavior which has been socially disapprobated for centuries. And just because the man has been *charged* does not mean he will be *convicted*. Indeed, there might be extenuating circumstances which the trial will uncover.

The main reason I worry about criminalisation is that many, if not most, aviation accidents involve complex interplays of many types of factors, as PJ2 and others have noted. And getting into the habit of picking one person out as largely responsible does not help deal with all those other factors. It also encourages people to hide information which might be useful in preventing accidents in the future.

But CVR data and FDR data are simply there. There should be no worry about obtaining access to them in the future. So the "endangering future evidence" worry is not there.

And when one has an accident that is prima facie largely due to the egregious behavior of one individual, then it can surely make sense to determine in the usual fashion whether that individual is accountable for hisher behavior or not.

PBL

andrijander

8th Feb 2008, 09:15

The main reason I worry about criminalisation is that many, if not most, aviation accidents involve complex interplays of many types of factors, as PJ2 and others have noted. And getting into the habit of picking one person out as largely responsible does not help deal with all those other factors. It also encourages people to hide information which might be useful in preventing accidents in the future.

Just read the whole thread now and couldn't have said it any better. Great discussion. IMHO it is also very worrying to see both people in the "inside" of the aviation industrie thinkng that they're above all of this and people "outside" thinking that we should all be in jail already (!!!) even before a court case. A very needed thread indeed.

A.

PK-KAR

8th Feb 2008, 09:24

Rubik101,
in Law, negligence does not consider intent. If you intend to do something dangerous then you will be charged with recklessness, or reckless endangerment, a more serious charge than negligence. If you do something for which the unforeseen circumstance is death or injury, then you are liable. The charge brought will be decided by the prosecutors based on the degree of intent and the subsequent degree of culpability will be decided by the court. This does not remove the need to prosecute this individual, whatever his intentions.
If, as you suggest, he was trying to land the aircraft with the 'minimum of casualties' then he should certainly be charged with recklessness.
Thanks, I prefer answers like this rather than...
Absolute rubbish! You are trying to defend a situation where complete idiots who never should be allowed close to an aircraft can continue to threathen the lives of innocent people.

The guy should get 20 years in prison. Minimum.

The greatest threat to flight safety would be if this guy doesn't get punished.

Blame it on the FO? You're pathetic! Must be your friend sitting there...
Expat400, go and reread what I said in #21, I never said the guy should walkaway scot free or not even be considered to be brought to court. And FYI, those two are not my personal friends. Lots of first officers and recent captains here have said that the F/O basically screwed up in letting such a situation happen. Prosecuting the Captain and not the F/O will just mean, next time a mad left seater wants to land blue side down, the F/O should just do nothing and hope he survives!

Their flying careers are over anyways with or without this criminal case being brought. As innocent or guilty as the we want the guy to be, he's not going anywhere near the controls of an aircraft anymore. We're not that stupid to let this guy continue unhindered or without a serious look at his suitability.

If you think the first officer is innocent while the Captain is guilty, I pity the guy sitting on your left if you're on the right. By the way, you said idiots. I presume you include the first officer into that group, so why don't you put some blame on the f/o too?

Anyways...
If, as you suggest, he was trying to land the aircraft with the 'minimum of casualties' then he should certainly be charged with recklessness.
Well, the charge is "mistake causing death", and not the more specifit "mistake causing aircraft accident leading to damage or destruction of aircraft, with loss of life."

There's a law specific to aircraft accidents and criminal culpability. We haven't heard anything that the charges are along this... but more on the general manslaughter charge instead... perhaps the prosecutor prefers bringing 6 charges in the hope of 1 being successful, but the more aviation specific will probably be easier to gain a conviction, but only 1 count...

---
The prevention of the use of the accident investigation report for the criminal proceedings is definitely the right thing to do.

It's absurd to argue that pilots should be immune to the consequences of professional negligence, including possible criminal charges.

At the same time, it's clear that a 'no blame' approach of accident investigation authorities is conducive to further improvements in aviation safety.
The thing is, do we have to pick one or the other?

Prosecution of flight crew or ground crew who have done their job in good faith and to the best of their ability will not help air safety at all. This will only lead to crew covering their tracks and not co-operating with investigators (Remember the Canadian Pacific collision in Sydney).
The sad irony of this is that the guy who's been frank about how he made the mistake is being criminalized while those running around airside with criminal intent remains free.

Let's overload the aircraft, and not tell the Captain we overloaded it... let him sign the document... So plane crashes, police comes along, we just say, "the Captain signed it." The silly thing is, the police buys that version of the defence. You don't want to know how often this happens (this method of overloading, not the crash)...

This is the problem with law enforcement in Aviation in Indonesia. A pilot refuses to fly the aircraft because it is unsafe, so the police decided not to investigate the airline, but decided to investigate the pilots for criminal intent to cause damage/loss to the airline!

The issue is what constitutes admissable evidence. International protocols protect evidence from an accident investigation being used in criminal proceedings. Countries that are members of ICAO agree to this and their regulatory authorities incorporate it into their system.

The issue is NOT whether or not pilots can or cannot be prosecuted for negligence, it is the question of what evidence can be used in court to prove this. CVR's cannot be used to prove innocence either.
Does the protection extend to the police not being able to read the accident investigation report to point them in the direction on where they need to get the evidence from? If so, this is gonna be a very difficult case.

Thus if the laws of the state give preference to criminalization of accident investigation then that state may simply state that it abides by ICAO Annex 13 as a signatory except for: articles such and such.
I do not think Indonesia signed up to abide by all except for Annex 13... AFAIK, as far as the minister of communications (transport) is concerned, we still have to abide by Annex 13. He is however unsatisfied by the guarantees from the police that they have not violated Annex 13, as they so far have refused to say so in writing. Anyways, the accident investigation report in Indonesia is protected by law from being used as evidence in court.

---
PBL, nice post!
---
But while many disagree with criminalization, not all are protesting the case. What seems to bother most people here is that the Captain is now in prison awaiting trial, and this has been seen as the presumption of guilt... and to use the reason of "fear of destroying evidence" ?

PK-KAR

DK_FCI

8th Feb 2008, 10:20

The main reason I worry about criminalisation is that many, if not most, aviation accidents involve complex interplays of many types of factors, as PJ2 and others have noted. And getting into the habit of picking one person out as largely responsible does not help deal with all those other factors. It also encourages people to hide information which might be useful in preventing accidents in the future.

:DGood post PBL

Criminalization of accidents all too often focus on the pilots, where in many cases the real guilty persons are to be found at a much higher level.

Dryden & Mt Erebus are classic examples of pilots making bad decisions that were initially and narrow mindedly blamed on the pilots. But as it turned out they were just as much victims as anyone else onboard.

In my mind the big difference is whether the actions were deliberate and premeditated, i.e. lets fly it under the bridge kind of stuff, or whether the actions were performed in good faith, even if they were erroneous.

SR71

8th Feb 2008, 10:41

Aircraft have been crashing for over a century now so aircraft accident investigation is not a new science (although some investigators clearly still embrace "The Bad Apple Theory").

The legal concepts have been around for centuries, as PBL asserts.

The parties involved in the birth of ICAO Annex 13 were clearly familiar with both.

The debate is not new.

But is there really a trend towards increasing criminalization of pilots involved in accidents? Is that what the data shows or are a few high profile cases bucking the trend?

If so, surely the pertinent question (for those at the front end of commercial aircraft) is "Why?"

rubik101

8th Feb 2008, 10:48

CapnBloggs writes;
I utterly reject your comments. Unethical indeed. Did you or did you not write "if a uniformly harsh and critical approach to criminal negligence was adopted universally, flying would ultimately be a safer industry."?

Answer, NO, I didn't write that and you know very well I didn't. Just what are you trying to prove by cropping my quote? It's a pointless exercise as it proves nothing except that you either haven't read my post in full, merely snatched half a sentence that you seem to think, sensationally proving me wrong or, you are simply lazy.

He also wrote;
I did write my own argument after I quoted text that you wrote. It is attitudes like yours that will wind back air safety, not advance it. The vast majority of accidents are mistakes, and taking a black/white of criminal negligence is shallow but typical of lawyers and people who don't understand complex aviation systems who just want somebody to blame.

So, most accidents are mistakes are they? We have now reduced the discussion to a banal and childish argument.

I was driving through the red light when I hit and killed the child but it was a mistake. I didn't intend to kill her and I want you to let me go because it was actually a mistake, no matter what the photographic evidence shows.

For heavens sake!!

Go rant in JetBlast if that is the level of your argument.

anotherthing

8th Feb 2008, 11:54

4Greens

Are you honestly implying that a fair and thorough investigation into why an accident occurs is wrong?:ugh:

If, after such an investigation is carried out, there is strong evidence of wilful negligence, then the perpetrator must be punished.

Otherwise where does this end? If a pilot and his crew hang one on and manage to get airborne a few hours later under the influence, do you think they should be immune from prosecution?

What is the difference (considering how highly professional those in the aviation industry are supposed to be) between turning up and flying half cut, and deliberately ignoring safe practices despite several warning indicators?

Yes there should be due process... the police etc are not experts in aviation by any means, but until foul play is ruled out, they have a part to play in any investigation - under the very watchful eye of the experts; in the UK the AAIB.

Aircrew and other professionals in the industry are not above common law, however much they might like to think otherwise.

Fred737 wrote

I was disappointed to read that after the LHR 777 crash landing last month Balpa accompanied (and therefore approved of) the crew being interviewed by the Police and the AAIB. If the AAIB were trying to find out the cause of the accident (their job) what were the Police doing?

The police were doing their job. In the immediate aftermath of the BA B777 incident, no one knew exactly what occurred to cause the event. It would be negligent of the police not to attend.

The reason the UK is one of the leading exponents of accident prevention and investigation is because of the 'just culture' it has (it used to be called a 'blameless culture', but that has changed). For a 'just culture' to exist, a thorough investigation must be carried out.

It might not be pleasant having the police interview the crew, but if you have nothing to hide, they will very quickly fade into the background as in your example. The most opportune time for such interviews is in the immediate aftermath of the incident... that is when memories are most fresh and, like it or not, when the exact state of those involved can be assessed.

Having the police involved at that early stage very quickly put paid to any chance of some idiot of a reporter or 'eye witness' from claiming that the crew were to blame because they were hungover etc.

Having the police involved from the outset will actually serve to protect the crew. I'm no great fan of the police, some of their policing policy is IMHO wrong, but by doing what they did, they stopped the crew from possibly being unduly scrutinised by the gutter press.

FlexibleResponse

8th Feb 2008, 12:01

PJ2,

I enjoyed your post. Very thoughtful and accurate, thank you.

John Farley

8th Feb 2008, 12:19

Ladies and Gentlemen

I am a pilot (was actually - I am 74) and I would like to suggest that the criminalisation of pilots would in the right circumstances improve safety. The vital four words are of course ‘in the right circumstances’.

I spent over 25 years flying where everything I did and said was recorded. Indeed, as it happens, this included six weeks flying a Merpati CN-235 in Indonesia – note the cockpit video cameras – as shown in the picture below.

http://img.photobucket.com/albums/v145/johnfarley/CN235Cockpitc.jpg

My point is that full recording of everything actually works in the pilot’s favour because it enables you to prove after the event that you were not negligent. Or if you prefer makes it impossible for anybody even to suggest negligence unless it actually existed.

If you make a mistake or show a lack of skill the recordings enable you to show the full reasons and circumstances for your error and so actually guard against an oversimplified judgement of ‘pilot error’.

Full recording would be easy to arrange these days so if pilots argue against it then they are loosing the opportunity to produce evidence that shows how professional they are as they go about their job.

Of course the reckless or incompetent aircrew would not have a leg to stand on – but you are not in either of those categories so why not demand full recording and the right to be able to prove you did a good job?

JF

krujje

8th Feb 2008, 12:55

At the risk of being mercilessly flamed...

IMHO, in a truly "just culture", a pilot who contributed to an accident through willful negligence would accept his/her part of responsibility, apologize, and accept whatever punishment was deemed appropriate by whoever was given the mandate to decide such a thing. Likewise, the management of the airline, the ground crew, the manufacturer of the aircraft, the controllers, etc.

A "just culture" means justice for all... honest mistakes are not treated as criminal actions, mistakes are admitted honestly, punishment is meted out when deserved, and accepted.

Unfortunately, we live in a far from ideal world. Fundamentally, everyone, with some exceptions I admit, wants to get away with as mush as they can without getting caught, and failing that, with as few consequences as can be managed.

Just my humble opinion.

nhs

8th Feb 2008, 13:54

As SLF who has an interest in aviation might I add my pennies worth.

Negligence in the medical field is roughly define as " actions which the majority of professional peers would agree were unsatisfactory"

If a significant body of fellow practitioners would have acted in the same way confronted with the same circumstances a practitioner will not be found to be negligent.

I get the feeling that the majority of you consider the pilots actions in this case unsatisfactory.

nhs

RS3AV

8th Feb 2008, 14:50

John Farley-

Thanks for the post. A concern with video recording, etc.. is if the pilot dies and cannot explain his actions. As with any cockpit recording...must there be protections?

IFALPA has an article on crminalization in iys recent newsletter. fyi.

http://www.ifalpa.org/if_news/IFALPANews08NWS08_Feb.pdf

andrijander

8th Feb 2008, 16:55

Rubick101,

unfortunately I do find your comments childish as you have written, as a part of a sentence, the next:

if a uniformly harsh and critical approach to criminal negligence was adopted universally, flying would ultimately be a safer industry

the text above is a copy paste of your original post and I understand you may have wanted to give it a broader sense. However that is what you have written. And even reading the full sentence its meaning and intention do not change.

So, most accidents are mistakes are they? We have now reduced the discussion to a banal and childish argument.

Well, that's why accidents are called accidents.

Definition: An accident is a specific, identifiable, unexpected, unusual and unintended external event which occurs in a particular time and place, without apparent cause but with marked effects. It implies a generally negative probabilistic outcome which may have been avoided or prevented had circumstances leading up to the accident been recognized, and acted upon, prior to its occurrence.

Definition: A ‘mistake' is an error caused by a fault: the fault being misjudgment, carelessness, or forgetfulness.

In short, whilst operating an aircraft there may be signs of an accident waiting to happen and if not seen before one could argue that somebody has made a mistake (by either one of the above faults).

Now If somebody was actually wanting and acting for the accident to happen it wouldn't have been an accident but a sabotage, act of suicide, murder, or any other and depending on the carachter at play. I do not believe this was the case and so the investigation should reveal.

What, as said before, worries me is the fact that when people misjudge or forget (which happens to all of us as we're just human) could be taken to trial as they'd be taken to trial for being human; no more, no less. Carelessness falls, IMHO in a different category.

I was driving through the red light when I hit and killed the child but it was a mistake. I didn't intend to kill her and I want you to let me go because it was actually a mistake, no matter what the photographic evidence shows

Actually a very good example indeed. What if a wasp had come in the car, stung you and you loss control of the car, driving through the red light? Or if you had a stroke and couldn't control yourself, let alone the car? Or if you didn't see the red light due to a distraction? or there was a malfunction in the traffic light system? or, or...

you see, it's not just black or white: there's that many greys. A friend of mine works as support staff for the York police department and she is appalled of seeing so many cases when middle class, hard working, well respected citizens involve themselves in ACCIDENTS and end up in jail because there was loss of life. What good does that make? You get a regular John with bad luck ending up surrounded by real criminals and having to adapt to that environment for years...great service to society we're doing by turning a working guy into another convict.

A.

Bronx

10th Feb 2008, 09:27

Prosecuting pilots and sending them to jail for negligence does NOTHING to improve aviation safety.
The pilot doesn't realise at the time he's being negligent so he sure aint thinking at that time about whether he's gonna go to jail, so it aint a deterrent to being negligent. Pilots fly safe because they dont want to crash, not because they're afraid of going to jail.

Prosecuting pilots and sending them to jail for negligence does HARM to aviation safety.
If there's an incident/crash, it's in the interests of flight safety to find out exactly what happened and why, if any mistakes were made and why, and then for the pilots concerned and other pilots to learn from it. That only works if the people concerned give the accident investigators a full account of everything that happened. Everything, including things they think looking back on it they did wrong and things other people might decide were wrong.
People aint gonna speak freely about mistakes they made if they're afraid they could end up going to jail. One because self-preservation is human nature and two because in most parts of the world a suspect in a police investigation has the right to remain silent.

IMHO you can have an accident investigation in which people can cooperate fully with the investigators without the risk of being prosecuted so that they and others can learn from any mistakes made OR a criminal investigation in which they can say nothing and so the chances are nothing will be learnt from it.
What you can't have is things pilots say when helping the accident investigators later being used to prosecute them. If that was allowed, the pilots would have to be warned that might happen and make their own minds up whether to cooperate with the investigators so others can learn from it or use their right to remain silent.

IMHO it's in the interests of flight safety we learn from our own mistakes and other guys mistakes. The best chance of achieving that is if the guys who know the true facts can speak freely without a noose hanging over their heads.

Comparisons with driving don't wash. There's no equivalent procdure for publishing the results of accidents on the highway so that other drivers can read the full details of exactly what happened and learn from it, and there's nothing new to be learnt from 99.999% of highway accidents.

B.

PBL

10th Feb 2008, 10:12

4Greens

10th Feb 2008, 10:51

Lets try again:

Prosecuting pilots for negligence is not the issue.

Using recorders in courts to do this is. Think phone tapping; not admissable evidence. Using recorders in most jurisdictions from accident investigations is not admissable.

Signing off as not much more can be said.

Bronx

10th Feb 2008, 11:04

PBL I think we can see that there is some necessity for justifying the point of view, rather than just stating it.

:confused:

Check your browser settings. There's more to my post than you can see.
I gave the reasons for my point of view.

B.

PBL

10th Feb 2008, 19:33

Check your browser settings. There's more to my post than you can see.

I doubt it. I have been using the Internet since 1979 and the WWW since 1993, and teaching computer scientists how to use both since 1995. I am rarely confused by my own browser.

I gave the reasons for my point of view.

If what you wrote are all your reasons, then it is hard for me to see how they suffice.

Suppose a legislator were to consider your point of view: professional pilots should be exempt from prosecution for negligence because professional pilots are never negligent. The obvious riposte is: if they are never negligent, then why make an exception, since it will never apply? And if, by some chance, a professional pilot is indeed negligent and kills people as a consequence, then why exactly should heshe be exempt from the sanctions that apply to the rest of hisher fellow human beings?

I don't see that either of these questions are answered by what you wrote.

PBL

FrequentSLF

10th Feb 2008, 19:33

As SLF I am worried by some statements that pilots cannot be held accountable of their actions because doing so will jeopardize flight safety. I do believe that being accountable for my own actions will improve any task I am doing.

Regarding the fact of not using flight recorders to prosecute, may I remind that in many countries buses and trucks are equipped with a journey recorder which is there just to monitor what the driver is doing and can be used in a court case.

FrequestSLF

Bronx

10th Feb 2008, 20:04

PBL If what you wrote are all your reasons, then it is hard for me to see how they suffice.
Fair enough, you're entitled to your point of view, but in your previous post you accused me of just stating my point of view without giving my reasons for it.

Suppose a legislator were to consider your point of view: professional pilots should be exempt from prosecution for negligence because professional pilots are never negligent. There you go again.
I didn't say any such thing. :rolleyes:

I happen to think there's greater good to be achieved in terms of flight safety if pilots who've made a mistake or been negligent are able to speak freely about what they did/failed to do so that others can learn from it than if pilots rely on their legal right not to incriminate themselves for fear of being prosecuted and sent to jail.
We don't learn from other people's mistakes unless we know what mistakes they made and, many times, we ain't gonna find out unless they tell us. How many people would say what mistakes they made and risk going to jail when keeping quiet means nobody finds out?

Brian Abraham

10th Feb 2008, 23:09

FrequentSLF, I think you can sleep easy. Pilots are not immune from the court system and charges of negligence. For one thing, a duty of care is a source of liability to aircrew. This duty is created by the existence of a certain relationship (neighbour principle) recognised at law. The pilot in command owes a duty of care to a great number of people including passengers, fellow crew members and other persons both on the ground and in other aircraft. The following provides a reminder as to the extent to which a court may hold a pilot liable.

In the USA a railroad worker was killed when the canopy of a military aircraft struck the employee while he was eating his lunch. Evidence disclosed that the pilot, who had ejected, had been negligent in not avoiding a thunderstorm, which had resulted in the subsequent loss of control, and in not taking proper precautions to prevent losing control of the aircraft. Such negligence was held to be the proximate cause of the deceased’s death.

Taken from “Aviation Law in Australia”, Ronald Bartsch.

das Uber Soldat

11th Feb 2008, 03:56

PBL

11th Feb 2008, 09:33

Folks,

let's try and keep the standard of discussion high on this one.

I think a general understanding of applicable law is necessary for most professional pilots and I am continually surprised at how little many people know. For example, many people seem to think ICAO sets international aviation procedures, whereas procedures are regulated (where they are regulated at all) solely by the legal owner of the airspace through which one happens to be flying.

Brian Abraham explains well some legal concepts relating to aviation. The law he explains comes from the English-law tradition, which encompasses some large areas of the world (Australia and New Zealand, the U.S., Canada, as well as the UK and Ireland) but I don't think it is universally valid.
It is also mostly applicable to civil law, that is, when you have a claim against someone else for doing you harm. However, in English law at least it can also shade into criminal law when negligence becomes "gross negligence". There is an on-line explanation of various manslaughter concepts, including that of gross negligence manslaughter, in Criminal Law, Third Edition, by Tony Storey and Alan Lidbury, Willan Publishing, round about pp 115-125; the relevant excerpts can be found on-line with a Google book search for "gross negligence"+criminal+history. In so-called gross negligence manslaughter or recklessness manslaughter it seems to me that the usual mens rea, "criminal intent", need not be present.

I have recently been involved in the defence of a criminal case in aviation involving a claim (by the prosecution) of gross negligence, so I do have a peripheral (inadequate!) understanding of some of these issues.

There was a joint statement by CANSO, the FSF and the RAeS in late 2006 calling for everyone not to undertake criminal prosecution in aviation accident cases except in cases of mens rea.

A number of contributors to this thread don't appear even to have considered mens rea. To engage in a discussion on criminalisation, you have to take at least this much seriously.

If some pilot intends to crash an airplane and kill everyone on board (and there have been recent cases of that), but survives, then, taking their contributions literally, some contributors here would apparently not prosecute himher because that would somehow "harm aviation safety", whereas if a hijacker did the same thing it would presumably be OK to prosecute. Such a point of view does not make the slightest bit of sense. You have to make mens rea exceptions.

And then if you have to make mens rea exceptions, what about exceptions for gross negligence or recklessness manslaughter? What if a pilot is drunk, screws up and kills people? Would it in any way "harm aviation safety" to prosecute? I don't think so; I think it much more likely to enhance it if pilots know that getting drunk before a flight means you might well end up in jail. I think such a case, should there be one, should be tested in criminal court. And there is a certain gentlemen in these pages whom everyone respects, who did consume alcohol before a flight, didn't harm anyone, but who was prosecuted and jailed for it and eloquently contends he deserved it. And he wasn't even involved in an accident. So I think exceptions for gross negligence manslaughter might have to be made also.

CANSO, FSF and RAeS missed this, though, in their statement. It may be that they were trying to square the circle, and this illustrates the problem. By trying to formulate a general, short statement for all legal traditions, it may be that they missed getting it right even for one.

This stuff is subtle as well as important. We have a chance here to try to "raise conciousness" about it, at least amongst ourselves. But we won't do so by ignoring the most basic distinctions.

PBL

rubik101

11th Feb 2008, 11:04

PBL, you should have explained more fully the concept of mens rea and actus reus.
Bringing arcane legal terms to these forum is often a mistake, pilots are not lawyers.
However, in this case, you are perhaps right to do so. The idea that pilots should be shielded from prosecution, hidden behind the apparently untouchable cloak of 'flight safety' is simply not an option.

Using the argument that the pilot concerned might be unwilling to 'talk' and hence put flight safety back in the days of the Wright brothers is facile and illogical. The evidence of what occurred during the incident/accident can be gleaned from other sources without any input of the alleged culprit.

The test of any mens rea element is always based on an assessment of whether the accused had foresight of the prohibited consequences and desired to cause those consequences to occur. The three types of test are:

1. subjective where the court attempts to establish what the accused was actually thinking at the time the actus reus was caused;
2. objective where the court imputes mens rea elements on the basis that a reasonable person with the same general knowledge and abilities as the accused would have had those elements; or
3. hybrid, i.e. the test is both subjective and objective.

The important words here are 'reasonable person'.

For these purposes, the reasonable person is not an average person: this is not a democratic measure. To determine the appropriate level of responsibility, the test of reasonableness has to be directly relevant to the activities being undertaken by the accused. What the ‘average person’ thinks or might do would be irrelevant in a case where a doctor is accused of wrongfully killing a patient during treatment. Hence, there is a baseline of minimum competence that all are expected to aspire to. This reasonable person is appropriately informed, capable, aware of the law, and fair-minded. This standard can never go down, but it can go up to match the training and abilities of the particular accused. In testing whether the particular doctor has misdiagnosed a patient so incompetently that it amounts to a crime, the standard must be that of the reasonable doctor. Those who hold themselves out as having particular skills must match the level of performance expected of people with comparable skills.

In this instance, we pilots are the reasonable persons. If we all had accidents on a weekly basis then allowing our fellow pilot to walk away without any consequence would indeed be appropriate. But we don't, and nor should he. The principle is clear and well found in logic and in law.

If you think that flight safety will be advanced by sweeping the failings of one of our number under the carpet, or indeed behind the cloak, you are sadly mistaken and will do doing nothing to promote diligence, due care and attention and the enhancement of your objective, flight safety.

The writings of some posters here makes me think that some of you border on the edge of reasonable behavior on a regular basis and are concerned about the consequences if you stray a little over that line. My advice would be to withdraw a long way and align yourselves with the industry norm. Rather be concerned than be subject of an inquiry, or worse, an inquest.

Andy Rylance

11th Feb 2008, 15:10

Take a real case:

Pilot is taking a few people on a pleasure flight. All his local operators have cancelled as the forecast is for massive cb's later in his area. His Chief Pilot checks the web and sees nothing on the satellite image, rainfall radar. He phones friends around the radius of where the flight is going to be. Nothing of note.

Flight takes off - then the cb's form and form quickly and densely. Pilot ends up crashing into the ground due to severe windshear and downdrafts trying to return to the airfield and breaks pasengers legs and puts people in hospital as well as destroying aircraft. But no fatalities. Fortunately.

Criminal or "an accident"?

Flying Lawyer

11th Feb 2008, 23:11

PBL let's try and keep the standard of discussion high on this one.With some exceptions, the standard of discussion has been high. The exceptions are abuse against people who hold a different view, distorting opponents’ arguments and attributing to opponents arguments they didn’t advance.

“I think a general understanding of applicable law is necessary for most professional pilots and I am continually surprised at how little many people know.”
I haven’t noticed any lack of understanding of the applicable law such as to devalue the opinions expressed. (I’m relieved you concede your narrow role in the current criminal case has given you only “a peripheral (inadequate!) understanding of some of the legal issues.” Every man to his job. ;) )

”A number of contributors to this thread don't appear even to have considered mens rea. To engage in a discussion on criminalisation, you have to take at least this much seriously.”
I disagree.
Introducing mens rea into a discussion about manslaughter serves only to confuse and distract. It is a crime of ‘basic intent’.

”If some pilot intends to crash an airplane and kill everyone on board ………., but survives, then, taking their contributions literally, some contributors here would apparently not prosecute himher because that would somehow "harm aviation safety", ………. Such a point of view does not make the slightest bit of sense.”
It wouldn’t, which no doubt is why nobody has said that, nor said anything from which that can reasonably be inferred.
Secondly, if a pilot intends to crash an aeroplane and kill everyone on board, it would not be manslaughter.

Rubik101
“Bringing arcane legal terms to these forum is often a mistake, pilots are not lawyers. However, in this case, you are perhaps right to do so.”
IMHO, it adds nothing but distraction and confusion. The explanation of mens rea you posted (which appears to be copied from Wikipedia) is not an accurate statement of the law.
Consideration of the ‘subjective’, ‘objective’ and ‘hybrid’ tests to which the passage refers is neither useful nor necessary for the purpose of discussing the general principles of whether flight safety is better enhanced by the criminal process or by an investigation in which those concerned can speak freely without fear of prosecution.

“The writings of some posters here makes me think that some of you border on the edge of reasonable behavior on a regular basis and are concerned about the consequences if you stray a little over that line.”
Can you really not accept that some people, just as professional and safety conscious as you, have come to the considered opinion that pilots being free to admit conduct falling below that to be expected of a reasonable and prudent pilot without fear of prosecution/imprisonment is of greater benefit to future flight safety than the (IMHO questionable) deterrent effect of possible prosecution/imprisonment?
Given the ultimate purpose of accident investigation - preventing similar accidents in the future - it’s essential that investigators are provided with all relevant information. In my experience, people at risk of prosecution aren’t inclined to risk incriminating themselves in circumstances where keeping quiet or being selective about what they reveal reduces the risk of prosecution.

For various reasons, I'm no longer free to say which side of the divide my opinion falls on the "criminalisation" issue (or any other 'legal' issue), but that does have one advantage: I escape having you include me amongst those whose views you consider to be “facile and illogical” and “sadly mistaken.” :)

FDR
I entirely understand why many pilots object to such data being used for any purpose other than accident investigation.
Would those who hold that view still do so where disclosure of the data assisted a pilot’s defence to a criminal prosecution?
I ask because it did precisely that in a CAA prosecution last year which I began defending and which another Ppruner continued. The pilot was acquitted.

CVR
Many pilots, perhaps the overwhelming majority, object to CVR material being used for any purpose other than accident investigation. Again, I entirely understand their reasons and have always had considerable sympathy for that view.
What if the material exonerated the pilot, or assisted a defence to a civil claim or a criminal prosecution?

FL

742

12th Feb 2008, 04:38

This thread is why neither of my children are pursing aviation careers.

Does anyone think that high profile accidents (which all aviation accidents are) are fertile ground for justice? Just curious, since I think any rational person would look at recent events in France and Brazil and find that the answer is a sad “no”. Instead accidents are fertile ground for political gain. And nothing more in the eyes of the “justice” system.

If prosecution had been the norm since the 1930s we would still be scraping SLF off the sides of hills at the same rates as in 1930s. And perhaps I should reconsider my views on the legal liability of surgeons and lawyers. Especially the later.

PBL

12th Feb 2008, 06:09

Yeronna,

I am glad you support my plea to keep the discussion standard high.

I haven’t noticed any lack of understanding of the applicable law such as to devalue the opinions expressed.
Maybe not in this thread. The comment relates to a general concern of mine. A few examples.

In the thread on new ICAO-suggested RT technology for TCAS RAs, you will read notes by people who do not understand that aviation law is set by local legislators and not by ICAO. Some people say "whoopee, let's all use the new terminology" when they should be saying "whoopee, let's lobby the CAA to incorporate this new standard ASAP". I used to see similar on the bluecoat thread some years ago. I remember a discussion about the difference in UK and US meaning to ATC clearance to maintain runway heading after departure, and how (not) to resolve it.

Misunderstandings can go quite far; consider the September 2006 Brazilian midair collision. I think very few if any of us Anglos (and quite a few Brazilians!) know yet what applicable Brazilian aviation law actually says about the incident; what worried me is that few people seemed to care, seemingly because there are "international standards". Well, maybe, but those standards have no legislative force and you can't reasonably expect people just to forget their own law when there is an international incident.

Consider also the number of people who consider that the Russian crew was somehow to blame for the Überlingen midair. German aviation law, like that in many other countries, says he had right of way. You won't find that in any discussion of the accident (except mine). How do we determine which law is "relevant" and which to ignore?

And, in general, why are there no synopses of applicable aviation law in other countries (say, a synopsis of German and French law in English)? Probably because there is no market. And why is there no market? If people don't want to know what happens to them if they prang an airplane in Country X, then there will equally be no international pressure on Country X to cease beheading pilots who prang airplanes.

A number of contributors to this thread don't appear even to have considered mens rea. To engage in a discussion on criminalisation, you have to take at least this much seriously.

I disagree.
Introducing mens rea into a discussion about manslaughter serves only to confuse and distract.

Now there's a lawyer for you (not that you're a lawyer, but I guess old habits die hard). What was that about
distorting opponents’ arguments and attributing to opponents arguments they didn’t advance?

Who determined the discussion was solely about manslaughter? I was invoking potential cases of murder/suicide. It seems to me that some discussants had forgotten about such potential cases in which there is "guilty intent".

nobody has said that, nor said anything from which that can reasonably be inferred.

I disagree. For example:
IMHO you can have an accident investigation in which people can cooperate fully with the investigators without the risk of being prosecuted so that they and others can learn from any mistakes made OR a criminal investigation in which they can say nothing and so the chances are nothing will be learnt from it.
What you can't have is things pilots say when helping the accident investigators later being used to prosecute them.

What if the pilot concerned cooperates fully with the investigators and tells them that he tried to commit suicide and failed? Can it "be not had" that the pilot is subsequently prosecuted for attempted murder?

The issue for me is to try to devise a point of view that would apply to all eventualities, including such cases. I was less than satisfied with the CANSO/FSF/RAeS statement in 2006, but do not know whether there is a better or more succinct way of expressing such concern.

PBL

4Greens

12th Feb 2008, 06:34

In despair:

ICAO publishes Standards and Recommended Procedures (SARPS). Signatories to ICAO, ie most countries, are then responsible for putting these into their regulatory system so they become law.

If a country wishes to vary from the SARPS they are required to file a notice of difference.

I am not aware of any country that has filed such a notice allowing evidence from a CVR in the courts as part of a prosecution.

All the comment about whether pilots can be negligent etc is completely irrelevant. It is a question of what evidence can be used to prove this.

Drunk pilots , mad pilots, incompetent pilots can all be prosecuted and this is not an issue. The issue is what can be used as evidence.

Definitely my final post on the matter!

PBL

12th Feb 2008, 06:49

Well, 4Greens, before you commit Hari Kiri,

I am not aware of any country that has filed [a notice of difference] allowing evidence from a CVR in the courts as part of a prosecution.

Why should anyone have to do so? Annex 13 Paragraph 5.12 says that the investigating state shall not make CVR transcripts available
unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have .....

If you as a public prosecutor think it is in the public interest to bring a prosecution, you can use whatever evidence you like and Annex 13 Para 5.12 allows it.

PBL

Flying Lawyer

12th Feb 2008, 21:59

PBL

I didn’t support your “plea to keep the discussion standard high”; I thought it was unnecessary. As for the exceptions to which I referred, I had in mind (amongst others) some of your contributions. See Bronx response to you, Post 69.

Who determined the discussion was solely about manslaughter?
I was responding to the contributions relating to negligence and manslaughter in the posts immediately preceding mine: Brian Abraham (70), yours (72) and Rubik (73).
I don’t think some “discussants” had forgotten about potential cases of murder/suicide in which there is what you describe as a guilty intent. Given the context of the discussion, IMHO it’s understandable that the emphasis throughout has been upon negligence, manslaughter etc, rather than murder/ attempted murder.

I’m no expert in US law, but assume Bronx had in mind what Americans commonly refer to as the ‘Miranda warning’ (after the Supreme Court decision in a case of than name.) UK law is similar. (There is a difference.) As 4Greens correctly says (albeit in the context of CVR material): “The issue is what can be used as evidence.” I suspect US prosecutors would have difficulty using statements made by a defendant who had not been given a Miranda warning. I’m not going to expand upon our equivalent (for reasons given in my previous post), but it would undoubtedly give rise to legal arguments if prosecutors here attempted to rely upon statements made by a defendant to AAIB investigators.

I don’t know what you mean by “there's a lawyer for you” or “Old habits die hard.”
I am a lawyer, but am firmly of the view that introducing mens rea into this discussion serves only to confuse and distract. There was a joint statement by CANSO, the FSF and the RAeS in late 2006 calling for everyone not to undertake criminal prosecution in aviation accident cases except in cases of mens rea. Full text of the Joint Resolution regarding Criminalisation of Aviation Accidents issued by the Flight Safety Foundation, Royal Aeronautical Society, Académie Nationale de l’ Air et de l’Espace and Civil Air Navigation Services Organisation (Oct 2006) here: http://www.eraa.org/intranet/documents/22/1419/JointResolutionDecriminalisationOfAviationAccidents.pdf

Extracts here:
1. Declare that the paramount consideration in an aviation accident investigation should be to determine the probable cause of and contributing factors in the accident, not to punish criminally flight crews, maintenance employees .......... etc.
Criminal investigations can and do hinder the critical information gathering portions of an accident investigations, and subsequently interfere with successful prevention of future aviation industry accidents.

2. Declare that, absent acts of sabotage and willful or particularly egregious reckless misconduct (including misuse of alcohol or substance abuse), criminalization of aviation accidents is not an effective deterrent or in the public interest.
Professionals in the aviation industry face abundant incentives for the safe operation of flight. The aviation industry every day puts its safety reputation and human lives on the line, and has a remarkable safety record which is due in large measure to the current willingness of operators and manufacturers to cooperate fully and frankly with the investigating authorities.
The benefit of gaining accurate information to increase safety standards and reduce recurring accidents greatly outweighs the retributive satisfaction of a criminal prosecution, conviction, and punishment.
Increasing safety in the aviation industry is a greater benefit to society than seeking criminal punishment for those “guilty” of human error or tragic mistakes.
3. Urge States to exercise far greater restraint and adopt stricter guidelines before officials initiate criminal investigations or bring criminal prosecutions in the wake of aviation disasters.
Without any indicia of proper justification for a criminal investigation or charges, the aviation system and air disaster victims and their loved ones are better served by resort to strong regulatory oversight and rigorous enforcement by national and international aviation authorities, and by pursuit of claims through civil justice systems to obtain compensation.
4. Urge States to safeguard the safety investigation report and probable cause/contributing factor conclusions from premature disclosure, and use directly in civil or criminal proceedings.
Although use of official accident reports may save criminal investigators the considerable expense of conducting an entire separate investigation, a considerable and serious risk exists of diverting these reports from their original purpose, as technical causes often cannot be equated to legal causes necessary when establishing either civil or criminal liability.
In addition, use of relatively untrained and inexperienced technical “experts” by prosecutorial or judicial authorities, as compared to official accident investigating authorities, can result in flawed technical analyses and a miscarriage of justice, while interfering with the official accident investigation.

5. Urge National aviation and accident investigating authorities to: (i) assert strong control over accident investigations, free from undue interference from law enforcement authorities; (ii) invite international cooperation in the accident investigation under Annex 13; (iii) conduct professional investigations to identify probable cause and contributing factors and develop recommendations in a deliberative manner, avoiding any “rush to judgment;” (iv) ensure the free and voluntary flow of essential safety information; (v) provide victims’ loved ones and their families with full, accurate, and precise information at the earliest possible time; and (vi) address swiftly any acts or omissions in violation of aviation standards.

I’ve read the full text again very quickly and, unless I missed it, it confirms my recollection that there was no mention of "mens rea."
(Very wise, IMHO. ;) )

FL

Just a Grunt

12th Feb 2008, 22:42

There is a need to distinguish between the concept of civil "negligence" that might give rise to a successful damages claim, where the standard of proof required is the "balance of probabilities", and what the criminal law calls "recklessness involving grave moral guilt", where proof beyond reasonable doubt is necessary. The prosecution have to show such disregard for the life and safety of others as amounts to a crime against the State and conduct deserving punishment. Intention is irrelevant - a hopeless pilot straining to do his incompetent best can still be criminally negligent.

A comparison with doctors is idle. Negligent doctors have been regularly and successfully sued for damages for decades. A mere handful have been prosecuted for manslaughter. A case that springs to mind is that of Dr Adomako, a UK anaesthetist who failed - for 9 minutes - to notice that an endotracheal breathing tube had become disconnected during an operation. Even after the patient arrested, he did not notice the cause of the problem.

On the other hand, two junior doctors who mixed up intravenous and intra-spinal chemotherapy medication were acquitted.

In the present case I doubt that the prosecution would need to rely very much on what the pilots said to the investigators, which may or may not be admissible in court. It rather sounds like the CVR recording and FDR data will say much of what needs to be said, anyway.

The prosecution of this pilot is scarcely the "thin end of the wedge", and most people have little to fear.

PBL

13th Feb 2008, 06:11

Yeronna,

I implied the discussion level was high, note you think that also, and am at a loss to construe any disagreement on that.

Let me be more precise about accidents. The definition of aircraft accident which I use is in U.S. 14 CFR 830.2:
"Aircraft accident" means an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight and all such persons have disembarked, and in which any person suffers death or serious injury, or in which the aircraft receives substantial damage.

This clearly includes instances of deliberate destruction or egregious negligence under the notion of "aircraft accident". Anyone making general statements about what should or should not happen in the aftermath of accidents, and what the consequences are, must take such cases into account.

You and others may wish to restrict your discussions to non-deliberate cases, but my interest is broader.

I suspect that many non-deliberate cases form a relatively easy part for many of us. Don Norman has a nice analogy which I like to use, as follows. Operators have a particular role to play in the operation of a system; so does a valve. If the valve fails, do you get angry at it and take it to court? Or do you alter the design of the system to avoid the failures? And what is the salient difference with human operation? (The intended answer is: often, none at all. Ergo, change the system, don't finger the operator.)

While I agree in general with that, and I also agree with Don that that perspective applies to most of the 75% of failures (his figures) which are put down to operator error, I also note that valves do not have intent, let alone nefarious intent, and cannot exhibit forms of negligence, but that humans can and do. In contrast to some other discussants, I think the range from murder/suicide to gross forms of negligence to simple error makes it difficult to formulate guidance on how one would respond uniformly to aircraft accidents in the best of all possible worlds. And I don't think Bronx got it right.

Since you object to my use of the phrase "mens rea" to speak about a state of mind in which someone either deliberately intends to cause damage, or in which heshe is oblivious to significant risk that damage will result from hisher actions, perhaps you could suggest another short alternative phrase we could use for the purposes of this discussion?

I agree with you (of course) that there are issues of what can be used as evidence in most jurisdictions (called in the U.S., I believe, "rules of evidence"). However, 4Greens seemed to be under the impression that ICAO agreements settle how investigative data may be used by prosecutors in its signatory countries. A reading of Annex 13 supports rather the contrary view.

Finally, the FSF/CANSO/RAeS/ANAE resolution contains the following in the fifth paragraph:
Recognising that under certain circumstances, including acts of sabotage and willful or particularly egregious reckless conduct, criminal investigations and prosecutions may be appropriate
That is what I meant by saying "except in cases of mens rea". I'm sure you have a better way of saying it.

PBL

Just a Grunt

13th Feb 2008, 08:01

There is no rule of law (in the common law world ie, UK-based systems) that would render a CVR inadmissible. At it's highest, there might be an argument that because a particular country was a signatory to a treaty, that created a legitimate expectation on the part of an accused that the provisions of the treaty would be reflected in domestic law. That is, however, often not the case and the "stiff s**t" rule has been not infrequently applied.

In most cases, the recording would be made lawfully and with the knowledge of the speakers that what they said would be recorded (even though they had no real choice about it). A court would have a discretion to exclude the evidence if to admit it would be unfair to the accused. Even if the recording were unlawfully made, a court would still have the discretion to admit it into evidence.

The argument would be that the public interest in seeing air safety improved outweighed the public interest in seeing someone tried for manslaughter(s). Whether that would be so would depend on the facts of each case.

In a particularly bad case, involving, for example, multiple deaths, serious departures from procedure, ridiculous speeds and rates of descent and the wilful ignorance of repeated GPWS warnings, a court might conceivably take a view that was adverse to the accused.

I wonder whether the average punter would be terribly unhappy about that? They might think it a bit patronising to be told that because what pilots do is so incredibly cutting-edge, they have protection from the law that isn't available to everyone else.

Flying Lawyer

13th Feb 2008, 23:20

PBL You and others may wish to restrict your discussions to non-deliberate cases, but my interest is broader. Understood.
I suspect that many non-deliberate cases form a relatively easy part for many of us. 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 find the latter relatively straight-forward.

I agree with you (of course) that there are issues of what can be used as evidence in most jurisdictions In my view, the issues start at an earlier stage than that in an aviation context.
Given that the ultimate purpose of air accident investigation is to prevent similar accidents in the future, it’s essential that those involved co-operate fully and frankly with the accident investigators, which includes volunteering all relevant information and answering questions truthfully and fully.
If what they say may in due course be used against them in a criminal court, then IMHO they must be warned. That’s a well-established principle of the legal systems of most (all?) developed countries.
In many instances, such a warning would lead to people either declining to answer any questions or being cautious/selective about what they say, or even not answering honestly, because they fear being prosecuted and/or being sent to prison.
If that happened, it would IMHO hinder effective accident investigation and, in consequence, be detrimental to future flight safety.

Re the 5th paragraph of the JR: “Recognising that under certain circumstances, including acts of sabotage and willful or particularly egregious reckless conduct, criminal investigations and prosecutions may be appropriate.”
The signatories do not concede gross negligence as an exception.
I note (post 72) you think exceptions for gross negligence manslaughter might have to be made also.
Opinions will obviously differ, and may depend upon whether the following propositions contained in the JR are accepted as valid:
“Criminal investigations can and do hinder the critical information gathering portions of an accident investigations, and subsequently interfere with successful prevention of future aviation industry accidents.” (From point 1)
“Increasing safety in the aviation industry is a greater benefit to society than seeking criminal punishment for those “guilty” of human error or tragic mistakes.” (From point 2)

Just a Grunt
(the average punter) …… might think it a bit patronising to be told that because what pilots do is so incredibly cutting-edge, they have protection from the law that isn't available to everyone else. I’m not sure anyone has claimed that as a justification.
The issue (IMHO) is well summarised in points 1 and 2 above.
Whether or not you agree with those propositions is a obviously a matter for you.

FL

Just a Grunt

13th Feb 2008, 23:32

FL,

The last paragraph wasn't directed at you, but rather higher up the thread.:)

krujje

14th Feb 2008, 00:21

Flying Lawyer:

If what they say may in due course be used against them in a criminal court, then IMHO they must be warned. That’s a well-established principle of the legal systems of most (all?) developed countries.

Out of curiosity... would that then mean that a reporter, for instance, would also have to give warning to an interviewee who was about to implicate his/herself? If a person were to write a tell-all book about their life as a criminal who had never been caught, giving details of time, place, event, etc., would that be admissible in court even though the author had not been warned that this information could be used against them? If I make an admission to a crime on a public website, isn't that admissible in court as evidence?

I'm not asking these questions to be difficult or anything... just trying to understand exactly how far the obligation to give warning extends exactly.

Just a Grunt

14th Feb 2008, 01:42

If what they say may in due course be used against them in a criminal court, then IMHO they must be warned. That’s a well-established principle of the legal systems of most (all?) developed countries.

With great respect, there is no such "well established principle" - at least not here in Aust or the UK.

The "rule" requiring a caution applies only to a "person in authority". That means a person who is perceived by the accused to be in a position to influence the course of any criminal proceedings against him/her.

That would rule out journalists.

Tell-all books/internet posts/emails would all be admissible, provided authorship could be established.

The failure by a person in authority to give a warning does not have the automatic consequence that the confession is not admissible in court (at least not in Aust/UK). Even where there is a specific legislative requirement that a particular form of words be used when administering a caution, it has been held that a failure to warn, or a departure from the prescribed form does not - of itself - make the confession inadmissible.

Those who struggle philosophically with that should consider the position in the UK, where the right to silence has been abolished. The standard caution includes, "You do not have to say anything. But I warn you that it may harm your defence if you fail to mention when questioned something that you later rely on in court".

PBL

14th Feb 2008, 06:48

This is a fascinating discussion.

I suspect that many non-deliberate cases form a relatively easy part for many of us.
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.

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:
I was less than satisfied with the CANSO/FSF/RAeS statement in 2006 ........

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

Flying Lawyer

14th Feb 2008, 07:22

Just a Grunt

My reference to the warning was in the context of statements made to official accident investigators. (Your answers to the specific questions asked by krujje would also apply in the UK.)

The right to silence has not been abolished in the UK. The right has been qualified, but it still exists.
There are some circumstances in which a jury is directed that they may (if they consider it fair) draw an adverse inference from a defendant’s silence when questioned, but a judge has a discretion to decide whether it would be fair to give such a direction in a particular case.
If he does, the direction contains very strict instructions about the matters about which the jury must be satisfied before they are entitled to draw any adverse inference and, even then, the very limited use they may make of a defendant’s silence even if they consider it fair to draw any adverse conclusion from it.

Where a Defendant was given legal advice to remain silent, the direction includes these or similar words: 'If you consider that the Defendant had or may have had an answer to give, but genuinely and reasonably relied on legal advice to remain silent, you should not draw any conclusion against him.'

I’ve gone into the law as far as I properly can, given the restrictions my job places upon me. For that reason, I’m not going to comment upon whether an official accident investigator would be likely to be regarded by a UK court as a “person in authority.”

In the context of this particular discussion, the more important issue IMHO is whether those questioned by accident investigators would be as co-operative and frank if they feared what they said would or might be used against them in a criminal court.
And, if they wouldn’t, what consequences that would have upon the effectiveness of accident investigation and its primary purpose.

FL

PBL
Just seen your post.
I'm not ignoring it but, as mentioned above, I’ve gone as far as I properly can given the restrictions my job places upon me.
I felt free to discuss the interaction between accident investigation and criminal investigation (and what I see as the potential consequences to flight safety), but I think the time has come for me to withdraw. Frustrating!

Just a Grunt

14th Feb 2008, 09:37

FL,

fair comment re "abolition" - a slight detour into hyperbole. The subject provokes very strong views either way here - see Weissensteiner v R (1993) 178 CLR 217. Notwithstanding that I appeared for the "good" ("bad"?) guys, I am still conflicted about any UK-style change.

Adverse inference directions are very rarely given here in oz. Why jeopardise an otherwise perfectly good conviction?

I'm assuming that your "subtext" is that you are DPP/CPS. :oh:

I agree with each of the points you make, and agree that - if the advancement of safety were the only consideration - the issue of prosecution would never arise.

Sometimes that has to be subordinate to considerations of general/specific deterrence, public vindication, punishment...etc.

Anyway, I detested jurisprudence at uni, and had to wiki Bentham just to remind myself about utilitarianism ;) Too much more lawyering is likely to provoke a violent response from the habitues :ouch:

PBL

14th Feb 2008, 10:56

JaG,

you surmise of FL

I'm assuming that your "subtext" is that you are DPP/CPS.

Far from it. The state has known for eons how to silence the most distinguished advocates, while reducing their income. Some states figured out how to make it voluntary (dress 'em up rather than dress 'em down), and some of us still fall for it. Some way down
http://www.pprune.org/forums/showthread.php?t=295673
one may find hizonna, in full kit:
http://www.pprune.org/forums/showpost.php?p=3675031&postcount=101

PBL

Just a Grunt

14th Feb 2008, 21:09

:O:O:O. apologies

PBL

15th Feb 2008, 09:05

Bronx wrote on 10 February at 10:27 UTC, currently #63 (http://www.pprune.org/forums/showpost.php?p=3901211&postcount=63)
that Prosecuting pilots and sending them to jail for negligence does NOTHING to improve aviation safety... [instead, it] does HARM to aviation safety

Although, as should be evident from my subsequent comments in interchange with FL, I agree with many of the statements he made, I don't agree with the general argument he proposed, which I summarised in Post #67 (http://www.pprune.org/forums/showpost.php?p=3902260&postcount=67)
as professional pilots should be exempt from prosecution for negligence because professional pilots are never negligent to which Bronx replied in Post #69 (http://www.pprune.org/forums/showpost.php?p=3902336&postcount=69) that I didn't say any such thing. and FL included as an example of distorting opponents’ arguments and attributing to opponents arguments they didn’t advance in Post #75 (http://www.pprune.org/forums/showpost.php?p=3905053&postcount=75), as he made clear in Post #80 (http://www.pprune.org/forums/showpost.php?p=3907383&postcount=80)

Indeed Bronx didn't advance the argument explicitly, but I think he was committed to such a view as a consequence of what he did say. Since I agree with much else of what he said, I hold it worthwhile to revisit and clarify this point, because I think it involves a potential misunderstanding of or equivocation concerning some important concepts.

Another statement crucial for the argument is IMHO you can have an accident investigation in which people can cooperate fully with the investigators without the risk of being prosecuted so that they and others can learn from any mistakes made OR a criminal investigation in which they can say nothing and so the chances are nothing will be learnt from it.

That is a dichotomy which we should care about, because I read it as saying "you can have an accident investigation ........ OR a criminal investigation ....... but not both"; the elided conditions are such as to preclude both.

Let us take it as desirable that one should always have an accident investigation which is enabled to find out as fully and completely as possible what went on and why. Bronx is arguing you should not have as well a judicial investigation with a view to determining if an offence has been committed, because that will inevitably hinder the causal accident investigation.

Now, negligence is a concept which applies to a sequence of behavior or a state of mind, and it is a disapprobation. A non-evaluative description would use words such as "error", "inattention", "omission" "misperception", "nonperception", and so on, as usual. But when one says "negligent" one is no longer merely describing but evaluating. That is, you are comparing this behavior with other types of behavior or construed or idealised behavior and finding it wanting in some respect. Now, this is the domain of the law. I think it is fair to say that the Anglo common law started as a series of communal evaluations of situation and behavior with a view to norming them in some way. So it is not surprising to find "negligence" as a fundamental legal concept.

The word itself is, according to Webster, Middle English, of Anglo-French and Latin origin, and is explained there as "marked by or given to neglect especially habitually or culpably" or "failing to exercise the care expected of a reasonably prudent person in like circumstances". This second clarification obviously comes from the law. The first clarification says "especially habitually or culpably". When we are looking at accidents, we are not looking at habitual behavior but at particular behavior, so it would be the "culpably" part that concerns us. And of course culpability is also a concept primarily of law.

What I want to say is that negligence is fundamentally a legal concept, and it derives other everyday uses from this fundamental meaning. I cite the Webster clarification to support this view. I don't believe dictionaries "define" words; I think only use does that. Good dictionaries indicate to us the use, and I think Webster indicates that use is inextricably bound with common law.

Now, since Bronx is advocating, exceptionlessly, full and effective causal accident investigations, by his dichotomy he is committed, exceptionlessly, to not prosecuting pilots for negligence. Exceptionlessly not doing something means never doing it: he is committed to never prosecuting pilots for negligence.

Now, a prosecution is a procedure to characterise certain specific behavior. If the characterisation is primarily legal, such as it is with the concept of negligence, then how you determine whether behavior is negligent or not is through a prosecution. You determine whether certain behavior fits characterisations such as gross negligence manslaughter or recklessness manslaughter, not through discussion on the street corner as you might do if you were trying to determine whether something is red or not or old or not, but through a prosecution. And if you never prosecute anyone for, say, recklessness manslaughter, then the concept does not apply. It makes no sense to say that there is a legal concept such as X but we never attempt to determine whether X is ever instantiated. You say: the concept of X does not apply.

When a soldier kills an enemy soldier, heshe does not commit murder. Soldiers *can* commit murder while fighting (and do, and are prosecuted for it), but it ain't murder when you kill the enemy in a fight. Similarly, when the police chase another car at 90 kph through a 50 kph zone, the police are not speeding; the car they are chasing is. The police are driving faster than the speed limit, maybe even driving faster than would be safe, but they are not speeding. "Speeding" is an evaluative concept; "murder" is an evaluative concept; when you say that you never try to determine whether the concept applies to a particular class of cases, and the concept has no validity outside such a determination, then the concept simply does not apply to that class of cases.

So it is with negligence. It is primarily a term with legal meaning. If you decide that you will never determine whether the concept of negligence applies to pilot behavior in accidents, then you are thereby saying that the concept of negligence does not apply to pilot behavior in accidents. And another, shorter, way of saying that the concept of negligence does not apply to pilot behavior in accidents is that pilot behavior in these circumstances is not negligent. And if this is to be exceptionlessly the case, then it is appropriate to express this condition as: pilot behavior is never negligent. Which I did.

I hope that makes it clearer both what I said and why I said it, and also that I do not take it as a distortion of Bronx's argument but rather as a consequence of it. What Bronx said commits him to the view that pilot behavior in accidents is never negligent. If anyone does not like that conclusion, which I don't, then a rethink of the premises of the argument is in order. It appears from Bronx's reaction that he doesn't like that conclusion either. If so, then he has to modify some of his earlier assertions to escape it.

This is an example of why I think this whole topic is subtle.

PBL

Bronx

15th Feb 2008, 13:41

Hey PBL that's some magnum opus. :ooh:

It's gonna take me more time than I got now to read it some more and make sure I understand what your saying .

What I want to say is that negligence is fundamentally a legal concept, and it derives other everyday uses from this fundamental meaning. I cite the Webster clarification to support this view. I don't believe dictionaries "define" words; I think only use does that. Good dictionaries indicate to us the use, and I think Webster indicates that use is inextricably bound with common law. If the characterisation is primarily legal, such as it is with the concept of negligence, then how you determine whether behavior is negligent or not is through a prosecution.

Before I do all that can you let me know if your saying your argument still holds good if we use the Oxford English Dictionary definition instead of Webster's. Since our law and our language developed from England looking at what the Oxford dictionary says about the word seems like a good place to start.
The Oxford gives two definitions or uses if you prefer , one ordinary and one legal.
negligence

• noun 1 lack of proper care and attention. 2 Law breach of a duty of care which results in damage.

— DERIVATIVES negligent adjective.
http://www.askoxford.com/concise_oed/negligence?view=uk

Nothing legal about #1 unless you're saying "proper" is a legal concept.
Two nations divided by a common language as Oscar Wilde said or maybe it was George Bernard Shaw, one of those guys anyways. :)

It appears from Bronx's reaction that he doesn't like that conclusion either. Nope, I think your conclusion is wrong.

If you use the Oxford definition instead of Webster's it looks to me like someone could be "evaluated" as negligent in the ordinary meaning of the word #1 even though they ain't been proved in a court to be negligent in the legal meaning #2.

B.

4Greens

15th Feb 2008, 21:44

We've got there at last. Thank you Bonger.

PBL

16th Feb 2008, 05:23

Bronx,

sorry if the commentary was long, but I wanted to try to make it clearer where I was coming from.

It is your statement I was discussing, so of course it is free for you to explain what you meant by "negligence", and if you meant "lack of proper care and attention" short of behavior that might be legally significant, then so be it.

But then there should be little need to worry about criminal prosecution, since ipso facto the behavior falls short of that which might be legally significant.

I find it odd that, being one of the relatively few people in Europe who have spoken out in public fora against the criminalisation of complex accidents, I should find myself here being a defender of the view that sometimes pilots may do things which should remain criminally sanctionable.

When we are talking about aviation safety, we are not just talking about those airlines with enviable safety records whose pilots occasionally do something that the rest of us sanction in our hangar flying (such as not checking runway heading before TO). We are also talking about airlines which are banned from flying into any EU country because of their poor record on safety and safety management. The tales of these airlines are all over PPRuNe. And this is the segment of the industry whose even marginal improvement will most affect aviation safety overall, as a glance at accident statistics or a brief talk with an insurance underwriter will show. I am not sure that isolating *any* of their employees from sanction (whether pilots or owners or whomever) is going to help improve safety; indeed, it may be one of the few constraints available to hold more egregious behavior in check. Barrelling down final at VREF+huge is not behavior which requires either subtlety or immunity to discover, and it is questionable whether it falls into any of the Reason categories of error. And if people think that they can do that, and that the worst that will happen to them is that they lose their job (until such time as they find another, flying for an even less conscientious employer), then it is hard to see how they might be motivated to moderate their professional behavior.

The difficulty for me is formulating a position which holds as well for the situation in West Bongoland as it would for the UK or US.

I think worries about the overall effect on aviation safety in North America of confidential data being disclosed during discovery in civil proceedings are legitimate.

On the other hand I know one major case in which, if there was some way of bringing some FOQA data into it, it would turn the course of the discussion about why the accident happened and, in my mind, lead to an overall improvement in aviation safety.

PBL

A-3TWENTY

16th Feb 2008, 08:00

Criminalization of an air incident/accident is the easiest way they discovered to formalize the guilty of a pilot and hide the the real criminals (companies , governments , maintennce, infra structure) .

It´s more important to sue someone than to learn the lesson.

Bronx

17th Feb 2008, 13:07

PBL

if you meant "lack of proper care and attention" short of behavior that might be legally significant, then so be it. I didn’t make any distinction. Even if there is any real difference, what I said in posts 63 and 69 still applies for the flight safety reasons I gave.
But then there should be little need to worry about criminal prosecution, since ipso facto the behavior falls short of that which might be legally significant.It ain't ipso facto at all. Lack of proper care and attention might be “legally significant”. Maybe not bad enough for “gross negligence” for manslaughter (post #72) but pilots are at risk of prosecution for other criminal offenses for lack of proper care and attention, even if there’s no accident.
eg We got Part § 91.13 “No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” They got the same offense in England but they call it something like negligent or reckless endangerment. You don't have to be grossly negligent to get prosecuted.

So, going back to what you said about my post – So it is with negligence. It is primarily a term with legal meaning. If you decide that you will never determine whether the concept of negligence applies to pilot behavior in accidents, then you are thereby saying that the concept of negligence does not apply to pilot behavior in accidents. I didn't say negligence is primarily a term with legal meaning, you did and that's wrong so what you say follows from it don't follow.
I don't agree only a prosecution can determine if pilot behavior in accidents was negligent.
I never said pilot behaviour in accidents/these circumstances is not negligent. Of course it can be. Saying pilots shouldn't be prosecuted for being negligent isn't the same as saying pilots are never negligent. The question is whether the criminal process is appropriate or counter-productive. I've said what I think.

I do not take it as a distortion of Bronx's argument but rather as a consequence of it. What Bronx said commits him to the view that pilot behavior in accidents is never negligent. If anyone does not like that conclusion, which I don't, then a rethink of the premises of the argument is in order. It appears from Bronx's reaction that he doesn't like that conclusion either. If so, then he has to modify some of his earlier assertions to escape it.
It’s not a consequence of what I said and it does not commit me to the view that pilot behavior in accidents is never negligent. Of course it can be, whether or not it’s determined by a court.
I agree a rethink of the premises of the argument is in order – your first premise that "negligence is fundamentally a legal concept" was fundamentally wrong. You also said culpability is also a concept primarily of law. That ain’t right either. Culpable means deserving blame like in mea culpa, my fault or my blame. It don’t have to be legal blame.

Anyways, IMHO you’re distracting from the key issue by getting all etymalogical (sp?) about it.
JaG summed the issues up good If the advancement of safety were the only consideration - the issue of prosecution would never arise. Sometimes that has to be subordinate to considerations of general/specific deterrence, public vindication, punishment...etc. "Sometimes that has to be subordinate ..."
To be or not to be, that is the question. :)
Not to be, IMHO.
The criminal and non criminal methods have both got good and bad points but there’s a conflict between the two, so the question is or should be which imperfect method is best for the general good?
I already said what I think and why.

B.

manrow

17th Feb 2008, 21:24

Bronx

18th Feb 2008, 07:21

The discussion here on the definition of negligence is not getting us very far, as eventually it will be for a court to do just that.
I agree with you about arguing about words, it;s a distraction.
Eventually it will be for a court to do just that?
Only if someone involves the courts.
The thread is about whether criminalization of accidents is best for flight safety long term. Some folk, me included, don't think it is.

B.

Orographic

18th Feb 2008, 10:24

The discussion here on the definition of negligence is not getting us very far, as eventually it will be for a court to do just that.

As another thought, every correspondent seems to be looking at this subject from a negative viewpoint; isn't it possible that video recordings could prove the crew were NOT negligent?

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?"

I can see this kind of evidence being useful to accident investigators, but in criminal proceedings, well, I'd hate to be one of the poor sods flying

Legalapproach

18th Feb 2008, 10:34

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.

lomapaseo

18th Feb 2008, 12:56

The thread is about whether criminalization of accidents is best for flight safety long term. Some folk, me included, don't think it is.

Actually this thread is only a discussion thread going where ever the participants want to take it.

For me the issue is not about criminalization per se but about the investigative process and whether criminalization in various forms impedes or hinders it. Many of the discussion (black and white) points in this regard have already been aired.

For me, the remaining issues are whether there is an erosion swinging this in one direction or another and who should be monitoring and speaking out on either behalf.

bjcc

18th Feb 2008, 17:50

Legalapproach

Wouldn't a better approach be to have seperate investigations? The AAIB one, to be inadmissable in most circumstances?

If there is to be a prosecution that could be based on specialist evidence gleemed from organisations or experts other than AAIB.

I say most, because there have been events where thier evidence is part of a case against people other than the crew of the aircraft, for example the Lockabie bombers.

Mad (Flt) Scientist

18th Feb 2008, 23:54

Evidence from crashes can also end up being used against those other than with malicious intent. Is there not currently a case against one of the Concorde fuel system designers? There's certainly a trend towards increased use of the criminal system against all parties in accidents, not just crews, or so it seems.

So if you're going to allow use of a CVR, say, in a crew's defence, does that also lead to allowing similar evidence in the defence of a designer, a ground ops person, or even the crew of another aircraft? If your CVR establishes the accident is your fault, why wouldn't I want it used if I am being charged?

PBL

19th Feb 2008, 08:57

Wouldn't a better approach be to have seperate investigations?

They do that in France. The legal investigation has priority.

The results do not please most observers. Two of three of Pierre Sparaco's columns in AvWeek in 2006 on criminalisation concerned French cases (Concorde and Air Inter on Mont St.-Odile). There was also disquiet expressed by British investigators after the Concorde accident that the legal investigation hindered theirs.

So I think the answer to your question is: likely not.

One issue which has not been brought up in this discussion so far is that criminalisation aids scapegoating. A criminal prosecution accrues attention, and consequently diverts it from other parts of the system which might be causally involved. So, for example, accusing two foreign pilots of misbehavior, trying to keep them in the country, and then trying to get them voluntarily to return for trial diverts attention away from thoroughly investigating the differences in your air traffic control from international norms, and your system failures. So does prosecuting the ATCOs. Unless, of course, wise lawyers and wise governments use such criminal proceedings as a vehicle to air all the system issues before the public eye. (But, still, there is somebody sitting in the dock who stands to lose big time if the system issues don't divert all the attention. There is probably a better way of doing it.)

The political uses of criminal prosecution should also not be underestimated. It happens even on the small scale.

Even without overt political manipulation, prosecutions select, by their very nature. They select a human accused over other factors. One does not put, say, the system design on trial and have an adversarial process to determine definitively whether, say, TCAS is fit for purpose or not. (If the adversial process of the courts works so well for determining human failings, there is surely a case to be made for using it to determine system failings also.)

PBL

krujje

21st Mar 2008, 20:21

Here's a recent news story to add another brick in the wall, so to speak... any comments?

Pilot in deadly crash avoids jail term

WINNIPEG - Mark Tayfel crashed an airplane in a busy Winnipeg intersection and lived to tell about it. Now the former pilot has escaped a jail sentence for negligent actions that killed an elderly passenger.

Queen's Bench Justice Holly Beard ruled Thursday that Tayfel could remain in the community under a two-year conditional sentence for the June 2002 tragedy. His conditions include a daily curfew and 240 hours of community service work, which Beard hopes will involve speaking to young pilots about the errors he made during that fateful flight.

"The accused is a fine person who's made some terrible mistakes in an otherwise good life. The events are truly tragic and have affected many lives. It's a no-win situation for all involved," Beard told court.

Beard lashed out at the airline industry for a "culture" of negligence which allows - or perhaps even forces - pilots to often cut corners.

"It's clear the failure to follow aeronautics regulations is very prevalent. The culture shouldn't be one that pressures young pilots to break the law," said Beard.

"Despite that culture, it doesn't excuse pilots who break the law and engage in risky behaviour. Society will not sit by and allow our safety and security to be put at risk."

Tayfel and six American fishers were injured when both of the plane's engines cut out shortly after Tayfel missed his first attempt at landing at Winnipeg International Airport. The plane came to rest on Logan Avenue near McPhillips Street.

Tayfel had taken off earlier that morning from a northern fishing lodge without enough fuel on board to get to his destination.

Everyone survived the crash, but Kansas resident Chester Jones, 79, died a few weeks later from his injuries.

"I was very moved by the description of Chester Jones. The loss to his family and community is immense and can never be replaced," Beard said Thursday.

Crown attorney Brian Wilford told court Tayfel should spend time behind bars for the reckless act of not carrying enough fuel and his attempt to land the plane without telling anyone on the ground about his problem until it was too late.

"The moral culpability of Mr. Tayfel is extreme. He had so many opportunities to rectify the situation, and yet he did nothing," Wilford said.

"He endangered so many people . . . because his concern was his reputation. It is an absolute miracle no one on the ground was seriously injured or killed. I'd say a landing like that couldn't be done again in a million years."

Defence lawyer Balfour Der said putting a good man like Tayfel behind bars wouldn't accomplish anything.

"This man did not set out to crash that airplane, to run out of fuel, to put anyone, including himself, in danger," Der said.

He told court Tayfel could be used as a mentor to young pilots in training, speaking to them about his deadly mistake and preaching the value of following aviation regulations.

Der said they're considering an appeal of Beard's decision to convict Tayfel of criminal negligence causing death, four counts of criminal negligence causing bodily harm and dangerous operation of an aircraft - in one of the first cases of its kind in Canada.

He suggested Tayfel's employer at the time of the crash, Keystone Air, should have also been held liable and that his client has been made the "whipping boy" for an industry fraught with problems.

"They're not here in court supporting Mr. Tayfel. They headed for the hills," Der said outside court.

http://www.canada.com/topics/news/story.html?id=32b44481-caa9-4daa-b0e5-8cbf7c45e74b&k=80817

stepwilk

23rd Mar 2008, 00:19

It's interesting to me that nowhere in this extensive thread has anybody referenced what I think is _the_ original instance of a pilot being held criminally negligent for trying to do what (in most observers' opinions) was the the best he could.

I wrote about it extensively, mainly for Air & Space Smithsonian and the UK magazine Pilot. I'd have to go get my 20-ear-old notes to be specific about it, but I'm sure some of the old heads (assuming there are some listening) will remember it well.

It involved a BA 747 Classic captain on a flight from the Far East to LHR in the late '70s, as I remember, and his crew became incapacitated by food poisoning. He ended up shooting a single-pilot approach into LHR and thoroughly blowing it, never got established or stabilized, and damn near took out a hotel to one side of the runway on the go. He'd tried earlier to get clearance to divert to Frankfurt, but dispatch told him to keep going, and he was making the approach with minimum fuel.

Landed okay the second time around but was brought up on, and convicted of, criminal charges. Blew his brains out, and that, unfortunately, was the end of it.

Anybody remember that?

Brian Abraham

23rd Mar 2008, 02:25

stepwilk - See post #31 at http://www.pprune.org/forums/showthread.php?t=302417&highlight=g-awno&page=2
He did not "blow his brains out", but the end result was unfortunately the same.

stepwilk

23rd Mar 2008, 12:58

Interesting...that thread references, indeed reprints, my Pilot article. And of course you're right: his suicide was by asphyxiation. As I said, I was working from distant memory...

Brian Abraham

24th Mar 2008, 03:39

Aaaaah, Stephan, I connect all the dots in your first post now. Always have been some what slow. I hope you don’t mind me posting your article in its entirety. Well written, about a very unsavory turn of events in aviation history. Remember a poignant piece in Aviation International News of a war time pilot operating out of Leuchars noticing a youngster always hanging over the fence and wondering if it was Glen Stewart.

stepwilk

24th Mar 2008, 13:08

No, I'm delighted you posted the piece, Brian.

PBL

25th Mar 2008, 07:37

Does anybody know who Stewart's barrister was?

PBL

Flying Lawyer

15th Apr 2008, 10:55

I don't know who defended Captain Stewart.

I appeared before the trial Judge in other cases many times over the years, and always found him to be fair.
I discussed the case very briefly years ago with the prosecuting barrister who was a CAA regular in those days. 'Discussion' is perhaps an over-statement; it quickly became clear there wasn't going to be much scope for discussion, just repetition of the CAA party line.

More interesting were discussions with two people (separately) who were very senior in BA and in the CAA at the relevant time. They considered the prosecution was justified because Captain Stewart "wouldn't admit" what he did was wrong. Although I have great respect for both of them, I remained unconvinced that was a proper justification. Why should he if he didn't think he had?

Some may think prosecution in a criminal court isn't the most productive method of resolving such matters and learning any lessons which may need to be learnt (by a pilot involved or others) in the interests of flight safety.
I obviously have no idea what Captain Stewart might have said if he wasn't at risk of prosecution, but I know from experience that pilots under investigation are understandably and reasonably cautious about what they say with the threat of prosecution hanging over them.
A full free and frank discussion, from which things may sometimes be learnt, can only take place if there is no risk of being prosecuted.

FL

Dungdang

25th Jul 2008, 04:27

Trial begins of pilot accused of negligence in crash that killed 21

The Associated Press , Yogyakarta | Thu, 07/24/2008 7:43 PM | National
file:///C:/DOCUME%7E1/MULYAW%7E1/LOCALS%7E1/Temp/msohtml1/01/clip_image001.jpgCAPTAIN ON TRIAL: Capt. Marwoto Komar, pilot of an Indonesian jetliner that crashed killing 21 people, sits on the defendant's chair during his trial in Yogyakarta on Thursday (AP photo).
The pilot of an Indonesian jetliner that crashed killing 21 people went on trial Thursday accused of negligence, a charge that carries a maximum penalty of life imprisonment, his lawyer said.
The trial of Capt. Marwoto Komar is believed to be first time a pilot has faced criminal charges in Indonesia, which in recent years has had a string of deadly aviation accidents.
Lawyer Muhammad Assegaf said Komar had suffered enough because he lost his pilot's license and claimed the trial would give other pilots second thoughts about flying because of fears of prosecution.
Komar was the chief pilot of a Garuda Airline 737 jet that overshot the runway at Yogyakarta airport on Java island on March 7, 2007, and then burst into flames. Five of the dead were Australians, including a journalist and government and police officials.
The crash followed a string of deadly accidents in Indonesia that raised concern over aviation safety and led the European Union to ban Indonesian airlines from flying to member countries.
A government investigation last year found Komar at fault, saying he approached the runway at almost double the landing speed.
"The defendant ignored his copilot's pleas and warning signs from the airplane's monitors to turn around as he approached the runway well overspeed," prosecutor Mudim Aristo told a court in the central Javanese town of Yogyakarta.
Indonesian courts do not require the accused to make a formal plea.
The trial - which is expected to last several months - was adjourned until next week, when lawyers will formally respond to the charges.
"This trial criminalizes an aviation matter for the first time in this country," said Assegaf. "It will have a wide impact on the Indonesian pilots that will now worry when carrying out their duties."
Some fellow pilots attended the trial to show support for Komar.

airsnoop

27th Jul 2008, 09:12

It is rewarding to see that the Flight Safety Foundation has taken a firm stand against the French manslaughter charges following the Concorde accident.

It is reassuring that they “---will be watching developments in this case with great interest and will speak out forcefully when necessary.”

I wonder why they have remained silent about the Greek manslaughter charges following the Helios accident. Am I missing something?

Brian Abraham

27th Jul 2008, 09:42

If they were asked about the Helios accident I guess the reply might be along the lines "will be watching developments in this case with great interest and will speak out forcefully when necessary"

pilotbear

27th Jul 2008, 10:35

people do odd things out of character. Mark Tayfel (article above) was my MEP instructor in 2001 in Nelson, Canada. He was a very careful, thoughtful guy. This incident is not at all what I would expect. :(
However, when Seaplane chartering I have been under considerable unofficial pressure to save weight with min fuel when delivering or collecting 'fishermen' from some of the alpine lakes in BC so they didn't have to leave their catch behind.
Of course the official line is don't do anything you are uncomfortable with, but then any one of the 50 people in the queue for your job would have happily done so, probably for less money!
Would I do it now? no. But that is experience for you!!:ok:

armchairpilot94116

29th Jul 2008, 05:03

Indonesian pilot charged with crashing jet on purpose - The China Post (http://www.chinapost.com.tw/asia/indonesia/2008/07/25/167075/Indonesian%2Dpilot.htm)

Indonesian pilot charged with crashing jet on purpose

AFP
Friday, July 25, 2008

http://www.chinapost.com.tw/images/icon/share.gif (http://javascript%3Cb%3E%3C/b%3E:void%280%29;) http://www.chinapost.com.tw/images/icon/print.gif (http://www.chinapost.com.tw/print/167075.htm) http://www.chinapost.com.tw/images/icon/email.gif (http://javascript%3Cb%3E%3C/b%3E:void%280%29;)

YOGYAKARTA, Indonesia -- The pilot of an Indonesian passenger jet that crashed last year, killing 21

people, was charged Thursday with deliberately causing the disaster when he appeared in court. Marwoto Komar, a former captain from flag carrier Garuda Indonesia, could face life in prison if convicted of the charge. He was named a suspect in February over the March 2007 crash of the Boeing 737 with 140 people on board in the central Java city of Yogyakarta. Prosecutors Mudin Aresto and Jamin Susanto charged Komar with three counts of negligence and one of "deliberately" destroying or damaging an aircraft, causing death.
++++++++++++++++++++++

Life in prison? Seems harsh.

airsnoop

31st Jul 2008, 16:27

Maybe they are embarrassed because one of their officials is Head of the Hellenic AAI & ASB and I've just heard that his Final Report and the evidence used to compile it is to be used as the main Greek prosecution evidence.
So much for the Joint Resolution on the Criminalisation of Aircraft Accidents! :ugh:

Checkboard

1st Aug 2008, 13:55

ICAO Chicago convention, Annex 13 states in paragragraph 5.12 Non-disclosure of records that the following records should not be made available for any purpose other than accident prevention:

a) All statements taken from persons by the investigation authorities in the course of their investigation.
b) All communications between persons having been involved in the operation of the aircraft
c) Medical or private information regarding persons involvedin the accident or incident
d) Cockpit voice recordings and transcripts of such recordings
e) Opinions expressed in the analysis of information including flight recorder information.

The above basically means that the legal investigation will have to interview its own witnesses, the legal investigation cannot use the Cockpit Voice recording, and the legal investigation cannot use the parts of the safety investigation that do not constitute factual information.

The legal investigation can use the data from the flight data recorder, and all factual information gathered in the course of the safety investigation other than that mentioned above.

In view of the need to prevent situations of self-incrimination it seems logical that witness statements given to the safety investigators and cockpit voice recordings are not available for the legal proceedings.

Whether an individual state has filed an exemption to annex 13 varies, but in many cases the convention has been ratified in legislation, and the CVR is not available for legal proceedings.

legalapproach:
CVR's
On basic principles a CVR recording would be admissible in evidence in a UK court. It is real evidence.

It may be real evidence, but it is self incriminating, and if it will be used to prosecute pilots, then may pilots will turn it off.

shortfinals

2nd Aug 2008, 22:11

ICAO has decided the world needs to sort out what it thinks about mistakes, blame, and justice:

ICAO wants to make 'just culture' safety reporting and investigation global (http://www.flightglobal.com/articles/2008/08/01/226289/icao-wants-to-make-just-culture-safety-reporting-and-investigation.html)

Just a Grunt

3rd Aug 2008, 07:59

ahem, Checkboard,

Par 5.12 of Annex 13 contains a rather important caveat. The complete preamble to 5.12 reads:

"The State conducting the investigation of an accident
or incident shall not make the following records available for
purposes other than accident or incident investigation, unless
the appropriate authority for the administration of justice in
that State determines that their disclosure outweighs the
adverse domestic and international impact such action may
have on that or any future investigations"

Do you know which countries have enacted legislation enshrining 5.12? I'd be interested to see if they've included the proviso.

Privilege against self-incrimination that would entitle pilots to refuse to answer questions from investigators after an incident is very different animal from any "rule" that prohibits the use of incriminating evidence (such as a CVR) in criminal proceedings.

Elohssanaig

3rd Aug 2008, 11:17

Ahem, ahem, Checkboard and Just a Grunt,

For the record and with due respect my dear friends; the ICAO information you are providing to the distinguished readership of this forum is rather outdated and you seem to be quoting parts from Chapter 5 of Annex 13 to the Convention on International Civil Aviation slightly out of context.

The most recent version of Annex 13 is the 9th edition including amendment 11 effective 23 November 2006.

5.12 and 5.12.1 are ICAO Standards and not pre-ambles. A Standard adopted by the ICAO Council under the provisions of the Convention on International Civil Aviation is defined as follows: Any specification for physical characteristics, configuration, matériel, performance, personnel or procedure, the uniform application of which is recognized as necessary for the safety or regularity of international air navigation and to which Contracting States will conform in accordance with the Convention; in the event of impossibility of compliance, notification to the Council is compulsory under Article 38.

The integral and uncensored text from Annex 13 Standards 5.12 and 5.12.1, published in the 9th edition including amendment 11, reads as follows;

Non-disclosure of records

5.12 The State conducting the investigation of an accident or incident shall not make the following records available for purposes other than accident or incident investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations:

a) all statements taken from persons by the investigation authorities in the course of their investigation;

b) all communications between persons having been involved in the operation of the aircraft;

c) medical or private information regarding persons involved in the accident or incident;

d) cockpit voice recordings and transcripts from such recordings; and

e) recordings and transcriptions of recordings from air traffic control units; and

f) opinions expressed in the analysis of information, including flight recorder information.

5.12.1 These records shall be included in the final report or its appendices only when pertinent to the analysis of the accident or incident. Parts of the records not relevant to the analysis shall not be disclosed.

Note 1.— Information contained in the records listed above, which includes information given voluntarily by persons interviewed during the investigation of an accident or incident, could be utilized inappropriately for subsequent disciplinary, civil, administrative and criminal proceedings. If such information is distributed, it may, in the future, no longer be openly disclosed to investigators. Lack of access to such information would impede the investigation process and seriously affect flight safety.

Note 2.— Attachment E to Annex 13 contains legal guidance for the protection of information from safety data collection and processing systems.

As is the case with all ICAO standards, Contracting States will have to comply UNLESS a State has notified the Council that it is unable to do so under Article 38 of the Convention on International Civil Aviation.

:ok:

Bruce Wayne

3rd Aug 2008, 19:44

Elohssanaig, thank you for posting the extracts. If Flying Lawer is still reading this thread and has the time and motivation to post his input on this towards the thread subject i know "I" for one would appreciate it. !

:hmm:

Just a Grunt

4th Aug 2008, 01:52

Elohssanaig,

I have compared my quote from 5.12 with the relevant portion of your post and am unable to identify a point of distinction. The passage I quoted was taken directly from the 9th edition (it's soo difficult to find :rolleyes:), and is - with great respect :) - identical with the passage you quote.

I used the word "preamble" to describe the introductory words to 5.12 before the specific matters listed in paragraphs (a)-(d), and not to suggest they were of some lesser significance.

Regardless, my point remains the same. The "prohibition" on the use of investigatory material in a prosecution is not absolute. I'd still like to see an example of a statute that purports to incorporate the rule.

aerolearner

19th Feb 2009, 20:08

Latest case of conflict between the judiciary investigation and the Annex 13 investigation.

On February 7th 2009, a Cessna 650 Citation III (I-FEEV) crashed near Rome. The crew of 2 died in the accident.
Today the ANSV (Italian AAIB) issued a press release in response to some enquiries by the press about the state of the investigation. The ANSV says that the judiciary authority has impounded both the CVR and the FDR, plus additional documentation critical for the safety investigation. The ANSV could not even inspect the recorders for damage (let alone read them out). The NTSB is asking for information including a readout of the recorders according to Annex 13, but the ANSV is unable to reply.
The ANSV has complained once again about this state of things with the relevant government institutions, asking for a change in legislation to prevent such delays in safety investigations caused by the judiciary authority.

Press Release (in Italian) (http://www.ansv.it/It/Detail.asp?ID=1091)

Finn47

22nd Jan 2010, 18:15

A resolution, warning against the dangers of criminalization of air accidents, has been signed by accident investigators, and also joined by several international organizations:

Air Safety Week :: Accident Investigators Sign Criminalization Resolution (http://www.aviationtoday.com/asw/topstories/Accident-Investigators-Sign-Criminalization-Resolution_65883.html)

fdr

24th Jan 2010, 01:37

A fundamental problem that was highlighted in the criminal investigation of the NZ dash 8 accident was once the evidence is known to exist, how does the legal system deny the existence of evidence?

It would appear that the existing ICAO Annex 13 structure develops two problems:
-Nationalism of the investigatory process.
-Identification of evidence to the national legal system.

If it assumed that the intent of Annex 13 is to provide for a global safety enhancing protocol, then perhaps there are alternative methods to implement processes that would achieve a global outcome rather than a national centric one, and at the same time mitigate the availability of evidence that currently exists.

Under current protocols, the state of registry, event, operator and manufacturer have interest in the safety investigation. The responsible investigation agency is the state of the geographic location of the event (simply). This protocol results in varied levels of investigation capacity being available, and the "potential" for politicising the outcome of the investigation. All of these aspects result in adverse outcomes for the safety improvement value of the process.

If it assumed that the industry is global, then the process of investigation should also be global in nature, not national. The matter of sovereignty should be able to be made subservient to an obligation to be a global partner in safe transportation. The states that are signatories to ICAO, and compliant to various extents are to an extent deferring to global practices instead of national standards, to achieve a common standard and subsequent freedom of operation. This is not the case in investigation, where the variability and national interest remains to act adversely against the desired outcome.

A global (ICAO?) based principle investigation program drawing competency from appropriate resources of member nations would allow for the removal of political interference for target investigations, being any carrier with international rights at a minimum, preferably all commercial operations.

While a global program would standardise the investigation process, and remove political interference, it would also have the opportunity to place the evidence provided by recording systems outside the national boundary, and would permit the information derived from such a process to be constrained to safety improvement recommendations alone, which is after all the intent of safety investigation. On such a basis, the enhancement of recording systems (video etc) would not be so onerous to the operators.

For the national legal investigation, evidence would be naturally constrained to that achieved by normal legal process of discovery and investigation.

My personal investigation experience has been that numerous ICAO signatory states have published grossly inadequate or politicised final reports, and it is not often that dissenting opinion is either recorded, or considered rationally in any depth.

Any solution to the competing demands of safety enhancement/accident prevention and personal responsibility particularly in the case of gross or willful negligence will need an overhaul of existing protocols, and most if not all states would be impacted to various extents. the current system is flawed with both highly developed states and lesser developed states having failed to de-politicise reports, or to take action on accountability when the evidence of culpability is overwhelming from sources available under normal discovery processes.

This is posted to generate discussion, so please do so. Would prefer that personal affront is limited to a dull roar.

FDR