Judge rules crash black box should be handed over to police

[FleurDeLys]

Fresh on the BBC
Judge rules Super Puma crash black box should be handed over to police- BBC News (http://www.bbc.co.uk/news/uk-scotland-north-east-orkney-shetland-33198497)



Moved to R&N because the issues raised in this case apply to all pilots who fly aircraft equipped with CVR or FDR or both,
not just to helicopter pilots.

PPRuNe Admin

[Bravo73]

An unfortunate precedent has now been set.

[HeliComparator]

A sad day for aviation safety culture. I was rather hoping that the judiciary's dislike of the Scottish government might win the day, but it seems not. Never mind, the next question will be how the police intend to decode and analyse the FDR data to any meaningful extent.


Just as well the Clutha heli had no black boxes!

[Impress to inflate]

A VERY VERY sad day in aviation. Black boxes aren't there to be picked over by the courts but there for accident investigations.

I can see big implications to this ruling ! Your thoughts ?

[keithl]

It seems to be just the CVR that is to be handed over, HC, so FDR decoding won't be a factor. However, this is a sad moment and a setback to a carefully nurtured culture of open reporting.

[PULL THROUGH]

Very sad day indeed, especially for for the future of the AAIB "The Lord Advocate maintains that given the serious consequences of the crash a thorough and effective investigation by the procurator fiscal and police is in the public interest." Does this mean that AAIB is now redundant and their investigations superfluous?

[FleurDeLys]

I agree that a worrying line has been crossed. But why?
Trying to look at it from the perspective of the injured and bereaved, I did hear the operator's spokesman on the radio the other day saying they were doing everything possible to help the families and had already paid out £500,000 to them.
Quite aside from the four dead, I doubt many of those on board have worked since - and £500k between 16 offshore workers over a 2 year period wouldn't even cover loss of earnings
If the system isn't better at getting a swift and fair settlement (as if any settlement could come close) for the innocent victims of a tragedy like this, then I suppose its not entirely surprising if the courts are called upon to intervene to this uncomfortable degree in poring over the detail of the events.

[HeliComparator]

It seems to be just the CVR that is to be handed over, HC, so FDR decoding won't be a factor. However, this is a sad moment and a setback to a carefully nurtured culture of open reporting.

Well the original petition was for the CVR and FDR, and of course physically they are one and the same box. I suspect what they actually want is the data contained therein (be it voice or FD) although the petition didn't say that. Pretty hard to work out what went wrong just by listening to the CVR though, so whilst I hope you are right, I somehow doubt it.

Even if they got the FDR data in "engineering units" they would find it hard to get it interpreted and let's hope nobody in the industry prostitutes themselves to "help out for a fee".

[HeliComparator]

I've just seen the decision, the whole CVFDR is to be handed over to the police. UK CAA will download and interpret it. Whether they have volunteered for that or been forced, is not clear to me.

The relevant law relates to possible negative impact of disclosure of the data on this and future accident investigations, and adverse international reputation. The judge decided that these were not substantially affected in this case. He was made aware of possible negative impact on flight safety (voluntary reporting etc) but concluded that it was not a relevant point in the law.

A precedent is not set, the court would have to rule on each and every such request from the Crown. Data will be kept secret and any CVR transcripts used in any possible prosecutions will be redacted so as to only include relevant conversation.

So according to the law, vengeance and retribution is more important than overall flight safety. A great shame but I can't really blame the judge as that is what the law says, from ICAO through EU to UK law.

[axefurabz]

Some further detail in this report:


Lord Jones said: "In my judgment, there is no doubt that the Lord Advocate's investigation into the circumstances of the death of each of those who perished in this case is both in the public interest and in the interests of justice."
The judge said releasing the cockpit voice reocrding and the flight data was necessary to help the Civil Aviation Authority's Safety and Airspace Regulation Group (SARG) give an expert opinion, which would help the Lord Advocate decide "whether and, if so, against whom to launch a prosecution".
"Accordingly, I hold that those data are strictly necessary for the purposes of the police investigation," he said.
He added that he was satisfied that disclosure in this case would have no adverse domestic or international impact on the current investigation or on any future safety investigation.
He also added conditionsthat the black box would be handed over to Police Scotland who would retain overall control and responsibility for it until it was retuirned to the AAIB.
The results of the analysis and any expert opinion following on were to be treated as confidential and only disclosed to the Crown Office and police, he ordered.
Lord Jones was told that 78 hours of flight data and two hours of audio recording had been downloaded from the black box by the AAIB during their investigation.
The audio material included communications between the commander and co-pilot, radio transmissions and passenger announcements.
But the judge said such recordings also capture "ambient sounds" which may be important to an investigation, such as a change in engine note.
The AAIB has issued three bulletins over the accident, one of which reported that wreckage examination and recorded data analysis had not shown any evidence of a technical fault that could have caused the accident, although some work remained to be completed.
The Lord Advocate said that in the apparent absence of any technical fault the police had asked SARG to provide an expert opinion on the performance of the flight crew.
A formal request was made to the AAIB to make the CVFDR available for the investigation, but it said a court order would be required.
Aidan O'Neill, QC for the pilots' union, told the court at an earlier hearing that "a culture of openness" was fostered so that when an incident or accident occurred in the aviation industry complete information could be obtained.
He said there was a culture of sharing information without fear of reprisals.
Lord Jones said accident investigators cannot be required routinely to disclose cockpit voice recordings and such a move can only be ordered in a particular case if the tests laid down in regulations were met.
The judge said his decision in the present case would not create a precedent.
Dave Finlay
Why isn't this thread in R & N?

[HeliComparator]

Let's just hope in the time it takes the CAA to analyse it all, the AAIB publish their final report.

[paully]

I`m sure that AAIB will appeal this rather one sided judgement.Although this judge was utterly myopic, sometimes the judiciary suffer from the same affliction, collectively....Such a request and judgement is unprecedented. However the Lord Advocate is taking the fashionable and PC way, so common in law these days,that because there was fatalities, no mechanical explanation, the crew have to be negligent and must be put before a court..

Seriously, thats the level, of childish logic you`re up against..The ones with common sense and ability got sidelined and resigned/retired....Good luck, I fear you`ll need it

[DaveReidUK]

I'm sure that AAIB will appeal this rather one sided judgement.No, they won't.

"An AAIB spokesperson said: 'Regulations allow for the release of this type of information if a court decides it is in the public interest to do so'."

Lord advocate seeking Shetland Super Puma crash voice recorder data from AAIB - BBC News (http://www.bbc.co.uk/news/uk-scotland-north-east-orkney-shetland-28937241)

[kkong]

I am not sure why some posters believe that pilots should be exempt from an investigation into possible criminal negligence?

If the pilot(s) are not found to be criminally negligent (based on CVFDR analysis by the CAA), no charges will be brought and no information from the CVFDR will be disclosed.

That is made clear in the judgement.

[keithl]

Kkong. "Criminal negligence" is one thing. I have no intention to gloss over it. Failure to exercise the technical skill the licence demands is quite another. Losing a licence may be appropriate, criminal sanctions not. Satisfying a short term punitive objective at the expense of long term flight safety benefits will, to reduce it to its starkest terms, "compensate" a few and kill many more.

This is a time when passenger safety in the North Sea is in the spotlight as never before. If we are to reduce our crews to the insurer's - the lawyers', "Say nothing, leave us to argue the case", that cause will not be served.

Hell, why should I get heated about it? I've retired. But some people are trying to undo the progress flight safety has made during my 50 years in the business.

[SiClick]

Keithl
Well said

[HeliComparator]

I am not sure why some posters believe that pilots should be exempt from an investigation into possible criminal negligence?

If the pilot(s) are not found to be criminally negligent (based on CVFDR analysis by the CAA), no charges will be brought and no information from the CVFDR will be disclosed.

That is made clear in the judgement.

No-one is saying the pilots should be exempt from prosecution for criminal negligence. What we (I) are saying is that the AAIB are the experts, let's allow them to produce a properly considered report before contemplating prosecution. The AAIB already have a 2 year start, so to imagine that the CAA, who are not particularly good at interpreting flight data in the context of an accident, will be able to whizz through the data in a short period of time and then come up a valid opinion before the AAIB report, is ludicrous.

There were no technical factors in this accident as far as we know, that means the aircaft did what you would expect it to do given the control inputs etc. From that it is easy to deduce that it was "pilot error" which, at the simplest level, it probably was. However deciding it was "pilot error" and then hanging the pilots achieves nothing other than vengeance and retribution. The real question is why did the pilots do or fail to do what they did? If it was because they were texting their mates, reading the paper etc then fair enough they were negligent, but I think it's highly unlikely that they were doing anything other than their best. So the question is, why was their best not good enough and within that question lies a raft of issues around training, SOPs, legislation, company culture, national culture, commercial issues, human factors aircraft MMI and a host of other things.

To rush into it like the bull in the china shop achieves nothing except popularism and short term political expediency.

[DOUBLE BOGEY]

Helicomparitor - Excellant, informative and balanced post.

Sound knowledge leading to appropriate procedures tempered by thorough and rigorous training in a progressive culture = Safety. What was missing?

The Captain of that flight was a notably hardworking, dedicated professional. If this action prohibits the capture of the fundamental systemic flaws that led to this accident we will all learn and achieve nothing!

[Impress to inflate]

Nice one DB, totally agree.

What has BALPA had to say on this disgusting issue?

[Pete O'Tewbe]

What has BALPA had to say on this disgusting issue?

This (http://www.balpa.org/News-and-campaigns/News/BALPA-STATEMENT-ON-SUMBURGH-FLIGHT-DATA-RELEASE.aspx)

[Flying Lawyer]

Court of Session Judgment (https://www.scotcourts.gov.uk/search-judgments/judgment?id=0452dda6-8980-69d2-b500-ff0000d74aa7)

It's a long document but, for those interested, it sets out the relevant law, summarises the competing legal arguments heard by the Judge, gives the reasons for his decision and, at the end, includes copies of the written arguments submitted in advance of the hearing.



FL

[finalchecksplease]

Just read the judgement, thanks for posting the link FL, just one question with "the copies of the written arguments" do you mean the affidavits because can't find those at the end of the document.

Nice to see that, albeit retired, Capt Nick Norman took the time to put forward an affidavit to fight our corner, thanks Nick.

[Flying Lawyer]

The affidavits aren't copied.


I was referring to the written notes of argument submitted by the Lord Advocate [Appendix 1] and jointly by BALPA, the Captain and F/O [Appendix 2].

[finalchecksplease]

Thanks FL :ok:

[cyclic]

DB & HC have said it all - I hope those who seek retribution read what they have to say.

[JulieAndrews]

Maybe if the AAIB report was able to be concluded in a timely manner then non of this would have been needed?
Cannot say for sure but the length of investigation, after quickly ruling-out mechanical failure, suggests that the AAIB have not been allowed to crack on with the investigation, unfettered by other government departments or industry concerns.....
Timely investigations are done to ensure such an accident does not happen again.
Maybe the AAIB has now become un-fit for that particular purpose - I hope not, as they lead the field in crash investigation, but I think their efforts have been thwarted by commercial politics.
Maybe a review of procedure and interference is called for - the Oil industry will no doubt ask Mr Chilcot to carry it out :*

[axefurabz]

Maybe if the AAIB report was able to be concluded in a timely manner then non of this would have been needed?
Cannot say for sure but the length of investigation, after quickly ruling-out mechanical failure, suggests that the AAIB have not been allowed to crack on with the investigation, unfettered by other government departments or industry concerns.....
Timely investigations are done to ensure such an accident does not happen again.
Maybe the AAIB has now become un-fit for that particular purpose - I hope not, as they lead the field in crash investigation, but I think their efforts have been thwarted by commercial politics.
Maybe a review of procedure and interference is called for - the Oil industry will no doubt ask Mr Chilcot to carry it out :*Is this why this thread isn't in R & N? Or does JA have any facts to add to the discussion?

[Flying Lawyer]

kkong I am not sure why some posters believe that pilots should be exempt from an investigation into possible criminal negligence?No-one has suggested they should be. If the pilot(s) are not found to be criminally negligent (based on CVFDR analysis by the CAA), no charges will be brought and no information from the CVFDR will be disclosed.Have you considered whether aviation safety is better served by investigations in which all those involved are free to speak openly without fear of being prosecuted or by criminal investigations in which anything they say may be used as evidence (against them) in criminal proceedings and in which they have the right not to answer questions?

Although this particular case related to a helicopter accident, the same issues apply to all aircraft equipped with CVR and/or FDR.

[airpolice]

I don't have a CVR or FDR in the aircraft that I fly, but I normally have a GoPro connected to the intercom and seeing the instrument panel.

I'd have no hesitation in turning it over to the CAA, Police Scotland or the AAIB in the event of a crash.

Why so many aircrew seem to think that disclosure is a bad idea is beyond me. What exactly is going on up the front that they don't want revealed?

[tipsy2]

"nothing to hide, nothing to fear" is not a principle, it is attempt to trip up people into self incriminating themselves.

Flying Lawyer covers that where he says "Have you considered whether aviation safety is better served by investigations in which all those involved are free to speak openly without fear of being prosecuted or by criminal investigations in which anything they say may be used as evidence (against them) in criminal proceedings and in which they have the right not to answer questions?"

You freely admit! "many aircrew seem to think that disclosure is a bad idea is beyond me", then obviously you would be well advised to read/study aviation safety management systems and "Just Culture" information as much as you can. The writings of James Reason would be a good a place as any to start.

The attempted criminalisation of aviation accident and safety investigation by a number of jurisdictions is of genuine concern. These attempts are also an emerging disincentive and impediment to viable investigations and the attendant safety education and benefits to be derived from these investigations.

If accident investigation with criminal and punitive sanctions is such an admirable idea, how come we still manage to kill and maim so many of our fellow citizens on the roads around the world?

Tipsy

[Flying Lawyer]

airpolice What happened to the "nothing to hide, nothing to fear" principle?As Tipsy has already pointed out, it is not a principle. It is a point of view.

I'd have no hesitation in turning it over to the CAA, Police Scotland or the AAIB in the event of a crash.That's very easy to say.
It doesn't necessarily follow that you would actually do it regardless of circumstances. Why so many aircrew seem to think that disclosure is a bad idea is beyond me.I appreciate that you are a PPL so the issue doesn't directly affect you (nor me) but I can't help wonder if you've done any reading about the topic and associated issues in an attempt to understand (even if you ultimately disagree with) the views that are currently beyond your comprehension.

You might wish to go on to read about the criminalisation of air accidents. There are several excellent articles available on the internet.
Opinions differ but the consensus of informed opinion appears to be that the negatives of criminalisation far outweigh the perceived positives.

[finalchecksplease]

FL if you can answer this question and / or give you opinion:

Has with this case "legal precedent" been set or is the wording in the judgment such this argument will be difficult to use in other cases?
That is if "legal precedent" is applicable for these cases.

[Flying Lawyer]

The ruling has not created a legal precedent binding upon other Judges. (Nor is it the first time that disclosure has been ordered, either in the UK or elsewhere.) Each application will be decided on its own merits, or lack of.
However, its importance should not be under-estimated because it will undoubtedly be relied upon in the UK, and perhaps in some other jurisdictions, as 'persuasive authority' in support of any future applications for disclosure.


What causes concern in some quarters is that the application was made by a prosecuting authority which, in legal jargon, is on a 'fishing expedition'. ie That the prosecuting authority/police are fishing for evidence to prosecute the pilot(s).
I have an opinion about that aspect but, for professional reasons, am not free to express it publicly.

(Edit)

I can say, as a general comment, that I share the widespread concern in some quarters (flight safety & aviation legal) about the increasing tendency in some countries to criminalise air accidents.

Very few prosecutions have resulted in convictions but, in terms of flight safety, that is not the issue.

.

[Bravo73]

You wait until the AAIB have produced their report.

AAIB haven't been much use over the last 2 years so what's the alternative?

You couldn't be more wrong.

[HeliComparator]

Forget that you are all pilots, forget that you know anything at all about aviation. You are now a teacher, a fireman or a plumber.

Your son, daughter, mother or father has died in a helicopter crash that was mechanically sound before it took off, you want answers, 2 years on, you have snippets of information but nothing conclusive.

The answers are there but yet due to a no blame culture within the aviation industry, the answers are under lock and key and you can just keep on wondering what exactly happened for the rest of your lives. As long as the AAIB have done their bit and produced a report, the case is closed :ugh:

Do you think there is public interest in getting answers or do you think there is public interest in maintaining a no blame culture within the aviation sector? If you ask 100 random strangers whether the CVFDR should be analysed by a prosecution team in the event of fatalities, what do you think the outcome would be? Do you think Joe public give a monkeys about what culture we all adopt in aviation?

In other words, pilots are all in a little bubble. We all make mistakes, no doubts about it, but 4 people lost their lives in a serviceable helicopter.

A driver lost control of his bin lorry in Glasgow just before Christmas killing 6 people and injuring 10 others, there were no criminal charges brought, there was obviously a medical condition that incapacitated him moments before the incident, these things happen and will continue to happen.

What happened in this helicopter crash though? Two highly trained pilots flying a serviceable helicopter into the water, how, why? AAIB haven't been much use over the last 2 years so what's the alternative? Remember you've lost your son, daughter, mother or father in this incident, you're not a pilot, you know nothing about aviation, you just want answers and closure.

Try seeing it from another point of view outwith the no blame culture bubble that you're all in:ok:


But the situation you are describing doesn't exist. It is not as if there will be no investigation and no knowledge of what happened. A proper investigation is being carried out by the AAIB and once that is published, the relatives etc will know what happened and hopefully why. If the report indicates that the pilots were grossly negligent ie not paying proper attention or recklessly and intentionally not following procedure then I would expect there to be some sort of criminal prosecution.


Of course whilst such a prosecution might satisfy some of the relatives' desire for revenge , it won't bring their loved ones back and I suspect won't actually make them feel any better.


However we have not got to the stage of the AAIB report yet, and until that is forthcoming the best action is none. I agree that the delay is frustrating, especially so for the relatives and survivors, and wish these reports could be compiled quicker, but I guess it is at least to some extent a matter of resources. I'm sure it isn't deliberate delaying tactics by AAIB.


By the way, we aren't in a "no blame culture" these days, it's a "just culture"

[tipsy2]

Mitchaa, I derived from your scenario the distinct impression that you are looking for some kind of retribution. An investigation conducted on that basis will be unlikely to find the root cause of whatever happened and in all finality become a witch hunt.

Aviation accident (incident) investigations are conducted in an effort to prevent the same or similar occurrences happening again and not to apportion blame. This is the exact opposite of the way road accidents are investigated, how successful has that been in that particular realm?

Tipsy

[Heliport]

MitchaaForget that you are all pilots, forget that you know anything at all about aviation. You are now a teacher, a fireman or a plumber. OK. I'll pretend I know nothing about flight safety, the advantages of the 'just culture' when investigating air crashes and the benefits it brings to flight safety.Your son, daughter, mother or father has died in a helicopter crashOK, so as well as knowing absolutely nothing about the best means of maintaining and improving flight safety I'm now also distressed and emotionally involved.Do you think there is public interest in getting answers or do you think there is public interest in maintaining a no blame culture within the aviation sector? I'd want "answers" and if it turned out that pilot error caused the accident I'd want them banned from flying ever again, locked up and throw away the key etc etc.
I wouldn't know enough to form any opinion about what is in the best interests of future flight safety - even if I cared - and even if I was capable of thinking rationally about it which is very unlikely.

If you ask 100 random strangers whether the CVFDR should be analysed by a prosecution team in the event of fatalities, what do you think the outcome would be? If you ask 100 random strangers how to fly a helicopter, teach, put out fires or plumb, what do you think the outcome would be?
Do you think Joe public give a monkeys about what culture we all adopt in aviation?No, in most cases, because they know nothing about it and have never given it any thought.
But I wouldn't rely on Joe public's opinion about the best way to teach, put out fires or plumb.
I'd rely upon specialists in the field.
And if my son, daughter, mother or father was injured in an accident I'd want experts treating them, not Joe Public.

Excluding expert knowledge, and then adding emotion, is not going to produce sensible answers.



the answers are under lock and key ..... You've lost me there. :confused:
The answers, so far as can be determined by independent air accident investigation specialists, are published in AAIB reports not kept under lock and key.

Are you interested in knowing the answers or in having people prosecuted?

[NickLappos]

Actually, the issue goes beyond release of the black box and other crash data. The real subject is "who has authority over air operations?"
Granting political, headline-grubbing local prosecutors the ability to charge people is an invitation to chaos, where local cops and prosecutors can grab headlines while having absolutely no expertise in the matter at hand.


In some countries, the ability to govern air operations and enforce air law is not granted below the national government level. In the US, for example, locals have no jurisdiction, only the FAA can enforce aviation law. While they can be bureaucratic, at least the FAA has expertise and familiarity with the law. Also, the crash site and data can be impounded by the National Transportation Safety Board, which has full authority over crash investigation. The NTSB will not permit its conclusions to be used in any court, by Federal Law. The data they gather is public record, and can be had by almost anyone.


As Flying Lawyer so rightly describes, protecting the quest for truth and the ability to fix the system is paramount. The process must, in the end, make the next accident less likely to happen or the process is broken.

[Flying Lawyer]

.
I'd be interested to learn the views of professional pilots about these issues:

(1) Do you think there is any difference between releasing CVR and releasing FDR data?

(2) If you are opposed to either being released, would your stance be the same if a pilot/crew being prosecuted wanted to obtain either as part of their defence?

(3) Or if the pilot/crew (or their estate) wanted the material in order to defend a negligence claim. ie In a civil action against them or their estate/bereaved families?

[lomapaseo]

I ask the question, was/is the AAIB able to perform its function in the investigation to ICAO standards?

If so, I'm afraid that any other issues belong in those that make the laws of the state in spite of what we world widers personally feel about it.

[Leg]

HeliCompactor:
But the situation you are describing doesn't exist. It is not as if there will be no investigation and no knowledge of what happened. A proper investigation is being carried out by the AAIB and once that is published, the relatives etc will know what happened and hopefully why. If the report indicates that the pilots were grossly negligent ie not paying proper attention or recklessly and intentionally not following procedure then I would expect there to be some sort of criminal prosecution.


There is so much hot air being expelled in this thread but that above really does leave me gobsmacked :ugh:

Do you have any idea of the remit of the AAIB? Obviously not.

'The relatives etc will know what happened and hopefully why', what??
It's rather unlikely the relatives will 'know' what happened, and even
if the AAIB are able to say what happened, they certainly will not say 'why'?

As for the rest of your statement regarding the crew being 'grossly negligent',
that sort of language will never EVER make the pages of an AAIB report.

Talk of retribution and vengeance, please, you sound like tabloid journos :ugh:

[Big Pistons Forever]

This is a very sad day for aviation.

There is a direct and positive correlation between those countries that use aircraft incidents and accidents as a way to learn the lessons that will increase safety, and those that use flight reporting tools as a hammer to punish the "guilty pilots".

The most robust "just culture" exist in the US. The least exist in China and Korea and other jurisdictions in that part of the world., with France regrettably fast catching up to China.

US airlines have the best accident record as measured by accidents/incidents per 100,000 hours, in the world. We all know how the other countries mentioned stack up.

Sad to see the UK being on the wrong side of such an important issue.......

[reynoldsno1]

An unfortunate precedent has now been set.
In the UK maybe, but this happened in New Zealand some twenty years ago. Ansett flight 703 crashed in 1995, and lives were lost. The CVR/FDR data was submitted in evidence, after much legal wrangling, in the manslaughter trial brought against the captain. He was eventually cleared, but it took six years ...

[c100driver]

In New Zealand the findings of the Transport Accident Investigation Commission are inadmissible in court proceedings by Statute. However the CVR or the FDR are not covered so therefore if the Police are bent towards a prosecutor wanting to make a name for themselves they have to get hold of one or both to use the information available on them.

The issue that crew have is the ability of a prosecutor with good theatrical skills to highlight a particular decision in which they may have weeks to pull apart a decision that a crew member may have had only seconds to decide.

Imagine a court trying to establish whether a Capt made a "negligent" to stop or go at V1 decision.

[kaikohe76]

Definitely a bad day for the industry with this precident being set, even though one can understand to a very limited extent, just why the ruling possibly went the way it did.
How long now before each & every aircrew member, will need personal liability insurance cover to a quite ridiculus sum, in order to carry out their employment? The legal fraternity, must be rubbing their hands in glee at this one, opens a real can of worms unfortunately.
I may have come in late here, but is BALPA as yet saying anything?

[westhawk]

I'd be interested to learn the views of professional pilots about these issues:(1) Do you think there is any difference between releasing CVR and releasing FDR data? Yes. FDR data is time stamped recorded objective flight parameters. (impersonal) It forms the framework of WHAT occurred and in what order. Making it viewable to the public, (especially aviation professionals) acts to enhance the credibility of the investigative process and of the eventual findings among informed professionals. Without credibility, these findings are valueless.

The recorded human voice is more personal. I'm satisfied with the balance afforded by US NTSB administrative law where FDR data and appropriately edited CVR transcripts are made publicly available when deemed a matter of public interest. The ban placed upon the release of actual CVR audio recordings is appropriate.

I'm also satisfied with the prohibition against using these data or any other NTSB investigative work product as evidence in any court case. Though the same facts may be presented as evidence in court, they must have been independently obtained.


(2) If you are opposed to either being released, would your stance be the same if a pilot/crew being prosecuted wanted to obtain either as part of their defence?Same evidentiary and discovery rules for both sides. Independently gathered evidence and testimony should suffice. The purpose of air accident investigation and findings should be limited to the furtherence of aviation safety. Allowing these findings to become usable as evidence in criminal and civil liability courts taints the objectivity and credibility of all future investigations. Yeah the old "slippery slope" argument...

(3) Or if the pilot/crew (or their estate) wanted the material in order to defend a negligence claim. ie In a civil action against them or their estate/bereaved families?Again, same rules for both sides. Resolving legal issues is a completely different matter to finding out why and how something happened so we can prevent future recurrences. Let's keep it that way!

westhawk

[vapilot2004]

This judicial decision goes against ICAO Annex 13:

The sole purpose of the investigation of an accident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability.

The decision also serves to undermine the safety culture enabled by non-punitive (and therefore open) discussions of incidents and accidents that has been decades in the making.

.
I'd be interested to learn the views of professional pilots about these issues:

(1) Do you think there is any difference between releasing CVR and releasing FDR data?

CVR releases should be transcripts only, with the irrelevant portions redacted. FDR data should be released and available to the public in full detail.

(2) If you are opposed to either being released, would your stance be the same if a pilot/crew being prosecuted wanted to obtain either as part of their defence?

Since the CVR consists of one's own words, there should be no legal constraint on using it on your own behalf.

(3) Or if the pilot/crew (or their estate) wanted the material in order to defend a negligence claim. ie In a civil action against them or their estate/bereaved families?

The pilot or his or her family should be able to retain full and free access and use of any recordings of their own utterances (pilot) or that of the deceased (estate).

[RAT 5]

This judicial decision goes against ICAO Annex 13:

Quote:
The sole purpose of the investigation of an accident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability.

I would have thought this principal should remain at the forefront. If, after the accident investigation is completed, there are parties who consider a criminal act has occurred, then the data can be handed over to the relevant authorities to contemplate any action. This should not happen before-hand and so stifle the more critical accident investigation.
One could then bring in a legal scenario: suppose the investigation is focused on criminal; activity and not finding the root cause. This process will delay in discovering the 'what & how, perhaps why' of it all. Eventually it is discovered that a design or procedural fault is at play. There is a repeat accident for the very same reason, but the findings were delayed because the controlling investigator was a police force not an expert aviation body. The victims of the 2nd crash might have a case to bring against the authority who delayed in the findings of the 1st crash.
This scenario might be one for the lawyers to comment on.

[Piltdown Man]

My response to the Flying Lawyer's questions:

1. CVR and FDR data have to be analysed in parallel, each adds value to the other. The FDR tells you what and if you are lucky the CVR tells you why. Additionally, a comparison between the FDR, CVR and the pilots' SOPs tells you a fair deal about the way the aircraft was operated. The difficult bit is that it takes a team of real experts to do this and some very expensive software. And even then, you end up with many unanswered questions. And some of these can only be answered by the operating crew.

But overall I have two problems with releasing this data. Firstly it is that the criminal justice system is only concerned with gathering evidence to prosecute. They don't exist to exonerate the innocent. When the public prosecutor says "there was not enough evidence to continue with a prosecution" they still imply that there was a criminal activity, that there was a case to to answer but you got away with it this time.

My next reason is that they'll have to find an expert to analyse the data and match it with what happened. I'll suggest that all of the real experts are in the "flight safety" system and are therefore tainted by its culture, so someone from outside will have to be found. Will they be a true expert or a self appointed expert like most of the TV pundits I could mention? They will certainly have been ignored by the people who really know what they are talking about.

2 & 3 should be answered as one. Your first problem will be getting the data. Whose is it and what will you do with it if you manage to get it? The analysis will be expensive and "experts" will have to to be used to interpret it; assuming of course you have actually managed to get the replay software.

And then you have the society aspect to consider. If you live in such a dreadful society that you can be damaged without evidence, you might as well give up. Give in as cheaply as you can and accept your loss. The cost of obtaining factual evidence would just be an expensive addition to your burden.

Therefore, I'd suggest that additional data will serve no practical purpose.

I might sound a bit negative but I truly believe the Brtitish judicial system exists as a job creation system for very intelligent but otherwise unemployable people. It's a system that can only be used by the very rich or very poor, paid for by all of the people on the middle. Should you ever get caught up in its tentacles you will lose.

PM

[airpolice]

I might sound a bit negative but I truly believe the Brtitish judicial system exists as a job creation system for very intelligent but otherwise unemployable people. It's a system that can only be used by the very rich or very poor, paid for by all of the people on the middle. Should you ever get caught up in it tentacles you will lose.

A truly excellent description.

[JulieAndrews]

Liking this thread.
Still can't comprehend why investigation is taking so long - please don't blame a 'lack of resources' as I would imagine this case has priority right now?
Something else is afoot......

[goeasy]

The reference to ICAO agreements is correct. When CVRs were first mooted, pilots naturally were against having every word recorded in their work day. Then the above agreement was reached to protect normal privacy values, and so CVRs became standard, required equipment. All happy and everyone standing by agreements, until the NZ case and now this.

The more individuals the CVR is released to, the more chance there is that the whole recording will end up on Youtube. And that is the beginning of the end for the CVR. Don't even mention cockpit video recorders.

For all the non-pilots; How would you feel if EVERYTHING you said at work yesterday was in today's paper, or published online?

Before the courts release a CVR, there must be incontrovertible evidence of criminally negligent behaviour. Relying on the CVR for this is just a fishing expedition.

[theredbarron]

There's a lot of hot air being expended here attacking the court's decision but put simply, the AAIB and the Crown Office investigate accidents from two different perspectives: the AAIB to determine the causal factors without attribution of blame or liability, whereas the Crown Office is tasked to investigate to see if there is any evidence of criminality. If we deny the Crown Office all of the evidence available then we deny them the ability to do their job properly. Is that what is wanted?

[Lonewolf_50]

So according to the law, vengeance and retribution is more important than overall flight safety. Whether this sentiment sums up the problem with sufficient accuracy or not, there's some truth in there.

The Information Age has resurrected a very old human tradition, mob justice. Slippery slope, thin end of the wedge, etc.

For all of the nice words the judge uttered, I don't buy the assertion that this will not establish precedent. I am sure it's what the judge hopes, but hope is not a method in aviation safety. The judge has no control over what a future group of humans more accustomed to the modern day version of mob justice will demand.

[PT6Driver]

I have read the document and have to say that given the submissions I am surprised that the judge has made this decision.

This decision will not affect the current investigation by the AAIB, however it does have a bearing on future investigations.

As highlighted by the intrested parties the police have been trying for some time to gain access to this data, firstly by demanding the FDM data, then when that failed the cvr/fdr.
At no point has the Lord Advocate produced any evidence that criminal activity has taken place nor did he produce any reasonable reason for pursuing this action.
He did not offer any proof or evidence that future investigations will not be adversely affected.

On the other hand plenty of reasons not to disclose were offered by the Secretary of State, the AAIB and the other interested parties.

Because todate there has been no evidence of mechanical failure the police appear to be taking the line that some form of negligence took place. They are therefore fishing for data to back up that assertion without any other evidence to back up this line of enquiry.

The judge notes that this is the first time this action has been taken and would appear to assume that there wont be further application as a result of previous history.
However having been granted this crack in the doorway, police Scotland will along with other uk police forces, not hesitate to push the door open.

A precident has been set whether we like it or not and expect to see more applications even when there have been no deaths or injuries. The police will use this as an excuse to further their own power.

[Chronus]

No to Air Police`s applause. It is not excellent, it is naive ! Where would we be without an independent, robust and integrious judiciary. The answer must be in anarchy. This particular case is another shining example of the lengths to which this nation will go to uphold the values of it`s exemplary legal system where no one is above the law. The law serves and protects us all. Never forget the victims, they deserve justice.

[VH-UFO]

"For all the non-pilots; How would you feel if EVERYTHING you said at work yesterday was in today's paper, or published online"?

Dont you understand you have hundreds of people's lives in your hands?

Do you understand the responsibility that goes along with that?

Everything i say and do in my job is recorded and can be used in a court of law, yet i dont have hundreds of peoples lives in my hands.

Why should you be any different?

If you cant handle that responsibility then maybe you shouldnt be a pilot.

[Capn Bloggs]

UFO, if we were judged by pilots in the court, then fair enough. But we have enthusiastic amateurs who are only out to blame someone and get money. It'd pretty easy for some blood-sucking lawyer to convince a jury that a pilot screwed up.

Everything i say and do in my job is recorded and can be used in a court of law, yet i dont have hundreds of peoples lives in my hands.
So what? Just because it happens to you doesn't mean it should apply to others.

[PT6Driver]

Chronus and UFO,

No one has claimed that pilots should be above the law.

The CVR and FDR ard protected by international treaties and EU law. Before the EU legislation gained primacy over demestic law, they were protected by uk domestic law.

That protection states that their prime purpose is to enable the investigation of accidents and incidents inorder to increase safety, not to apportion blame. They are not to be used by government agencies to aportion blame or to impose sactions or seek retribution.

Flight safety has improved considerably over the years In a "just culture" environment. That culture promotes open and honest reporting, but at the same time has lines in the sand such that examples of willful negligence will be punished.

The judgment states that over ths years the Judicial and safety investigations have been able to proceed in parallel. So far in all cases to date justice, the public interest and the investigation into the causes of accidents and incidents, have all been achieved.

What we are seeing here is an attempt by police Scotland to bypass this process and make aname ffor themselves in a fishing expedition.
In due course the AAIB report will be produced and if need be proceedings against individuals or organisations can then proceed.

This has nothing to do with anyone being above the law, or imune from the consequences of ones actions.

[Swiss Cheese]

This is not the first time that a Court in the UK has ordered disclosure of CVR/DFDR data. There have been a handful of civil cases in the High Court over the past 20 years, when the same has happened, but importantly not for the purposes of potential criminal prosecution.

The AAIB have a longstanding protocol of publishing what they consider relevant to flight safety from the CVR/DFDR data. Rarely there is a disagreement over the nature and extent of that relevance, which if not resolved, can lead to an application to the High Court.

There is always tension between criminal prosecutors and safety investigations, given their different drivers, which has been proved to harm air safety and the prevention of further similar accidents. This is especially so in certain EU countries, as well as certain States in the Far East and South America. Hence recent EU regulations attempting to manage the accident data between the Prosecutors and Safety Investigators. (For US readers, think back to Valujet 592 and TWA 800 and the problems caused by the conflicting jurisdictions of the FBI and NTSB.)

However, Germanwings did not quite work out according to those new EU regulations...

Regardless, IMHO this Scottish decision will not lead to a rush of other Court applications in other accidents in the UK.

[Rumet]

Spot on, RAT 5. This decision is indeed a violation of ICAO Annex 13.

Just Culture and the terms of Annex 13 exist for a good reason, i.e. that they save people's lives by enhancing aviation safety and thus preventing disasters.

Anything that goes against Just Culture therefore threatens safety. Consequently, that Judge's decision not only is in breach of an International Convention which his State is a signatory to, it also jeopardises aviation safety.

He should be prosecuted under criminal law on the grounds of endangering other people's lives.

[lomapaseo]

Spot on, RAT 5. This decision is indeed a violation of ICAO Annex 13.

Just Culture and the terms of Annex 13 exist for a good reason, i.e. that they save people's lives by enhancing aviation safety and thus preventing disasters.

Anything that goes against Just Culture therefore threatens safety. Consequently, that Judge's decision not only is in breach of an International Convention which his State is a signatory to, it also jeopardises aviation safety.

He should be prosecuted under criminal law on the grounds of endangering other people's lives.

Annex 13 being part of ICAO and the UN is nothing more than a collection of agreements among states. Not all parts are accepted by all states. Most notably any state has the right to take exception to some parts with due notice. It is common for a state to modify their exacting participation by inserting exceptions under the laws of the state. Such exceptions typically give the state's courts the right to make exceptions to annex 13 to serve the interests of that state.

That appears to be exactly what is at the bottom of the rulling in this thread subject

[RAT 5]

If we deny the Crown Office all of the evidence available then we deny them the ability to do their job properly. Is that what is wanted?

Bollox. The first and most critical issue here is to find the true cause of the crash. Basta, finito. Then, & only then, when the full facts are known should someone, with another agenda, come in and see if criminal prosecutions are in order.
I think, please correct me, that in France it is often the case where the gendarmerie take over an investigation ahead of the local AAIB. It has been seen that this delays, significantly, the finding of the true cause. This has to be the heart and focus of the investigation; not seeing if someone needs their wrist slapped. All too often we have heard 'pilot error' as the cause, when those of us inside the profession, and at the sharp end, know full well that there were other dark forces at work that were too embarrassing to publish. Keep the bluebottles out of it until the EXPERTS have been in first. That is the way the police do it themselves. Keep the plods out until the forensic white clad jumpsuit brigade have been in first with their toys.
Why two sets of rules. We have our own experts; let them do their job.

[PT6Driver]

Rumet and others,

We are dealing with EU legislation here, which is legally binding. It does however allow for this process and as such no law has been broken.

However as the intersted parties note the Lord Advocate showed no evidence as to why the data should be handed over other than to state that this was the best way for their experts to decide if and whom to prosecute.

Taken to its logical conclusion one could argue that this would be the same in all accidents and incidents, hence why I belive we will see a lot more cases like this.

I am quite shocked as to how little weight was given to the concerns of the interested parties as to how future investigations would be adversely affected. (As well as the concerns expressed in EU legislation precisely about this issue).

[Chu Chu]

Unless I missed it, no one's mentioned the difference between using CVRs in criminal and civil proceedings.

It's one thing to put the recording in the hands of a civil servant who's paid to determine whether there's reason to believe a crime has been committed, and to do nothing if there isn't.

It's something else to put it in the hands of a plaintiffs' attorney, who's effectively paid to win cases and doesn't care who gets hurt in the process.

[tdracer]

It's something else to put it in the hands of a plaintiffs' attorney, who's effectively paid to win cases and doesn't care who gets hurt in the process.

This is the part that has me particularly worried. Although there are jurisdictions that seem preoccupied with finding criminal culpability whenever something bad happens (wasn't there a recent case where some geologists were jailed for failing to predict an earthquake?), at least for the time being these seem to be the exception rather than the rule.
But when it comes to liability and civil cases, it's long been no holds barred. Worse, it's a dirty not-so-secret of the industry that "expert opinions" are readily for sale.

[Luke SkyToddler]

It's really worth reading up on the Ansett New Zealand DHC-8 crash and the resulting legal shenanigans, the behaviour of the police was bloody outrageous once they had been granted access to the CVR/FDR data.

Basically the police prosecutor made some kind of personal vendetta out of it, pursued the captain and dragged him through several court cases and appeals and counter appeals and all kinds of court cases for SIX YEARS after the event, long after the accident investigators had finished their work. He was finally cleared of all charges in the High Court.

This happened despite furious opposition from ALPA, and widespread negative publicity and debate in the NZ media at the time, about whether this was an effective use of police resources and what exactly they were trying to achieve. The law was subsequently changed in NZ to prevent CVR data being used in future police prosecutions, but the damage was certainly done, to that captain at least.

It also led to an unofficial practice among many NZ pilots, of pulling the CVR circuit breaker as part of their pre flight checks.

So much good work and advancement in the field of flight safety can be undone so quickly by the actions of one idiot lawyer, if the trust is broken down

[No Fly Zone]

In the most simple terms possible, the mission of AAIB is to identify causes, with the intent to improve safety and prevent repeats, not to establish liability. Despite all the qualifiers about not setting a precedent, they have done just that.
Of note: The purpose of conducting thorough investigations to improve safety is not unique to the AAIB or the UK in general, but is a generally established objective World Wide (or very nearly so). In the U.S., NTSB reports are public information available to all, including criminal prosecutors. However, carefully and specifically included in the law that established the NTSB is the rule saying that the report and other materials may NOT be used AS EVIDENCE, by either side in any legal proceeding, civil or criminal. Ever. I'm not an aviation lawyer, but as far as I know, that rule has never been violated. I must conclude that the UK's legal authorities have made a very serious error.:{

[vapilot2004]

After preparation and study by special committee about two years ago, the ICAO issued strongly worded policy change recommendations to those member states that criminally prosecute pilots (and ground support staff) as part of air accident investigations.

Why? The reasoning was simple - criminalization of airline accidents reduces air safety. Data compiled by the ICAO as well as the FSF bears this relationship out.

Countries that routinely prosecute pilots are home to more than a few sizable airlines with safety concerns ranging from 'below average' to 'poor'. Included in the list are South Korea, Brazil, France, Indonesia, and Malaysia. On the other side of that, amongst the large airlines with the highest safety ratings, the overwhelming majority of their home countries' do not criminalize air accidents.

[FleurDeLys]

Mildly curious: a little devil's advocacy here.
I haven't heard too many suggestions that prosecuting truck or train drivers (or the skipper of the Costa Concordia) after a serious accident is counter-productive to road/rail/maritime safety.

[chksix]

As a mariner I can say it is. The officers on ships get prosecuted to shift blame from the shipping companies to the individual crewmembers.

[Jwscud]

FleurDeLYS - criminalisation is a massive topic in shipping industry, and has been for the last decade. Sailors are far more exposed to local whims than pilots are. Google the case of the Hebei Spirit in S Korea for one example.

Costa Concordia is a more difficult example, and I suspect even in the UK the Captain would have been tried for manslaughter. Both the CAA and the MCA have tried manslaughter prosecutions in accidents of late (Ouzo/Pride of Bilbao and Tiger Moth accident in he SW) but UK juries seem very unwilling to convict.

[Heathrow Harry]

the moment anyone says "we're special - we shouldn't be investigated" the boys in blue and the press hear COVER-UP

Unfortunately that's teh world we live in..................

[Luke SkyToddler]

Fleurdelys why don't you go and ask the truck and train driver's union if they would agree to have gadgets installed in their truck cabs that would record and monitor everything they do and everything they say? That would mostly be used for safety enhancement purposes, and only on very special occasions would we allow the cops to use them as evidence against you in court :hmm:

I suspect you'd get run out of the truckstop by a bunch of very angry truckers before you could say "but the pilots agreed to it!"

[PT6Driver]

Luke
The trukers already have half of this. Their equivalent of the FDR. All they need now is a CVR.
Perhaps even a video system as well for good measure.

FleurDeLys

No one in court claimed that pilots should be immune from prosecution.

The objection is that a data loging system that was introduced solely to enhance flight safety and is protected as such under international treaties, EU law etc, should be used in a fishing expedition to see if there are any grounds for prosecution. This well before the report is published.
The reasons given by the Lord Advocate are not unique and could equally have been applied to every incident or accident since the CVR was introduced, namely it is best evidence of what was said and heard in the cockpit and as such is required by "experts" to determine if a prosecution is warranted.

The judge dismissed the concerns and evidence from the interested parties, from international and domestic law and international organisations, that in granting the request ultimately flight safety willl be degraded.

[RAT 5]

The judge dismissed the concerns and evidence from the interested parties, from international and domestic law and international organisations, that in granting the request ultimately flight safety willl be degraded.

Using what level of expertise about aviation accident investigation did the judge come to this conclusion, contrary to the opinion of the experts?
We are not saying people should be immune from prosecution: we are saying let the accident investigation conclude first AND THEN decide if further matters need to be addressed.

[PT6Driver]

Rat 5

The judge according to the rulling, had to conduct a balancing act between the need of the Lord Advocate to investigate (in this case a fatal accident) and the provisions of EU law regarding the use of CVR/FDR.
The ruling is based solely on law and the case put forward by the relevant parties.

This will not have an impact on this investigation but could have one on future investigations. This latter concern seems to have been dismissed.

Par 10 to 15 of Balpa's statement is quite interesting.

[sox6]

ICAO Annex 13 states the purpose of air accident investigations. It is not the immunity from prosecution that some people think.

Nick Lappos says:

Actually, the issue goes beyond release of the black box and other crash data. The real subject is "who has authority over air operations?"
Granting political, headline-grubbing local prosecutors the ability to charge people is an invitation to chaos, where local cops and prosecutors can grab headlines while having absolutely no expertise in the matter at hand.

In some countries, the ability to govern air operations and enforce air law is not granted below the national government level. In the US, for example, locals have no jurisdiction, only the FAA can enforce aviation law. While they can be bureaucratic, at least the FAA has expertise and familiarity with the law.


Nick Lappos, its misleading to suggest that air accident related cases are only in the purview of the FAA.

Examples:
The FBI and DoT IG have pursued dealers in bogus parts.
There was a conviction a few weeks ago of a helicopter operator senior manager after the Iron 44 Sikorsky S61N accident that killed 9 people in California because of falsified weight and balance and performance charts.
A supplier to Sikorsky was found guilty of deception over quality control of CH-53E parts in an air accident that killed the crew from a flight at the Sikorsky factory.
Waiting to start such an investigation might well let greedy and immoral suits off the hook as documents get shredded, files deleted and stories squared away.

I do think it is a retrograde step to sweat over the minutia of crew actions in the moments before a crash and to treat the crew as guilty and seize the CVR to look for some kind of recorded self-incrimination.

[lomapaseo]

Are we trying to understand the laws of the land here or are we trying to re-write them?

[Chronus]

The Atlas Jet MD-83 crash near Isparta, Turkey is a good example, it shows that white collar crime is not confined to the cockpit. In the final reckoning the Turkish Court handed down the following custodial sentences.

General manager of World Focus Airlines and Atlas Jet training manager 11 years 8 mths each for negligent homicide.
World Focus technician 5yrs 10mths and two of their pilots 2.5 yrs each for false testimony.
General manager of Civil Aviation Authority 1yr 8mths for misconduct in high office.

The criminal investigation and prosecution followed in the wake of an independent comprehensive accident safety investigation. The CVR and FDR was part of the evidence presented to the Criminal Court.

[tipsy2]

The actions of maintainers, managers, suppliers and the like are irrelevant in the context of what we are discussing in this thread.

What we are discussing is the attempted use of CVR/DFDR data by prosecutors/lawyers looking for some retribution be it kudos or financial after an aircraft incident/accident That has absolutely nothing to do with competent incident/accident investigation by the properly constituted (Annex 13) entity.

It would not be a surprise if at some time in the future those countries that criminalise incident/accident investigations find themselves on a list not dissimilar to the one of third world state registered operators that are currently unwelcome in Europe.

Any judicial impediment to open and frank safety reporting by crew members is unquestionably a serious disincentive to report.

Tipsy

[dervish]

Harry


the moment anyone says "we're special - we shouldn't be investigated" the boys in blue and the press hear COVER-UP

IIRC in the Nimrod case even the boys in blue were involved. They told RAF families a prosecution wouldn't succeed as no witnesses had come forward. They were sitting on witness statements.

[Heathrow Harry]

I was told never to trust the Police in any accident/incident

Like everyone else they have their own agendas and they are quite capabale of hanging you out to dry if it suits them and their media friends

[Piltdown Man]

I don't think I'm being controversial if I say that we are all disappointed when we hear that there has been accident where people have been killed or injured. Unfortunately, the natural reaction of the public is as follows:

Something went wrong
Someone must be at fault
Someone must now be punished
That will stop it happening again
Only then will be safe.

It is a simple creed and meets people's basic need to get rid of nasty things. The public doesn't like open ends, threats, possible unpleasant outcomes. Furthermore, they are totally satisfied that simply punishing someone will prevent reoccurrence.

Unfortunately, lawyers and the justice system like this approach as well. If someone (anyone) can be held responsible for an event, the "system" can say it has worked. So who and what gets the blame? The easiest path to take is blame the person controlling the thing that caused the damage. If you can't get to the person, get to the thing and if you can't get that, get to those who made the "thing". As far as they are concerned this process is elegantly simple.

But this short sighted, naive approach adds nothing to safety. Accidents are little more than unintended and unexpected outcomes. They are typically the culmination of a long string of factors and events initiated maybe many years before hand. Examples of this are the working practices responsible for the Clapham Junction rail crash, signal design and route training giving rise to the Ladbroke Grove accident, the door design, ship and operating practices on the Spirit of Free Enterprise. No one person, thing or practice caused any of these events. Each was the result of many factors. Therefore holding just one person or thing responsible can not be the right thing to do. But this is inelegant for the legal profession and has too many open ends for the public. The police and public prosecutors don't like it either. They appear to live in a binary world. So if they can prove the most minor of transgressions within a complicated chain of events, they can and will prosecute. Couple that with a good prosecutor and a weak defence and you are now 100% guilty.

Natural justice requires the following:

An independent judge
Assessment by your peers
A right to see and question the evidence against you
The right of appeal

On the face of it you may say the above replicates the legal criminal system. Well to a point it does. But one of the problems is the selection of your peers. It should be nurses who assess nurses, doctors who assess doctors and train drivers who... Only these people have an insight into the nitty, gritty details of the job. No matter how intelligent, quick witted or open minded members of the public are, they will never fully understand the tasks of a mariner, coach driver or doctor.

Another is the presentation of the evidence. Because the current jury system uses members of the public, the evidence presented has to be pre-digested for them. It's then spoon fed. And this is where the "experts" come in. They will not be independent. They are are there to help one side of the action prove its point. They are not there to be objective and certainly not present to prevent reoccurrence.

In this case I believe releasing CVR data will be a mistake because it will not be assessed by people who understand what is in (or not in) the data. We can see examples of this when data is released to the media. So called experts (like that clown from Janes) tell us what happened from a position of total ignorance. They are unable to set the evidence they have against any context because of their lack of real knowledge of the subject and incomplete information. Unfortunately though, the messages behind their opinions are generally so simple they satisfy the public's need for a simple closure. Releasing FDR data as well might reduce the magnitude of the mistake but only because it allows the defence to make a better case.

A safer world is a reasonable goal. This can only come about by a mixture of safer equipment, practices, training and environment. All of this has to be built on the foundation of what currently exists - an extant, imperfect world. At the same time, we also have to accept that 100% safety is totally un-achievable. And this might not be acceptable to the public, even though this is a fact of life. As I said before, the public want certainty and find "maybe's" and "possibly's" hard to live with.

Justice? Well it's legal but it won't add to our safety. Also, our so called justice systems don't require us to contribute to our prosecution. Furthermore, because our actions are not assessed by our peers only a fool would willingly contribute information that may be used against themselves. Yet to make our world a safer place we have to have knowledge and experience of past events. Close this source of information and our future would will be built upon a blinkered vision of the past. It is also a great shame that our compensation system is based on blame determined by the justice system.

Not once have I said that that pilots must not be prosecuted. That is because I believe that nobody should have their professional conduct discussed in a court of law. This is because they are not capable of doing the job properly. Criminal prosecutions compromise our future safety. Only when professional conduct is properly assessed outside the current legal system will we be able to make some real, worthwhile improvements in safety. And we can fix the wretched compo system while we are at it.

PM

[sox6]

In this case I believe releasing CVR data will be a mistake because it will not be assessed by people who understand what is in (or not in) the data.


The data is to released to the Civil Aviation Authority for their assessment.

[Piltdown Man]

Exactly. They are not independent.

PM

[sox6]

No not "Exactly". You first argued the data shouldn't be assessed by non-experts. Now you have changed your tune to say the experts aren't independent.:ooh:

Only when professional conduct is properly assessed outside the current legal system will we be able to make some real, worthwhile improvements in safety.

So do I take it you don't think the CAA, operators and AAIB do a good job at this? Or do you have another proposal?

[Chronus]

Tipsy says

quote

"What we are discussing is the attempted use of CVR/DFDR data by prosecutors/lawyers looking for some retribution be it kudos or financial after an aircraft incident/accident That has absolutely nothing to do with competent incident/accident investigation by the properly constituted (Annex 13) entity."

It is all to be found in the AAIB publication Aircraft Accidents and Serious Incidents Guidance for Airline Operators, those interested may read it at :

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/375880/Guidance_for_Airline_Operators.pdf

I would in particular draw attention to para 25, "Police and Judicial Investigation ".

[PrivtPilotRadarTech]

Thank you Chronus for the link to AAIB's "Aircraft Accidents and Serious Incidents Guidance for Airline Operators" and pointing out para 25, "Police and Judicial Investigation", page 18. I appreciate it when posters go to the trouble of providing facts from an authoritative source.

[PT6Driver]

Quite apart from the outcome of the forthcoming AAIB report in this case the ruling raises several questions which we as pilots need to understand and answer.

Firstly will this ruling affect the independent investigation of this accident by the AAIB?

Answer No. They already have all the evidence and data they need.

Next has the LAW been broken?

No. All parties have followed the law. The relevant eu legislation allows for the police to gain access to the data if a court rules it. The police applied for access, then the AAIB said no unless you go to court the police did so.

Thats the easy bit,

Next shoild we deny a criminal investigation team access to relevant data? If there is ctv footage of a murder would you deny the police the right to view it?

The answer should be easy however in the case of CVR evidence we need to see how that evidence came into being. Right from the start we as pilots agreed to allow cvr in order to promote flight safety. Not for the purposes of prosecution.
That has been enshrined in law, but crucially allows in exceptional circumstances the use under court agreement, by thd police etc.
No one on this forum has said pilots should be imune from prosecution and there hss been ( as far as I am aware ) an agreement that the AAIB should ge allowed to get on with it's job unhindered by the police. Once the investigation is complete the police can see quite clearly if prosecution is not only appropriate, but in the public interest. (Or not).

In this case the police /lord advocate apear to have jumped the gun, the reasons for their application are not unique and their case could await the report without any harm being done.

At the extreme end we can see the effect of inappropriate police action, in Italy. Namely the ATR crash where the police seized all the evidence and only reluctantly released it under a court order. The transcript of the cvr was released to the press with lots of adverse comments the night before the cvr was returned to the investigators, their report states they were unable to comply with EU law and annex 13 because of the actions of the Italian police!

Lastly will this case decrease flight safety?
In other words will pilots and others be less forthright and open as a result?
Will there be more cases of the erase button being pressed?

[Chronus]

The answers to PT6 Drivers, post no 91 are found at the testimony given by Captain Duane Woerth before the sub committee on aviation on transportation and infrastructure US House of Representatives on issues arising on the crash of Egypt Air 990.
Those interested may find it at the following link.

Testimony: 4/11/00, ISSUES ARISING OUT OF THE CRASH OF EGYPT AIR 990 (http://cf.alpa.org/Internet/TM/tm041100.htm)

I subscribe to Captain Woerth`s opinion wholeheartedly.

[freespeed2]

Will there be more cases of the erase button being pressed

I don't think too many pilots will commit this intentional act. Of course nor do they have to. It is far easier and 'passive' to simply leave the batteries on for 30 minutes after landing thereby (in most cases) overwriting all except the area mic's.

In this scenario the AAIB would still get data from accidents, but may lose the useful lower level stuff (serious incident/incidents) that happen daily that can help to identify safety trends and hazards. That's where the big loss to flight safety may occur.

[lomapaseo]

I don't think too many pilots will commit this intentional act. Of course nor do they have to. It is far easier and 'passive' to simply leave the batteries on for 30 minutes after landing thereby (in most cases) overwriting all except the area mic's.

And here in this very thread we have the rumblings of the death of safety when outsiders move in and examine data for legal means in few cases. While on the other hand we have a promotion of actions from within the industry ready to decrease safety by globally wide actions against the use of these recorders.

In the end, should the investigation discover evidence that these recorders have been purposedly defeated you can bet that it will be front page news in the public press.

Is this really the way you want it to look?

[freespeed2]

And here in this very thread we have the rumblings of the death of safety when outsiders move in and examine data for legal means in few cases. While on the other hand we have a promotion of actions from within the industry ready to decrease safety by globally wide actions against the use of these recorders.

Please do not misrepresent the intent of my previous comment. As a Safety Manager for the last few years trying to instill a Just Culture in a company that had more than its fair share of cynics I am a passionate advocate of a reporting system that has the confidentiality and integrity necessary to convince them of its benefits. A Just Culture takes years to construct and seconds to destroy.

I was not suggesting, recommending or extolling a promotion of actions in any way. I did state that I did not believe that pilots would intentionally erase CVRs. I was simply providing my observations from my experience in safety as to how easy it will now be for the safety skeptics to convince themselves that they were right all along. My point was that because of the SOPS and regulations currently in place governing CVRs it won't even require a conscious action on their part to undermine it. That's why this judgment is worrying to me as a Safety Manager.

I believe that the judgment was wrong, but only insofar as the timing was premature. The Judge could have reserved judgment until after the AAIB Report was published. The safety investigation could be completed without interference and the prosecutor would then have an expert opinion on the cause of the crash to inform his decision on criminal activity. He was over-zealous in the timing of the application for access.

[Never Fretter]

The Judge could have reserved judgment until after the AAIB Report was published.

So you advocate using an AAIB report as evidence in court?

Is this the new Catch 22?

[PT6Driver]

Never Fretter,
So you advocate using an AAIB report as evidence in court?*


I also advocated waiting, and my reasons are that the report in most cases will show whether or not inappropriate procedures or actions have been taken.

At that point it is up to the police or apropiate body to conduct their own investigation and decide if a prosecution is appropriate. The focus of their inquiries will inveitably come from the AAIB report, but with the crucial difference that the AAIB report is focused on safety.
The report is publicly available and will thus be available to law enforcement agencies by default. It would be highly inappropriate to resrict access to that report.
The evidence in court would come from their investigation.
However AAIB officials have appeared in court and presented evidence based on their investigation. These were inquests, however I am not sure if they have appeared in prosecution cases.
If the law enforcement agencies wished access to CVR data they would have to show a compelling reason so to do.

In this case they have not shown any compelling reason, nor have they shown why it is so urgent that they have the data now as opposed to waiting a few months.

[Never Fretter]

More muddled thinking:


The report is publicly available and will thus be available to law enforcement agencies by default. It would be highly inappropriate to resrict access to that report.
The evidence in court would come from their investigation.
At that point it is up to the police or apropiate body to conduct their own investigation and decide if a prosecution is appropriate. The focus of their inquiries will inveitably come from the AAIB report, but with the crucial difference that the AAIB report is focused on safety.


Again advocating using a safety report not intended to identify blame or liability to make a decision on blame and liability.:ugh:

[Nialler]

@Piltdown Man:

I've been involved in a trial involving fraud where I was asked to perform forensic analysis of event log on a bank's core systems.

I was given no guidance whatever in terms of being asked to aid the prosecution; I was merely asked to examine the system event and transaction logs and to produce a sequence of events over a chronological period. This wasn't as simple as it may sound; on mainframes a lot of event activity is in non-human language form fr reasons of terseness and performance.

I was also advised that I would need to be aware of the regulatory requirements along with the company's internal standards. Any breaches should be highlighted.

Finally, I had to minutely document my methodology. Explicit in all of this was that I was to avoid interpretation. My job was to translate those bits into a chronology of events. The defence was given the opportunity to challenge the methodology at the outset of the process. Their expert suggested that the analysis should also include analysis of the operations of a random selection of other uses in the team concerned (cha-ching! Than you very happy!) in order to establish whether the company may have created an environment where they were allowing breaches as a matter of routine. Good call. The prosecutors were happy to go along with that.

The defence also made clear that they would - in the absence of having access to the logs - be performing their own forensics on the results of my analysis. I'd expect nothing less.

In the event, my appearance as a witness was brief. Their expert had raised just a couple of questions which were easily dealt with. He admitted to me some years later that he was obliged to justify his fees by giving them something - anything.

The point of this screed is that while the work of an expert witness as expressed in court may sound reductionist a huge amount of effort goes into making sure that it will withstand rigorous examination by the defence. The other point is that prosecutors don't rely purely on internal resources. They outsource when it is a matter in which they don't have the requisite skills.

They won't be using the Daily Mail's aviation "expert" to analyse the CVR. They won't be going to Jane's. They won't even ask an experienced pilot.

You can take it for granted that they will get in someone who has experience in accident investigations. You can take that for granted because in any putative future case that expert witness's credentials will be the first line of attack by any defence.

The only questions directed at me related to what training I had done in the area (plenty); how many years had I worked in that area (the answer rhymed with plenty); what was my level of experience with the diagnostic tools I'd used (lots: the training certificates were in the Book of Evidence along with my accreditations as a trainer in them).

True, the evidence I presented was anodyne and simplistic for the jury, but they were guided (at the direction of the judge) that since the content of it had been unchallenged by the defence they were to take it as fact. The regrettable questions regarding my expertise asked by the defence had been sufficiently dealt with and my evidence as to be taken on face value.

You can bet that by the nature of things any future case involving the CVR in this incident will be defended by defendants with great contacts in the aviation world - possibly better than those of the prosecution. That's how it should be.

[PT6Driver]

Never Fretter

So do you propose that the police should not be allowed to read a freely available AAIB report?

[Never Fretter]

:rolleyes:

Firstly there is a difference reading something and using it as evidence.

Secondly do you not realise there is a big danger that the safety value of an ICAO Annex 13 report will be undermined if an individual's future (and dare I say liberty) depend on what is concluded in an AAIB report?

Thirdly is it really fair to advocate that pilots have to endure the possibility of legal action hanging over them until after an AAIB report is published and PC Plod and the CPS get to read it?

And linked to the last point, as an AAIB report can't be used in evidence, even if the AAIB say the crew did a good job, that can't be used in the crews defence...

[KenV]

Again advocating using a safety report not intended to identify blame or liability to make a decision on blame and liability

Hmmmm, that's not the way I read it. My interpretation was that the safety report should be used as the basis to perform an INDEPENDENT investigation that produced INDEPENDENT evidence. And it was that evidence that would be used in the court proceedings, and not the report itself.

[PT6Driver]

Never

If you had read my posts on this you might understand my position on this.

Firstly my personal opinion is that this judgement is incorect. Primarily because although all the legislation that protects CVR data (for the reasons you state) allows under court orders for that data to be handed over, it should be in exceptional circumstances.
In this case as BALPA point out in their court statement, the Lord advocate has not given any exceptional reason, nor has he stated on what precise basis he neeeds it. This is a fishing expedition.
His sole reason seams to be that the police can compare witness statements against cvr evidence. This could apply in any accident or incident.
This is why I belive this will set a precident.
Secondly a just culture was never intended to protect those that deliberately commit act of gross negligence, read the jugement and you will see this point raised several times.
Thirdly if criminal acts have beeen committed the police or regulating authorities have a duty to investigate.

Fourthly I have never stated that the AAIB report should be used as evidence.

So if there is clear independent evidence of criminal activity then the authorities should pursue that, however if the police are intent on a fishing expedition with no evidence then that expedition should be denied them as long as possible.
As to should the pilots have to endure a long wait till the report is published, unfortunately yes.
The criminalisation of accidents is a bad move. It is very rare that someone goes out of their way to deliberately cause an accident or behave in a grossly negligent maner.

In summary this judgment whilst not giving the green light to whole scale criminalisation of accidents is I belive the start of that process.

[PT6Driver]

Ken V

Exactly

[Chronus]

In the UK it is the CPS who bring a criminal prosecution to Court. The police conduct the investigation. The CPS is independent of the police.

The principles for liaison between the CPS and the AIB are set out in a Memorandum of Understanding dated October 2008, between these two parties.

Here is a link to the full document:

https://www.cps.gov.uk/legal/assets/uploads/files/MOU%20between%20CPA%20and%20AIBs%20revised%20version%2030.10 .08.pdf

I would suggest that the section setting out the Basic Principles of
Co- operation are worthy of note.

Reference to this document may assist the forum in discussing and debating the issue. You may in particular note that the superior interest remains public safety, this takes precedence over criminal investigation. However the AIB may consider a criminal prosecution agency as an interested party and avail a report of its findings to such an agency.

A revised MoU is expected to be published in the near future. Perhaps it will deal more specifically with the thorny issue of CVR evidence.

[parkfell]

As this tragic accident occurred in Scotland, it will not be the CPS who decide whether to prosecute. The Crown Office and McNacker will run the show. Although historically the CAA have brought prosecutions for breaches of the ANO etc.

I had to attend, as a witness, a fatal accident inquiry in Dumfries in 1993 (AAIB REPORT had been published) as a result of one of our BAeFC Gulf Air solo student crashing near Sanquhar.
Transcripts derived from ATC tapes were produced as part of establishing the facts ~ time lines.
So FDR/CVR evidence ~ this will be produced at the fatal accident inquiry post any other proceeding.

[freespeed2]

PT6Driver; I feel your pain! I don't understand why some insist in totally changing the meaning of a post by selecting one part in isolation.

Never Fretter;
I said
The Judge could have reserved judgment until after the AAIB Report was published.
and then you translated that into;
So you advocate using an AAIB report as evidence in court?
The answer to this was in the very next sentence in the same post;
The safety investigation could be completed without interference and the prosecutor would then have an expert opinion on the cause of the crash to inform his decision on criminal activity.

To avoid further confusion, I suggested that the judge could have adjourned the case and the safety investigation can continue without being prejudiced. The prosecutor can 'form an opinion' from the report (this is a legal term and is NOT the same as making a judgement). All this happens BEFORE any court case. He has to consider whether the case has a realistic chance of succeeding in front of a judge. For example (hypothetically) if the safety investigation discovered a fatigue failure of a vital component which rendered the heli unflyable then a finding such as this would provide the prosecutor with information that would allow him to form an opinion without ever accessing the CVR. KenV and PT6Driver both nailed it regarding the legal case. The prosecution must build their own separate case and cannot use the safety investigation in court.

Hopefully that has cleared it up for you.

[Legalapproach]

Per Piltdown Man:

I might sound a bit negative but I truly believe the Brtitish judicial system exists as a job creation system for very intelligent but otherwise unemployable people.

Er, care to comment FL?:ok:

[finalchecksplease]

Pilots union Balpa challenges Sumburgh crash black box ruling - BBC News (http://www.bbc.co.uk/news/uk-scotland-north-east-orkney-shetland-33425676) :ok:

[Fortissimo]

The BALPA decision to appeal the Court of Sessions ruling is welcome regardless of its outcome as we need a second test to ensure all the arguments have been given proper weight. As Flying Lawyer pointed out, this is actually an important case that could affect professional pilots here and in other countries.

Against a background of our trying to apply just culture from inside the blame society we now live in, it is worth remembering that people have died and it is therefore the duty of the Crown Office to determine whether those deaths were unlawful. If the accident had not caused fatalities it is doubtful the Lord Advocate would have asked for the CVFDR as such a request would not have passed the public interest test in the first place.

Fishing expedition or not, there is also the concept of best evidence in play. It would be unreasonable to base a decision to prosecute purely on incomplete (ie redacted) evidence - and it should certainly be grounds for an appeal if you were convicted on the same basis. And here the best evidence is the CVFDR. What may have blurred the lines on this occasion was an operator decision to release FDM data to Police Scotland shortly after the accident, in AAIB's view a move that was contrary to EU law. I am not sure who interpreted the FDM for PS, but I think most people would agree this was a very unwelcome use of the data.

I think all this will hinge on a higher court's view of the public interest test and it is perhaps useful that the decision on this occasion will involve more than one judge, as others may have different views. If the original order stands (and I hope it does not) then maybe the saving grace lies in the conditions Lord Jones attached to release of the CVFDR, which should at least ensure the CVR is not played in open court.

There is plenty more to come on this, including a potential appeal to the European court if this one fails.

[G0ULI]

People are routinely monitored, officially and unofficially by all sorts of recording devices, CCTV, phone records, CVFDRs, car trackers fitted by insurance companies to reduce premiums, in car video recorders, etc., etc.

It has long been a principle of British law that all evidence must be presented before a Court whether or not it might be predjudicial or beneficial to a defendant. It is for the judge presiding to rule whether evidence is admissible in considering a verdict.

The fact that evidence of any sort was recorded for purposes other than for consideration of a legal case is irrelevant. If evidence exists in any form, it should be submitted before a Court if that is what is required to reach a fair and considered verdict.

If you were the victim of some crime, you would be very upset if clear CCTV footage of the offence taking place was disallowed because it was recorded through the front window of private premises, or it was recorded by a traffic camera and therefore not for the purpose that the system was intended.

FDCVR's are intended to identify the causes of aircraft accidents. That should not preclude their use where appropriate to accurately establish the facts and where blame might lie after the safety investigations are concluded.

People in all walks of life and careers are routinely monitored and disciplined if wrongdoing is discovered. Pilots have no right to expect to be exceptions to the rule.

[RLinSW4]

Chronus said :"In the UK it is the CPS who bring a criminal prosecution to Court. The police conduct the investigation. The CPS is independent of the police."

Unfortunately no. The UK has three legal systems: one covering England and Wales - and that's where the CPS role would be relevant, one covering Scotland (which applies to THIS case) and also one covering Northern Ireland.

[mtoroshanga]

After nearly 50 years employed in rotorwing industry I am interested to hear that there is a reluctance to reveal CVR details in this incident.
Could it be because the aircraft was flown into a vortex ring situation ?
I also noted from news pictures that cabin door had been slid forward so blocking window jettison, and reducing evacuation capability. These doors can be jettisoned by the pilot. Why were they not done so? I suggest that the truth is more important than silly little ego entries to this forum.

[KenV]

In the UK it is the CPS who bring a criminal prosecution to Court. The police conduct the investigation. The CPS is independent of the police.

Independent? Maybe Brits have a different definition than Americans but based on the following, I (an American) would not call CPS "independent" of the police in any meaningful way.

The Crown Prosecution Service (CPS) is the principal public prosecuting (https://en.wikipedia.org/wiki/Prosecution) agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions (https://en.wikipedia.org/wiki/Director_of_Public_Prosecutions_%28England_and_Wales%29) (DPP).
Its main responsibilities are to provide legal advice to the police and other investigative agencies (https://en.wikipedia.org/wiki/Law_enforcement_in_the_United_Kingdom) during the course of criminal investigations,

[vapilot2004]

I suggest that the truth is more important than silly little ego entries to this forum.

I am pretty sure the majority responses of concern here are more about safety than ego. The current non-punitive system that rules the most trusted countries' aviation sectors is what works - it is proven through statistical analysis and applied knowledge of human nature to foster the growth of safety culture.

I agree there is a need to know exactly what happened, Mtoro. That is the purpose of the AAIB investigation. Criminal proceedings, may, in their investigative process discover "a cause", but are far from conducive towards preventing future occurrences.

[212man]

mtoroshanga I also noted from news pictures that cabin door had been slid forward so blocking window jettison, and reducing evacuation capability. These doors can be jettisoned by the pilot. Why were they not done so?

Not sure which pictures you've seen, but I can't find any that show that (maybe you are looking at the CHC EC225 controlled ditching?)

In any case, to answer your question....

...after striking the surface the helicopter rapidly inverted...

https://assets.digital.cabinet-office.gov.uk/media/5422f50540f0b6134600059b/S7-2013_AS332_L2_G-WNSB.pdf

[CarltonBrowne the FO]

One non-aviation opinion I heard was that Police Scotland were seeking this information because the AAIB were taking too long. Police Scotland are not, IMO, in a position to criticise anyone for being tardy in carrying out investigations...
Crash victims may have lain injured for three days - BBC News (http://www.bbc.co.uk/news/uk-scotland-tayside-central-33438667)

[mtoroshanga]

212MAN I have looked for the picture I mentioned with no luck, Will post it if I find it,