Does UK ATC come under Criminal Law?
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Criminal or Civil Law?
I'm not sure they'd immediately throw the book at you, even if someone died, and even if they could prove the elements of manslaughter. They're probably more likely to sue the ATCO, or his/her employer (in some cases, it's the Government) under the tort of "negligence" or "breach of statutory duty". In other words, you'd get sued, rather than charged. (And I'm talking here from an Australian point of view, and our legal system is based on the English system.)
"Negligence" is obvious, and they need to show three elements:
- that a duty of care was owed
- that the duty of care was breached, and
- that the breach of duty of care caused the damage.
And these elements need only be shown "on the balance of probabilities" - since this is a civil, rather than a criminal, matter.
It's generally accepted that ATC owes a duty of care to everyone aboard the aircraft, but the pilot-in-command also owes a duty of care to everyone else on the aircraft. The ATC duty of care does not nullify the pilot's duty of care. As such, the pilot may also be negligent, since it is the pilot that actually flew the aircraft into the accident. The level of the pilot's negligence will depend upon how reliant s/he was on ATC. Obviously with zero visibility in IMC, the pilot will be totally reliant on ATC, so will have no negligence. However, in VMC there may be some contributory negligence on the part of the pilot, who may see the other aircraft in time to avoid the collision. This means that the damages bill may be spread over a number of parties (ie, the ATC provider and the airlines). The airlines are covered by the Warsaw Convention on international flights, so its liability is limited. ATC, however, is not covered, so I suppose its liability is unlimited!
"Breach of statutory duty" is similar to negligence (isn't it?), but only applies to statutory authorities. There are some limitations, like the immunity for policy decisions, but that doesn't affect an ATCO stuffing up.
Now, this may all be totally incorrect, since I'm not a lawyer by any stretch of the imagination. This was covered in a lecture at university - I'm studying aviation, and aviation law is one of my subjects.
Are there any lawyers out there who want to comment?
ozm8
"Negligence" is obvious, and they need to show three elements:
- that a duty of care was owed
- that the duty of care was breached, and
- that the breach of duty of care caused the damage.
And these elements need only be shown "on the balance of probabilities" - since this is a civil, rather than a criminal, matter.
It's generally accepted that ATC owes a duty of care to everyone aboard the aircraft, but the pilot-in-command also owes a duty of care to everyone else on the aircraft. The ATC duty of care does not nullify the pilot's duty of care. As such, the pilot may also be negligent, since it is the pilot that actually flew the aircraft into the accident. The level of the pilot's negligence will depend upon how reliant s/he was on ATC. Obviously with zero visibility in IMC, the pilot will be totally reliant on ATC, so will have no negligence. However, in VMC there may be some contributory negligence on the part of the pilot, who may see the other aircraft in time to avoid the collision. This means that the damages bill may be spread over a number of parties (ie, the ATC provider and the airlines). The airlines are covered by the Warsaw Convention on international flights, so its liability is limited. ATC, however, is not covered, so I suppose its liability is unlimited!
"Breach of statutory duty" is similar to negligence (isn't it?), but only applies to statutory authorities. There are some limitations, like the immunity for policy decisions, but that doesn't affect an ATCO stuffing up.
Now, this may all be totally incorrect, since I'm not a lawyer by any stretch of the imagination. This was covered in a lecture at university - I'm studying aviation, and aviation law is one of my subjects.
Are there any lawyers out there who want to comment?
ozm8
Ohcirrej
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Obviously with zero visibility in IMC, the pilot will be totally reliant on ATC, so will have no negligence.
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I think I see what you're saying, Jerricho. If a pilot follows the ATC instruction instead of the TCAS RA, and the other pilot disregarded the ATC instruction to follow the RA, who's negligence led to the accident? Is it the ATCO (for allowing the aircraft to get that close in the first place), is it the pilot who followed the ATC instruction (for ignoring the RA), or is the pilot who followed the RA (for ignoring the ATC instruction), or is it some combination of all three? What if it was clear day? Would it be different?
Whilst none of us, I dare say, wish to see another such accident happen, it would be interesting to see how a court would handle such a case. If I were to venture an opinion, and this is really what I think Jerricho was getting at, all this new instrumentation (like TCAS, and GPWS even - we haven't really touched on CFIT yet), gives the pilot better information than just looking out the window. It may even be argued that the pilots may even have better "eyes" for the situation than the ATCO, even in full IMC conditions, due to their TCAS.
That argument may even stick better when we consider GPWS, because (and correct me if I'm wrong) a radar controller can't see the height of the terrain, they just have a good idea where it is. In situations where it is found that the pilot had better "eyes" for the situation, the pilot may even be found to be more negligent than the ATCO. However, the ATCO will still share some negligence precisely because they have a good idea where the terrain is, and they shouldn't have let the aircraft even get close to hitting it.
I'm not all that familiar with the accident that involved the TCAS (it was in Germany, wasn't it?), but wasn't it found to be the ATCO's fault? An English, or other Common Law, court may decide to follow that precedent, but they may also see what has changed even since then, and find that the pilots share the negligence because they should have followed the TCAS.
ozm8
Whilst none of us, I dare say, wish to see another such accident happen, it would be interesting to see how a court would handle such a case. If I were to venture an opinion, and this is really what I think Jerricho was getting at, all this new instrumentation (like TCAS, and GPWS even - we haven't really touched on CFIT yet), gives the pilot better information than just looking out the window. It may even be argued that the pilots may even have better "eyes" for the situation than the ATCO, even in full IMC conditions, due to their TCAS.
That argument may even stick better when we consider GPWS, because (and correct me if I'm wrong) a radar controller can't see the height of the terrain, they just have a good idea where it is. In situations where it is found that the pilot had better "eyes" for the situation, the pilot may even be found to be more negligent than the ATCO. However, the ATCO will still share some negligence precisely because they have a good idea where the terrain is, and they shouldn't have let the aircraft even get close to hitting it.
I'm not all that familiar with the accident that involved the TCAS (it was in Germany, wasn't it?), but wasn't it found to be the ATCO's fault? An English, or other Common Law, court may decide to follow that precedent, but they may also see what has changed even since then, and find that the pilots share the negligence because they should have followed the TCAS.
ozm8
Ohcirrej
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Ozm, that's exactly what I was getting at (sorry, very tired at the time!!). But also, I have seen situations where pilots following an RA in a hold have caused other jets to get RA's as well. The poor ATCO can only sit there and watch, passing traffic like a b@stard. Now, this is probably getting to the realms of fantasy, but the law seems to love proportioning blame. Who would like to deal with this one?
And on the other side, is TCAS as infalliable as people make it out to be. Last week I had a jet swear he had traffic 2 miles ahead of him same level......nothing was there. His reply "We'll have to get this thing checked!".
I hate the law sometime.
And on the other side, is TCAS as infalliable as people make it out to be. Last week I had a jet swear he had traffic 2 miles ahead of him same level......nothing was there. His reply "We'll have to get this thing checked!".
I hate the law sometime.
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Criminal law
In order to be convicted under the Criminal Code of Canada, the controller would have had to have shown "wanton or reckless regard for the lives or safety of other persons" - s. 219. The test for this is known as an objective one - what would a reasonably prudent controller do in the same circumstances. A consideration must be made of the facts existing at the time and the contoller's perception of those facts.
This is Canadian law but I imagine UK law is not terribly different.
This is Canadian law but I imagine UK law is not terribly different.
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Tasic went to jail after the Zagreb accident in '76...apparently he was sentenced to 7 sears but was released after 2 due to controllers campaigning for his release.
http://members.ozemail.com.au/~abrkic/
link gives an account of what happened....maybe (hopefully) this incident would have been more fairly tried if the same situation happened in the uk today.
http://members.ozemail.com.au/~abrkic/
link gives an account of what happened....maybe (hopefully) this incident would have been more fairly tried if the same situation happened in the uk today.
Ohcirrej
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One would hope you're right Bids.
However, from what I have seen from some incident reports, it seems in some investigations a bag is filled with sh*t, a hole is cut in it, and somebody swings it above their head.............
However, from what I have seen from some incident reports, it seems in some investigations a bag is filled with sh*t, a hole is cut in it, and somebody swings it above their head.............
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Not related to the law debate, but the NATS human factors group try to get involved in incident investigation (depends on local management's attitude), because the attribution to 'cognitive error' really doesn't explain anything. Their approach has been picked up by Eurocontrol and the FAA (although still at research stages). As has been rightly pointed out, the holes have to line up throughout the whole system for an error to occur, so trying to pin blame on one or two people is pointless.
I'm not sure if the HF unit's investigation would ever be called into a prosecution, and I don't believe NATS would allow them to look into an incident involving loss of life. However, the trick would be to get the CAA's incident investigation to require a more detailed look at the human factors (so changing the relevant regulations). I'm sure their incident report is used as evidence.
Let's hope we never even have to worry about this though.
I'm not sure if the HF unit's investigation would ever be called into a prosecution, and I don't believe NATS would allow them to look into an incident involving loss of life. However, the trick would be to get the CAA's incident investigation to require a more detailed look at the human factors (so changing the relevant regulations). I'm sure their incident report is used as evidence.
Let's hope we never even have to worry about this though.
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Gents
I draw your mind back to the recent Courts Martial of the military controller involved in the F-15 crash in 01 that filled these pages earlier this year. His case went through civil police investigation first and could have gone to court
Porge
I draw your mind back to the recent Courts Martial of the military controller involved in the F-15 crash in 01 that filled these pages earlier this year. His case went through civil police investigation first and could have gone to court
Porge
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Another point as this thread is about UK (in the case of the Mil ATCO Scots as opposed to English Law would apply) The Police would investigate the circumstances surrounding a death on behalf of HM Coronor. The fact that Police investigate does not mean they are aiming to charge someone. For instance if a person drops dead in the street it is investigated by a Police officer.
In the case of Joe Public any evidence of a criminal act gathered during a Police invstigation would be presented to the Crown Prosecution Service (Proculator Fiscal in Scotland) and they would decide if any prosecution would continue. In the case of the RAF I understand a similar system applies, where the evidence is presented to their Director Of Legal Services, who then decides as with the CPS if there is Prima Facia evidence and whether to prosecute. In some cases certainly with the CPS there may well be sufficent evidence, but they decide not to continue a prosecution as it is not in the public interest. A decision to charge someone does not mean they are guilty, just that there is sufficent evidence to support a charge. It is then for a court to decide guilt. In the case of the RAF controller, yes there does appear to have been sufficent evidence to take him to court (I say appear as obviously all I saw was the evidence presented on here) A court, (court marshal in this case) having had the evidence explained decided, rightly that there was not sufficent evidnce to convict. Thats the way the justice system works, whether it be a going through a red light in your car or the Ripper....
In the case of Joe Public any evidence of a criminal act gathered during a Police invstigation would be presented to the Crown Prosecution Service (Proculator Fiscal in Scotland) and they would decide if any prosecution would continue. In the case of the RAF I understand a similar system applies, where the evidence is presented to their Director Of Legal Services, who then decides as with the CPS if there is Prima Facia evidence and whether to prosecute. In some cases certainly with the CPS there may well be sufficent evidence, but they decide not to continue a prosecution as it is not in the public interest. A decision to charge someone does not mean they are guilty, just that there is sufficent evidence to support a charge. It is then for a court to decide guilt. In the case of the RAF controller, yes there does appear to have been sufficent evidence to take him to court (I say appear as obviously all I saw was the evidence presented on here) A court, (court marshal in this case) having had the evidence explained decided, rightly that there was not sufficent evidnce to convict. Thats the way the justice system works, whether it be a going through a red light in your car or the Ripper....
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The law in England and Wales relating to manslaughter by gross negligence involves the following questions:
1. Whether a duty of care was owed to the deceased.
2. Whether there had been a breach of that duty
3. Whether the breach had caused or contributed to the death.
4. If so whether the breach should be characterised as gross negligence and therefore a crime.
Evidence as to a defendant's state of mind is not a pre-requisite to a conviction and the breach may arise out of either an act or omission.
1. Whether a duty of care was owed to the deceased.
2. Whether there had been a breach of that duty
3. Whether the breach had caused or contributed to the death.
4. If so whether the breach should be characterised as gross negligence and therefore a crime.
Evidence as to a defendant's state of mind is not a pre-requisite to a conviction and the breach may arise out of either an act or omission.
