Hawker Hunter Crash at Shoreham Airshow
I'm not sure that witness statements given to the AAIB would be admissible without some kind of verification because they are not given under oath/caution, which is important if someone is being terrible honest and might incriminate themselves or others, so maybe not in accordance with PACE. Although that would lead to an interesting set of questions in court.
The report might be used to identify expert witnesses or others that the Police may wish to interview. The forensic evidence is obviously useful and the I'm aware I have not phrased that correctly so, hopefully, Flying Lawyer can correct me.
The report might be used to identify expert witnesses or others that the Police may wish to interview. The forensic evidence is obviously useful and the I'm aware I have not phrased that correctly so, hopefully, Flying Lawyer can correct me.
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Hmm, my concerns are that future incidents you will not get full disclosure for worry of prosecution and that can then lead to more fatalities as the root cause may not be discovered.
One also questions the polices expertise in all of this, surely it is the role of the AAIB to take the evidence and then use their knowledge and expertise to sort out the relevant information from the chafe to arrive at the correct conclusion.
The police in requesting the information will be presented with it all without the skill set to differentiate from what is relevant to the case and what is not and the people they would then have to approach to accurately disseminate the relevant evidence would be the errrrrrr AAIB.
One also questions the polices expertise in all of this, surely it is the role of the AAIB to take the evidence and then use their knowledge and expertise to sort out the relevant information from the chafe to arrive at the correct conclusion.
The police in requesting the information will be presented with it all without the skill set to differentiate from what is relevant to the case and what is not and the people they would then have to approach to accurately disseminate the relevant evidence would be the errrrrrr AAIB.
Royal Aeronautical Society | Event | Admissibility of Air Accident Reports in Court Proceedings
Sadly I didn't attend that, as it looked fascinating, but the proceedings must be available somewhere.
G
Across the globe, aircraft accidents and serious incidents are invariably followed by a State sponsored ICAO Annex 13 investigation, the stated purpose of which is the prevention of future accidents and incidents. Annex 13 stipulates that it is not the purpose of this activity to apportion blame or liability. Nevertheless, in some jurisdictions any resultant air accident report can be admitted in court proceedings concerning issues of blame or liability. Does this matter? And if so why?
This seminar will consider the implications, if any, of the potential admissibility of any Annex 13 air accident report, drawing upon the experience of the diverse law and practice in various jurisdictions. It will do so via two distinguished panels of speakers: one approaching the topic from the perspective of lawyers; and one doing so from the wider perspective of various relevant stakeholders. Time will be provided for panel discussion and debate.
This seminar will consider the implications, if any, of the potential admissibility of any Annex 13 air accident report, drawing upon the experience of the diverse law and practice in various jurisdictions. It will do so via two distinguished panels of speakers: one approaching the topic from the perspective of lawyers; and one doing so from the wider perspective of various relevant stakeholders. Time will be provided for panel discussion and debate.
G
Sad when a (relatively) open flight safety reporting system is overtaken by the litigious world. They will pay the price, one way or another.
Thoughts with Bruxelles.
Thoughts with Bruxelles.
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The comparison has been made between road traffic accidents and the shoreham incident. The point has been made that the casualties were not participants. I would point out that the emphasis in road transport has been to make the process safer. Cars are very much less lethal. I contend, as latterly did Ralph Nader, that the safer the cars, the greater the number of pedestrian casualties. So, I guess that the attrition rate for non participants in road transport is not a good example for the argument against air shows. I'm sorry if this a non sequitur but the toing and froing in this thread is mind numbing.
All I know is that I was near a group of very experienced pilots who seemed to suck in their breath as the hunter reached the top of his manoeuvre. I have no FJ experience to speak of.
All I know is that I was near a group of very experienced pilots who seemed to suck in their breath as the hunter reached the top of his manoeuvre. I have no FJ experience to speak of.
I don't own this space under my name. I should have leased it while I still could
Actually I would contend nothing has changed. The only way the AAIB report and inadmissible witness statements could be hidden from the judiciary would be to ensure they remained confidential and never released. As they are always released nothing has changed.
Edit to add:
@CM
[QUOTE
The downside is the willingness, or lack of, of witnesses to (potentially) incriminate themselves, their company or colleagues in the pursuit of the furtherance of fight safety.[/QUOTE]
But still no difference. The potential for self incrimination has always been there, and also been a factor in Service BoI or investigation when the witness/selected guilty party has said no comment until my solicitor is present.
Edit to add:
@CM
[QUOTE
The downside is the willingness, or lack of, of witnesses to (potentially) incriminate themselves, their company or colleagues in the pursuit of the furtherance of fight safety.[/QUOTE]
But still no difference. The potential for self incrimination has always been there, and also been a factor in Service BoI or investigation when the witness/selected guilty party has said no comment until my solicitor is present.
Last edited by Pontius Navigator; 24th Mar 2016 at 18:02.
I think that you're right Pontious.
I'm not professionally involved in the Shoreham aftermath, but have acted as an expert witness in many other UK crash related cases. I have always used AAIB reports as evidence, but have always been expected to provide my own analysis to the court, answering the questions that matter - which are different questions to the "how to avoid a recurrence" questions answered by AAIB. I've seen and heard nothing likely to change that.
G
I'm not professionally involved in the Shoreham aftermath, but have acted as an expert witness in many other UK crash related cases. I have always used AAIB reports as evidence, but have always been expected to provide my own analysis to the court, answering the questions that matter - which are different questions to the "how to avoid a recurrence" questions answered by AAIB. I've seen and heard nothing likely to change that.
G
PN, you are spot on about that.
I think the benefits are that the results of an intensive and thorough investigation can point the Police/CPS/Prosecutors/individuals in the right direction to find admissible evidence of their own and a source of "expert witnesses", assuming they are willing to testify - of course, their analysis is already out there as you imply.
The downside is the willingness, or lack of, of witnesses to (potentially) incriminate themselves, their company or colleagues in the pursuit of the furtherance of fight safety.
Come to think of it, wasn't the precedent that was set last year to use the reports as evidence? Flying Lawyer, where are you?
I think the benefits are that the results of an intensive and thorough investigation can point the Police/CPS/Prosecutors/individuals in the right direction to find admissible evidence of their own and a source of "expert witnesses", assuming they are willing to testify - of course, their analysis is already out there as you imply.
The downside is the willingness, or lack of, of witnesses to (potentially) incriminate themselves, their company or colleagues in the pursuit of the furtherance of fight safety.
Come to think of it, wasn't the precedent that was set last year to use the reports as evidence? Flying Lawyer, where are you?
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Genghis
It was a very interesting, and well attended, seminar.
No vote was taken but my impression, based upon audience response to the various invited speakers and contributions to the debate from the floor, was that the large majority considered that the use of AAIB reports in court proceedings would do nothing to enhance aviation safety and has the potential to erode it.
NB: The issue relates to the use of the AAIB report itself (the document) as evidence - not to witnesses (expert or other) giving evidence in court.
============
Courtney Mil
Yes, there was a significant change (in 2014) relating to the use of AAIB reports in civil proceedings.
Criminal proceedings
No change.
Extracts from AAIB reports setting out non-contentious factual findings are sometimes used in evidence provided that prosecution and defence agree.
Most prosecutors don't even try to adduce entire AAIB reports in evidence to the jury.
Objections include:
Civil proceedings
Historically, extracts from AAIB reports dealing with non-contentious findings have been used in evidence by agreement between the parties.
In 2014, the UK Court of Appeal concluded that AAIB reports (the entire document) are admissible in evidence in civil proceedings even where one or more parties objects – subject only to judges' discretion to exclude in exceptional circumstances. NB: The report is admissible as evidence - even though the people who created/contributed to it are not called as witnesses and, accordingly, not cross-examined about their findings/conclusions.
In very brief summary, the Court of Appeal rejected the objections set out in the section above in so far as they relate to civil proceedings tried by a judge (no jury). NB: The decision does not affect criminal proceedings (prosecutions).
Public Interest: Flight Safety
Given the importance of the issue being considered, the Court of Appeal allowed the Secretary of State for Transport and IATA to make representations. The Secretary of State submitted a statement from the Chief Inspector of the AAIB.
The Chief Inspector expressed a number of fears which, in summary, were that if reports were frequently used in Court proceedings, people who may assist the AAIB might be deterred from doing so; people may fear being called as witnesses or fear being sued; they might be encouraged to speak with their employer before speaking to the AAIB, who would in turn refer to their lawyers, slowing down the investigation; the quality of volunteered information may decline, or dry up completely; AAIB investigators may face additional pressures if they fear having to justify their conclusions in Court.
The Court of Appeal rejected those objections, concluding that people are well aware of the vital role of the AAIB and were unlikely to be significantly deterred from co-operating if reports were allowed to be used in civil proceedings.
Only time will tell if the Court's confidence was well-founded.
Although it is well known that the AAIB's role is not to apportion blame, parties and their advisers inevitably consider liability implications when assisting the AAIB. Most people/corporations are understandably reluctant to incriminate themselves/provide information which might lead to their being sued and, in the case of individuals, potentially being ruined financially as well as professionally. Lawyers are obliged to advise/warn their clients about the potential risks and, in particular, about the effect of the 2014 development. Failure to do so would be incompetent at least and arguably amount to negligence.
Widely held informed opinion is that the 2014 decision will increase such concerns and may well, entirely understandably, diminish people's desire to help - with a consequent adverse effect upon the AAIB’s ability to do its valuable job.
The 2014 decision was not further appealed so will remain the law unless/until it is reversed by the Court of Appeal or the Supreme Court in some future case – or changed by Parliament.
Interestingly, there is a statutory restriction upon the admission of reports produced by the Marine Accidents Investigation Branch (MAIB). I haven't researched the point but wonder whether the difference was oversight rather than intentional.
Royal Aeronautical Society | Event | Admissibility of Air Accident Reports in Court Proceedings
Sadly I didn't attend that, as it looked fascinating, but the proceedings must be available somewhere.
Sadly I didn't attend that, as it looked fascinating, but the proceedings must be available somewhere.
No vote was taken but my impression, based upon audience response to the various invited speakers and contributions to the debate from the floor, was that the large majority considered that the use of AAIB reports in court proceedings would do nothing to enhance aviation safety and has the potential to erode it.
NB: The issue relates to the use of the AAIB report itself (the document) as evidence - not to witnesses (expert or other) giving evidence in court.
============
Courtney Mil
Come to think of it, wasn't the precedent that was set last year to use the reports as evidence? Flying Lawyer, where are you?
Criminal proceedings
No change.
Extracts from AAIB reports setting out non-contentious factual findings are sometimes used in evidence provided that prosecution and defence agree.
Most prosecutors don't even try to adduce entire AAIB reports in evidence to the jury.
Objections include:
- AAIB reports are hearsay, not direct evidence.
- They are anonymized documents - not all the authors are named.
- They contain accounts given by un-named witnesses whose accuracy, objectivity and honesty has not been tested.
- Opinions are expressed by un-named individuals whose expertise (or lack of) is not known.
- Findings are reached on the basis of evaluation and elimination of evidence, but the process by which evidence was relied upon/eliminated by the AAIB is not disclosed.
- The evidence discarded during that process is not disclosed.
- The risk that juries will attach too much weight to the opinions of unknown AAIB inspectors simply because they are AAIB inspectors. They are generally very good but, in common with the rest of us, they are not infallible.
- 'Public Interest' objections: See below.
Civil proceedings
Historically, extracts from AAIB reports dealing with non-contentious findings have been used in evidence by agreement between the parties.
In 2014, the UK Court of Appeal concluded that AAIB reports (the entire document) are admissible in evidence in civil proceedings even where one or more parties objects – subject only to judges' discretion to exclude in exceptional circumstances. NB: The report is admissible as evidence - even though the people who created/contributed to it are not called as witnesses and, accordingly, not cross-examined about their findings/conclusions.
In very brief summary, the Court of Appeal rejected the objections set out in the section above in so far as they relate to civil proceedings tried by a judge (no jury). NB: The decision does not affect criminal proceedings (prosecutions).
Public Interest: Flight Safety
Given the importance of the issue being considered, the Court of Appeal allowed the Secretary of State for Transport and IATA to make representations. The Secretary of State submitted a statement from the Chief Inspector of the AAIB.
The Chief Inspector expressed a number of fears which, in summary, were that if reports were frequently used in Court proceedings, people who may assist the AAIB might be deterred from doing so; people may fear being called as witnesses or fear being sued; they might be encouraged to speak with their employer before speaking to the AAIB, who would in turn refer to their lawyers, slowing down the investigation; the quality of volunteered information may decline, or dry up completely; AAIB investigators may face additional pressures if they fear having to justify their conclusions in Court.
The Court of Appeal rejected those objections, concluding that people are well aware of the vital role of the AAIB and were unlikely to be significantly deterred from co-operating if reports were allowed to be used in civil proceedings.
Only time will tell if the Court's confidence was well-founded.
Although it is well known that the AAIB's role is not to apportion blame, parties and their advisers inevitably consider liability implications when assisting the AAIB. Most people/corporations are understandably reluctant to incriminate themselves/provide information which might lead to their being sued and, in the case of individuals, potentially being ruined financially as well as professionally. Lawyers are obliged to advise/warn their clients about the potential risks and, in particular, about the effect of the 2014 development. Failure to do so would be incompetent at least and arguably amount to negligence.
Widely held informed opinion is that the 2014 decision will increase such concerns and may well, entirely understandably, diminish people's desire to help - with a consequent adverse effect upon the AAIB’s ability to do its valuable job.
The 2014 decision was not further appealed so will remain the law unless/until it is reversed by the Court of Appeal or the Supreme Court in some future case – or changed by Parliament.
Interestingly, there is a statutory restriction upon the admission of reports produced by the Marine Accidents Investigation Branch (MAIB). I haven't researched the point but wonder whether the difference was oversight rather than intentional.
IMOP the court of appeal has made a huge mistake. Any possibility of open and honest reporting in order to enhance flight safety, without threat, has now been sacrificed to the detriment of wider public safety and only for the benefit of lawyers and those who do not understand aviation safety.
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Everyone who contributed to the debate introduced themselves and their role. As I said in my previous post, the large majority considered that the use of AAIB reports in court proceedings would do nothing to enhance aviation safety and had the potential to erode it. To the best of my recollection, only two lawyers (both solicitors) argued that the Court of Appeal was right.
I obviously haven't discussed the decision with every aviation lawyer but I have yet to encounter any (apart from the two mentioned above) who think it was correct.
I agree that people who do not understand the wider aviation safety issues and implications are likely to be pleased by the decision.
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NB: The issue relates to the use of the AAIB report itself (the document) as evidence - not to witnesses (expert or other) giving evidence in court.
Flying Lawyer. Thanks for your posts. Very enlightening.
Given this is a military thread, I think any discussion has to appreciate the different roles the AAIB plays when investigating civil and military accidents. They are very restricted in the latter, where much of the engineering investigation is the responsibility of the SI's engineering member. Few even scrape the surface so, almost by definition, SIs are tainted and mostly incomplete.
The most obvious case, and the most debated here, is the Mull of Kintyre crash. At first, the AAIB stood by its report. When it found out how much evidence had been concealed by MoD, rendering large parts misleading and even inaccurate, it later effectively disowned it, with the senior examiner presenting himself to Lord Philip to confirm this. Lacking the concealed evidence, and a complete re-write, there is no way one could use that report in court proceedings.
I'm not convinced the court ruling allows for this!
Given this is a military thread, I think any discussion has to appreciate the different roles the AAIB plays when investigating civil and military accidents. They are very restricted in the latter, where much of the engineering investigation is the responsibility of the SI's engineering member. Few even scrape the surface so, almost by definition, SIs are tainted and mostly incomplete.
The most obvious case, and the most debated here, is the Mull of Kintyre crash. At first, the AAIB stood by its report. When it found out how much evidence had been concealed by MoD, rendering large parts misleading and even inaccurate, it later effectively disowned it, with the senior examiner presenting himself to Lord Philip to confirm this. Lacking the concealed evidence, and a complete re-write, there is no way one could use that report in court proceedings.
I'm not convinced the court ruling allows for this!
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MACH2
The only flaw in your 'case' was: "for the benefit of lawyers".
The decision provides no benefit to lawyers just as there would have been no benefit to them if the decision had gone the other way.
PrivtPilotRadarTech
The sentence you quoted from my post was addressed to Genghis and was a response to a specific point he had made earlier in the thread. It is not relevant to the issue decided by the Court of Appeal.
The Court of Appeal decision in a nutshell:
.
The only flaw in your 'case' was: "for the benefit of lawyers".
The decision provides no benefit to lawyers just as there would have been no benefit to them if the decision had gone the other way.
PrivtPilotRadarTech
The sentence you quoted from my post was addressed to Genghis and was a response to a specific point he had made earlier in the thread. It is not relevant to the issue decided by the Court of Appeal.
The Court of Appeal decision in a nutshell:
The entire AAIB report may now be used as evidence in civil proceedings - even if the author(s) and others who contributed to it are not called as witnesses and, accordingly, the other side has no opportunity to cross-examine them.
Having read your views in this thread and in the Private Flying forum I am not in the least surprised that you regard the decision as "reasonable and fair". .
Last edited by Flying Lawyer; 3rd Apr 2016 at 06:54.