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Criminalisation of Accidents

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Criminalisation of Accidents

Old 7th Feb 2008, 10:43
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1. Can the Captain, but then leave the first officer alone despite him failing in his duty too? No speed check? Not informing the Captain he didn't deploy the flaps as requested?
2. The accident investigation stated the captain suffered from fixation. Now, will such a finding in the criminal case be accepted by the court or not? if Not, it's a sham!
3. There is no "I am Captain therefore I am God" shown in the accident report. In fact, the F/O did not do enough to raise the attention of the captain of the impending danger (ie. F/O failed to recognize incapacity).
4. There is no intention to do harm in this case. The Captain was channeled in his attention in how to get on the ground but with minimum casualties. Stress levels and the fixation prevented his mind from realizng this was not the right thing to do.
5. No one seems to pick up the fact that JOG's operating license can actually be deemed invalid and therefore, the primary cause of death can be the negligence by the airport instead... Sorry, if JOG airport complied with the recommendations set out in its limited license release in 2005, leaving the paved surface at the reported 55kts would not result in the same extent of death!

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

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

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

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

PK-KAR
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Old 7th Feb 2008, 10:46
  #22 (permalink)  
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Punishing this pilot for this accident is not worth the price we pay for reduced safety if this prosecution goes ahead using CVR data.
So pilots must be put above the law because flight safety comes first?

There is of course a simple solution, make anything said to the air saftey investigators not admissible in a court of law. The black box recordings (voice and data are another mater though.
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Old 7th Feb 2008, 10:55
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4Greens, I can't follow your misguided and somewhat naive logic. If we allow this individual to walk away unpunished then surely we are giving a green light to all and everyone to carry out any unsafe action, regardless of the consequences. This is patently obviously wrong. This pilot made a fundamental and negligent error. He wantonly disregarded all the advice, warnings and evidence which would have led to a safe alternative, yet he pressed on regardless, resulting in many deaths. DEATHS, not a dent in the wing, deaths. Are you suggesting that human life is worth less than the supposed supremacy of the present flight safety regime?
If it takes the imprisonment of this individual to show others that they will be responsible for their criminal actions then all well and good. I hope he gets the maximum sentence, assuming he is found guilty that is.
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Old 7th Feb 2008, 11:41
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PK-KAR:

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

The guy should get 20 years in prison. Minimum.

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

Blame it on the FO? You're pathetic! Must be your friend sitting there...
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Old 7th Feb 2008, 11:50
  #25 (permalink)  
 
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Rubik101,

if a uniformly harsh and critical approach to criminal negligence was adopted universally, flying would ultimately be a safer industry.
You seem to be assuming that every accident is caused by criminal negligence. They are not. How many are actually caused by criminal negligence where every other pilot needs to be taught a lesson? Very very few. But throw a pilot in jail and the aviation world will become a more dangerous place.

All your policy will do is clam the whole system up, with everybody refusing to utter a word, and flight safety will go down, not up as you predict. Your black and white big stick approach will not achieve what you think.
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Old 7th Feb 2008, 12:20
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PK-KAR, you wrote as point 4;

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

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

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


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

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

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

I am talking about the attitude to criminal negligence, not the causes of accidents. Try re-reading the post carefully.
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Old 7th Feb 2008, 12:27
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The problem that we have here is the fundamental use of tools whose sole purpose is to learn and to prevent accidents (black box recorders and/or forensic analysis ) being usurped by criminal probes and thus taken out of the hands of the crash investigators.

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

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

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

I'll support the interests and expertise of the Flight Safety Foundation in this subject to sort out a better compromise
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Old 7th Feb 2008, 14:24
  #28 (permalink)  
 
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cwatters & rubik101

The CVR CB need not be pulled as the cockpit mic can be muffled discreetly and temporally and would be hard to prove which crew was responsible, unlike pulling a CB. So that keeps the engineers happy too!
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Old 7th Feb 2008, 17:20
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One group of people feel professional negligence resulting in death should be punishable by jail. Others feel that pilots need this noose over their necks removed so that the truth can be known when there is an accident. When pilots can be free to give testimony and perhaps may not do so if the threat of being jailed may depend on what they say.

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

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

A jail sentence serves no real purpose here in my opinion. It doesn't deter crashes from happening and it's of no help in obtaining reliable testimony from the flight deck.
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Old 7th Feb 2008, 17:53
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It's absurd to argue that pilots should be immune to the consequences of professional negligence, including possible criminal charges.

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

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

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

I hope that cool heads will prevail ....
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Old 7th Feb 2008, 18:04
  #31 (permalink)  

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PBL or some other knowledgeable guru,

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

Thanks.
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Old 7th Feb 2008, 18:16
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http://dcaa.slv.dk:8000/icaodocs/Ann...n/an13_9ed.pdf


The sole objective of the investigation of an accident
or incident shall be the prevention of accidents and incidents.
It is not the purpose of this activity to apportion blame or
liability.
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Old 7th Feb 2008, 18:21
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That's just the rule for an investigation under ICAO rules.

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

To take an extreme example: if an investigation were to determine that an airliner were shot down, is anyone seriously suggesting that those responsible would be somehow immune to prosecution just because there had been an ICAO investigation?
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Old 7th Feb 2008, 18:27
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Has anyone experienced the German Authorities approach to an aviation incident. Some years ago, a Dan Air aircraft on a scheduled internal service was involved in an air-miss with a USAF fast jet over Germany. Upon arrival at Saarbrucken, the police were waiting.The Dan Air aircraft had the CVR and the FDR removed by the base engineer and handed over to the German police. The Saarbruken traffic police then visited the captain at the hotel and breathalysed him. This apparently is standard practice in Germany.The F/O was already in the pub. The subsequent enquiry revealed that the Dan Air aircraft was operating with civil controllers on VHF and the fast jet had no knowledge of the UK aircraft because he was on UHF.

To compound the problem, the captain had enjoyed an ALD in his room!
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Old 7th Feb 2008, 18:40
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At my company there are an increasing number of people who base their operational decisions not on what is the most sensible, optimal or safest, but on what covers their backside. I see no safety benefit at all.
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Old 7th Feb 2008, 19:39
  #36 (permalink)  
 
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Danger

PK-KAR
1. Can the Captain, but then leave the first officer alone despite him failing in his duty too? No speed check? Not informing the Captain he didn't deploy the flaps as requested?
2. The accident investigation stated the captain suffered from fixation. Now, will such a finding in the criminal case be accepted by the court or not? if Not, it's a sham!
3. There is no "I am Captain therefore I am God" shown in the accident report. In fact, the F/O did not do enough to raise the attention of the captain of the impending danger (ie. F/O failed to recognize incapacity).
4. There is no intention to do harm in this case. The Captain was channeled in his attention in how to get on the ground but with minimum casualties. Stress levels and the fixation prevented his mind from realizng this was not the right thing to do.
5. No one seems to pick up the fact that JOG's operating license can actually be deemed invalid and therefore, the primary cause of death can be the negligence by the airport instead... Sorry, if JOG airport complied with the recommendations set out in its limited license release in 2005, leaving the paved surface at the reported 55kts would not result in the same extent of death!
I agree with your logic. An aviation accident is NEVER the result of the failure of one person or component of a system. It is usually the culmination of a series of failures in different areas that has led to safety margins being erroded to the point where an accident occurs.
Prosecution of flight crew or ground crew who have done their job in good faith and to the best of their ability will not help air safety at all. This will only lead to crew covering their tracks and not co-operating with investigators (Remember the Canadian Pacific collision in Sydney).

This is a slippery slope the Indonesian Govt has embarked upon. Indonesia's air safety record is appalling and Indonesian operators are, I believe, still banned from flying into the EU. The prosecution will do nothing to help their cause.
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Old 7th Feb 2008, 20:19
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An aviation accident is NEVER the result of the failure of one person or component of a system. It is usually the culmination of a series of failures in different areas that has led to safety margins being erroded to the point where an accident occurs.
Prosecution of flight crew or ground crew who have done their job in good faith and to the best of their ability will not help air safety at all.
I think NEVER is taking it a bit far...

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

pushing it a bit for this situation...

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

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

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

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

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

I know it hit BEA hard at the time and the lessons permeated their flight-crew selection and training, lessons which have borne fruit in the longer term and no doubt still influence BA's thinking.
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Old 7th Feb 2008, 21:39
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15 warnings...wind shear...

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

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

There is a logic upon to whom responsibility is to be attributed a crash or severe incident.
In the 737 case...neglecting 15 warnings recorded on FDR and first officer 'recommending' an alternative (recorded on the CVR) already burns your alibis
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Old 8th Feb 2008, 00:36
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Lets have a go at getting back on track.

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

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

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

Removing these protections or ignoring them reduces the ability of investigators to get at the causes of accidents and thus prevent the next one.
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Old 8th Feb 2008, 00:52
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When somebody is injured or suffers some sort of financial loss as a result of an accident, restitution must be made... somebody has to pay. That's a given.

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

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

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