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Criminalisation of Accidents

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Criminalisation of Accidents

Old 10th Feb 2008, 09:27
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Prosecuting pilots and sending them to jail for negligence does NOTHING to improve aviation safety.
The pilot doesn't realise at the time he's being negligent so he sure aint thinking at that time about whether he's gonna go to jail, so it aint a deterrent to being negligent. Pilots fly safe because they dont want to crash, not because they're afraid of going to jail.

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

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

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


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


B.

Last edited by Bronx; 10th Feb 2008 at 09:40.
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Old 10th Feb 2008, 10:12
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Originally Posted by Bronx
Prosecuting pilots and sending them to jail for negligence does NOTHING to improve aviation safety.
The pilot doesn't realise at the time he's being negligent so he sure aint thinking at that time about whether he's gonna go to jail, so it aint a deterrent to being negligent. Pilots fly safe because they dont want to crash, not because they're afraid of going to jail.

Prosecuting pilots and sending them to jail for negligence does HARM to aviation safety.
Let's try a translation.
Originally Posted by Translation
Prosecuting truck drivers and sending them to jail for negligence does NOTHING to improve road safety.
The driver doesn't realise at the time he's being negligent so he sure aint thinking at that time about whether he's gonna go to jail, so it aint a deterrent to being negligent. Truck drivers drive safely because they dont want to crash, not because they're afraid of going to jail.

Prosecuting truck drivers and sending them to jail for negligence does HARM to road safety.
I think we can see that there is some necessity for justifying the point of view, rather than just stating it.

Good luck persuading any legislative system in the world that pilots are immune from negligent behavior.

PBL
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Old 10th Feb 2008, 10:51
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Lets try again:

Prosecuting pilots for negligence is not the issue.

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

Signing off as not much more can be said.
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Old 10th Feb 2008, 11:04
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PBL
I think we can see that there is some necessity for justifying the point of view, rather than just stating it.


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

B.
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Old 10th Feb 2008, 19:33
  #65 (permalink)  
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Originally Posted by Bronx
Check your browser settings. There's more to my post than you can see.
I doubt it. I have been using the Internet since 1979 and the WWW since 1993, and teaching computer scientists how to use both since 1995. I am rarely confused by my own browser.

Originally Posted by Bronx
I gave the reasons for my point of view.
If what you wrote are all your reasons, then it is hard for me to see how they suffice.

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

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

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Old 10th Feb 2008, 19:33
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As SLF I am worried by some statements that pilots cannot be held accountable of their actions because doing so will jeopardize flight safety. I do believe that being accountable for my own actions will improve any task I am doing.

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

FrequestSLF
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Old 10th Feb 2008, 20:04
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PBL
If what you wrote are all your reasons, then it is hard for me to see how they suffice.
Fair enough, you're entitled to your point of view, but in your previous post you accused me of just stating my point of view without giving my reasons for it.

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

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

Last edited by Bronx; 10th Feb 2008 at 20:19.
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Old 10th Feb 2008, 23:09
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FrequentSLF, I think you can sleep easy. Pilots are not immune from the court system and charges of negligence. For one thing, a duty of care is a source of liability to aircrew. This duty is created by the existence of a certain relationship (neighbour principle) recognised at law. The pilot in command owes a duty of care to a great number of people including passengers, fellow crew members and other persons both on the ground and in other aircraft. The following provides a reminder as to the extent to which a court may hold a pilot liable.

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

Taken from “Aviation Law in Australia”, Ronald Bartsch.
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Old 11th Feb 2008, 03:56
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Originally Posted by rubik101
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.
I'm confused, a pilot ignoring or not taking into consideration the threat of being killed himself is instead to be dissuaded from unsafe flying practices through the threat of litigation or criminal conviction?

Edit: last paragraph deleted.
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Old 11th Feb 2008, 09:33
  #70 (permalink)  
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Folks,

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

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

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

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

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

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

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

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

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

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

PBL
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Old 11th Feb 2008, 11:04
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PBL, you should have explained more fully the concept of mens rea and actus reus.
Bringing arcane legal terms to these forum is often a mistake, pilots are not lawyers.
However, in this case, you are perhaps right to do so. The idea that pilots should be shielded from prosecution, hidden behind the apparently untouchable cloak of 'flight safety' is simply not an option.

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

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

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

The important words here are 'reasonable person'.

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

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

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

The writings of some posters here makes me think that some of you border on the edge of reasonable behavior on a regular basis and are concerned about the consequences if you stray a little over that line. My advice would be to withdraw a long way and align yourselves with the industry norm. Rather be concerned than be subject of an inquiry, or worse, an inquest.
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Old 11th Feb 2008, 15:10
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Take a real case:

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

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

Criminal or "an accident"?
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Old 11th Feb 2008, 23:11
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PBL
let's try and keep the standard of discussion high on this one.
W
ith some exceptions, the standard of discussion has been high. The exceptions are abuse against people who hold a different view, distorting opponents’ arguments and attributing to opponents arguments they didn’t advance.

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

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

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


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

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

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

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

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

FL

Last edited by Flying Lawyer; 11th Feb 2008 at 23:26.
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Old 12th Feb 2008, 04:38
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This thread is why neither of my children are pursing aviation careers.

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

If prosecution had been the norm since the 1930s we would still be scraping SLF off the sides of hills at the same rates as in 1930s. And perhaps I should reconsider my views on the legal liability of surgeons and lawyers. Especially the later.
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Old 12th Feb 2008, 06:09
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Yeronna,

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

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

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

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

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

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

Originally Posted by PBL
A number of contributors to this thread don't appear even to have considered mens rea. To engage in a discussion on criminalisation, you have to take at least this much seriously.
Originally Posted by Flying Lawyer
I disagree.
Introducing mens rea into a discussion about manslaughter serves only to confuse and distract.
Now there's a lawyer for you (not that you're a lawyer, but I guess old habits die hard). What was that about
Originally Posted by Flying Lawyer
distorting opponents’ arguments and attributing to opponents arguments they didn’t advance
?

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

nobody has said that, nor said anything from which that can reasonably be inferred.
I disagree. For example:
Originally Posted by Bronx
IMHO you can have an accident investigation in which people can cooperate fully with the investigators without the risk of being prosecuted so that they and others can learn from any mistakes made OR a criminal investigation in which they can say nothing and so the chances are nothing will be learnt from it.
What you can't have is things pilots say when helping the accident investigators later being used to prosecute them.
What if the pilot concerned cooperates fully with the investigators and tells them that he tried to commit suicide and failed? Can it "be not had" that the pilot is subsequently prosecuted for attempted murder?

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

PBL
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Old 12th Feb 2008, 06:34
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In despair:

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

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

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

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

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

Definitely my final post on the matter!
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Old 12th Feb 2008, 06:49
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Well, 4Greens, before you commit Hari Kiri,

Originally Posted by 4Greens
I am not aware of any country that has filed [a notice of difference] allowing evidence from a CVR in the courts as part of a prosecution.
Why should anyone have to do so? Annex 13 Paragraph 5.12 says that the investigating state shall not make CVR transcripts available
Originally Posted by Convention on International Civil Aviation Annex 13, Para 5.12
unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have .....
If you as a public prosecutor think it is in the public interest to bring a prosecution, you can use whatever evidence you like and Annex 13 Para 5.12 allows it.

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Old 12th Feb 2008, 21:59
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PBL

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

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

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

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


Extracts here:
1. Declare that the paramount consideration in an aviation accident investigation should be to determine the probable cause of and contributing factors in the accident, not to punish criminally flight crews, maintenance employees .......... etc.
Criminal investigations can and do hinder the critical information gathering portions of an accident investigations, and subsequently interfere with successful prevention of future aviation industry accidents.
2. Declare that, absent acts of sabotage and willful or particularly egregious reckless misconduct (including misuse of alcohol or substance abuse), criminalization of aviation accidents is not an effective deterrent or in the public interest.
Professionals in the aviation industry face abundant incentives for the safe operation of flight. The aviation industry every day puts its safety reputation and human lives on the line, and has a remarkable safety record which is due in large measure to the current willingness of operators and manufacturers to cooperate fully and frankly with the investigating authorities.
The benefit of gaining accurate information to increase safety standards and reduce recurring accidents greatly outweighs the retributive satisfaction of a criminal prosecution, conviction, and punishment.
Increasing safety in the aviation industry is a greater benefit to society than seeking criminal punishment for those “guilty” of human error or tragic mistakes.
3. Urge States to exercise far greater restraint and adopt stricter guidelines before officials initiate criminal investigations or bring criminal prosecutions in the wake of aviation disasters.
Without any indicia of proper justification for a criminal investigation or charges, the aviation system and air disaster victims and their loved ones are better served by resort to strong regulatory oversight and rigorous enforcement by national and international aviation authorities, and by pursuit of claims through civil justice systems to obtain compensation.
4. Urge States to safeguard the safety investigation report and probable cause/contributing factor conclusions from premature disclosure, and use directly in civil or criminal proceedings.
Although use of official accident reports may save criminal investigators the considerable expense of conducting an entire separate investigation, a considerable and serious risk exists of diverting these reports from their original purpose, as technical causes often cannot be equated to legal causes necessary when establishing either civil or criminal liability.
In addition, use of relatively untrained and inexperienced technical “experts” by prosecutorial or judicial authorities, as compared to official accident investigating authorities, can result in flawed technical analyses and a miscarriage of justice, while interfering with the official accident investigation.
5. Urge National aviation and accident investigating authorities to: (i) assert strong control over accident investigations, free from undue interference from law enforcement authorities; (ii) invite international cooperation in the accident investigation under Annex 13; (iii) conduct professional investigations to identify probable cause and contributing factors and develop recommendations in a deliberative manner, avoiding any “rush to judgment;” (iv) ensure the free and voluntary flow of essential safety information; (v) provide victims’ loved ones and their families with full, accurate, and precise information at the earliest possible time; and (vi) address swiftly any acts or omissions in violation of aviation standards.

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


FL

Last edited by Flying Lawyer; 12th Feb 2008 at 22:25.
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Old 12th Feb 2008, 22:42
  #79 (permalink)  
 
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There is a need to distinguish between the concept of civil "negligence" that might give rise to a successful damages claim, where the standard of proof required is the "balance of probabilities", and what the criminal law calls "recklessness involving grave moral guilt", where proof beyond reasonable doubt is necessary. The prosecution have to show such disregard for the life and safety of others as amounts to a crime against the State and conduct deserving punishment. Intention is irrelevant - a hopeless pilot straining to do his incompetent best can still be criminally negligent.

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

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

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

The prosecution of this pilot is scarcely the "thin end of the wedge", and most people have little to fear.
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Old 13th Feb 2008, 06:11
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Yeronna,

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

Let me be more precise about accidents. The definition of aircraft accident which I use is in U.S. 14 CFR 830.2:
Originally Posted by 14 CFR 830.2
"Aircraft accident" means an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight and all such persons have disembarked, and in which any person suffers death or serious injury, or in which the aircraft receives substantial damage.
This clearly includes instances of deliberate destruction or egregious negligence under the notion of "aircraft accident". Anyone making general statements about what should or should not happen in the aftermath of accidents, and what the consequences are, must take such cases into account.

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

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

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

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

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

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

PBL
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