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Criminalisation of Accidents

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Criminalisation of Accidents

Old 18th Feb 2008, 12:56
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The thread is about whether criminalization of accidents is best for flight safety long term. Some folk, me included, don't think it is.
Actually this thread is only a discussion thread going where ever the participants want to take it.

For me the issue is not about criminalization per se but about the investigative process and whether criminalization in various forms impedes or hinders it. Many of the discussion (black and white) points in this regard have already been aired.

For me, the remaining issues are whether there is an erosion swinging this in one direction or another and who should be monitoring and speaking out on either behalf.
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Old 18th Feb 2008, 17:50
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Legalapproach

Wouldn't a better approach be to have seperate investigations? The AAIB one, to be inadmissable in most circumstances?

If there is to be a prosecution that could be based on specialist evidence gleemed from organisations or experts other than AAIB.

I say most, because there have been events where thier evidence is part of a case against people other than the crew of the aircraft, for example the Lockabie bombers.
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Old 18th Feb 2008, 23:54
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Evidence from crashes can also end up being used against those other than with malicious intent. Is there not currently a case against one of the Concorde fuel system designers? There's certainly a trend towards increased use of the criminal system against all parties in accidents, not just crews, or so it seems.

So if you're going to allow use of a CVR, say, in a crew's defence, does that also lead to allowing similar evidence in the defence of a designer, a ground ops person, or even the crew of another aircraft? If your CVR establishes the accident is your fault, why wouldn't I want it used if I am being charged?
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Old 19th Feb 2008, 08:57
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Originally Posted by bjcc
Wouldn't a better approach be to have seperate investigations?
They do that in France. The legal investigation has priority.

The results do not please most observers. Two of three of Pierre Sparaco's columns in AvWeek in 2006 on criminalisation concerned French cases (Concorde and Air Inter on Mont St.-Odile). There was also disquiet expressed by British investigators after the Concorde accident that the legal investigation hindered theirs.

So I think the answer to your question is: likely not.

One issue which has not been brought up in this discussion so far is that criminalisation aids scapegoating. A criminal prosecution accrues attention, and consequently diverts it from other parts of the system which might be causally involved. So, for example, accusing two foreign pilots of misbehavior, trying to keep them in the country, and then trying to get them voluntarily to return for trial diverts attention away from thoroughly investigating the differences in your air traffic control from international norms, and your system failures. So does prosecuting the ATCOs. Unless, of course, wise lawyers and wise governments use such criminal proceedings as a vehicle to air all the system issues before the public eye. (But, still, there is somebody sitting in the dock who stands to lose big time if the system issues don't divert all the attention. There is probably a better way of doing it.)

The political uses of criminal prosecution should also not be underestimated. It happens even on the small scale.

Even without overt political manipulation, prosecutions select, by their very nature. They select a human accused over other factors. One does not put, say, the system design on trial and have an adversarial process to determine definitively whether, say, TCAS is fit for purpose or not. (If the adversial process of the courts works so well for determining human failings, there is surely a case to be made for using it to determine system failings also.)

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Old 21st Mar 2008, 20:21
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Here's a recent news story to add another brick in the wall, so to speak... any comments?

Pilot in deadly crash avoids jail term

WINNIPEG - Mark Tayfel crashed an airplane in a busy Winnipeg intersection and lived to tell about it. Now the former pilot has escaped a jail sentence for negligent actions that killed an elderly passenger.

Queen's Bench Justice Holly Beard ruled Thursday that Tayfel could remain in the community under a two-year conditional sentence for the June 2002 tragedy. His conditions include a daily curfew and 240 hours of community service work, which Beard hopes will involve speaking to young pilots about the errors he made during that fateful flight.

"The accused is a fine person who's made some terrible mistakes in an otherwise good life. The events are truly tragic and have affected many lives. It's a no-win situation for all involved," Beard told court.

Beard lashed out at the airline industry for a "culture" of negligence which allows - or perhaps even forces - pilots to often cut corners.

"It's clear the failure to follow aeronautics regulations is very prevalent. The culture shouldn't be one that pressures young pilots to break the law," said Beard.

"Despite that culture, it doesn't excuse pilots who break the law and engage in risky behaviour. Society will not sit by and allow our safety and security to be put at risk."

Tayfel and six American fishers were injured when both of the plane's engines cut out shortly after Tayfel missed his first attempt at landing at Winnipeg International Airport. The plane came to rest on Logan Avenue near McPhillips Street.

Tayfel had taken off earlier that morning from a northern fishing lodge without enough fuel on board to get to his destination.

Everyone survived the crash, but Kansas resident Chester Jones, 79, died a few weeks later from his injuries.

"I was very moved by the description of Chester Jones. The loss to his family and community is immense and can never be replaced," Beard said Thursday.

Crown attorney Brian Wilford told court Tayfel should spend time behind bars for the reckless act of not carrying enough fuel and his attempt to land the plane without telling anyone on the ground about his problem until it was too late.

"The moral culpability of Mr. Tayfel is extreme. He had so many opportunities to rectify the situation, and yet he did nothing," Wilford said.

"He endangered so many people . . . because his concern was his reputation. It is an absolute miracle no one on the ground was seriously injured or killed. I'd say a landing like that couldn't be done again in a million years."

Defence lawyer Balfour Der said putting a good man like Tayfel behind bars wouldn't accomplish anything.

"This man did not set out to crash that airplane, to run out of fuel, to put anyone, including himself, in danger," Der said.

He told court Tayfel could be used as a mentor to young pilots in training, speaking to them about his deadly mistake and preaching the value of following aviation regulations.

Der said they're considering an appeal of Beard's decision to convict Tayfel of criminal negligence causing death, four counts of criminal negligence causing bodily harm and dangerous operation of an aircraft - in one of the first cases of its kind in Canada.

He suggested Tayfel's employer at the time of the crash, Keystone Air, should have also been held liable and that his client has been made the "whipping boy" for an industry fraught with problems.

"They're not here in court supporting Mr. Tayfel. They headed for the hills," Der said outside court.

http://www.canada.com/topics/news/st...45e74b&k=80817
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Old 23rd Mar 2008, 00:19
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It's interesting to me that nowhere in this extensive thread has anybody referenced what I think is _the_ original instance of a pilot being held criminally negligent for trying to do what (in most observers' opinions) was the the best he could.

I wrote about it extensively, mainly for Air & Space Smithsonian and the UK magazine Pilot. I'd have to go get my 20-ear-old notes to be specific about it, but I'm sure some of the old heads (assuming there are some listening) will remember it well.

It involved a BA 747 Classic captain on a flight from the Far East to LHR in the late '70s, as I remember, and his crew became incapacitated by food poisoning. He ended up shooting a single-pilot approach into LHR and thoroughly blowing it, never got established or stabilized, and damn near took out a hotel to one side of the runway on the go. He'd tried earlier to get clearance to divert to Frankfurt, but dispatch told him to keep going, and he was making the approach with minimum fuel.

Landed okay the second time around but was brought up on, and convicted of, criminal charges. Blew his brains out, and that, unfortunately, was the end of it.

Anybody remember that?
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Old 23rd Mar 2008, 02:25
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stepwilk - See post #31 at http://www.pprune.org/forums/showthr...=g-awno&page=2
He did not "blow his brains out", but the end result was unfortunately the same.
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Old 23rd Mar 2008, 12:58
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Interesting...that thread references, indeed reprints, my Pilot article. And of course you're right: his suicide was by asphyxiation. As I said, I was working from distant memory...
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Old 24th Mar 2008, 03:39
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Aaaaah, Stephan, I connect all the dots in your first post now. Always have been some what slow. I hope you don’t mind me posting your article in its entirety. Well written, about a very unsavory turn of events in aviation history. Remember a poignant piece in Aviation International News of a war time pilot operating out of Leuchars noticing a youngster always hanging over the fence and wondering if it was Glen Stewart.
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Old 24th Mar 2008, 13:08
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No, I'm delighted you posted the piece, Brian.
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Old 25th Mar 2008, 07:37
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Does anybody know who Stewart's barrister was?

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Old 15th Apr 2008, 10:55
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I don't know who defended Captain Stewart.

I appeared before the trial Judge in other cases many times over the years, and always found him to be fair.
I discussed the case very briefly years ago with the prosecuting barrister who was a CAA regular in those days. 'Discussion' is perhaps an over-statement; it quickly became clear there wasn't going to be much scope for discussion, just repetition of the CAA party line.

More interesting were discussions with two people (separately) who were very senior in BA and in the CAA at the relevant time. They considered the prosecution was justified because Captain Stewart "wouldn't admit" what he did was wrong. Although I have great respect for both of them, I remained unconvinced that was a proper justification. Why should he if he didn't think he had?

Some may think prosecution in a criminal court isn't the most productive method of resolving such matters and learning any lessons which may need to be learnt (by a pilot involved or others) in the interests of flight safety.
I obviously have no idea what Captain Stewart might have said if he wasn't at risk of prosecution, but I know from experience that pilots under investigation are understandably and reasonably cautious about what they say with the threat of prosecution hanging over them.
A full free and frank discussion, from which things may sometimes be learnt, can only take place if there is no risk of being prosecuted.

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Old 25th Jul 2008, 04:27
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The trial has begun

Trial begins of pilot accused of negligence in crash that killed 21

The Associated Press , Yogyakarta | Thu, 07/24/2008 7:43 PM | National
[IMG]file:///C:/DOCUME%7E1/MULYAW%7E1/LOCALS%7E1/Temp/msohtml1/01/clip_image001.jpg[/IMG]CAPTAIN ON TRIAL: Capt. Marwoto Komar, pilot of an Indonesian jetliner that crashed killing 21 people, sits on the defendant's chair during his trial in Yogyakarta on Thursday (AP photo).
The pilot of an Indonesian jetliner that crashed killing 21 people went on trial Thursday accused of negligence, a charge that carries a maximum penalty of life imprisonment, his lawyer said.
The trial of Capt. Marwoto Komar is believed to be first time a pilot has faced criminal charges in Indonesia, which in recent years has had a string of deadly aviation accidents.
Lawyer Muhammad Assegaf said Komar had suffered enough because he lost his pilot's license and claimed the trial would give other pilots second thoughts about flying because of fears of prosecution.
Komar was the chief pilot of a Garuda Airline 737 jet that overshot the runway at Yogyakarta airport on Java island on March 7, 2007, and then burst into flames. Five of the dead were Australians, including a journalist and government and police officials.
The crash followed a string of deadly accidents in Indonesia that raised concern over aviation safety and led the European Union to ban Indonesian airlines from flying to member countries.
A government investigation last year found Komar at fault, saying he approached the runway at almost double the landing speed.
"The defendant ignored his copilot's pleas and warning signs from the airplane's monitors to turn around as he approached the runway well overspeed," prosecutor Mudim Aristo told a court in the central Javanese town of Yogyakarta.
Indonesian courts do not require the accused to make a formal plea.
The trial - which is expected to last several months - was adjourned until next week, when lawyers will formally respond to the charges.
"This trial criminalizes an aviation matter for the first time in this country," said Assegaf. "It will have a wide impact on the Indonesian pilots that will now worry when carrying out their duties."
Some fellow pilots attended the trial to show support for Komar.
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Old 27th Jul 2008, 09:12
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French Concorde

It is rewarding to see that the Flight Safety Foundation has taken a firm stand against the French manslaughter charges following the Concorde accident.

It is reassuring that they “---will be watching developments in this case with great interest and will speak out forcefully when necessary.”

I wonder why they have remained silent about the Greek manslaughter charges following the Helios accident. Am I missing something?
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Old 27th Jul 2008, 09:42
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If they were asked about the Helios accident I guess the reply might be along the lines "will be watching developments in this case with great interest and will speak out forcefully when necessary"
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Old 27th Jul 2008, 10:35
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people do odd things out of character. Mark Tayfel (article above) was my MEP instructor in 2001 in Nelson, Canada. He was a very careful, thoughtful guy. This incident is not at all what I would expect.
However, when Seaplane chartering I have been under considerable unofficial pressure to save weight with min fuel when delivering or collecting 'fishermen' from some of the alpine lakes in BC so they didn't have to leave their catch behind.
Of course the official line is don't do anything you are uncomfortable with, but then any one of the 50 people in the queue for your job would have happily done so, probably for less money!
Would I do it now? no. But that is experience for you!!

Last edited by pilotbear; 27th Jul 2008 at 11:55.
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Old 29th Jul 2008, 05:03
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Indonesian pilot charged with crashing jet on purpose - The China Post


Indonesian pilot charged with crashing jet on purpose



AFP
Friday, July 25, 2008







YOGYAKARTA, Indonesia -- The pilot of an Indonesian passenger jet that crashed last year, killing 21

people, was charged Thursday with deliberately causing the disaster when he appeared in court. Marwoto Komar, a former captain from flag carrier Garuda Indonesia, could face life in prison if convicted of the charge. He was named a suspect in February over the March 2007 crash of the Boeing 737 with 140 people on board in the central Java city of Yogyakarta. Prosecutors Mudin Aresto and Jamin Susanto charged Komar with three counts of negligence and one of "deliberately" destroying or damaging an aircraft, causing death.
++++++++++++++++++++++


Life in prison? Seems harsh.

Last edited by armchairpilot94116; 29th Jul 2008 at 05:15.
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Old 31st Jul 2008, 16:27
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Flight Safety Foundation

Maybe they are embarrassed because one of their officials is Head of the Hellenic AAI & ASB and I've just heard that his Final Report and the evidence used to compile it is to be used as the main Greek prosecution evidence.
So much for the Joint Resolution on the Criminalisation of Aircraft Accidents!
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Old 1st Aug 2008, 13:55
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ICAO Chicago convention, Annex 13 states in paragragraph 5.12 Non-disclosure of records that the following records should not be made available for any purpose other than accident prevention:

a) All statements taken from persons by the investigation authorities in the course of their investigation.
b) All communications between persons having been involved in the operation of the aircraft
c) Medical or private information regarding persons involvedin the accident or incident
d) Cockpit voice recordings and transcripts of such recordings
e) Opinions expressed in the analysis of information including flight recorder information.

The above basically means that the legal investigation will have to interview its own witnesses, the legal investigation cannot use the Cockpit Voice recording, and the legal investigation cannot use the parts of the safety investigation that do not constitute factual information.

The legal investigation can use the data from the flight data recorder, and all factual information gathered in the course of the safety investigation other than that mentioned above.

In view of the need to prevent situations of self-incrimination it seems logical that witness statements given to the safety investigators and cockpit voice recordings are not available for the legal proceedings.

Whether an individual state has filed an exemption to annex 13 varies, but in many cases the convention has been ratified in legislation, and the CVR is not available for legal proceedings.

legalapproach:
CVR's
On basic principles a CVR recording would be admissible in evidence in a UK court. It is real evidence.
It may be real evidence, but it is self incriminating, and if it will be used to prosecute pilots, then may pilots will turn it off.
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Old 2nd Aug 2008, 22:11
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Developments on just culture

ICAO has decided the world needs to sort out what it thinks about mistakes, blame, and justice:

ICAO wants to make 'just culture' safety reporting and investigation global
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