Criminalisation of Accidents
ahem, Checkboard,
Par 5.12 of Annex 13 contains a rather important caveat. The complete preamble to 5.12 reads:
Privilege against self-incrimination that would entitle pilots to refuse to answer questions from investigators after an incident is very different animal from any "rule" that prohibits the use of incriminating evidence (such as a CVR) in criminal proceedings.
Par 5.12 of Annex 13 contains a rather important caveat. The complete preamble to 5.12 reads:
"The State conducting the investigation of an accident
or incident shall not make the following records available for
purposes other than accident or incident investigation, 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 on that or any future investigations"
Do you know which countries have enacted legislation enshrining 5.12? I'd be interested to see if they've included the proviso.or incident shall not make the following records available for
purposes other than accident or incident investigation, 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 on that or any future investigations"
Privilege against self-incrimination that would entitle pilots to refuse to answer questions from investigators after an incident is very different animal from any "rule" that prohibits the use of incriminating evidence (such as a CVR) in criminal proceedings.
Last edited by Just a Grunt; 3rd Aug 2008 at 08:10.
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ICAO Annex 13
Ahem, ahem, Checkboard and Just a Grunt,
For the record and with due respect my dear friends; the ICAO information you are providing to the distinguished readership of this forum is rather outdated and you seem to be quoting parts from Chapter 5 of Annex 13 to the Convention on International Civil Aviation slightly out of context.
The most recent version of Annex 13 is the 9th edition including amendment 11 effective 23 November 2006.
5.12 and 5.12.1 are ICAO Standards and not pre-ambles. A Standard adopted by the ICAO Council under the provisions of the Convention on International Civil Aviation is defined as follows: Any specification for physical characteristics, configuration, matériel, performance, personnel or procedure, the uniform application of which is recognized as necessary for the safety or regularity of international air navigation and to which Contracting States will conform in accordance with the Convention; in the event of impossibility of compliance, notification to the Council is compulsory under Article 38.
The integral and uncensored text from Annex 13 Standards 5.12 and 5.12.1, published in the 9th edition including amendment 11, reads as follows;
Non-disclosure of records
5.12 The State conducting the investigation of an accident or incident shall not make the following records available for purposes other than accident or incident investigation, 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 on that or any future investigations:
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 involved in the accident or incident;
d) cockpit voice recordings and transcripts from such recordings; and
e) recordings and transcriptions of recordings from air traffic control units; and
f) opinions expressed in the analysis of information, including flight recorder information.
5.12.1 These records shall be included in the final report or its appendices only when pertinent to the analysis of the accident or incident. Parts of the records not relevant to the analysis shall not be disclosed.
Note 1.— Information contained in the records listed above, which includes information given voluntarily by persons interviewed during the investigation of an accident or incident, could be utilized inappropriately for subsequent disciplinary, civil, administrative and criminal proceedings. If such information is distributed, it may, in the future, no longer be openly disclosed to investigators. Lack of access to such information would impede the investigation process and seriously affect flight safety.
Note 2.— Attachment E to Annex 13 contains legal guidance for the protection of information from safety data collection and processing systems.
As is the case with all ICAO standards, Contracting States will have to comply UNLESS a State has notified the Council that it is unable to do so under Article 38 of the Convention on International Civil Aviation.
For the record and with due respect my dear friends; the ICAO information you are providing to the distinguished readership of this forum is rather outdated and you seem to be quoting parts from Chapter 5 of Annex 13 to the Convention on International Civil Aviation slightly out of context.
The most recent version of Annex 13 is the 9th edition including amendment 11 effective 23 November 2006.
5.12 and 5.12.1 are ICAO Standards and not pre-ambles. A Standard adopted by the ICAO Council under the provisions of the Convention on International Civil Aviation is defined as follows: Any specification for physical characteristics, configuration, matériel, performance, personnel or procedure, the uniform application of which is recognized as necessary for the safety or regularity of international air navigation and to which Contracting States will conform in accordance with the Convention; in the event of impossibility of compliance, notification to the Council is compulsory under Article 38.
The integral and uncensored text from Annex 13 Standards 5.12 and 5.12.1, published in the 9th edition including amendment 11, reads as follows;
Non-disclosure of records
5.12 The State conducting the investigation of an accident or incident shall not make the following records available for purposes other than accident or incident investigation, 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 on that or any future investigations:
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 involved in the accident or incident;
d) cockpit voice recordings and transcripts from such recordings; and
e) recordings and transcriptions of recordings from air traffic control units; and
f) opinions expressed in the analysis of information, including flight recorder information.
5.12.1 These records shall be included in the final report or its appendices only when pertinent to the analysis of the accident or incident. Parts of the records not relevant to the analysis shall not be disclosed.
Note 1.— Information contained in the records listed above, which includes information given voluntarily by persons interviewed during the investigation of an accident or incident, could be utilized inappropriately for subsequent disciplinary, civil, administrative and criminal proceedings. If such information is distributed, it may, in the future, no longer be openly disclosed to investigators. Lack of access to such information would impede the investigation process and seriously affect flight safety.
Note 2.— Attachment E to Annex 13 contains legal guidance for the protection of information from safety data collection and processing systems.
As is the case with all ICAO standards, Contracting States will have to comply UNLESS a State has notified the Council that it is unable to do so under Article 38 of the Convention on International Civil Aviation.
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Elohssanaig, thank you for posting the extracts. If Flying Lawer is still reading this thread and has the time and motivation to post his input on this towards the thread subject i know "I" for one would appreciate it. !
Elohssanaig,
I have compared my quote from 5.12 with the relevant portion of your post and am unable to identify a point of distinction. The passage I quoted was taken directly from the 9th edition (it's soo difficult to find
), and is - with great respect 
- identical with the passage you quote.
I used the word "preamble" to describe the introductory words to 5.12 before the specific matters listed in paragraphs (a)-(d), and not to suggest they were of some lesser significance.
Regardless, my point remains the same. The "prohibition" on the use of investigatory material in a prosecution is not absolute. I'd still like to see an example of a statute that purports to incorporate the rule.
I have compared my quote from 5.12 with the relevant portion of your post and am unable to identify a point of distinction. The passage I quoted was taken directly from the 9th edition (it's soo difficult to find
), and is - with great respect - identical with the passage you quote.I used the word "preamble" to describe the introductory words to 5.12 before the specific matters listed in paragraphs (a)-(d), and not to suggest they were of some lesser significance.
Regardless, my point remains the same. The "prohibition" on the use of investigatory material in a prosecution is not absolute. I'd still like to see an example of a statute that purports to incorporate the rule.
Latest case of conflict between the judiciary investigation and the Annex 13 investigation.
On February 7th 2009, a Cessna 650 Citation III (I-FEEV) crashed near Rome. The crew of 2 died in the accident.
Today the ANSV (Italian AAIB) issued a press release in response to some enquiries by the press about the state of the investigation. The ANSV says that the judiciary authority has impounded both the CVR and the FDR, plus additional documentation critical for the safety investigation. The ANSV could not even inspect the recorders for damage (let alone read them out). The NTSB is asking for information including a readout of the recorders according to Annex 13, but the ANSV is unable to reply.
The ANSV has complained once again about this state of things with the relevant government institutions, asking for a change in legislation to prevent such delays in safety investigations caused by the judiciary authority.
Press Release (in Italian)
On February 7th 2009, a Cessna 650 Citation III (I-FEEV) crashed near Rome. The crew of 2 died in the accident.
Today the ANSV (Italian AAIB) issued a press release in response to some enquiries by the press about the state of the investigation. The ANSV says that the judiciary authority has impounded both the CVR and the FDR, plus additional documentation critical for the safety investigation. The ANSV could not even inspect the recorders for damage (let alone read them out). The NTSB is asking for information including a readout of the recorders according to Annex 13, but the ANSV is unable to reply.
The ANSV has complained once again about this state of things with the relevant government institutions, asking for a change in legislation to prevent such delays in safety investigations caused by the judiciary authority.
Press Release (in Italian)
A resolution, warning against the dangers of criminalization of air accidents, has been signed by accident investigators, and also joined by several international organizations:
Air Safety Week :: Accident Investigators Sign Criminalization Resolution
Air Safety Week :: Accident Investigators Sign Criminalization Resolution
"Undiscovering Evidence"
A fundamental problem that was highlighted in the criminal investigation of the NZ dash 8 accident was once the evidence is known to exist, how does the legal system deny the existence of evidence?
It would appear that the existing ICAO Annex 13 structure develops two problems:
-Nationalism of the investigatory process.
-Identification of evidence to the national legal system.
If it assumed that the intent of Annex 13 is to provide for a global safety enhancing protocol, then perhaps there are alternative methods to implement processes that would achieve a global outcome rather than a national centric one, and at the same time mitigate the availability of evidence that currently exists.
Under current protocols, the state of registry, event, operator and manufacturer have interest in the safety investigation. The responsible investigation agency is the state of the geographic location of the event (simply). This protocol results in varied levels of investigation capacity being available, and the "potential" for politicising the outcome of the investigation. All of these aspects result in adverse outcomes for the safety improvement value of the process.
If it assumed that the industry is global, then the process of investigation should also be global in nature, not national. The matter of sovereignty should be able to be made subservient to an obligation to be a global partner in safe transportation. The states that are signatories to ICAO, and compliant to various extents are to an extent deferring to global practices instead of national standards, to achieve a common standard and subsequent freedom of operation. This is not the case in investigation, where the variability and national interest remains to act adversely against the desired outcome.
A global (ICAO?) based principle investigation program drawing competency from appropriate resources of member nations would allow for the removal of political interference for target investigations, being any carrier with international rights at a minimum, preferably all commercial operations.
While a global program would standardise the investigation process, and remove political interference, it would also have the opportunity to place the evidence provided by recording systems outside the national boundary, and would permit the information derived from such a process to be constrained to safety improvement recommendations alone, which is after all the intent of safety investigation. On such a basis, the enhancement of recording systems (video etc) would not be so onerous to the operators.
For the national legal investigation, evidence would be naturally constrained to that achieved by normal legal process of discovery and investigation.
My personal investigation experience has been that numerous ICAO signatory states have published grossly inadequate or politicised final reports, and it is not often that dissenting opinion is either recorded, or considered rationally in any depth.
Any solution to the competing demands of safety enhancement/accident prevention and personal responsibility particularly in the case of gross or willful negligence will need an overhaul of existing protocols, and most if not all states would be impacted to various extents. the current system is flawed with both highly developed states and lesser developed states having failed to de-politicise reports, or to take action on accountability when the evidence of culpability is overwhelming from sources available under normal discovery processes.
This is posted to generate discussion, so please do so. Would prefer that personal affront is limited to a dull roar.
FDR
It would appear that the existing ICAO Annex 13 structure develops two problems:
-Nationalism of the investigatory process.
-Identification of evidence to the national legal system.
If it assumed that the intent of Annex 13 is to provide for a global safety enhancing protocol, then perhaps there are alternative methods to implement processes that would achieve a global outcome rather than a national centric one, and at the same time mitigate the availability of evidence that currently exists.
Under current protocols, the state of registry, event, operator and manufacturer have interest in the safety investigation. The responsible investigation agency is the state of the geographic location of the event (simply). This protocol results in varied levels of investigation capacity being available, and the "potential" for politicising the outcome of the investigation. All of these aspects result in adverse outcomes for the safety improvement value of the process.
If it assumed that the industry is global, then the process of investigation should also be global in nature, not national. The matter of sovereignty should be able to be made subservient to an obligation to be a global partner in safe transportation. The states that are signatories to ICAO, and compliant to various extents are to an extent deferring to global practices instead of national standards, to achieve a common standard and subsequent freedom of operation. This is not the case in investigation, where the variability and national interest remains to act adversely against the desired outcome.
A global (ICAO?) based principle investigation program drawing competency from appropriate resources of member nations would allow for the removal of political interference for target investigations, being any carrier with international rights at a minimum, preferably all commercial operations.
While a global program would standardise the investigation process, and remove political interference, it would also have the opportunity to place the evidence provided by recording systems outside the national boundary, and would permit the information derived from such a process to be constrained to safety improvement recommendations alone, which is after all the intent of safety investigation. On such a basis, the enhancement of recording systems (video etc) would not be so onerous to the operators.
For the national legal investigation, evidence would be naturally constrained to that achieved by normal legal process of discovery and investigation.
My personal investigation experience has been that numerous ICAO signatory states have published grossly inadequate or politicised final reports, and it is not often that dissenting opinion is either recorded, or considered rationally in any depth.
Any solution to the competing demands of safety enhancement/accident prevention and personal responsibility particularly in the case of gross or willful negligence will need an overhaul of existing protocols, and most if not all states would be impacted to various extents. the current system is flawed with both highly developed states and lesser developed states having failed to de-politicise reports, or to take action on accountability when the evidence of culpability is overwhelming from sources available under normal discovery processes.
This is posted to generate discussion, so please do so. Would prefer that personal affront is limited to a dull roar.
FDR
