Criminalisation of Accidents
There is no rule of law (in the common law world ie, UK-based systems) that would render a CVR inadmissible. At it's highest, there might be an argument that because a particular country was a signatory to a treaty, that created a legitimate expectation on the part of an accused that the provisions of the treaty would be reflected in domestic law. That is, however, often not the case and the "stiff s**t" rule has been not infrequently applied.
In most cases, the recording would be made lawfully and with the knowledge of the speakers that what they said would be recorded (even though they had no real choice about it). A court would have a discretion to exclude the evidence if to admit it would be unfair to the accused. Even if the recording were unlawfully made, a court would still have the discretion to admit it into evidence.
The argument would be that the public interest in seeing air safety improved outweighed the public interest in seeing someone tried for manslaughter(s). Whether that would be so would depend on the facts of each case.
In a particularly bad case, involving, for example, multiple deaths, serious departures from procedure, ridiculous speeds and rates of descent and the wilful ignorance of repeated GPWS warnings, a court might conceivably take a view that was adverse to the accused.
I wonder whether the average punter would be terribly unhappy about that? They might think it a bit patronising to be told that because what pilots do is so incredibly cutting-edge, they have protection from the law that isn't available to everyone else.
In most cases, the recording would be made lawfully and with the knowledge of the speakers that what they said would be recorded (even though they had no real choice about it). A court would have a discretion to exclude the evidence if to admit it would be unfair to the accused. Even if the recording were unlawfully made, a court would still have the discretion to admit it into evidence.
The argument would be that the public interest in seeing air safety improved outweighed the public interest in seeing someone tried for manslaughter(s). Whether that would be so would depend on the facts of each case.
In a particularly bad case, involving, for example, multiple deaths, serious departures from procedure, ridiculous speeds and rates of descent and the wilful ignorance of repeated GPWS warnings, a court might conceivably take a view that was adverse to the accused.
I wonder whether the average punter would be terribly unhappy about that? They might think it a bit patronising to be told that because what pilots do is so incredibly cutting-edge, they have protection from the law that isn't available to everyone else.
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PBL
Understood.
That’s interesting.
I say that because I find instances where someone did not intend to cause death, injury or damage (even though that was the result of his actions/inactions) more difficult than instances where someone intended to cause death, injury or damage. I find the latter relatively straight-forward.
In my view, the issues start at an earlier stage than that in an aviation context.
Given that the ultimate purpose of air accident investigation is to prevent similar accidents in the future, it’s essential that those involved co-operate fully and frankly with the accident investigators, which includes volunteering all relevant information and answering questions truthfully and fully.
If what they say may in due course be used against them in a criminal court, then IMHO they must be warned. That’s a well-established principle of the legal systems of most (all?) developed countries.
In many instances, such a warning would lead to people either declining to answer any questions or being cautious/selective about what they say, or even not answering honestly, because they fear being prosecuted and/or being sent to prison.
If that happened, it would IMHO hinder effective accident investigation and, in consequence, be detrimental to future flight safety.
Re the 5th paragraph of the JR: “Recognising that under certain circumstances, including acts of sabotage and willful or particularly egregious reckless conduct, criminal investigations and prosecutions may be appropriate.”
The signatories do not concede gross negligence as an exception.
I note (post 72) you think exceptions for gross negligence manslaughter might have to be made also.
Opinions will obviously differ, and may depend upon whether the following propositions contained in the JR are accepted as valid:
“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.” (From point 1)
“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.” (From point 2)
Just a Grunt
I’m not sure anyone has claimed that as a justification.
The issue (IMHO) is well summarised in points 1 and 2 above.
Whether or not you agree with those propositions is a obviously a matter for you.
FL
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.
I say that because I find instances where someone did not intend to cause death, injury or damage (even though that was the result of his actions/inactions) more difficult than instances where someone intended to cause death, injury or damage. I find the latter relatively straight-forward.
I agree with you (of course) that there are issues of what can be used as evidence in most jurisdictions
Given that the ultimate purpose of air accident investigation is to prevent similar accidents in the future, it’s essential that those involved co-operate fully and frankly with the accident investigators, which includes volunteering all relevant information and answering questions truthfully and fully.
If what they say may in due course be used against them in a criminal court, then IMHO they must be warned. That’s a well-established principle of the legal systems of most (all?) developed countries.
In many instances, such a warning would lead to people either declining to answer any questions or being cautious/selective about what they say, or even not answering honestly, because they fear being prosecuted and/or being sent to prison.
If that happened, it would IMHO hinder effective accident investigation and, in consequence, be detrimental to future flight safety.
Re the 5th paragraph of the JR: “Recognising that under certain circumstances, including acts of sabotage and willful or particularly egregious reckless conduct, criminal investigations and prosecutions may be appropriate.”
The signatories do not concede gross negligence as an exception.
I note (post 72) you think exceptions for gross negligence manslaughter might have to be made also.
Opinions will obviously differ, and may depend upon whether the following propositions contained in the JR are accepted as valid:
“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.” (From point 1)
“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.” (From point 2)
Just a Grunt
(the average punter) …… might think it a bit patronising to be told that because what pilots do is so incredibly cutting-edge, they have protection from the law that isn't available to everyone else.
The issue (IMHO) is well summarised in points 1 and 2 above.
Whether or not you agree with those propositions is a obviously a matter for you.
FL
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Flying Lawyer:
Out of curiosity... would that then mean that a reporter, for instance, would also have to give warning to an interviewee who was about to implicate his/herself? If a person were to write a tell-all book about their life as a criminal who had never been caught, giving details of time, place, event, etc., would that be admissible in court even though the author had not been warned that this information could be used against them? If I make an admission to a crime on a public website, isn't that admissible in court as evidence?
I'm not asking these questions to be difficult or anything... just trying to understand exactly how far the obligation to give warning extends exactly.
If what they say may in due course be used against them in a criminal court, then IMHO they must be warned. That’s a well-established principle of the legal systems of most (all?) developed countries.
I'm not asking these questions to be difficult or anything... just trying to understand exactly how far the obligation to give warning extends exactly.
If what they say may in due course be used against them in a criminal court, then IMHO they must be warned. That’s a well-established principle of the legal systems of most (all?) developed countries.
The "rule" requiring a caution applies only to a "person in authority". That means a person who is perceived by the accused to be in a position to influence the course of any criminal proceedings against him/her.
That would rule out journalists.
Tell-all books/internet posts/emails would all be admissible, provided authorship could be established.
The failure by a person in authority to give a warning does not have the automatic consequence that the confession is not admissible in court (at least not in Aust/UK). Even where there is a specific legislative requirement that a particular form of words be used when administering a caution, it has been held that a failure to warn, or a departure from the prescribed form does not - of itself - make the confession inadmissible.
Those who struggle philosophically with that should consider the position in the UK, where the right to silence has been abolished. The standard caution includes, "You do not have to say anything. But I warn you that it may harm your defence if you fail to mention when questioned something that you later rely on in court".
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This is a fascinating discussion.
I mean the following. Pilots, like other operators and all human beings, fail to follow SOPs sometimes, fail to notice salient operational data sometimes, are subject to all the slips and errors cataloged by Reason and others. This is normal human behavior which humans, in a broad sense, can do little about, and I feel strongly that criminal law has little or no reasonable application here. That's why I say this part is easy to figure out.
However, what do you do with, say, the first officer of Egypt Air 990, or the captain of MI 195, should they have survived? And with the captain of GIA 200? How do you handle the investigation and interviews? Troubled people (one may presume), with mental pressures and attitudes that may have caused them to do some very unusual things which harmed others.
Do you bring them in with a psychiatrist and start off with a Miranda warning? Good luck in finding out anything useful. Do you interview them in confidence, encourage them to spill the beans, and read the headlines in the Sun four weeks later: "Confessed killer of dozens walks out scot-free" and then spend your next years trying to explain to the public who has entrusted you with this task how this has aided aviation safety?
What exactly *do* you do? I don't know. I find it difficult, I imagine others do also, and it is partly in consequence of that (wrt GIA 200) that this discussion started.
You put the argument for the conflict between criminalisation and aviation safety well, yeronna. Let me put it in my own words:
1. If you are going to use people's testimony in evidence, they must be warned in advance (e.g., Miranda).
2. If they are Miranda-warned, they have every right to turn up with a lawyer and say nothing.
3. If you put accident participants through this, this is likely to aid a factual investigation much less than having people freely tell you what went on.
4. Investigations which are as factually complete and accurate as possible are essential to future aviation safety.
I agree with all of these four statements. This is directly applicable to rail accidents in Germany. You can't find out anything useful because the participants don't remember anything because the investigation has judicial consequences.
This interacts with structural inertia to lead to some pretty absurd situations. There is a particular signal (an "auxiliary signal" attached to a main signal) which has a positive meaning even when nothing on it is lit. In a particular case it meant: "you may only proceed past this signal at a maximum of 40 kph". The driver was in the process of accelerating to 120 kph and subsequently derailed when he hit the points. My colleagues point out that the information previously available to the driver, which in part was inconsistent, nevertheless entailed he should have restricted himself to 40 kph anyway. My colleagues have the benefit of all the data, and hours to reconstruct it; the driver had at most minutes, had just been subjected to an inconsistent sequence of speed-limit information, and unlike my colleagues was not necessarily hired for his expertise in evaluating accident scenarios. It was pitch dark. It is easy to imagine that had this unlit black construction on the side of a main-signal mast been more visible, he might have thought "oh, maybe I should still be proceeding at 40". Had he been able to say to the investigation "actually, I didn't notice the auxiliary signal", then maybe the Deutsche Bahn would have had immediately to go out and frame all their auxiliary signals in train-headlight-reflective tape to make them easier to see when unlit, as the Austrians did. Instead of which, DB is still thinking about it, 8 years on. And one of the track-side workers responsible for erecting some temporary speed-limit signals apparently cannot remember how he had done so, or which side of the track he may or may not have installed them. All in all, a mess, from which it is not clear that even the simplest lessons have been learnt.
Or take the maglev accident at Lathen. The state prosecutor, in charge of the investigation, said on the same evening "we are working on the presumption that it is human error", even though he had not even had the chance to read through the ops manuals to see if they were consistent and complete or not. The journalists were a little sharper. Two days later, they noted that there were some obvious holes in the system. For example, the maglev itself had a "technical protection system" (anti-collision), even though it was guaranteed that only one of them could be operational at any time. The service vehicles had no technical protection, only procedural protection, despite that there was at least one on the track on every morning when there was a maglev run planned. One might well ask, as did the journalists, and as employees of the operator apparently had done two years before, what the point is of equipping just *one* vehicle with an anti-collision system. And having one radio comms system for it, and another one for everything else. Operated by two different controllers. With positional indicators in two different places in the control room.
Nevertheless, it is the controllers who are in the dock. Didn't follow procedures, you see, just as the state prosecutor intimated on the evening of the crash.
That is why I said, two days ago:
Let me emphasise the important word "might". As I noted above, I find this subject very difficult, in contrast with dealing with straightforward Reason-type human error. I am grateful for the contributions of others who know more than I do about the potentially-applicable legal concepts.
PBL
Originally Posted by PBL
I suspect that many non-deliberate cases form a relatively easy part for many of us.
Originally Posted by Flying Lawyer
That’s interesting.
I say that because I find instances where someone did not intend to cause death, injury or damage (even though that was the result of his actions/inactions) more difficult than instances where someone intended to cause death, injury or damage.
I say that because I find instances where someone did not intend to cause death, injury or damage (even though that was the result of his actions/inactions) more difficult than instances where someone intended to cause death, injury or damage.
However, what do you do with, say, the first officer of Egypt Air 990, or the captain of MI 195, should they have survived? And with the captain of GIA 200? How do you handle the investigation and interviews? Troubled people (one may presume), with mental pressures and attitudes that may have caused them to do some very unusual things which harmed others.
Do you bring them in with a psychiatrist and start off with a Miranda warning? Good luck in finding out anything useful. Do you interview them in confidence, encourage them to spill the beans, and read the headlines in the Sun four weeks later: "Confessed killer of dozens walks out scot-free" and then spend your next years trying to explain to the public who has entrusted you with this task how this has aided aviation safety?
What exactly *do* you do? I don't know. I find it difficult, I imagine others do also, and it is partly in consequence of that (wrt GIA 200) that this discussion started.
You put the argument for the conflict between criminalisation and aviation safety well, yeronna. Let me put it in my own words:
1. If you are going to use people's testimony in evidence, they must be warned in advance (e.g., Miranda).
2. If they are Miranda-warned, they have every right to turn up with a lawyer and say nothing.
3. If you put accident participants through this, this is likely to aid a factual investigation much less than having people freely tell you what went on.
4. Investigations which are as factually complete and accurate as possible are essential to future aviation safety.
I agree with all of these four statements. This is directly applicable to rail accidents in Germany. You can't find out anything useful because the participants don't remember anything because the investigation has judicial consequences.
This interacts with structural inertia to lead to some pretty absurd situations. There is a particular signal (an "auxiliary signal" attached to a main signal) which has a positive meaning even when nothing on it is lit. In a particular case it meant: "you may only proceed past this signal at a maximum of 40 kph". The driver was in the process of accelerating to 120 kph and subsequently derailed when he hit the points. My colleagues point out that the information previously available to the driver, which in part was inconsistent, nevertheless entailed he should have restricted himself to 40 kph anyway. My colleagues have the benefit of all the data, and hours to reconstruct it; the driver had at most minutes, had just been subjected to an inconsistent sequence of speed-limit information, and unlike my colleagues was not necessarily hired for his expertise in evaluating accident scenarios. It was pitch dark. It is easy to imagine that had this unlit black construction on the side of a main-signal mast been more visible, he might have thought "oh, maybe I should still be proceeding at 40". Had he been able to say to the investigation "actually, I didn't notice the auxiliary signal", then maybe the Deutsche Bahn would have had immediately to go out and frame all their auxiliary signals in train-headlight-reflective tape to make them easier to see when unlit, as the Austrians did. Instead of which, DB is still thinking about it, 8 years on. And one of the track-side workers responsible for erecting some temporary speed-limit signals apparently cannot remember how he had done so, or which side of the track he may or may not have installed them. All in all, a mess, from which it is not clear that even the simplest lessons have been learnt.
Or take the maglev accident at Lathen. The state prosecutor, in charge of the investigation, said on the same evening "we are working on the presumption that it is human error", even though he had not even had the chance to read through the ops manuals to see if they were consistent and complete or not. The journalists were a little sharper. Two days later, they noted that there were some obvious holes in the system. For example, the maglev itself had a "technical protection system" (anti-collision), even though it was guaranteed that only one of them could be operational at any time. The service vehicles had no technical protection, only procedural protection, despite that there was at least one on the track on every morning when there was a maglev run planned. One might well ask, as did the journalists, and as employees of the operator apparently had done two years before, what the point is of equipping just *one* vehicle with an anti-collision system. And having one radio comms system for it, and another one for everything else. Operated by two different controllers. With positional indicators in two different places in the control room.
Nevertheless, it is the controllers who are in the dock. Didn't follow procedures, you see, just as the state prosecutor intimated on the evening of the crash.
Originally Posted by Flying Lawyer
Re the 5th paragraph of the JR: ............
The signatories do not concede gross negligence as an exception.
The signatories do not concede gross negligence as an exception.
Originally Posted by PBL
I was less than satisfied with the CANSO/FSF/RAeS statement in 2006 ........
Originally Posted by Flying Lawyer
I note (post 72) you think exceptions for gross negligence manslaughter might have to be made also.
PBL
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Just a Grunt
My reference to the warning was in the context of statements made to official accident investigators. (Your answers to the specific questions asked by krujje would also apply in the UK.)
The right to silence has not been abolished in the UK. The right has been qualified, but it still exists.
There are some circumstances in which a jury is directed that they may (if they consider it fair) draw an adverse inference from a defendant’s silence when questioned, but a judge has a discretion to decide whether it would be fair to give such a direction in a particular case.
If he does, the direction contains very strict instructions about the matters about which the jury must be satisfied before they are entitled to draw any adverse inference and, even then, the very limited use they may make of a defendant’s silence even if they consider it fair to draw any adverse conclusion from it.
Where a Defendant was given legal advice to remain silent, the direction includes these or similar words: 'If you consider that the Defendant had or may have had an answer to give, but genuinely and reasonably relied on legal advice to remain silent, you should not draw any conclusion against him.'
I’ve gone into the law as far as I properly can, given the restrictions my job places upon me. For that reason, I’m not going to comment upon whether an official accident investigator would be likely to be regarded by a UK court as a “person in authority.”
In the context of this particular discussion, the more important issue IMHO is whether those questioned by accident investigators would be as co-operative and frank if they feared what they said would or might be used against them in a criminal court.
And, if they wouldn’t, what consequences that would have upon the effectiveness of accident investigation and its primary purpose.
FL
PBL
Just seen your post.
I'm not ignoring it but, as mentioned above, I’ve gone as far as I properly can given the restrictions my job places upon me.
I felt free to discuss the interaction between accident investigation and criminal investigation (and what I see as the potential consequences to flight safety), but I think the time has come for me to withdraw. Frustrating!
My reference to the warning was in the context of statements made to official accident investigators. (Your answers to the specific questions asked by krujje would also apply in the UK.)
The right to silence has not been abolished in the UK. The right has been qualified, but it still exists.
There are some circumstances in which a jury is directed that they may (if they consider it fair) draw an adverse inference from a defendant’s silence when questioned, but a judge has a discretion to decide whether it would be fair to give such a direction in a particular case.
If he does, the direction contains very strict instructions about the matters about which the jury must be satisfied before they are entitled to draw any adverse inference and, even then, the very limited use they may make of a defendant’s silence even if they consider it fair to draw any adverse conclusion from it.
Where a Defendant was given legal advice to remain silent, the direction includes these or similar words: 'If you consider that the Defendant had or may have had an answer to give, but genuinely and reasonably relied on legal advice to remain silent, you should not draw any conclusion against him.'
I’ve gone into the law as far as I properly can, given the restrictions my job places upon me. For that reason, I’m not going to comment upon whether an official accident investigator would be likely to be regarded by a UK court as a “person in authority.”
In the context of this particular discussion, the more important issue IMHO is whether those questioned by accident investigators would be as co-operative and frank if they feared what they said would or might be used against them in a criminal court.
And, if they wouldn’t, what consequences that would have upon the effectiveness of accident investigation and its primary purpose.
FL
PBL
Just seen your post.
I'm not ignoring it but, as mentioned above, I’ve gone as far as I properly can given the restrictions my job places upon me.
I felt free to discuss the interaction between accident investigation and criminal investigation (and what I see as the potential consequences to flight safety), but I think the time has come for me to withdraw. Frustrating!
Last edited by Flying Lawyer; 14th Feb 2008 at 07:42.
FL,
fair comment re "abolition" - a slight detour into hyperbole. The subject provokes very strong views either way here - see Weissensteiner v R (1993) 178 CLR 217. Notwithstanding that I appeared for the "good" ("bad"?) guys, I am still conflicted about any UK-style change.
Adverse inference directions are very rarely given here in oz. Why jeopardise an otherwise perfectly good conviction?
I'm assuming that your "subtext" is that you are DPP/CPS.
I agree with each of the points you make, and agree that - if the advancement of safety were the only consideration - the issue of prosecution would never arise.
Sometimes that has to be subordinate to considerations of general/specific deterrence, public vindication, punishment...etc.
Anyway, I detested jurisprudence at uni, and had to wiki Bentham just to remind myself about utilitarianism
Too much more lawyering is likely to provoke a violent response from the habitues 
fair comment re "abolition" - a slight detour into hyperbole. The subject provokes very strong views either way here - see Weissensteiner v R (1993) 178 CLR 217. Notwithstanding that I appeared for the "good" ("bad"?) guys, I am still conflicted about any UK-style change.
Adverse inference directions are very rarely given here in oz. Why jeopardise an otherwise perfectly good conviction?
I'm assuming that your "subtext" is that you are DPP/CPS.
I agree with each of the points you make, and agree that - if the advancement of safety were the only consideration - the issue of prosecution would never arise.
Sometimes that has to be subordinate to considerations of general/specific deterrence, public vindication, punishment...etc.
Anyway, I detested jurisprudence at uni, and had to wiki Bentham just to remind myself about utilitarianism
Too much more lawyering is likely to provoke a violent response from the habitues
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JaG,
you surmise of FL
Far from it. The state has known for eons how to silence the most distinguished advocates, while reducing their income. Some states figured out how to make it voluntary (dress 'em up rather than dress 'em down), and some of us still fall for it. Some way down
http://www.pprune.org/forums/showthread.php?t=295673
one may find hizonna, in full kit:
http://www.pprune.org/forums/showpos...&postcount=101
PBL
you surmise of FL
Originally Posted by Just a Grunt
I'm assuming that your "subtext" is that you are DPP/CPS.
http://www.pprune.org/forums/showthread.php?t=295673
one may find hizonna, in full kit:
http://www.pprune.org/forums/showpos...&postcount=101
PBL
Last edited by PBL; 14th Feb 2008 at 16:22. Reason: more specific on the pics
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Bronx wrote on 10 February at 10:27 UTC, currently #63
that
Although, as should be evident from my subsequent comments in interchange with FL, I agree with many of the statements he made, I don't agree with the general argument he proposed, which I summarised in Post #67
as
to which Bronx replied in Post #69 that
and FL included as an example of
in Post #75, as he made clear in Post #80
Indeed Bronx didn't advance the argument explicitly, but I think he was committed to such a view as a consequence of what he did say. Since I agree with much else of what he said, I hold it worthwhile to revisit and clarify this point, because I think it involves a potential misunderstanding of or equivocation concerning some important concepts.
Another statement crucial for the argument is
That is a dichotomy which we should care about, because I read it as saying "you can have an accident investigation ........ OR a criminal investigation ....... but not both"; the elided conditions are such as to preclude both.
Let us take it as desirable that one should always have an accident investigation which is enabled to find out as fully and completely as possible what went on and why. Bronx is arguing you should not have as well a judicial investigation with a view to determining if an offence has been committed, because that will inevitably hinder the causal accident investigation.
Now, negligence is a concept which applies to a sequence of behavior or a state of mind, and it is a disapprobation. A non-evaluative description would use words such as "error", "inattention", "omission" "misperception", "nonperception", and so on, as usual. But when one says "negligent" one is no longer merely describing but evaluating. That is, you are comparing this behavior with other types of behavior or construed or idealised behavior and finding it wanting in some respect. Now, this is the domain of the law. I think it is fair to say that the Anglo common law started as a series of communal evaluations of situation and behavior with a view to norming them in some way. So it is not surprising to find "negligence" as a fundamental legal concept.
The word itself is, according to Webster, Middle English, of Anglo-French and Latin origin, and is explained there as "marked by or given to neglect especially habitually or culpably" or "failing to exercise the care expected of a reasonably prudent person in like circumstances". This second clarification obviously comes from the law. The first clarification says "especially habitually or culpably". When we are looking at accidents, we are not looking at habitual behavior but at particular behavior, so it would be the "culpably" part that concerns us. And of course culpability is also a concept primarily of law.
What I want to say is that negligence is fundamentally a legal concept, and it derives other everyday uses from this fundamental meaning. I cite the Webster clarification to support this view. I don't believe dictionaries "define" words; I think only use does that. Good dictionaries indicate to us the use, and I think Webster indicates that use is inextricably bound with common law.
Now, since Bronx is advocating, exceptionlessly, full and effective causal accident investigations, by his dichotomy he is committed, exceptionlessly, to not prosecuting pilots for negligence. Exceptionlessly not doing something means never doing it: he is committed to never prosecuting pilots for negligence.
Now, a prosecution is a procedure to characterise certain specific behavior. If the characterisation is primarily legal, such as it is with the concept of negligence, then how you determine whether behavior is negligent or not is through a prosecution. You determine whether certain behavior fits characterisations such as gross negligence manslaughter or recklessness manslaughter, not through discussion on the street corner as you might do if you were trying to determine whether something is red or not or old or not, but through a prosecution. And if you never prosecute anyone for, say, recklessness manslaughter, then the concept does not apply. It makes no sense to say that there is a legal concept such as X but we never attempt to determine whether X is ever instantiated. You say: the concept of X does not apply.
When a soldier kills an enemy soldier, heshe does not commit murder. Soldiers *can* commit murder while fighting (and do, and are prosecuted for it), but it ain't murder when you kill the enemy in a fight. Similarly, when the police chase another car at 90 kph through a 50 kph zone, the police are not speeding; the car they are chasing is. The police are driving faster than the speed limit, maybe even driving faster than would be safe, but they are not speeding. "Speeding" is an evaluative concept; "murder" is an evaluative concept; when you say that you never try to determine whether the concept applies to a particular class of cases, and the concept has no validity outside such a determination, then the concept simply does not apply to that class of cases.
So it is with negligence. It is primarily a term with legal meaning. If you decide that you will never determine whether the concept of negligence applies to pilot behavior in accidents, then you are thereby saying that the concept of negligence does not apply to pilot behavior in accidents. And another, shorter, way of saying that the concept of negligence does not apply to pilot behavior in accidents is that pilot behavior in these circumstances is not negligent. And if this is to be exceptionlessly the case, then it is appropriate to express this condition as: pilot behavior is never negligent. Which I did.
I hope that makes it clearer both what I said and why I said it, and also that I do not take it as a distortion of Bronx's argument but rather as a consequence of it. What Bronx said commits him to the view that pilot behavior in accidents is never negligent. If anyone does not like that conclusion, which I don't, then a rethink of the premises of the argument is in order. It appears from Bronx's reaction that he doesn't like that conclusion either. If so, then he has to modify some of his earlier assertions to escape it.
This is an example of why I think this whole topic is subtle.
PBL
that
Originally Posted by Bronx
Prosecuting pilots and sending them to jail for negligence does NOTHING to improve aviation safety... [instead, it] does HARM to aviation safety
as
Originally Posted by PBL
professional pilots should be exempt from prosecution for negligence because professional pilots are never negligent
Originally Posted by Bronx
I didn't say any such thing.
Originally Posted by Flying Lawyer
distorting opponents’ arguments and attributing to opponents arguments they didn’t advance
Indeed Bronx didn't advance the argument explicitly, but I think he was committed to such a view as a consequence of what he did say. Since I agree with much else of what he said, I hold it worthwhile to revisit and clarify this point, because I think it involves a potential misunderstanding of or equivocation concerning some important concepts.
Another statement crucial for the argument is
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.
Let us take it as desirable that one should always have an accident investigation which is enabled to find out as fully and completely as possible what went on and why. Bronx is arguing you should not have as well a judicial investigation with a view to determining if an offence has been committed, because that will inevitably hinder the causal accident investigation.
Now, negligence is a concept which applies to a sequence of behavior or a state of mind, and it is a disapprobation. A non-evaluative description would use words such as "error", "inattention", "omission" "misperception", "nonperception", and so on, as usual. But when one says "negligent" one is no longer merely describing but evaluating. That is, you are comparing this behavior with other types of behavior or construed or idealised behavior and finding it wanting in some respect. Now, this is the domain of the law. I think it is fair to say that the Anglo common law started as a series of communal evaluations of situation and behavior with a view to norming them in some way. So it is not surprising to find "negligence" as a fundamental legal concept.
The word itself is, according to Webster, Middle English, of Anglo-French and Latin origin, and is explained there as "marked by or given to neglect especially habitually or culpably" or "failing to exercise the care expected of a reasonably prudent person in like circumstances". This second clarification obviously comes from the law. The first clarification says "especially habitually or culpably". When we are looking at accidents, we are not looking at habitual behavior but at particular behavior, so it would be the "culpably" part that concerns us. And of course culpability is also a concept primarily of law.
What I want to say is that negligence is fundamentally a legal concept, and it derives other everyday uses from this fundamental meaning. I cite the Webster clarification to support this view. I don't believe dictionaries "define" words; I think only use does that. Good dictionaries indicate to us the use, and I think Webster indicates that use is inextricably bound with common law.
Now, since Bronx is advocating, exceptionlessly, full and effective causal accident investigations, by his dichotomy he is committed, exceptionlessly, to not prosecuting pilots for negligence. Exceptionlessly not doing something means never doing it: he is committed to never prosecuting pilots for negligence.
Now, a prosecution is a procedure to characterise certain specific behavior. If the characterisation is primarily legal, such as it is with the concept of negligence, then how you determine whether behavior is negligent or not is through a prosecution. You determine whether certain behavior fits characterisations such as gross negligence manslaughter or recklessness manslaughter, not through discussion on the street corner as you might do if you were trying to determine whether something is red or not or old or not, but through a prosecution. And if you never prosecute anyone for, say, recklessness manslaughter, then the concept does not apply. It makes no sense to say that there is a legal concept such as X but we never attempt to determine whether X is ever instantiated. You say: the concept of X does not apply.
When a soldier kills an enemy soldier, heshe does not commit murder. Soldiers *can* commit murder while fighting (and do, and are prosecuted for it), but it ain't murder when you kill the enemy in a fight. Similarly, when the police chase another car at 90 kph through a 50 kph zone, the police are not speeding; the car they are chasing is. The police are driving faster than the speed limit, maybe even driving faster than would be safe, but they are not speeding. "Speeding" is an evaluative concept; "murder" is an evaluative concept; when you say that you never try to determine whether the concept applies to a particular class of cases, and the concept has no validity outside such a determination, then the concept simply does not apply to that class of cases.
So it is with negligence. It is primarily a term with legal meaning. If you decide that you will never determine whether the concept of negligence applies to pilot behavior in accidents, then you are thereby saying that the concept of negligence does not apply to pilot behavior in accidents. And another, shorter, way of saying that the concept of negligence does not apply to pilot behavior in accidents is that pilot behavior in these circumstances is not negligent. And if this is to be exceptionlessly the case, then it is appropriate to express this condition as: pilot behavior is never negligent. Which I did.
I hope that makes it clearer both what I said and why I said it, and also that I do not take it as a distortion of Bronx's argument but rather as a consequence of it. What Bronx said commits him to the view that pilot behavior in accidents is never negligent. If anyone does not like that conclusion, which I don't, then a rethink of the premises of the argument is in order. It appears from Bronx's reaction that he doesn't like that conclusion either. If so, then he has to modify some of his earlier assertions to escape it.
This is an example of why I think this whole topic is subtle.
PBL
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Hey PBL that's some magnum opus. 
It's gonna take me more time than I got now to read it some more and make sure I understand what your saying .
Before I do all that can you let me know if your saying your argument still holds good if we use the Oxford English Dictionary definition instead of Webster's. Since our law and our language developed from England looking at what the Oxford dictionary says about the word seems like a good place to start.
The Oxford gives two definitions or uses if you prefer , one ordinary and one legal.
http://www.askoxford.com/concise_oed/negligence?view=uk
Nothing legal about #1 unless you're saying "proper" is a legal concept.
Two nations divided by a common language as Oscar Wilde said or maybe it was George Bernard Shaw, one of those guys anyways.
Nope, I think your conclusion is wrong.
If you use the Oxford definition instead of Webster's it looks to me like someone could be "evaluated" as negligent in the ordinary meaning of the word #1 even though they ain't been proved in a court to be negligent in the legal meaning #2.
B.
It's gonna take me more time than I got now to read it some more and make sure I understand what your saying .
What I want to say is that negligence is fundamentally a legal concept, and it derives other everyday uses from this fundamental meaning. I cite the Webster clarification to support this view. I don't believe dictionaries "define" words; I think only use does that. Good dictionaries indicate to us the use, and I think Webster indicates that use is inextricably bound with common law.
If the characterisation is primarily legal, such as it is with the concept of negligence, then how you determine whether behavior is negligent or not is through a prosecution.
The Oxford gives two definitions or uses if you prefer , one ordinary and one legal.
negligence
• noun 1 lack of proper care and attention. 2 Law breach of a duty of care which results in damage.
— DERIVATIVES negligent adjective.
• noun 1 lack of proper care and attention. 2 Law breach of a duty of care which results in damage.
— DERIVATIVES negligent adjective.
Nothing legal about #1 unless you're saying "proper" is a legal concept.
Two nations divided by a common language as Oscar Wilde said or maybe it was George Bernard Shaw, one of those guys anyways.
It appears from Bronx's reaction that he doesn't like that conclusion either.
If you use the Oxford definition instead of Webster's it looks to me like someone could be "evaluated" as negligent in the ordinary meaning of the word #1 even though they ain't been proved in a court to be negligent in the legal meaning #2.
B.
Last edited by Bronx; 15th Feb 2008 at 14:36.
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Bronx,
sorry if the commentary was long, but I wanted to try to make it clearer where I was coming from.
It is your statement I was discussing, so of course it is free for you to explain what you meant by "negligence", and if you meant "lack of proper care and attention" short of behavior that might be legally significant, then so be it.
But then there should be little need to worry about criminal prosecution, since ipso facto the behavior falls short of that which might be legally significant.
I find it odd that, being one of the relatively few people in Europe who have spoken out in public fora against the criminalisation of complex accidents, I should find myself here being a defender of the view that sometimes pilots may do things which should remain criminally sanctionable.
When we are talking about aviation safety, we are not just talking about those airlines with enviable safety records whose pilots occasionally do something that the rest of us sanction in our hangar flying (such as not checking runway heading before TO). We are also talking about airlines which are banned from flying into any EU country because of their poor record on safety and safety management. The tales of these airlines are all over PPRuNe. And this is the segment of the industry whose even marginal improvement will most affect aviation safety overall, as a glance at accident statistics or a brief talk with an insurance underwriter will show. I am not sure that isolating *any* of their employees from sanction (whether pilots or owners or whomever) is going to help improve safety; indeed, it may be one of the few constraints available to hold more egregious behavior in check. Barrelling down final at VREF+huge is not behavior which requires either subtlety or immunity to discover, and it is questionable whether it falls into any of the Reason categories of error. And if people think that they can do that, and that the worst that will happen to them is that they lose their job (until such time as they find another, flying for an even less conscientious employer), then it is hard to see how they might be motivated to moderate their professional behavior.
The difficulty for me is formulating a position which holds as well for the situation in West Bongoland as it would for the UK or US.
I think worries about the overall effect on aviation safety in North America of confidential data being disclosed during discovery in civil proceedings are legitimate.
On the other hand I know one major case in which, if there was some way of bringing some FOQA data into it, it would turn the course of the discussion about why the accident happened and, in my mind, lead to an overall improvement in aviation safety.
PBL
sorry if the commentary was long, but I wanted to try to make it clearer where I was coming from.
It is your statement I was discussing, so of course it is free for you to explain what you meant by "negligence", and if you meant "lack of proper care and attention" short of behavior that might be legally significant, then so be it.
But then there should be little need to worry about criminal prosecution, since ipso facto the behavior falls short of that which might be legally significant.
I find it odd that, being one of the relatively few people in Europe who have spoken out in public fora against the criminalisation of complex accidents, I should find myself here being a defender of the view that sometimes pilots may do things which should remain criminally sanctionable.
When we are talking about aviation safety, we are not just talking about those airlines with enviable safety records whose pilots occasionally do something that the rest of us sanction in our hangar flying (such as not checking runway heading before TO). We are also talking about airlines which are banned from flying into any EU country because of their poor record on safety and safety management. The tales of these airlines are all over PPRuNe. And this is the segment of the industry whose even marginal improvement will most affect aviation safety overall, as a glance at accident statistics or a brief talk with an insurance underwriter will show. I am not sure that isolating *any* of their employees from sanction (whether pilots or owners or whomever) is going to help improve safety; indeed, it may be one of the few constraints available to hold more egregious behavior in check. Barrelling down final at VREF+huge is not behavior which requires either subtlety or immunity to discover, and it is questionable whether it falls into any of the Reason categories of error. And if people think that they can do that, and that the worst that will happen to them is that they lose their job (until such time as they find another, flying for an even less conscientious employer), then it is hard to see how they might be motivated to moderate their professional behavior.
The difficulty for me is formulating a position which holds as well for the situation in West Bongoland as it would for the UK or US.
I think worries about the overall effect on aviation safety in North America of confidential data being disclosed during discovery in civil proceedings are legitimate.
On the other hand I know one major case in which, if there was some way of bringing some FOQA data into it, it would turn the course of the discussion about why the accident happened and, in my mind, lead to an overall improvement in aviation safety.
PBL
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Criminalization of an air incident/accident is the easiest way they discovered to formalize the guilty of a pilot and hide the the real criminals (companies , governments , maintennce, infra structure) .
It´s more important to sue someone than to learn the lesson.
It´s more important to sue someone than to learn the lesson.
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PBL
I didn’t make any distinction. Even if there is any real difference, what I said in posts 63 and 69 still applies for the flight safety reasons I gave.
It ain't ipso facto at all. Lack of proper care and attention might be “legally significant”. Maybe not bad enough for “gross negligence” for manslaughter (post #72) but pilots are at risk of prosecution for other criminal offenses for lack of proper care and attention, even if there’s no accident.
eg We got Part § 91.13 “No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” They got the same offense in England but they call it something like negligent or reckless endangerment. You don't have to be grossly negligent to get prosecuted.
So, going back to what you said about my post –
I didn't say negligence is primarily a term with legal meaning, you did and that's wrong so what you say follows from it don't follow.
I don't agree only a prosecution can determine if pilot behavior in accidents was negligent.
I never said pilot behaviour in accidents/these circumstances is not negligent. Of course it can be. Saying pilots shouldn't be prosecuted for being negligent isn't the same as saying pilots are never negligent. The question is whether the criminal process is appropriate or counter-productive. I've said what I think.
It’s not a consequence of what I said and it does not commit me to the view that pilot behavior in accidents is never negligent. Of course it can be, whether or not it’s determined by a court.
I agree a rethink of the premises of the argument is in order – your first premise that "negligence is fundamentally a legal concept" was fundamentally wrong. You also said culpability is also a concept primarily of law. That ain’t right either. Culpable means deserving blame like in mea culpa, my fault or my blame. It don’t have to be legal blame.
Anyways, IMHO you’re distracting from the key issue by getting all etymalogical (sp?) about it.
JaG summed the issues up good
"Sometimes that has to be subordinate ..."
To be or not to be, that is the question.
Not to be, IMHO.
The criminal and non criminal methods have both got good and bad points but there’s a conflict between the two, so the question is or should be which imperfect method is best for the general good?
I already said what I think and why.
B.
if you meant "lack of proper care and attention" short of behavior that might be legally significant, then so be it.
But then there should be little need to worry about criminal prosecution, since ipso facto the behavior falls short of that which might be legally significant.
eg We got Part § 91.13 “No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” They got the same offense in England but they call it something like negligent or reckless endangerment. You don't have to be grossly negligent to get prosecuted.
So, going back to what you said about my post –
So it is with negligence. It is primarily a term with legal meaning. If you decide that you will never determine whether the concept of negligence applies to pilot behavior in accidents, then you are thereby saying that the concept of negligence does not apply to pilot behavior in accidents.
I don't agree only a prosecution can determine if pilot behavior in accidents was negligent.
I never said pilot behaviour in accidents/these circumstances is not negligent. Of course it can be. Saying pilots shouldn't be prosecuted for being negligent isn't the same as saying pilots are never negligent. The question is whether the criminal process is appropriate or counter-productive. I've said what I think.
I do not take it as a distortion of Bronx's argument but rather as a consequence of it. What Bronx said commits him to the view that pilot behavior in accidents is never negligent. If anyone does not like that conclusion, which I don't, then a rethink of the premises of the argument is in order. It appears from Bronx's reaction that he doesn't like that conclusion either. If so, then he has to modify some of his earlier assertions to escape it.
It’s not a consequence of what I said and it does not commit me to the view that pilot behavior in accidents is never negligent. Of course it can be, whether or not it’s determined by a court.
I agree a rethink of the premises of the argument is in order – your first premise that "negligence is fundamentally a legal concept" was fundamentally wrong. You also said culpability is also a concept primarily of law. That ain’t right either. Culpable means deserving blame like in mea culpa, my fault or my blame. It don’t have to be legal blame.
Anyways, IMHO you’re distracting from the key issue by getting all etymalogical (sp?) about it.
JaG summed the issues up good
If the advancement of safety were the only consideration - the issue of prosecution would never arise. Sometimes that has to be subordinate to considerations of general/specific deterrence, public vindication, punishment...etc.
To be or not to be, that is the question.
Not to be, IMHO.
The criminal and non criminal methods have both got good and bad points but there’s a conflict between the two, so the question is or should be which imperfect method is best for the general good?
I already said what I think and why.
B.
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The discussion here on the definition of negligence is not getting us very far, as eventually it will be for a court to do just that.
As another thought, every correspondent seems to be looking at this subject from a negative viewpoint; isn't it possible that video recordings could prove the crew were NOT negligent?
As another thought, every correspondent seems to be looking at this subject from a negative viewpoint; isn't it possible that video recordings could prove the crew were NOT negligent?
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The discussion here on the definition of negligence is not getting us very far, as eventually it will be for a court to do just that.
Eventually it will be for a court to do just that?
Only if someone involves the courts.
The thread is about whether criminalization of accidents is best for flight safety long term. Some folk, me included, don't think it is.
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The discussion here on the definition of negligence is not getting us very far, as eventually it will be for a court to do just that.
As another thought, every correspondent seems to be looking at this subject from a negative viewpoint; isn't it possible that video recordings could prove the crew were NOT negligent?
As another thought, every correspondent seems to be looking at this subject from a negative viewpoint; isn't it possible that video recordings could prove the crew were NOT negligent?
I can see this kind of evidence being useful to accident investigators, but in criminal proceedings, well, I'd hate to be one of the poor sods flying
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Orographic
It is the job of the lawyers and the expert witnesses to explain to a jury what the case is about and a number are quite capable of doing that. I make reference to a case below in which there were a number of complex technical issues and the analysis of an FDR. The jury in that case proved themselves capable of cutting through the prosecution's sensationalist and headline grabbing allegations and seeing the real picture.
This thread raises a number of issues and although some of what follows has been mentioned by previous contributors here are a few thoughts.
Should pilots ever face prosecution for their actions?
For recklessness – clearly the answer must be yes.
For negligence? Again the answer should be yes but in appropriate circumstances. Most other forms of transport (road, rail and maritime) are subject to laws relating to careless or negligent behavior and there may be times when the actions of a pilot deserve to be marked by a prosecution. The argument that a pilot's actions are motivated by his own self preservation has a superficial attraction but equally applies to other activities and one can imagine circumstances in which a pilot's negligence poses no or no significant risk to himself or his aircraft but does pose a risk to others.
Why should pilots be treated differently from say aircraft engineers. A pilot would say that engineers should be encouraged to do their job properly because it is someone else's life that depends upon them but a pax or person on the ground might say the same about a pilot.
In truth, aviation is (wrongly) perceived by the general public as a risky exercise and public confidence in air transport would be severely dented if the public became aware that unlike any other form of transport, pilots were exempt from the consequences of their actions.
It follows that an ability to prosecute should exist but, as is the case now, be used sparingly. Pilots can take some comfort in the fact that although there are many, many instances of negligence arising, prosecutions are in reality few and far between (cf the number of prosecutions for driving without due care and attention).
The more interesting aspect of this thread is the issue of what evidence should be used in such a prosecution.
CVR's
On basic principles a CVR recording would be admissible in evidence in a UK court. It is real evidence. Whilst there is a statutory bar at present on the use of telephone intercepts, other forms of recording including covert recording (placing bugs in suspected criminal's cars, flats and even in telephone boxes) have been admissible for a number of years. The CVR is not a covert device; pilots are aware of its existence and there is nothing unfair about its presence. In prison, prisoner's personal telephone calls are routinely monitored and recorded, prisoners are made aware of this and the recordings are used in evidence in court. Other forms of surveillance are used constantly in the UK (e.g. CCTV) and there is no issue over the admissibility of the product of such surveillance being used in court. Why should the same not apply to a CVR?
The more important question is whether in the case of CVR's and FDR's there should be some public interest argument for not using them.
A tachograph is fitted to a lorry specifically in order to enforce legislation. CVR's and FDR's exist in order to record information that may be of use in a subsequent accident investigation. There is some international agreement that FDR recordings should not be used for prosecuting purposes save in the case of reckless endangerment. That being said, I can well imagine that an investigating body in possession of such material and intent upon pursuing a negligence charge would try and use it if it supported their case. They would argue that although the primary purpose of the equipment is safety, once the material has been created it should be available for any purpose.
In a recent case of causing death by dangerous driving, the car involved was a road legal rally car fitted with a telemetary recording device. This provided the prosecution with a record of the speeds driven by the vehicle and this evidence was used in proving the allegation against the driver. Although not directly involved in the case I do not believe that there was any issue over admissibility.
If there is a public interest reason for excluding such evidence, should it be excluded in all circumstances? Flying Lawyer made reference above to a case in which he and I were both involved in which the FDR recording actually confirmed what the pilot said and substantially assisted in securing a not guilty verdict on a reckless endangerment charge.
As an aside, during the course of the investigation the CAA asked for a copy of the FDR printout. The pilot took advice from BALPA who told him not to release the data without a court order and quoted the international protocol. The pilot followed Balpa's advice. During the subsequent trial the prosecution told the jury that this refusal showed the pilot had something to hide and that this was evidence of his guilt – this being despite the plain evidence on the FDR printout and a letter from BALPA's legal department setting out the advice that had been given and why! Fortunately the jury saw sense.
However, returning to the topic, if such material is admissible to exonerate an innocent pilot why should it not be available to convict a guilty one?
A more worrying issue is the use of material gathered by accident investigators such as the AAIB or NTSB. Such bodies are not tasked with criminal investigation and their prime concern is the maintenance of safety. There is a clear public interest in their ability to collect as much information as may be available. This clearly includes the accounts of those involved in an accident. I have put to one side any issue of admissibility due to lack of proper caution etc but look instead at the public interest argument for exclusion.
A clear conflict arises if statements made in accident investigations or boards of inquiry were to be used in subsequent prosecutions. In most jurisdictions there is a rule against self-incrimination. The AAIB would wish for pilots and others to be frank and candid with them. This will only happen if witnesses can speak without the fear of the material being used against them. If accident investigation material is used in prosecutions then the flow of that material will dry up as most solicitors will advise people to say nothing. Further, the AAIB will have to start cautioning witnesses and that will involve formal interviews and PACE (Police and Criminal Evidence Act) considerations.
Accident investigations should be separate and distinct from criminal investigations. Bodies such as the AAIB should not be forced into becoming an arm of the police or the CAA Investigations Branch. There are clear and I would suggest over-riding flight safety considerations that should exclude accident investigation material (in the form of potentially self-incriminating statements) from any legal process, both criminal and civil.
"only if they have someone to translate what is going on. Do you really expect 30 some Joe Publics, to have even the faintest idea what is going on for the pilots of an aircraft in trouble. " We saw the video but I didn't understand what was going on, and they must have been negligent, I mean the plane crashed didn't it?"
This thread raises a number of issues and although some of what follows has been mentioned by previous contributors here are a few thoughts.
Should pilots ever face prosecution for their actions?
For recklessness – clearly the answer must be yes.
For negligence? Again the answer should be yes but in appropriate circumstances. Most other forms of transport (road, rail and maritime) are subject to laws relating to careless or negligent behavior and there may be times when the actions of a pilot deserve to be marked by a prosecution. The argument that a pilot's actions are motivated by his own self preservation has a superficial attraction but equally applies to other activities and one can imagine circumstances in which a pilot's negligence poses no or no significant risk to himself or his aircraft but does pose a risk to others.
Why should pilots be treated differently from say aircraft engineers. A pilot would say that engineers should be encouraged to do their job properly because it is someone else's life that depends upon them but a pax or person on the ground might say the same about a pilot.
In truth, aviation is (wrongly) perceived by the general public as a risky exercise and public confidence in air transport would be severely dented if the public became aware that unlike any other form of transport, pilots were exempt from the consequences of their actions.
It follows that an ability to prosecute should exist but, as is the case now, be used sparingly. Pilots can take some comfort in the fact that although there are many, many instances of negligence arising, prosecutions are in reality few and far between (cf the number of prosecutions for driving without due care and attention).
The more interesting aspect of this thread is the issue of what evidence should be used in such a prosecution.
CVR's
On basic principles a CVR recording would be admissible in evidence in a UK court. It is real evidence. Whilst there is a statutory bar at present on the use of telephone intercepts, other forms of recording including covert recording (placing bugs in suspected criminal's cars, flats and even in telephone boxes) have been admissible for a number of years. The CVR is not a covert device; pilots are aware of its existence and there is nothing unfair about its presence. In prison, prisoner's personal telephone calls are routinely monitored and recorded, prisoners are made aware of this and the recordings are used in evidence in court. Other forms of surveillance are used constantly in the UK (e.g. CCTV) and there is no issue over the admissibility of the product of such surveillance being used in court. Why should the same not apply to a CVR?
The more important question is whether in the case of CVR's and FDR's there should be some public interest argument for not using them.
A tachograph is fitted to a lorry specifically in order to enforce legislation. CVR's and FDR's exist in order to record information that may be of use in a subsequent accident investigation. There is some international agreement that FDR recordings should not be used for prosecuting purposes save in the case of reckless endangerment. That being said, I can well imagine that an investigating body in possession of such material and intent upon pursuing a negligence charge would try and use it if it supported their case. They would argue that although the primary purpose of the equipment is safety, once the material has been created it should be available for any purpose.
In a recent case of causing death by dangerous driving, the car involved was a road legal rally car fitted with a telemetary recording device. This provided the prosecution with a record of the speeds driven by the vehicle and this evidence was used in proving the allegation against the driver. Although not directly involved in the case I do not believe that there was any issue over admissibility.
If there is a public interest reason for excluding such evidence, should it be excluded in all circumstances? Flying Lawyer made reference above to a case in which he and I were both involved in which the FDR recording actually confirmed what the pilot said and substantially assisted in securing a not guilty verdict on a reckless endangerment charge.
As an aside, during the course of the investigation the CAA asked for a copy of the FDR printout. The pilot took advice from BALPA who told him not to release the data without a court order and quoted the international protocol. The pilot followed Balpa's advice. During the subsequent trial the prosecution told the jury that this refusal showed the pilot had something to hide and that this was evidence of his guilt – this being despite the plain evidence on the FDR printout and a letter from BALPA's legal department setting out the advice that had been given and why! Fortunately the jury saw sense.
However, returning to the topic, if such material is admissible to exonerate an innocent pilot why should it not be available to convict a guilty one?
A more worrying issue is the use of material gathered by accident investigators such as the AAIB or NTSB. Such bodies are not tasked with criminal investigation and their prime concern is the maintenance of safety. There is a clear public interest in their ability to collect as much information as may be available. This clearly includes the accounts of those involved in an accident. I have put to one side any issue of admissibility due to lack of proper caution etc but look instead at the public interest argument for exclusion.
A clear conflict arises if statements made in accident investigations or boards of inquiry were to be used in subsequent prosecutions. In most jurisdictions there is a rule against self-incrimination. The AAIB would wish for pilots and others to be frank and candid with them. This will only happen if witnesses can speak without the fear of the material being used against them. If accident investigation material is used in prosecutions then the flow of that material will dry up as most solicitors will advise people to say nothing. Further, the AAIB will have to start cautioning witnesses and that will involve formal interviews and PACE (Police and Criminal Evidence Act) considerations.
Accident investigations should be separate and distinct from criminal investigations. Bodies such as the AAIB should not be forced into becoming an arm of the police or the CAA Investigations Branch. There are clear and I would suggest over-riding flight safety considerations that should exclude accident investigation material (in the form of potentially self-incriminating statements) from any legal process, both criminal and civil.
Last edited by Legalapproach; 18th Feb 2008 at 11:05.