Aviation safety jeopardised by judges?
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Aviation safety jeopardised by judges?
Since 1946, ICAO’s annex 13 has been the worldwide guiding reference on aircraft accident investigation.
Article 3.1 stipulates that:
The latter is of great importance as this is what allows us aviation professionals to candidly supply all our help when we are connected in any way to an accident or incident in order that the cause can clearly be found and measures taken to avoid recurrence.
It is based on this that CVR’s and FDR’s were mandated on aircraft, and not with judiciary purposes in mind.
This, together with national reporting systems, is one of the main pillars that aviation safety has been built upon since the fifties, until reaching todays’s unquestionably outstanding levels.
The nature of accidents themselves implies that in today’s world, a judiciary investigation will subsequently occur. However, such investigation is clearly one whose goal is to determine responsibilities and apportion blame, as expressly excluded from Annex 13.
It is therefore key that the judiciary investigation and that of annex 13 are carried out separately, as recommended by Annex 13 itself (art 5.4.1):
Any judicial or administrative proceedings to apportion blame or liability should be separate from any investigation conducted under the provision of this Annex
However, as the facts originating both investigations are the same, it is unavoidable that some connection will exist, and Annex 13 itself recognizes it as such:
This is in my opinion a VERY gray area. It is becoming apparent that the judiciary investigations that are being carried out in Spain re the Spanair accident, is having access to the data AND maybe analysis (this is where the issue is) from the Annex 13 investigation, if what is being leaked to the press is correct.
We have seen such type of interference in the past (see Concorde accident report and UK AAIB comments)
In a judiciary process, in order to preserve your rights, if you have any responsibility in connection to an accident, most western countries’ constitutions recognize the right of citizens not to testify against themselves. This is of course very different from the idea of Annex 13, where we would gladly supply all useful data knowing that it is not supposed to be used against ourselves.
For years we aviation professionals have been candidly reporting our own and our organisations' errors and mistakes in an effort to help aviation safety…we have every right to stop doing that if the separation of both investigations is not clearly emphasized. The way this and some other recent investigations are carried out will pave the way for either:
a) Increasingly diminished aviation safety as aviation professionals become more and more aware of the liabiliaties incurred in candid reports, and in operating aircraft with increasingly comprehensive recorders.
b) Strengthened aviation safety through stronger ruling protecting the constitutionary rights of us who carry the responsibility of people’s lives in air transport.
In the case of a), the irony is that the rights of the same citizens that the judiciary system is trying to protect will be decreased through jeopardised aviation safety.
Can we let it happen that way?
Apologies if this subject has been dealt with in this forum before. Mods please feel free to direct this post there if so.
Article 3.1 stipulates that:
The sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability
It is based on this that CVR’s and FDR’s were mandated on aircraft, and not with judiciary purposes in mind.
This, together with national reporting systems, is one of the main pillars that aviation safety has been built upon since the fifties, until reaching todays’s unquestionably outstanding levels.
The nature of accidents themselves implies that in today’s world, a judiciary investigation will subsequently occur. However, such investigation is clearly one whose goal is to determine responsibilities and apportion blame, as expressly excluded from Annex 13.
It is therefore key that the judiciary investigation and that of annex 13 are carried out separately, as recommended by Annex 13 itself (art 5.4.1):
Any judicial or administrative proceedings to apportion blame or liability should be separate from any investigation conducted under the provision of this Annex
The State conducting the investigation shall recognize the need for coordination between the investigator-in-charge and the judicial authorities...
We have seen such type of interference in the past (see Concorde accident report and UK AAIB comments)
In a judiciary process, in order to preserve your rights, if you have any responsibility in connection to an accident, most western countries’ constitutions recognize the right of citizens not to testify against themselves. This is of course very different from the idea of Annex 13, where we would gladly supply all useful data knowing that it is not supposed to be used against ourselves.
For years we aviation professionals have been candidly reporting our own and our organisations' errors and mistakes in an effort to help aviation safety…we have every right to stop doing that if the separation of both investigations is not clearly emphasized. The way this and some other recent investigations are carried out will pave the way for either:
a) Increasingly diminished aviation safety as aviation professionals become more and more aware of the liabiliaties incurred in candid reports, and in operating aircraft with increasingly comprehensive recorders.
b) Strengthened aviation safety through stronger ruling protecting the constitutionary rights of us who carry the responsibility of people’s lives in air transport.
In the case of a), the irony is that the rights of the same citizens that the judiciary system is trying to protect will be decreased through jeopardised aviation safety.
Can we let it happen that way?
Apologies if this subject has been dealt with in this forum before. Mods please feel free to direct this post there if so.
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A very good point.
How ever, It would be humanly impossible to let a defaulter off the hook when you knew if some wrong has been done.
The ICAO annex assumes that all procedures and no "Operational" shortcuts have been followed and hence the view to find what went wrong.
The Judiciary just needs to find out if the neglect was intentional or fuelled by greed (Company practices to minimize losses/ expenses etc).
99% of accidents can be prevented with the current system of rules and regulations being followed but this is often expensive and , for the management "Inconvenient" and so the spirit of the law is abandoned for the letter.
The ICAO wants to ppug the remaining 1% hole and the judiciary wants the law to be followed in spirit as well as letter.
As far as airline management is often concerned, it is almost always a risk vs cost analysis and mostly... cost rules.
Consider this example: You caught a thief stealing from the bank and he gave you his modus operandi, while one would take action to prevent recurrence, the thief will be punished for his offence.
Hence the Judge is often more interested in the intent of the action, which may make an outcome different i.e culpable homicide amounting to murder or not amounting to murder or simply rash and negligent act resulting in death.etc...
BTW, I do feel that there should be a total inquiry by aviation authority which cannot and must not be used for criminalising ac accidents.
How ever, It would be humanly impossible to let a defaulter off the hook when you knew if some wrong has been done.
The ICAO annex assumes that all procedures and no "Operational" shortcuts have been followed and hence the view to find what went wrong.
The Judiciary just needs to find out if the neglect was intentional or fuelled by greed (Company practices to minimize losses/ expenses etc).
99% of accidents can be prevented with the current system of rules and regulations being followed but this is often expensive and , for the management "Inconvenient" and so the spirit of the law is abandoned for the letter.
The ICAO wants to ppug the remaining 1% hole and the judiciary wants the law to be followed in spirit as well as letter.
As far as airline management is often concerned, it is almost always a risk vs cost analysis and mostly... cost rules.
Consider this example: You caught a thief stealing from the bank and he gave you his modus operandi, while one would take action to prevent recurrence, the thief will be punished for his offence.
Hence the Judge is often more interested in the intent of the action, which may make an outcome different i.e culpable homicide amounting to murder or not amounting to murder or simply rash and negligent act resulting in death.etc...
BTW, I do feel that there should be a total inquiry by aviation authority which cannot and must not be used for criminalising ac accidents.
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A very interesting topic. Thank you. Enhanced safety must be a collaborative activity, while judicial proceedings, by their nature, are adversarial.
Programs likes CHIRPS and ASRS are a good start, but not applicable once it gets to the an accident investigation.
One missing piece of the discussion is the CAA's themselves, outside of their accident investigator roles. Some jurisdictions have independent investigative bodies, separate from the CAA's, as a check on the CAA's role in any given incident. The CAA's are subject to the same risk-costs decisions as the operators, and are subject to political influence, as well.
Industry safety audit processes, both operator and regulator side, should serve as preliminary checks on risk reduction, but often doesn't. The judicial process is a last resort, and normally only after a catastrophic failure of all of the above. It has to serve as the check and balance on the integrity of the safety and oversight systems.
Though the ultimate cause is always going to be "pilot error" or "mechanical failure", pilots, manufacturers, and maintenance already are held accountable. The judicial process allows the other contibutors to the accident chain to be held responsible as well, and often does a better job of apportioning responsibility.
Once the fairness and integrity of the judicial process is tainted, though, all bets ae off.
Programs likes CHIRPS and ASRS are a good start, but not applicable once it gets to the an accident investigation.
One missing piece of the discussion is the CAA's themselves, outside of their accident investigator roles. Some jurisdictions have independent investigative bodies, separate from the CAA's, as a check on the CAA's role in any given incident. The CAA's are subject to the same risk-costs decisions as the operators, and are subject to political influence, as well.
Industry safety audit processes, both operator and regulator side, should serve as preliminary checks on risk reduction, but often doesn't. The judicial process is a last resort, and normally only after a catastrophic failure of all of the above. It has to serve as the check and balance on the integrity of the safety and oversight systems.
Though the ultimate cause is always going to be "pilot error" or "mechanical failure", pilots, manufacturers, and maintenance already are held accountable. The judicial process allows the other contibutors to the accident chain to be held responsible as well, and often does a better job of apportioning responsibility.
Once the fairness and integrity of the judicial process is tainted, though, all bets ae off.
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I would put it like this:
You go for dinner and order fish.
The fish arrives but is stale/overcooked/etc....
It is stale bcoz the Fridge is bust , overcooked bcoz the oven is bust etc.
But the one to be rebuked first is the waiter who has just got it to the table.
The LAST one in the chain of events.
It is also like the 10 members of a football team being unable to prevent the ball from entering the D now expect the goalie to stop it.
It is a team effort and the whole team is at fault when anything goes wrong because any 1 person could have stopped the chain of events leading to he event.
Historically, where the Pilots have died, the C of I have held that the Pilot is at fault for causing the accident but cannot be held blameworthy (since he has met his maker in the accident), since he cant defend himself.
You go for dinner and order fish.
The fish arrives but is stale/overcooked/etc....
It is stale bcoz the Fridge is bust , overcooked bcoz the oven is bust etc.
But the one to be rebuked first is the waiter who has just got it to the table.
The LAST one in the chain of events.
It is also like the 10 members of a football team being unable to prevent the ball from entering the D now expect the goalie to stop it.
It is a team effort and the whole team is at fault when anything goes wrong because any 1 person could have stopped the chain of events leading to he event.
Historically, where the Pilots have died, the C of I have held that the Pilot is at fault for causing the accident but cannot be held blameworthy (since he has met his maker in the accident), since he cant defend himself.
..It is a team effort and the whole team is at fault when anything goes wrong because any 1 person could have stopped the chain of events leading to he event.
My liking is for the application of multiple barriers against such but-Fors
and so I use the terms ... in-spite-of.. to identify potentials for barriers to prevent a bleak day from really turning bad.
Thus when I search for corrective actions following a causal chain in an accident I am more inclined to look at whether it's easier to improve the ...in-spite-ofs... rather than thinking that I can eliminate all the ..but-fors...
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In a judiciary process, in order to preserve your rights, if you have any responsibility in connection to an accident, most western countries’ constitutions recognize the right of citizens not to testify against themselves. This is of course very different from the idea of Annex 13, where we would gladly supply all useful data knowing that it is not supposed to be used against ourselves.
For years we aviation professionals have been candidly reporting our own and our organisations' errors and mistakes in an effort to help aviation safety…we have every right to stop doing that if the separation of both investigations is not clearly emphasized. The way this and some other recent investigations are carried out will pave the way for either:
For years we aviation professionals have been candidly reporting our own and our organisations' errors and mistakes in an effort to help aviation safety…we have every right to stop doing that if the separation of both investigations is not clearly emphasized. The way this and some other recent investigations are carried out will pave the way for either:
In the US, you can rest assured that anything you say to the FAA will most definitely be used against you.
Bear in mind that ICAO isn't regulatory. It's a convention. EASA/JAA is regulatory. The FAA is regulatory. CAA is regulatory. ICAO is not. It's more of a standard without teeth...the teeth being provided by each signatory.
The convention suggests that investigations must be carried out separately. Clearly a safety investigation, and a criminal investigation are visiting the same facts, same case, same circumstance, same evidence...but there's nothing to suppose that one should mutually exclude the other. If negligence is involved, then the fact that a safety investigation is in progress shouldn't hinder, nor prevent justice from taking it's course. And it won't. A safety investigation exists to gather facts related to the enhancement of safety...but facts regarding criminal acts, illegalities, and negligence or breach of duty during that investigation apply elsewhere, in the courts.
It's not unreasonable that one be responsible for one's acts, whether as a pilot or a bus driver. An excellent example would be the Comair crash in the USA, in Lexington, KY, a few years ago. Law suites flew everywhere, and even the sole surviving pilot sued and slugged it out in the courts.
It's unreasonable to presume that because aviation is involved or a mishap has occured, that prosecution and justice should be exempt. This is simply not the case. The trend internationally seems to be toward more and more criminal prosecution of pilots, with aircrew being held just as liable as any other operator. A bus driver that plows into a crowd on the sidewalk and kills ten people will probably go to trail. A pilot that takes off on the wrong runway, fails to properly configure or use a checklist, or do other acts of willful or inadvertant negligence is certainly not immune from prosecution of civil tort.
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Good debate
All really good points so far.........
I think that the best I can expect is a just culture. If I make an error, that any other similarly trained professional might make, then I do not expect to go to Jail - I expect retraining or other professional sanction. But if I do something negligent, that other professionals would feel just to criticise then I am open to prosecution.
In my view, this is a just safety culture, it encourages open reporting, but is not a blame free culture. I do not expect immunity.
Unfortunately the debate on just cultures becomes very grey very quickly as we all have different interpretations of justice and quite rightly the judiciary and politicians cannot contemplate immunity.
I think that the best I can expect is a just culture. If I make an error, that any other similarly trained professional might make, then I do not expect to go to Jail - I expect retraining or other professional sanction. But if I do something negligent, that other professionals would feel just to criticise then I am open to prosecution.
In my view, this is a just safety culture, it encourages open reporting, but is not a blame free culture. I do not expect immunity.
Unfortunately the debate on just cultures becomes very grey very quickly as we all have different interpretations of justice and quite rightly the judiciary and politicians cannot contemplate immunity.
As stated Annex 13 is not legally binding and each state has to enact its own legislation regarding accident investigation. In Australia the TSI Act gives specific protections to the information provided to the ATSB investigators to the point that any information provided cannot and will not be used against you. If the information is divulged by the investigator they are the ones put in gaol. Unfortunately the media in Australia will usually state that CASA are investigating which is not the case.
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Excellent Topic
As part of my job - alas no longer connected with aviation - I instruct and advise senior personnel in petrochemical companies on different RCA (Root Cause Analysis) techniques that can be used to investigate incidents and eliminate repetition.
I know the world is not perfect but it is essential to get past the WHAT happened, the WHO did it or was responsible and get to the WHY it happened. At this point you may stand a chance of fixing what went wrong. That after all should be the aim of the investigation.
Some wise people at ICAO I think may have recognised this when they wrote those paragraphs.
I like the concept in Oz where the investigation by the accident investigators is separate from any legal action. No-one will be fully honest with the investigators if they believe that what they say can be passed to the local prosecution service and used against them. Hence the necessary information needed to prevent recurrence will be - at best - 'tarnished'.
I have no experience of the FAA techniques but the worst examples by far I have seen of air accident investigation are those performed by Boards of Inquiry in the RAF. By and large they arrive at - an often incomplete - WHO is responsible rather than a full WHY. In my time the Board could not even recommend corrective actions. Take a look at the Nimrod and Chinook threads in the mil forum as evidence.
Please allow me a comment on this statement:
My belief is that this statement accepts that some accidents are inevitable. If you accept this you are already on the wrong side of the drag curve.
I would prefer that the industry accept something more along these lines:
Cheers
lars
I know the world is not perfect but it is essential to get past the WHAT happened, the WHO did it or was responsible and get to the WHY it happened. At this point you may stand a chance of fixing what went wrong. That after all should be the aim of the investigation.
Some wise people at ICAO I think may have recognised this when they wrote those paragraphs.
I like the concept in Oz where the investigation by the accident investigators is separate from any legal action. No-one will be fully honest with the investigators if they believe that what they say can be passed to the local prosecution service and used against them. Hence the necessary information needed to prevent recurrence will be - at best - 'tarnished'.
I have no experience of the FAA techniques but the worst examples by far I have seen of air accident investigation are those performed by Boards of Inquiry in the RAF. By and large they arrive at - an often incomplete - WHO is responsible rather than a full WHY. In my time the Board could not even recommend corrective actions. Take a look at the Nimrod and Chinook threads in the mil forum as evidence.
Please allow me a comment on this statement:
99% of accidents can be prevented
I would prefer that the industry accept something more along these lines:
ALL accidents are preventable
lars
The thrust of the case? Help me figure this out....
I've always found this stuff difficult. As an earlier post says, I want a just culture, but I do not expect immunity. Well said.
May I try a hypothetical? - One that can't happen, so no-one becomes defensive. If, say, the Aussie CAA came and inspected Rolls Royce in the UK. Say they find some very lax processes, with, perhaps, things being signed off by folk who did not have the authority, and, perhaps, non-approved contractors doing work that only named, certified skilled folk should be doing.
The thrust of what the Aus CAA should do would be to make bloody sure that the processes were brought back to where they should be, and that RR management knew what had happenned, and were tasked to put it, and keep it right.
Fine. However, shouldn't those that allowed things to get out of control - at whatever level, and including the beancounters if it was their fault that unapproved contractors were in place - be prosecuted and drummed out of Aviation? Where should the line be drawn?
thanks
Ancient.
May I try a hypothetical? - One that can't happen, so no-one becomes defensive. If, say, the Aussie CAA came and inspected Rolls Royce in the UK. Say they find some very lax processes, with, perhaps, things being signed off by folk who did not have the authority, and, perhaps, non-approved contractors doing work that only named, certified skilled folk should be doing.
The thrust of what the Aus CAA should do would be to make bloody sure that the processes were brought back to where they should be, and that RR management knew what had happenned, and were tasked to put it, and keep it right.
Fine. However, shouldn't those that allowed things to get out of control - at whatever level, and including the beancounters if it was their fault that unapproved contractors were in place - be prosecuted and drummed out of Aviation? Where should the line be drawn?
thanks
Ancient.
Ancient
Somewhere between 'simple negligence" and "compound negligence"
or;
between 'should have known better" and "made a conscious decision to ignore the risk"
or;
ignorance and cunning
In my experience the second order is rarely breached and criminal negligence "falsified" is extremely rare in the causal chain
Where should the line be drawn?
thanks
Ancient.
thanks
Ancient.
or;
between 'should have known better" and "made a conscious decision to ignore the risk"
or;
ignorance and cunning
In my experience the second order is rarely breached and criminal negligence "falsified" is extremely rare in the causal chain
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Very interesting views...
One missing piece of the discussion is the CAA's themselves, outside of their accident investigator roles. Some jurisdictions have independent investigative bodies, separate from the CAA'
As far as airline management is often concerned, it is almost always a risk vs cost analysis and mostly... cost rules.
Consider this example: You caught a thief stealing from the bank and he gave you his modus operandi, while one would take action to prevent recurrence, the thief will be punished for his offence.
Bear in mind that ICAO isn't regulatory. It's a convention. EASA/JAA is regulatory. The FAA is regulatory. CAA is regulatory. ICAO is not. It's more of a standard without teeth...the teeth being provided by each signatory.
Spain's LSA explicitly contemplates the ICAO Annex 13 ruling, but unfortunately tints the Annex 13 gray area ...
The State conducting the investigation shall recognize the need for coordination between the investigator-in-charge and the judicial authorities...
...even grayer, by mandating that (my translation)
the Accident Investigation Board shall communicate to Judicial Authorities any signs of criminal responsibility found during the course of their investigation
If negligence is involved, then the fact that a safety investigation is in progress shouldn't hinder, nor prevent justice from taking it's course
A pilot that takes off on the wrong runway, fails to properly configure or use a checklist, or do other acts of willful or inadvertant negligence is certainly not immune from prosecution of civil tort.
In my view, this is a just safety culture, it encourages open reporting, but is not a blame free culture. I do not expect immunity.
In Australia the TSI Act gives specific protections to the information provided to the ATSB investigators to the point that any information provided cannot and will not be used against you.
No-one will be fully honest with the investigators if they believe that what they say can be passed to the local prosecution service and used against them. Hence the necessary information needed to prevent recurrence will be - at best - 'tarnished'.
(Please forgive my imprecisions as I am not a legal expert)
Most of our judicial systems accept that they are subject to error. They accept that no matter who presents facts for judgement, facts will be biased one way or another by man's nature (judiciary systems are a very early case of human factors study and error prevention).
As a solution, they base themselves on a balancing act where two (or more) parties are allowed to present their cases as they deem appropriate within certain rules. The resolution of the process depends on a sometimes delicate imbalance in one or the other direction.
Because of the mentioned susceptibility to error, our legal systems prefer to err on the side of 'not condemning the guilty' rather than 'condemning the innocent', and, as a result:
-An individual is innocent until proved guilty
-Evidence that has been obtained violating fundamental rights (illegal recordings...) is not acceptable
-You have a right to not to testify against yourself
Violating any of these rights tilts the mentioned delicate balance against the prosecuted.
Not that I think this system is particularly good, but I am not an expert and cannot come to suggest a better process, which would be beyond this post anyway.
In that case, we aviation professionals deserve (at least!!) the same treatment as a murderer (or thereof accused).
In order to be able to use as valid evidence a (non public) recording of the voice of a murderer it must have been obtained with judicial permission or with prior notification that it could be used against him in a criminal case.
Police cannot interogate him wihtout letting him know his words can be used against him.
It should be the same for us:
-National laws should clearly state that FDR's and CVR's can be used in criminal cases, or otherwise they should not be used. This is more of a theoretical point.
-While physical evidences could be the same for both investigations, evidences and testimonies supplied to the Investigation Board by professionals with responsibility on the event, should not be used by the judicial investigation.
-Investigation Board analyses and conclusions should not be used by the judicial investigation.
In summary: the same wording that those down under seem to have in their laws should be adopted by our northern countries.
Thx for the great points!
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I totally disagree with some of those points.
In order to figure out the difficult task by the judiciary system to PROVE that someone had criminal intend (or criminal neglicency), all information gathered about the case is of help.
A criminal shooting someone can be convicted with the help of a video recording coming from a traffic camera, shopping mall cctv, nearby bank security, nearby witness with a video camera (or without one), etc.
Those recordings are not "authorized by a judge" to be used against the criminal in question, but they are available nonetheless. Nobody was "purposely and without the criminal's knowledge" trying to frame him. The recordings just happened to be there.
CVR and DFR existence is known by pilots.
If they want to commit (remember, criminal activities must be "voluntary" to a high degree) criminal activities in an airplane, they should be aware that they are being recorded and should try to disconnect them, commit them outside an airplane in an area without surveillance or do it inside an airplane without such devices.
But CVR and DFR data and analysis should be used for criminal prossecution. As long as pilots (or other crew with access to the cockpit) don't do anything clearly criminal, they are safe.
Civil liabilities, on the other hand, is an entirely different matter and far less clear, I admit. Pilots have the right to refuse to fly an airplane knowing that his actions could be recorded not only in the benefit of safety but also against his interests regarding civil responsabilites.
On the other side, no airline will hire a pilot that refuses to fly that way, as civil aviation requires the recordings.
This is not substantially different from other professions, though.
Engineers are required to deposit their design's plans (a form or "recording their work") independently for just about anything they design (i.e. a bridge or a house). If the bridge falls down, the recording is available and can be used to prosecute him in both, civil and criminal trials.
As long as he didn't do anything very wrong knowingly, he is safe from the criminal charges. But the civil courts are a different matter. At least, he won't go to prison for that, but may end up broke ...
Remember, making a mistake can be your responsability to others, but it is not criminal. If you were in a car accident, it was your fault, and your speedometer (or GPS) signaled 220 km/h on a 100km/h limit ... well, there is a recording, not authorized by a judge, pointing to potential criminal neglicency (the difference in speed is too high for you just to claim that "you didn't notice, it was an accident" w/o further explanation or causes).
In order to figure out the difficult task by the judiciary system to PROVE that someone had criminal intend (or criminal neglicency), all information gathered about the case is of help.
A criminal shooting someone can be convicted with the help of a video recording coming from a traffic camera, shopping mall cctv, nearby bank security, nearby witness with a video camera (or without one), etc.
Those recordings are not "authorized by a judge" to be used against the criminal in question, but they are available nonetheless. Nobody was "purposely and without the criminal's knowledge" trying to frame him. The recordings just happened to be there.
CVR and DFR existence is known by pilots.
If they want to commit (remember, criminal activities must be "voluntary" to a high degree) criminal activities in an airplane, they should be aware that they are being recorded and should try to disconnect them, commit them outside an airplane in an area without surveillance or do it inside an airplane without such devices.
But CVR and DFR data and analysis should be used for criminal prossecution. As long as pilots (or other crew with access to the cockpit) don't do anything clearly criminal, they are safe.
Civil liabilities, on the other hand, is an entirely different matter and far less clear, I admit. Pilots have the right to refuse to fly an airplane knowing that his actions could be recorded not only in the benefit of safety but also against his interests regarding civil responsabilites.
On the other side, no airline will hire a pilot that refuses to fly that way, as civil aviation requires the recordings.
This is not substantially different from other professions, though.
Engineers are required to deposit their design's plans (a form or "recording their work") independently for just about anything they design (i.e. a bridge or a house). If the bridge falls down, the recording is available and can be used to prosecute him in both, civil and criminal trials.
As long as he didn't do anything very wrong knowingly, he is safe from the criminal charges. But the civil courts are a different matter. At least, he won't go to prison for that, but may end up broke ...
Remember, making a mistake can be your responsability to others, but it is not criminal. If you were in a car accident, it was your fault, and your speedometer (or GPS) signaled 220 km/h on a 100km/h limit ... well, there is a recording, not authorized by a judge, pointing to potential criminal neglicency (the difference in speed is too high for you just to claim that "you didn't notice, it was an accident" w/o further explanation or causes).
Last edited by justme69; 16th Sep 2008 at 23:20.
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JM69:
In the case of criminal intent, all that we are saying is useless and can only help the offender get away with it (an accepted flaw in criminal systems, hopefully a rare occurrence) . the problem is HOW to judge your intent.
This is one of the issues : if you are slightly familiar with criminal systems, you are then aware that 'forgetting' or 'omitting' a checklist item can be considered a criminal negligence.
Now...all those who have never omitted a checklist items raise their hands...fortunately there are redundancies in the system so that 99.99% of the time it has none or minimal consequences.
A criminal case has to decide as well on what the intentions of the person were...and if you are slightly familiar you know, it is a very difficult call to make. Unless you have all the procedural rights of our system (and even then) there is a fair random chance that your intentions may be judged incorrectly...this is not black and white.
Of course not! (in a criminal sense, that is totally inconstitutional) It does not work that way for a murderer, why should it for aviation professionals? Why should we have fewer rights than a terrorist?
...but they are either public or announced recordings, just go through some court cases where such recordings are used, you will find it is often indeed a gray area...
Therefore, in order to elliminate the gray area, go ahead and legislate so. (I said this is ony theoretical anyway cos implementing that law should not be too difficult, though I dont know what pilots unions would think of it). I am in any case not saying the recordings should not be used in a criminal case, just they should be doing their own analysis independent from that of the Investigation Board.
Absolutely not, you could commit involuntary negligence and go to jail...
An ideal world could be like that, but it doesn't work that way:
JM69, accept it: the criminal system has flaws (which are exhacerbated when the media gets deeply and wrongly involved as in the JK case), and airplanes are operated and maintained by humans who are also not flawless (even if they get it right 99.9999% of the time).
It is in that an arquitect has all the time in the world (or a lot more than crews, for sure) to make his decisions... flight crew do not. And trust me, an architect and specially a lawyer would work in a very different way if we put a recorder next to him all the time he is working...
Again you are wrong in this. Please read Spain's Penal and Procedural Air Navigation Law.
Don't get me wrong, we want everyone with a criminal intent connected to an aircraft accident to be found guilty.
We also want to be able to do our professional jobs with diligence and in the knowledge our rights as citizens are unaffected. Most of the professional systems (and people) I know outside of aviation are more flawed than aviation, so we should at least have the same rights. Otherwise the referred diligence will be disincentivated and end up dissapearing...that is the VERY REAL risk we are running into and that we are already observing in other systems like health services. Don't ask me how I know...
In order to figure out the difficult task by the judiciary system to PROVE that someone had criminal intend ...
(or criminal neglicency),
Now...all those who have never omitted a checklist items raise their hands...fortunately there are redundancies in the system so that 99.99% of the time it has none or minimal consequences.
A criminal case has to decide as well on what the intentions of the person were...and if you are slightly familiar you know, it is a very difficult call to make. Unless you have all the procedural rights of our system (and even then) there is a fair random chance that your intentions may be judged incorrectly...this is not black and white.
all information gathered about the case is of help.
A criminal shooting someone can be convicted with the help of a video recording coming from a traffic camera, shopping mall cctv, nearby bank security, nearby witness with a video camera (or without one), etc.
Those recordings are not "authorized by a judge" to be used against the criminal in question, but they are available nonetheless.
Those recordings are not "authorized by a judge" to be used against the criminal in question, but they are available nonetheless.
CVR and DFR existence is known by pilots.
If they want to commit (remember, criminal activities must be "voluntary" to a high degree)
As long as pilots (or other crew with access to the cockpit) don't do anything clearly criminal, they are safe.
An ideal world could be like that, but it doesn't work that way:
JM69, accept it: the criminal system has flaws (which are exhacerbated when the media gets deeply and wrongly involved as in the JK case), and airplanes are operated and maintained by humans who are also not flawless (even if they get it right 99.9999% of the time).
This is not substantially different from other professions, though.
Remember, making a mistake can be your responsability to others, but it is not criminal.
Don't get me wrong, we want everyone with a criminal intent connected to an aircraft accident to be found guilty.
We also want to be able to do our professional jobs with diligence and in the knowledge our rights as citizens are unaffected. Most of the professional systems (and people) I know outside of aviation are more flawed than aviation, so we should at least have the same rights. Otherwise the referred diligence will be disincentivated and end up dissapearing...that is the VERY REAL risk we are running into and that we are already observing in other systems like health services. Don't ask me how I know...
Last edited by blackboard; 17th Sep 2008 at 10:05.
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Unfortunately with any incident,football team loosing, bank failing,political c*ck up etc, "the media" want a face to blame. The politicians want to look good in the media so demand answers and "maybe" put pressure on people.
All very sad and not the way it should be.
A lot of good points raised.
All very sad and not the way it should be.
A lot of good points raised.
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By mentioning that 99% accidents are avoidable, I mean that 1% are the result of chain of events that are either unforeseen or considered to be " To remote to be considered ,financially"
That is " We can make a car that never crashes, but who will buy it?" Bcoz it will be expensive.
All our designs etc are based on some assumptions and condition and maybe once in a while, an unforeseen sequence will result in that assumption being invalid.
Take for example: An incident where in the Pax on he emerg exit wanted to check if he could open the Emerg Exit on Ground before Take off...
or An Extremist or terror activity.
In my part of the world they say... 100% can only be assured by divine power. the rest of us are humans.
That is " We can make a car that never crashes, but who will buy it?" Bcoz it will be expensive.
All our designs etc are based on some assumptions and condition and maybe once in a while, an unforeseen sequence will result in that assumption being invalid.
Take for example: An incident where in the Pax on he emerg exit wanted to check if he could open the Emerg Exit on Ground before Take off...
or An Extremist or terror activity.
In my part of the world they say... 100% can only be assured by divine power. the rest of us are humans.
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In my part of the world they say... 100% can only be assured by divine power. the rest of us are humans.
accept it: the criminal system has flaws (which are exhacerbated when the media gets deeply and wrongly involved as in the JK case), and airplanes are operated and maintained by humans who are also not flawless (even if they get it right 99.9999% of the time).
Quote:
Remember, making a mistake can be your responsability to others, but it is not criminal. End of Quote
Again you are wrong in this. Please read Spain's Penal and Procedural Air Navigation Law.
Remember, making a mistake can be your responsability to others, but it is not criminal. End of Quote
Again you are wrong in this. Please read Spain's Penal and Procedural Air Navigation Law.
My translation (excuse my little knowledge of law English)
The one that, in exercising the functions of air navigation, does, for lack of foresight, imprudence or serious lack of skills, an act that if willful would constitute an offence shall be punished with minor imprisonment .
If the act is a result of simple negligence, lack of foresight or lack of skills, in breach of regulations, it will be punishable by minor imprisonment to major arrest.
Nothing in the first two paragraphs of this article will take place when the penalty incurred for such crime is equal to or lower than those contained in them, in which case the courts will apply the one immediately below the one corresponding to the intentional crime, to the extent they deem fit.
When there is death or serious injury as a result of lack of skills or professional negligence, the penalties mentioned in this article will be imposed to their greatest extent. Those penalties may be additionally increased by one or two levels, depending on the case, if, in the opinion of the Court, the damage caused were extremely serious and should also apply in addition to the penalty of loss of professional or aeronautical licenses. In no event shall the Court impose punishment that proves equal to or higher than that corresponding to the same offence when wilful.
If the act is a result of simple negligence, lack of foresight or lack of skills, in breach of regulations, it will be punishable by minor imprisonment to major arrest.
Nothing in the first two paragraphs of this article will take place when the penalty incurred for such crime is equal to or lower than those contained in them, in which case the courts will apply the one immediately below the one corresponding to the intentional crime, to the extent they deem fit.
When there is death or serious injury as a result of lack of skills or professional negligence, the penalties mentioned in this article will be imposed to their greatest extent. Those penalties may be additionally increased by one or two levels, depending on the case, if, in the opinion of the Court, the damage caused were extremely serious and should also apply in addition to the penalty of loss of professional or aeronautical licenses. In no event shall the Court impose punishment that proves equal to or higher than that corresponding to the same offence when wilful.
Hence the need to at least make sure our legal procedural rights are respected. Unfortunately, that will not happen if the judicial authorities use the Investigation Board report as valid evidence.
If after such respect we need to go to prison, we will.
The oppossite will slowly but surely eat into aviation safety through increased ineffectiveness of the reporting and investigation procedures.
Last edited by blackboard; 18th Sep 2008 at 09:01.
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lomapaseo
This is really an apt description of the legal claim .... but-for.... in finding responsibility to share in the judicial findings.
Each of the failed safety layers is to blame (at different levels, but still each of them).
Thus when I search for corrective actions following a causal chain in an accident I am more inclined to look at whether it's easier to improve the ...in-spite-ofs... rather than thinking that I can eliminate all the ..but-fors...
Too much politics in it...today, even the judge worked together watching evidences with the Board...how can they be independent?
By the way, my mistake when I said
you will not get the maximum (in Spain) 30 years imprisonment, but you could very well get 10.
Blackboard
You mean somebody actually understood what I wrote
OK you encouraged me to write again
The judges are not the problem, it's the statues that they enforce. So folks go back to the lawmakers to fix the problem that you created.
You mean somebody actually understood what I wrote
OK you encouraged me to write again
The judges are not the problem, it's the statues that they enforce. So folks go back to the lawmakers to fix the problem that you created.
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what about the lawyers etc?
Also maybe, is the nature of Flight and humans.
MONEY and LAWYERS etc.
the lawyers always get paid..for fighting for and against then issue.
If the issue cannot be criminalised, then they cant get their pound of flesh as the investigation would be conducted by " Specialists".
How to get the "Big" fish to pay legal costs other than file for defamation (and be known as coffin mongers in the bargain) is to "treat an aircraft accident as a road accident" and Pilots like drivers in a hit and run case.
The vested interests or reasons to criminalise Aircraft Accidents would also appear to be a mix of the following:-
1. Insurance not wanting to pay. (or Maybe delay payment and use funds elsewhere)
2. The Legal guys knowing that the victims families have a windfall, and a soft spot for the decased which brought it about,
3. The company accountable manager wanting to have a scapegoat " Who caused it all,...( After all, he was criminally indicted of the error...)",
4. The aircraft companies having a reduced liability..(Unless it was a design flaw) again by their legal departments..
5. The anti pilots lobby who think that pilots are overpaid for their jobs and must be fixed whenever opportunity knocks. While that is not possible with the Aircraft Act Or similar legislation, put it through the penal code.
6. Also helps the managers to "control pilots" maybe...
MONEY and LAWYERS etc.
the lawyers always get paid..for fighting for and against then issue.
If the issue cannot be criminalised, then they cant get their pound of flesh as the investigation would be conducted by " Specialists".
How to get the "Big" fish to pay legal costs other than file for defamation (and be known as coffin mongers in the bargain) is to "treat an aircraft accident as a road accident" and Pilots like drivers in a hit and run case.
The vested interests or reasons to criminalise Aircraft Accidents would also appear to be a mix of the following:-
1. Insurance not wanting to pay. (or Maybe delay payment and use funds elsewhere)
2. The Legal guys knowing that the victims families have a windfall, and a soft spot for the decased which brought it about,
3. The company accountable manager wanting to have a scapegoat " Who caused it all,...( After all, he was criminally indicted of the error...)",
4. The aircraft companies having a reduced liability..(Unless it was a design flaw) again by their legal departments..
5. The anti pilots lobby who think that pilots are overpaid for their jobs and must be fixed whenever opportunity knocks. While that is not possible with the Aircraft Act Or similar legislation, put it through the penal code.
6. Also helps the managers to "control pilots" maybe...
