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Judge rules crash black box should be handed over to police

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Judge rules crash black box should be handed over to police

Old 20th Jun 2015, 10:43
  #21 (permalink)  
 
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Court of Session Judgment

It's a long document but, for those interested, it sets out the relevant law, summarises the competing legal arguments heard by the Judge, gives the reasons for his decision and, at the end, includes copies of the written arguments submitted in advance of the hearing.



FL
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Old 20th Jun 2015, 11:52
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Just read the judgement, thanks for posting the link FL, just one question with "the copies of the written arguments" do you mean the affidavits because can't find those at the end of the document.

Nice to see that, albeit retired, Capt Nick Norman took the time to put forward an affidavit to fight our corner, thanks Nick.
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Old 20th Jun 2015, 12:40
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The affidavits aren't copied.


I was referring to the written notes of argument submitted by the Lord Advocate [Appendix 1] and jointly by BALPA, the Captain and F/O [Appendix 2].
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Old 20th Jun 2015, 12:42
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Thanks FL
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Old 20th Jun 2015, 12:58
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DB & HC have said it all - I hope those who seek retribution read what they have to say.
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Old 21st Jun 2015, 10:09
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Maybe if the AAIB report was able to be concluded in a timely manner then non of this would have been needed?
Cannot say for sure but the length of investigation, after quickly ruling-out mechanical failure, suggests that the AAIB have not been allowed to crack on with the investigation, unfettered by other government departments or industry concerns.....
Timely investigations are done to ensure such an accident does not happen again.
Maybe the AAIB has now become un-fit for that particular purpose - I hope not, as they lead the field in crash investigation, but I think their efforts have been thwarted by commercial politics.
Maybe a review of procedure and interference is called for - the Oil industry will no doubt ask Mr Chilcot to carry it out
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Old 21st Jun 2015, 22:19
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Maybe if the AAIB report was able to be concluded in a timely manner then non of this would have been needed?
Cannot say for sure but the length of investigation, after quickly ruling-out mechanical failure, suggests that the AAIB have not been allowed to crack on with the investigation, unfettered by other government departments or industry concerns.....
Timely investigations are done to ensure such an accident does not happen again.
Maybe the AAIB has now become un-fit for that particular purpose - I hope not, as they lead the field in crash investigation, but I think their efforts have been thwarted by commercial politics.
Maybe a review of procedure and interference is called for - the Oil industry will no doubt ask Mr Chilcot to carry it out
Is this why this thread isn't in R & N? Or does JA have any facts to add to the discussion?
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Old 21st Jun 2015, 23:02
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kkong
I am not sure why some posters believe that pilots should be exempt from an investigation into possible criminal negligence?
No-one has suggested they should be.
If the pilot(s) are not found to be criminally negligent (based on CVFDR analysis by the CAA), no charges will be brought and no information from the CVFDR will be disclosed.
Have you considered whether aviation safety is better served by investigations in which all those involved are free to speak openly without fear of being prosecuted or by criminal investigations in which anything they say may be used as evidence (against them) in criminal proceedings and in which they have the right not to answer questions?

Although this particular case related to a helicopter accident, the same issues apply to all aircraft equipped with CVR and/or FDR.
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Old 21st Jun 2015, 23:41
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What happened to the "nothing to hide, nothing to fear" principle?

I don't have a CVR or FDR in the aircraft that I fly, but I normally have a GoPro connected to the intercom and seeing the instrument panel.

I'd have no hesitation in turning it over to the CAA, Police Scotland or the AAIB in the event of a crash.

Why so many aircrew seem to think that disclosure is a bad idea is beyond me. What exactly is going on up the front that they don't want revealed?
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Old 22nd Jun 2015, 00:36
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"nothing to hide, nothing to fear" is not a principle, it is attempt to trip up people into self incriminating themselves.

Flying Lawyer covers that where he says "Have you considered whether aviation safety is better served by investigations in which all those involved are free to speak openly without fear of being prosecuted or by criminal investigations in which anything they say may be used as evidence (against them) in criminal proceedings and in which they have the right not to answer questions?"

You freely admit! "many aircrew seem to think that disclosure is a bad idea is beyond me", then obviously you would be well advised to read/study aviation safety management systems and "Just Culture" information as much as you can. The writings of James Reason would be a good a place as any to start.

The attempted criminalisation of aviation accident and safety investigation by a number of jurisdictions is of genuine concern. These attempts are also an emerging disincentive and impediment to viable investigations and the attendant safety education and benefits to be derived from these investigations.

If accident investigation with criminal and punitive sanctions is such an admirable idea, how come we still manage to kill and maim so many of our fellow citizens on the roads around the world?

Tipsy
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Old 22nd Jun 2015, 08:22
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airpolice
What happened to the "nothing to hide, nothing to fear" principle?
As Tipsy has already pointed out, it is not a principle. It is a point of view.

I'd have no hesitation in turning it over to the CAA, Police Scotland or the AAIB in the event of a crash.
That's very easy to say.
It doesn't necessarily follow that you would actually do it regardless of circumstances.
Why so many aircrew seem to think that disclosure is a bad idea is beyond me.
I appreciate that you are a PPL so the issue doesn't directly affect you (nor me) but I can't help wonder if you've done any reading about the topic and associated issues in an attempt to understand (even if you ultimately disagree with) the views that are currently beyond your comprehension.

You might wish to go on to read about the criminalisation of air accidents. There are several excellent articles available on the internet.
Opinions differ but the consensus of informed opinion appears to be that the negatives of criminalisation far outweigh the perceived positives.
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Old 22nd Jun 2015, 11:19
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FL if you can answer this question and / or give you opinion:

Has with this case "legal precedent" been set or is the wording in the judgment such this argument will be difficult to use in other cases?
That is if "legal precedent" is applicable for these cases.
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Old 22nd Jun 2015, 11:56
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The ruling has not created a legal precedent binding upon other Judges. (Nor is it the first time that disclosure has been ordered, either in the UK or elsewhere.) Each application will be decided on its own merits, or lack of.
However, its importance should not be under-estimated because it will undoubtedly be relied upon in the UK, and perhaps in some other jurisdictions, as 'persuasive authority' in support of any future applications for disclosure.


What causes concern in some quarters is that the application was made by a prosecuting authority which, in legal jargon, is on a 'fishing expedition'. ie That the prosecuting authority/police are fishing for evidence to prosecute the pilot(s).
I have an opinion about that aspect but, for professional reasons, am not free to express it publicly.

(Edit)

I can say, as a general comment, that I share the widespread concern in some quarters (flight safety & aviation legal) about the increasing tendency in some countries to criminalise air accidents.

Very few prosecutions have resulted in convictions but, in terms of flight safety, that is not the issue.

.

Last edited by Flying Lawyer; 22nd Jun 2015 at 12:32.
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Old 22nd Jun 2015, 13:05
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You wait until the AAIB have produced their report.

Originally Posted by Mitchaa View Post
AAIB haven't been much use over the last 2 years so what's the alternative?
You couldn't be more wrong.
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Old 22nd Jun 2015, 13:05
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Originally Posted by Mitchaa View Post
Forget that you are all pilots, forget that you know anything at all about aviation. You are now a teacher, a fireman or a plumber.

Your son, daughter, mother or father has died in a helicopter crash that was mechanically sound before it took off, you want answers, 2 years on, you have snippets of information but nothing conclusive.

The answers are there but yet due to a no blame culture within the aviation industry, the answers are under lock and key and you can just keep on wondering what exactly happened for the rest of your lives. As long as the AAIB have done their bit and produced a report, the case is closed

Do you think there is public interest in getting answers or do you think there is public interest in maintaining a no blame culture within the aviation sector? If you ask 100 random strangers whether the CVFDR should be analysed by a prosecution team in the event of fatalities, what do you think the outcome would be? Do you think Joe public give a monkeys about what culture we all adopt in aviation?

In other words, pilots are all in a little bubble. We all make mistakes, no doubts about it, but 4 people lost their lives in a serviceable helicopter.

A driver lost control of his bin lorry in Glasgow just before Christmas killing 6 people and injuring 10 others, there were no criminal charges brought, there was obviously a medical condition that incapacitated him moments before the incident, these things happen and will continue to happen.

What happened in this helicopter crash though? Two highly trained pilots flying a serviceable helicopter into the water, how, why? AAIB haven't been much use over the last 2 years so what's the alternative? Remember you've lost your son, daughter, mother or father in this incident, you're not a pilot, you know nothing about aviation, you just want answers and closure.

Try seeing it from another point of view outwith the no blame culture bubble that you're all in

But the situation you are describing doesn't exist. It is not as if there will be no investigation and no knowledge of what happened. A proper investigation is being carried out by the AAIB and once that is published, the relatives etc will know what happened and hopefully why. If the report indicates that the pilots were grossly negligent ie not paying proper attention or recklessly and intentionally not following procedure then I would expect there to be some sort of criminal prosecution.


Of course whilst such a prosecution might satisfy some of the relatives' desire for revenge , it won't bring their loved ones back and I suspect won't actually make them feel any better.


However we have not got to the stage of the AAIB report yet, and until that is forthcoming the best action is none. I agree that the delay is frustrating, especially so for the relatives and survivors, and wish these reports could be compiled quicker, but I guess it is at least to some extent a matter of resources. I'm sure it isn't deliberate delaying tactics by AAIB.


By the way, we aren't in a "no blame culture" these days, it's a "just culture"
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Old 22nd Jun 2015, 13:46
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Mitchaa, I derived from your scenario the distinct impression that you are looking for some kind of retribution. An investigation conducted on that basis will be unlikely to find the root cause of whatever happened and in all finality become a witch hunt.

Aviation accident (incident) investigations are conducted in an effort to prevent the same or similar occurrences happening again and not to apportion blame. This is the exact opposite of the way road accidents are investigated, how successful has that been in that particular realm?

Tipsy
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Old 22nd Jun 2015, 14:10
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Mitchaa
Forget that you are all pilots, forget that you know anything at all about aviation. You are now a teacher, a fireman or a plumber.
OK. I'll pretend I know nothing about flight safety, the advantages of the 'just culture' when investigating air crashes and the benefits it brings to flight safety.
Your son, daughter, mother or father has died in a helicopter crash
OK, so as well as knowing absolutely nothing about the best means of maintaining and improving flight safety I'm now also distressed and emotionally involved.
Do you think there is public interest in getting answers or do you think there is public interest in maintaining a no blame culture within the aviation sector?
I'd want "answers" and if it turned out that pilot error caused the accident I'd want them banned from flying ever again, locked up and throw away the key etc etc.
I wouldn't know enough to form any opinion about what is in the best interests of future flight safety - even if I cared - and even if I was capable of thinking rationally about it which is very unlikely.

If you ask 100 random strangers whether the CVFDR should be analysed by a prosecution team in the event of fatalities, what do you think the outcome would be?
If you ask 100 random strangers how to fly a helicopter, teach, put out fires or plumb, what do you think the outcome would be?
Do you think Joe public give a monkeys about what culture we all adopt in aviation?
No, in most cases, because they know nothing about it and have never given it any thought.
But I wouldn't rely on Joe public's opinion about the best way to teach, put out fires or plumb.
I'd rely upon specialists in the field.
And if my son, daughter, mother or father was injured in an accident I'd want experts treating them, not Joe Public.

Excluding expert knowledge, and then adding emotion, is not going to produce sensible answers.



the answers are under lock and key .....
You've lost me there.
The answers, so far as can be determined by independent air accident investigation specialists, are published in AAIB reports not kept under lock and key.

Are you interested in knowing the answers or in having people prosecuted?
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Old 22nd Jun 2015, 17:05
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Actually, the issue goes beyond release of the black box and other crash data. The real subject is "who has authority over air operations?"
Granting political, headline-grubbing local prosecutors the ability to charge people is an invitation to chaos, where local cops and prosecutors can grab headlines while having absolutely no expertise in the matter at hand.


In some countries, the ability to govern air operations and enforce air law is not granted below the national government level. In the US, for example, locals have no jurisdiction, only the FAA can enforce aviation law. While they can be bureaucratic, at least the FAA has expertise and familiarity with the law. Also, the crash site and data can be impounded by the National Transportation Safety Board, which has full authority over crash investigation. The NTSB will not permit its conclusions to be used in any court, by Federal Law. The data they gather is public record, and can be had by almost anyone.


As Flying Lawyer so rightly describes, protecting the quest for truth and the ability to fix the system is paramount. The process must, in the end, make the next accident less likely to happen or the process is broken.
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Old 22nd Jun 2015, 23:44
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.
I'd be interested to learn the views of professional pilots about these issues:
(1) Do you think there is any difference between releasing CVR and releasing FDR data?

(2) If you are opposed to either being released, would your stance be the same if a pilot/crew being prosecuted wanted to obtain either as part of their defence?

(3) Or if the pilot/crew (or their estate) wanted the material in order to defend a negligence claim. ie In a civil action against them or their estate/bereaved families?
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Old 23rd Jun 2015, 00:07
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I ask the question, was/is the AAIB able to perform its function in the investigation to ICAO standards?

If so, I'm afraid that any other issues belong in those that make the laws of the state in spite of what we world widers personally feel about it.
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