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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 23rd Jun 2015, 02:44
  #41 (permalink)  
Leg
 
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HeliCompactor:
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.
There is so much hot air being expelled in this thread but that above really does leave me gobsmacked

Do you have any idea of the remit of the AAIB? Obviously not.

'The relatives etc will know what happened and hopefully why', what??
It's rather unlikely the relatives will 'know' what happened, and even
if the AAIB are able to say what happened, they certainly will not say 'why'?

As for the rest of your statement regarding the crew being 'grossly negligent',
that sort of language will never EVER make the pages of an AAIB report.

Talk of retribution and vengeance, please, you sound like tabloid journos
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Old 23rd Jun 2015, 02:57
  #42 (permalink)  
 
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This is a very sad day for aviation.

There is a direct and positive correlation between those countries that use aircraft incidents and accidents as a way to learn the lessons that will increase safety, and those that use flight reporting tools as a hammer to punish the "guilty pilots".

The most robust "just culture" exist in the US. The least exist in China and Korea and other jurisdictions in that part of the world., with France regrettably fast catching up to China.

US airlines have the best accident record as measured by accidents/incidents per 100,000 hours, in the world. We all know how the other countries mentioned stack up.

Sad to see the UK being on the wrong side of such an important issue.......
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Old 23rd Jun 2015, 03:02
  #43 (permalink)  
 
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An unfortunate precedent has now been set.
In the UK maybe, but this happened in New Zealand some twenty years ago. Ansett flight 703 crashed in 1995, and lives were lost. The CVR/FDR data was submitted in evidence, after much legal wrangling, in the manslaughter trial brought against the captain. He was eventually cleared, but it took six years ...
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Old 23rd Jun 2015, 03:37
  #44 (permalink)  
 
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In New Zealand the findings of the Transport Accident Investigation Commission are inadmissible in court proceedings by Statute. However the CVR or the FDR are not covered so therefore if the Police are bent towards a prosecutor wanting to make a name for themselves they have to get hold of one or both to use the information available on them.

The issue that crew have is the ability of a prosecutor with good theatrical skills to highlight a particular decision in which they may have weeks to pull apart a decision that a crew member may have had only seconds to decide.

Imagine a court trying to establish whether a Capt made a "negligent" to stop or go at V1 decision.
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Old 23rd Jun 2015, 04:47
  #45 (permalink)  
 
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Definitely a bad day for the industry with this precident being set, even though one can understand to a very limited extent, just why the ruling possibly went the way it did.
How long now before each & every aircrew member, will need personal liability insurance cover to a quite ridiculus sum, in order to carry out their employment? The legal fraternity, must be rubbing their hands in glee at this one, opens a real can of worms unfortunately.
I may have come in late here, but is BALPA as yet saying anything?
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Old 23rd Jun 2015, 05:02
  #46 (permalink)  
 
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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?
Yes. FDR data is time stamped recorded objective flight parameters. (impersonal) It forms the framework of WHAT occurred and in what order. Making it viewable to the public, (especially aviation professionals) acts to enhance the credibility of the investigative process and of the eventual findings among informed professionals. Without credibility, these findings are valueless.

The recorded human voice is more personal. I'm satisfied with the balance afforded by US NTSB administrative law where FDR data and appropriately edited CVR transcripts are made publicly available when deemed a matter of public interest. The ban placed upon the release of actual CVR audio recordings is appropriate.

I'm also satisfied with the prohibition against using these data or any other NTSB investigative work product as evidence in any court case. Though the same facts may be presented as evidence in court, they must have been independently obtained.

(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?
Same evidentiary and discovery rules for both sides. Independently gathered evidence and testimony should suffice. The purpose of air accident investigation and findings should be limited to the furtherence of aviation safety. Allowing these findings to become usable as evidence in criminal and civil liability courts taints the objectivity and credibility of all future investigations. Yeah the old "slippery slope" argument...

(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?
Again, same rules for both sides. Resolving legal issues is a completely different matter to finding out why and how something happened so we can prevent future recurrences. Let's keep it that way!

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Old 23rd Jun 2015, 05:25
  #47 (permalink)  
 
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This judicial decision goes against ICAO Annex 13:

The sole purpose of the investigation of an accident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability.
The decision also serves to undermine the safety culture enabled by non-punitive (and therefore open) discussions of incidents and accidents that has been decades in the making.

Originally Posted by Flying Lawyer View Post
.
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?

CVR releases should be transcripts only, with the irrelevant portions redacted. FDR data should be released and available to the public in full detail.

(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?

Since the CVR consists of one's own words, there should be no legal constraint on using it on your own behalf.

(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?

The pilot or his or her family should be able to retain full and free access and use of any recordings of their own utterances (pilot) or that of the deceased (estate).


Last edited by vapilot2004; 23rd Jun 2015 at 08:37.
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Old 23rd Jun 2015, 09:03
  #48 (permalink)  
 
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This judicial decision goes against ICAO Annex 13:

Quote:
The sole purpose of the investigation of an accident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability.


I would have thought this principal should remain at the forefront. If, after the accident investigation is completed, there are parties who consider a criminal act has occurred, then the data can be handed over to the relevant authorities to contemplate any action. This should not happen before-hand and so stifle the more critical accident investigation.
One could then bring in a legal scenario: suppose the investigation is focused on criminal; activity and not finding the root cause. This process will delay in discovering the 'what & how, perhaps why' of it all. Eventually it is discovered that a design or procedural fault is at play. There is a repeat accident for the very same reason, but the findings were delayed because the controlling investigator was a police force not an expert aviation body. The victims of the 2nd crash might have a case to bring against the authority who delayed in the findings of the 1st crash.
This scenario might be one for the lawyers to comment on.
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Old 23rd Jun 2015, 09:57
  #49 (permalink)  
 
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My response to the Flying Lawyer's questions:

1. CVR and FDR data have to be analysed in parallel, each adds value to the other. The FDR tells you what and if you are lucky the CVR tells you why. Additionally, a comparison between the FDR, CVR and the pilots' SOPs tells you a fair deal about the way the aircraft was operated. The difficult bit is that it takes a team of real experts to do this and some very expensive software. And even then, you end up with many unanswered questions. And some of these can only be answered by the operating crew.

But overall I have two problems with releasing this data. Firstly it is that the criminal justice system is only concerned with gathering evidence to prosecute. They don't exist to exonerate the innocent. When the public prosecutor says "there was not enough evidence to continue with a prosecution" they still imply that there was a criminal activity, that there was a case to to answer but you got away with it this time.

My next reason is that they'll have to find an expert to analyse the data and match it with what happened. I'll suggest that all of the real experts are in the "flight safety" system and are therefore tainted by its culture, so someone from outside will have to be found. Will they be a true expert or a self appointed expert like most of the TV pundits I could mention? They will certainly have been ignored by the people who really know what they are talking about.

2 & 3 should be answered as one. Your first problem will be getting the data. Whose is it and what will you do with it if you manage to get it? The analysis will be expensive and "experts" will have to to be used to interpret it; assuming of course you have actually managed to get the replay software.

And then you have the society aspect to consider. If you live in such a dreadful society that you can be damaged without evidence, you might as well give up. Give in as cheaply as you can and accept your loss. The cost of obtaining factual evidence would just be an expensive addition to your burden.

Therefore, I'd suggest that additional data will serve no practical purpose.

I might sound a bit negative but I truly believe the Brtitish judicial system exists as a job creation system for very intelligent but otherwise unemployable people. It's a system that can only be used by the very rich or very poor, paid for by all of the people on the middle. Should you ever get caught up in its tentacles you will lose.

PM

Last edited by Piltdown Man; 23rd Jun 2015 at 11:19. Reason: missing letter
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Old 23rd Jun 2015, 10:02
  #50 (permalink)  
 
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I might sound a bit negative but I truly believe the Brtitish judicial system exists as a job creation system for very intelligent but otherwise unemployable people. It's a system that can only be used by the very rich or very poor, paid for by all of the people on the middle. Should you ever get caught up in it tentacles you will lose.
A truly excellent description.
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Old 23rd Jun 2015, 10:59
  #51 (permalink)  
 
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Liking this thread.
Still can't comprehend why investigation is taking so long - please don't blame a 'lack of resources' as I would imagine this case has priority right now?
Something else is afoot......
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Old 24th Jun 2015, 08:22
  #52 (permalink)  
 
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ICAO Annexe 13

The reference to ICAO agreements is correct. When CVRs were first mooted, pilots naturally were against having every word recorded in their work day. Then the above agreement was reached to protect normal privacy values, and so CVRs became standard, required equipment. All happy and everyone standing by agreements, until the NZ case and now this.

The more individuals the CVR is released to, the more chance there is that the whole recording will end up on Youtube. And that is the beginning of the end for the CVR. Don't even mention cockpit video recorders.

For all the non-pilots; How would you feel if EVERYTHING you said at work yesterday was in today's paper, or published online?

Before the courts release a CVR, there must be incontrovertible evidence of criminally negligent behaviour. Relying on the CVR for this is just a fishing expedition.
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Old 24th Jun 2015, 12:54
  #53 (permalink)  
 
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hat what we

There's a lot of hot air being expended here attacking the court's decision but put simply, the AAIB and the Crown Office investigate accidents from two different perspectives: the AAIB to determine the causal factors without attribution of blame or liability, whereas the Crown Office is tasked to investigate to see if there is any evidence of criminality. If we deny the Crown Office all of the evidence available then we deny them the ability to do their job properly. Is that what is wanted?
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Old 24th Jun 2015, 12:57
  #54 (permalink)  
 
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So according to the law, vengeance and retribution is more important than overall flight safety.
Whether this sentiment sums up the problem with sufficient accuracy or not, there's some truth in there.

The Information Age has resurrected a very old human tradition, mob justice. Slippery slope, thin end of the wedge, etc.

For all of the nice words the judge uttered, I don't buy the assertion that this will not establish precedent. I am sure it's what the judge hopes, but hope is not a method in aviation safety. The judge has no control over what a future group of humans more accustomed to the modern day version of mob justice will demand.
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Old 24th Jun 2015, 16:18
  #55 (permalink)  
 
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I have read the document and have to say that given the submissions I am surprised that the judge has made this decision.

This decision will not affect the current investigation by the AAIB, however it does have a bearing on future investigations.

As highlighted by the intrested parties the police have been trying for some time to gain access to this data, firstly by demanding the FDM data, then when that failed the cvr/fdr.
At no point has the Lord Advocate produced any evidence that criminal activity has taken place nor did he produce any reasonable reason for pursuing this action.
He did not offer any proof or evidence that future investigations will not be adversely affected.

On the other hand plenty of reasons not to disclose were offered by the Secretary of State, the AAIB and the other interested parties.

Because todate there has been no evidence of mechanical failure the police appear to be taking the line that some form of negligence took place. They are therefore fishing for data to back up that assertion without any other evidence to back up this line of enquiry.

The judge notes that this is the first time this action has been taken and would appear to assume that there wont be further application as a result of previous history.
However having been granted this crack in the doorway, police Scotland will along with other uk police forces, not hesitate to push the door open.

A precident has been set whether we like it or not and expect to see more applications even when there have been no deaths or injuries. The police will use this as an excuse to further their own power.
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Old 24th Jun 2015, 20:10
  #56 (permalink)  
 
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No to Air Police`s applause. It is not excellent, it is naive ! Where would we be without an independent, robust and integrious judiciary. The answer must be in anarchy. This particular case is another shining example of the lengths to which this nation will go to uphold the values of it`s exemplary legal system where no one is above the law. The law serves and protects us all. Never forget the victims, they deserve justice.
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Old 25th Jun 2015, 01:57
  #57 (permalink)  
 
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Judge rules crash black box should be handed over to police

"For all the non-pilots; How would you feel if EVERYTHING you said at work yesterday was in today's paper, or published online"?

Dont you understand you have hundreds of people's lives in your hands?

Do you understand the responsibility that goes along with that?

Everything i say and do in my job is recorded and can be used in a court of law, yet i dont have hundreds of peoples lives in my hands.

Why should you be any different?

If you cant handle that responsibility then maybe you shouldnt be a pilot.
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Old 25th Jun 2015, 02:04
  #58 (permalink)  
 
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UFO, if we were judged by pilots in the court, then fair enough. But we have enthusiastic amateurs who are only out to blame someone and get money. It'd pretty easy for some blood-sucking lawyer to convince a jury that a pilot screwed up.

Everything i say and do in my job is recorded and can be used in a court of law, yet i dont have hundreds of peoples lives in my hands.
So what? Just because it happens to you doesn't mean it should apply to others.
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Old 25th Jun 2015, 07:22
  #59 (permalink)  
 
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Chronus and UFO,

No one has claimed that pilots should be above the law.

The CVR and FDR ard protected by international treaties and EU law. Before the EU legislation gained primacy over demestic law, they were protected by uk domestic law.

That protection states that their prime purpose is to enable the investigation of accidents and incidents inorder to increase safety, not to apportion blame. They are not to be used by government agencies to aportion blame or to impose sactions or seek retribution.

Flight safety has improved considerably over the years In a "just culture" environment. That culture promotes open and honest reporting, but at the same time has lines in the sand such that examples of willful negligence will be punished.

The judgment states that over ths years the Judicial and safety investigations have been able to proceed in parallel. So far in all cases to date justice, the public interest and the investigation into the causes of accidents and incidents, have all been achieved.

What we are seeing here is an attempt by police Scotland to bypass this process and make aname ffor themselves in a fishing expedition.
In due course the AAIB report will be produced and if need be proceedings against individuals or organisations can then proceed.

This has nothing to do with anyone being above the law, or imune from the consequences of ones actions.
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Old 25th Jun 2015, 08:35
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Good comments by Flying Lawyer

This is not the first time that a Court in the UK has ordered disclosure of CVR/DFDR data. There have been a handful of civil cases in the High Court over the past 20 years, when the same has happened, but importantly not for the purposes of potential criminal prosecution.

The AAIB have a longstanding protocol of publishing what they consider relevant to flight safety from the CVR/DFDR data. Rarely there is a disagreement over the nature and extent of that relevance, which if not resolved, can lead to an application to the High Court.

There is always tension between criminal prosecutors and safety investigations, given their different drivers, which has been proved to harm air safety and the prevention of further similar accidents. This is especially so in certain EU countries, as well as certain States in the Far East and South America. Hence recent EU regulations attempting to manage the accident data between the Prosecutors and Safety Investigators. (For US readers, think back to Valujet 592 and TWA 800 and the problems caused by the conflicting jurisdictions of the FBI and NTSB.)

However, Germanwings did not quite work out according to those new EU regulations...

Regardless, IMHO this Scottish decision will not lead to a rush of other Court applications in other accidents in the UK.
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