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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 25th Jun 2015, 10:44
  #61 (permalink)  
 
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Spot on, RAT 5. This decision is indeed a violation of ICAO Annex 13.

Just Culture and the terms of Annex 13 exist for a good reason, i.e. that they save people's lives by enhancing aviation safety and thus preventing disasters.

Anything that goes against Just Culture therefore threatens safety. Consequently, that Judge's decision not only is in breach of an International Convention which his State is a signatory to, it also jeopardises aviation safety.

He should be prosecuted under criminal law on the grounds of endangering other people's lives.
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Old 25th Jun 2015, 15:04
  #62 (permalink)  
 
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Spot on, RAT 5. This decision is indeed a violation of ICAO Annex 13.

Just Culture and the terms of Annex 13 exist for a good reason, i.e. that they save people's lives by enhancing aviation safety and thus preventing disasters.

Anything that goes against Just Culture therefore threatens safety. Consequently, that Judge's decision not only is in breach of an International Convention which his State is a signatory to, it also jeopardises aviation safety.

He should be prosecuted under criminal law on the grounds of endangering other people's lives.
Annex 13 being part of ICAO and the UN is nothing more than a collection of agreements among states. Not all parts are accepted by all states. Most notably any state has the right to take exception to some parts with due notice. It is common for a state to modify their exacting participation by inserting exceptions under the laws of the state. Such exceptions typically give the state's courts the right to make exceptions to annex 13 to serve the interests of that state.

That appears to be exactly what is at the bottom of the rulling in this thread subject
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Old 25th Jun 2015, 19:39
  #63 (permalink)  
 
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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?

Bollox. The first and most critical issue here is to find the true cause of the crash. Basta, finito. Then, & only then, when the full facts are known should someone, with another agenda, come in and see if criminal prosecutions are in order.
I think, please correct me, that in France it is often the case where the gendarmerie take over an investigation ahead of the local AAIB. It has been seen that this delays, significantly, the finding of the true cause. This has to be the heart and focus of the investigation; not seeing if someone needs their wrist slapped. All too often we have heard 'pilot error' as the cause, when those of us inside the profession, and at the sharp end, know full well that there were other dark forces at work that were too embarrassing to publish. Keep the bluebottles out of it until the EXPERTS have been in first. That is the way the police do it themselves. Keep the plods out until the forensic white clad jumpsuit brigade have been in first with their toys.
Why two sets of rules. We have our own experts; let them do their job.
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Old 25th Jun 2015, 23:14
  #64 (permalink)  
 
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Rumet and others,

We are dealing with EU legislation here, which is legally binding. It does however allow for this process and as such no law has been broken.

However as the intersted parties note the Lord Advocate showed no evidence as to why the data should be handed over other than to state that this was the best way for their experts to decide if and whom to prosecute.

Taken to its logical conclusion one could argue that this would be the same in all accidents and incidents, hence why I belive we will see a lot more cases like this.

I am quite shocked as to how little weight was given to the concerns of the interested parties as to how future investigations would be adversely affected. (As well as the concerns expressed in EU legislation precisely about this issue).
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Old 26th Jun 2015, 00:18
  #65 (permalink)  
 
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Unless I missed it, no one's mentioned the difference between using CVRs in criminal and civil proceedings.

It's one thing to put the recording in the hands of a civil servant who's paid to determine whether there's reason to believe a crime has been committed, and to do nothing if there isn't.

It's something else to put it in the hands of a plaintiffs' attorney, who's effectively paid to win cases and doesn't care who gets hurt in the process.
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Old 26th Jun 2015, 05:35
  #66 (permalink)  
 
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It's something else to put it in the hands of a plaintiffs' attorney, who's effectively paid to win cases and doesn't care who gets hurt in the process.
This is the part that has me particularly worried. Although there are jurisdictions that seem preoccupied with finding criminal culpability whenever something bad happens (wasn't there a recent case where some geologists were jailed for failing to predict an earthquake?), at least for the time being these seem to be the exception rather than the rule.
But when it comes to liability and civil cases, it's long been no holds barred. Worse, it's a dirty not-so-secret of the industry that "expert opinions" are readily for sale.
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Old 26th Jun 2015, 06:06
  #67 (permalink)  
 
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It's really worth reading up on the Ansett New Zealand DHC-8 crash and the resulting legal shenanigans, the behaviour of the police was bloody outrageous once they had been granted access to the CVR/FDR data.

Basically the police prosecutor made some kind of personal vendetta out of it, pursued the captain and dragged him through several court cases and appeals and counter appeals and all kinds of court cases for SIX YEARS after the event, long after the accident investigators had finished their work. He was finally cleared of all charges in the High Court.

This happened despite furious opposition from ALPA, and widespread negative publicity and debate in the NZ media at the time, about whether this was an effective use of police resources and what exactly they were trying to achieve. The law was subsequently changed in NZ to prevent CVR data being used in future police prosecutions, but the damage was certainly done, to that captain at least.

It also led to an unofficial practice among many NZ pilots, of pulling the CVR circuit breaker as part of their pre flight checks.

So much good work and advancement in the field of flight safety can be undone so quickly by the actions of one idiot lawyer, if the trust is broken down
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Old 26th Jun 2015, 06:13
  #68 (permalink)  
 
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Agree: A Sad Day

In the most simple terms possible, the mission of AAIB is to identify causes, with the intent to improve safety and prevent repeats, not to establish liability. Despite all the qualifiers about not setting a precedent, they have done just that.
Of note: The purpose of conducting thorough investigations to improve safety is not unique to the AAIB or the UK in general, but is a generally established objective World Wide (or very nearly so). In the U.S., NTSB reports are public information available to all, including criminal prosecutors. However, carefully and specifically included in the law that established the NTSB is the rule saying that the report and other materials may NOT be used AS EVIDENCE, by either side in any legal proceeding, civil or criminal. Ever. I'm not an aviation lawyer, but as far as I know, that rule has never been violated. I must conclude that the UK's legal authorities have made a very serious error.

Last edited by No Fly Zone; 26th Jun 2015 at 06:17. Reason: Change word.
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Old 26th Jun 2015, 10:12
  #69 (permalink)  
 
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After preparation and study by special committee about two years ago, the ICAO issued strongly worded policy change recommendations to those member states that criminally prosecute pilots (and ground support staff) as part of air accident investigations.

Why? The reasoning was simple - criminalization of airline accidents reduces air safety. Data compiled by the ICAO as well as the FSF bears this relationship out.

Countries that routinely prosecute pilots are home to more than a few sizable airlines with safety concerns ranging from 'below average' to 'poor'. Included in the list are South Korea, Brazil, France, Indonesia, and Malaysia. On the other side of that, amongst the large airlines with the highest safety ratings, the overwhelming majority of their home countries' do not criminalize air accidents.
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Old 26th Jun 2015, 16:00
  #70 (permalink)  
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Mildly curious: a little devil's advocacy here.
I haven't heard too many suggestions that prosecuting truck or train drivers (or the skipper of the Costa Concordia) after a serious accident is counter-productive to road/rail/maritime safety.
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Old 26th Jun 2015, 16:14
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As a mariner I can say it is. The officers on ships get prosecuted to shift blame from the shipping companies to the individual crewmembers.
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Old 26th Jun 2015, 16:36
  #72 (permalink)  
 
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FleurDeLYS - criminalisation is a massive topic in shipping industry, and has been for the last decade. Sailors are far more exposed to local whims than pilots are. Google the case of the Hebei Spirit in S Korea for one example.

Costa Concordia is a more difficult example, and I suspect even in the UK the Captain would have been tried for manslaughter. Both the CAA and the MCA have tried manslaughter prosecutions in accidents of late (Ouzo/Pride of Bilbao and Tiger Moth accident in he SW) but UK juries seem very unwilling to convict.
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Old 26th Jun 2015, 17:04
  #73 (permalink)  
 
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the moment anyone says "we're special - we shouldn't be investigated" the boys in blue and the press hear COVER-UP

Unfortunately that's teh world we live in..................
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Old 26th Jun 2015, 18:46
  #74 (permalink)  
 
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Fleurdelys why don't you go and ask the truck and train driver's union if they would agree to have gadgets installed in their truck cabs that would record and monitor everything they do and everything they say? That would mostly be used for safety enhancement purposes, and only on very special occasions would we allow the cops to use them as evidence against you in court

I suspect you'd get run out of the truckstop by a bunch of very angry truckers before you could say "but the pilots agreed to it!"
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Old 26th Jun 2015, 23:39
  #75 (permalink)  
 
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Luke
The trukers already have half of this. Their equivalent of the FDR. All they need now is a CVR.
Perhaps even a video system as well for good measure.

FleurDeLys

No one in court claimed that pilots should be immune from prosecution.

The objection is that a data loging system that was introduced solely to enhance flight safety and is protected as such under international treaties, EU law etc, should be used in a fishing expedition to see if there are any grounds for prosecution. This well before the report is published.
The reasons given by the Lord Advocate are not unique and could equally have been applied to every incident or accident since the CVR was introduced, namely it is best evidence of what was said and heard in the cockpit and as such is required by "experts" to determine if a prosecution is warranted.

The judge dismissed the concerns and evidence from the interested parties, from international and domestic law and international organisations, that in granting the request ultimately flight safety willl be degraded.
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Old 27th Jun 2015, 08:04
  #76 (permalink)  
 
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The judge dismissed the concerns and evidence from the interested parties, from international and domestic law and international organisations, that in granting the request ultimately flight safety willl be degraded.

Using what level of expertise about aviation accident investigation did the judge come to this conclusion, contrary to the opinion of the experts?
We are not saying people should be immune from prosecution: we are saying let the accident investigation conclude first AND THEN decide if further matters need to be addressed.
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Old 27th Jun 2015, 08:52
  #77 (permalink)  
 
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Rat 5

The judge according to the rulling, had to conduct a balancing act between the need of the Lord Advocate to investigate (in this case a fatal accident) and the provisions of EU law regarding the use of CVR/FDR.
The ruling is based solely on law and the case put forward by the relevant parties.

This will not have an impact on this investigation but could have one on future investigations. This latter concern seems to have been dismissed.

Par 10 to 15 of Balpa's statement is quite interesting.
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Old 27th Jun 2015, 13:50
  #78 (permalink)  
 
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ICAO Annex 13 states the purpose of air accident investigations. It is not the immunity from prosecution that some people think.

Nick Lappos says:

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.

Nick Lappos, its misleading to suggest that air accident related cases are only in the purview of the FAA.

Examples:
  1. The FBI and DoT IG have pursued dealers in bogus parts.
  2. There was a conviction a few weeks ago of a helicopter operator senior manager after the Iron 44 Sikorsky S61N accident that killed 9 people in California because of falsified weight and balance and performance charts.
  3. A supplier to Sikorsky was found guilty of deception over quality control of CH-53E parts in an air accident that killed the crew from a flight at the Sikorsky factory.
Waiting to start such an investigation might well let greedy and immoral suits off the hook as documents get shredded, files deleted and stories squared away.

I do think it is a retrograde step to sweat over the minutia of crew actions in the moments before a crash and to treat the crew as guilty and seize the CVR to look for some kind of recorded self-incrimination.
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Old 27th Jun 2015, 14:44
  #79 (permalink)  
 
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Are we trying to understand the laws of the land here or are we trying to re-write them?
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Old 27th Jun 2015, 19:04
  #80 (permalink)  
 
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CRIMINALISATION OF AIR ACCIDENTS

The Atlas Jet MD-83 crash near Isparta, Turkey is a good example, it shows that white collar crime is not confined to the cockpit. In the final reckoning the Turkish Court handed down the following custodial sentences.

General manager of World Focus Airlines and Atlas Jet training manager 11 years 8 mths each for negligent homicide.
World Focus technician 5yrs 10mths and two of their pilots 2.5 yrs each for false testimony.
General manager of Civil Aviation Authority 1yr 8mths for misconduct in high office.

The criminal investigation and prosecution followed in the wake of an independent comprehensive accident safety investigation. The CVR and FDR was part of the evidence presented to the Criminal Court.
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