Judge rules crash black box should be handed over to police
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Again advocating using a safety report not intended to identify blame or liability to make a decision on blame and liability
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Never
If you had read my posts on this you might understand my position on this.
Firstly my personal opinion is that this judgement is incorect. Primarily because although all the legislation that protects CVR data (for the reasons you state) allows under court orders for that data to be handed over, it should be in exceptional circumstances.
In this case as BALPA point out in their court statement, the Lord advocate has not given any exceptional reason, nor has he stated on what precise basis he neeeds it. This is a fishing expedition.
His sole reason seams to be that the police can compare witness statements against cvr evidence. This could apply in any accident or incident.
This is why I belive this will set a precident.
Secondly a just culture was never intended to protect those that deliberately commit act of gross negligence, read the jugement and you will see this point raised several times.
Thirdly if criminal acts have beeen committed the police or regulating authorities have a duty to investigate.
Fourthly I have never stated that the AAIB report should be used as evidence.
So if there is clear independent evidence of criminal activity then the authorities should pursue that, however if the police are intent on a fishing expedition with no evidence then that expedition should be denied them as long as possible.
As to should the pilots have to endure a long wait till the report is published, unfortunately yes.
The criminalisation of accidents is a bad move. It is very rare that someone goes out of their way to deliberately cause an accident or behave in a grossly negligent maner.
In summary this judgment whilst not giving the green light to whole scale criminalisation of accidents is I belive the start of that process.
If you had read my posts on this you might understand my position on this.
Firstly my personal opinion is that this judgement is incorect. Primarily because although all the legislation that protects CVR data (for the reasons you state) allows under court orders for that data to be handed over, it should be in exceptional circumstances.
In this case as BALPA point out in their court statement, the Lord advocate has not given any exceptional reason, nor has he stated on what precise basis he neeeds it. This is a fishing expedition.
His sole reason seams to be that the police can compare witness statements against cvr evidence. This could apply in any accident or incident.
This is why I belive this will set a precident.
Secondly a just culture was never intended to protect those that deliberately commit act of gross negligence, read the jugement and you will see this point raised several times.
Thirdly if criminal acts have beeen committed the police or regulating authorities have a duty to investigate.
Fourthly I have never stated that the AAIB report should be used as evidence.
So if there is clear independent evidence of criminal activity then the authorities should pursue that, however if the police are intent on a fishing expedition with no evidence then that expedition should be denied them as long as possible.
As to should the pilots have to endure a long wait till the report is published, unfortunately yes.
The criminalisation of accidents is a bad move. It is very rare that someone goes out of their way to deliberately cause an accident or behave in a grossly negligent maner.
In summary this judgment whilst not giving the green light to whole scale criminalisation of accidents is I belive the start of that process.
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In the UK it is the CPS who bring a criminal prosecution to Court. The police conduct the investigation. The CPS is independent of the police.
The principles for liaison between the CPS and the AIB are set out in a Memorandum of Understanding dated October 2008, between these two parties.
Here is a link to the full document:
https://www.cps.gov.uk/legal/assets/...2030.10.08.pdf
I would suggest that the section setting out the Basic Principles of
Co- operation are worthy of note.
Reference to this document may assist the forum in discussing and debating the issue. You may in particular note that the superior interest remains public safety, this takes precedence over criminal investigation. However the AIB may consider a criminal prosecution agency as an interested party and avail a report of its findings to such an agency.
A revised MoU is expected to be published in the near future. Perhaps it will deal more specifically with the thorny issue of CVR evidence.
The principles for liaison between the CPS and the AIB are set out in a Memorandum of Understanding dated October 2008, between these two parties.
Here is a link to the full document:
https://www.cps.gov.uk/legal/assets/...2030.10.08.pdf
I would suggest that the section setting out the Basic Principles of
Co- operation are worthy of note.
Reference to this document may assist the forum in discussing and debating the issue. You may in particular note that the superior interest remains public safety, this takes precedence over criminal investigation. However the AIB may consider a criminal prosecution agency as an interested party and avail a report of its findings to such an agency.
A revised MoU is expected to be published in the near future. Perhaps it will deal more specifically with the thorny issue of CVR evidence.
de minimus non curat lex
As this tragic accident occurred in Scotland, it will not be the CPS who decide whether to prosecute. The Crown Office and McNacker will run the show. Although historically the CAA have brought prosecutions for breaches of the ANO etc.
I had to attend, as a witness, a fatal accident inquiry in Dumfries in 1993 (AAIB REPORT had been published) as a result of one of our BAeFC Gulf Air solo student crashing near Sanquhar.
Transcripts derived from ATC tapes were produced as part of establishing the facts ~ time lines.
So FDR/CVR evidence ~ this will be produced at the fatal accident inquiry post any other proceeding.
I had to attend, as a witness, a fatal accident inquiry in Dumfries in 1993 (AAIB REPORT had been published) as a result of one of our BAeFC Gulf Air solo student crashing near Sanquhar.
Transcripts derived from ATC tapes were produced as part of establishing the facts ~ time lines.
So FDR/CVR evidence ~ this will be produced at the fatal accident inquiry post any other proceeding.
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PT6Driver; I feel your pain! I don't understand why some insist in totally changing the meaning of a post by selecting one part in isolation.
Never Fretter;
I said
and then you translated that into;
The answer to this was in the very next sentence in the same post;
To avoid further confusion, I suggested that the judge could have adjourned the case and the safety investigation can continue without being prejudiced. The prosecutor can 'form an opinion' from the report (this is a legal term and is NOT the same as making a judgement). All this happens BEFORE any court case. He has to consider whether the case has a realistic chance of succeeding in front of a judge. For example (hypothetically) if the safety investigation discovered a fatigue failure of a vital component which rendered the heli unflyable then a finding such as this would provide the prosecutor with information that would allow him to form an opinion without ever accessing the CVR. KenV and PT6Driver both nailed it regarding the legal case. The prosecution must build their own separate case and cannot use the safety investigation in court.
Hopefully that has cleared it up for you.
Never Fretter;
I said
The Judge could have reserved judgment until after the AAIB Report was published.
So you advocate using an AAIB report as evidence in court?
The safety investigation could be completed without interference and the prosecutor would then have an expert opinion on the cause of the crash to inform his decision on criminal activity.
Hopefully that has cleared it up for you.
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Per Piltdown Man:
Er, care to comment FL?
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.
The BALPA decision to appeal the Court of Sessions ruling is welcome regardless of its outcome as we need a second test to ensure all the arguments have been given proper weight. As Flying Lawyer pointed out, this is actually an important case that could affect professional pilots here and in other countries.
Against a background of our trying to apply just culture from inside the blame society we now live in, it is worth remembering that people have died and it is therefore the duty of the Crown Office to determine whether those deaths were unlawful. If the accident had not caused fatalities it is doubtful the Lord Advocate would have asked for the CVFDR as such a request would not have passed the public interest test in the first place.
Fishing expedition or not, there is also the concept of best evidence in play. It would be unreasonable to base a decision to prosecute purely on incomplete (ie redacted) evidence - and it should certainly be grounds for an appeal if you were convicted on the same basis. And here the best evidence is the CVFDR. What may have blurred the lines on this occasion was an operator decision to release FDM data to Police Scotland shortly after the accident, in AAIB's view a move that was contrary to EU law. I am not sure who interpreted the FDM for PS, but I think most people would agree this was a very unwelcome use of the data.
I think all this will hinge on a higher court's view of the public interest test and it is perhaps useful that the decision on this occasion will involve more than one judge, as others may have different views. If the original order stands (and I hope it does not) then maybe the saving grace lies in the conditions Lord Jones attached to release of the CVFDR, which should at least ensure the CVR is not played in open court.
There is plenty more to come on this, including a potential appeal to the European court if this one fails.
Against a background of our trying to apply just culture from inside the blame society we now live in, it is worth remembering that people have died and it is therefore the duty of the Crown Office to determine whether those deaths were unlawful. If the accident had not caused fatalities it is doubtful the Lord Advocate would have asked for the CVFDR as such a request would not have passed the public interest test in the first place.
Fishing expedition or not, there is also the concept of best evidence in play. It would be unreasonable to base a decision to prosecute purely on incomplete (ie redacted) evidence - and it should certainly be grounds for an appeal if you were convicted on the same basis. And here the best evidence is the CVFDR. What may have blurred the lines on this occasion was an operator decision to release FDM data to Police Scotland shortly after the accident, in AAIB's view a move that was contrary to EU law. I am not sure who interpreted the FDM for PS, but I think most people would agree this was a very unwelcome use of the data.
I think all this will hinge on a higher court's view of the public interest test and it is perhaps useful that the decision on this occasion will involve more than one judge, as others may have different views. If the original order stands (and I hope it does not) then maybe the saving grace lies in the conditions Lord Jones attached to release of the CVFDR, which should at least ensure the CVR is not played in open court.
There is plenty more to come on this, including a potential appeal to the European court if this one fails.
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People are routinely monitored, officially and unofficially by all sorts of recording devices, CCTV, phone records, CVFDRs, car trackers fitted by insurance companies to reduce premiums, in car video recorders, etc., etc.
It has long been a principle of British law that all evidence must be presented before a Court whether or not it might be predjudicial or beneficial to a defendant. It is for the judge presiding to rule whether evidence is admissible in considering a verdict.
The fact that evidence of any sort was recorded for purposes other than for consideration of a legal case is irrelevant. If evidence exists in any form, it should be submitted before a Court if that is what is required to reach a fair and considered verdict.
If you were the victim of some crime, you would be very upset if clear CCTV footage of the offence taking place was disallowed because it was recorded through the front window of private premises, or it was recorded by a traffic camera and therefore not for the purpose that the system was intended.
FDCVR's are intended to identify the causes of aircraft accidents. That should not preclude their use where appropriate to accurately establish the facts and where blame might lie after the safety investigations are concluded.
People in all walks of life and careers are routinely monitored and disciplined if wrongdoing is discovered. Pilots have no right to expect to be exceptions to the rule.
It has long been a principle of British law that all evidence must be presented before a Court whether or not it might be predjudicial or beneficial to a defendant. It is for the judge presiding to rule whether evidence is admissible in considering a verdict.
The fact that evidence of any sort was recorded for purposes other than for consideration of a legal case is irrelevant. If evidence exists in any form, it should be submitted before a Court if that is what is required to reach a fair and considered verdict.
If you were the victim of some crime, you would be very upset if clear CCTV footage of the offence taking place was disallowed because it was recorded through the front window of private premises, or it was recorded by a traffic camera and therefore not for the purpose that the system was intended.
FDCVR's are intended to identify the causes of aircraft accidents. That should not preclude their use where appropriate to accurately establish the facts and where blame might lie after the safety investigations are concluded.
People in all walks of life and careers are routinely monitored and disciplined if wrongdoing is discovered. Pilots have no right to expect to be exceptions to the rule.
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Chronus said :"In the UK it is the CPS who bring a criminal prosecution to Court. The police conduct the investigation. The CPS is independent of the police."
Unfortunately no. The UK has three legal systems: one covering England and Wales - and that's where the CPS role would be relevant, one covering Scotland (which applies to THIS case) and also one covering Northern Ireland.
Unfortunately no. The UK has three legal systems: one covering England and Wales - and that's where the CPS role would be relevant, one covering Scotland (which applies to THIS case) and also one covering Northern Ireland.
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After nearly 50 years employed in rotorwing industry I am interested to hear that there is a reluctance to reveal CVR details in this incident.
Could it be because the aircraft was flown into a vortex ring situation ?
I also noted from news pictures that cabin door had been slid forward so blocking window jettison, and reducing evacuation capability. These doors can be jettisoned by the pilot. Why were they not done so? I suggest that the truth is more important than silly little ego entries to this forum.
Could it be because the aircraft was flown into a vortex ring situation ?
I also noted from news pictures that cabin door had been slid forward so blocking window jettison, and reducing evacuation capability. These doors can be jettisoned by the pilot. Why were they not done so? I suggest that the truth is more important than silly little ego entries to this forum.
Last edited by mtoroshanga; 7th Jul 2015 at 18:06.
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In the UK it is the CPS who bring a criminal prosecution to Court. The police conduct the investigation. The CPS is independent of the police.
The Crown Prosecution Service (CPS) is the principal public prosecuting agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions (DPP).
Its main responsibilities are to provide legal advice to the police and other investigative agencies during the course of criminal investigations,
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I suggest that the truth is more important than silly little ego entries to this forum.
I agree there is a need to know exactly what happened, Mtoro. That is the purpose of the AAIB investigation. Criminal proceedings, may, in their investigative process discover "a cause", but are far from conducive towards preventing future occurrences.
mtoroshanga
Not sure which pictures you've seen, but I can't find any that show that (maybe you are looking at the CHC EC225 controlled ditching?)
In any case, to answer your question....
https://assets.digital.cabinet-offic..._L2_G-WNSB.pdf
I also noted from news pictures that cabin door had been slid forward so blocking window jettison, and reducing evacuation capability. These doors can be jettisoned by the pilot. Why were they not done so?
In any case, to answer your question....
...after striking the surface the helicopter rapidly inverted...
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One non-aviation opinion I heard was that Police Scotland were seeking this information because the AAIB were taking too long. Police Scotland are not, IMO, in a position to criticise anyone for being tardy in carrying out investigations...
Crash victims may have lain injured for three days - BBC News
Crash victims may have lain injured for three days - BBC News
