AAIB investigation to Hawker Hunter T7 G-BXFI 22 August 2015
Quite so. The OP seems to be confusing the two.
In law, none of those needs to be present for a manslaughter charge to be brought, nor for a jury to convict.
In law, none of those needs to be present for a manslaughter charge to be brought, nor for a jury to convict.
Join Date: Apr 2010
Location: London
Posts: 7,072
Likes: 0
Received 0 Likes
on
0 Posts
precisely - it clearly isn't murder
Involuntary manslaughter
Involuntary manslaughter is the unlawful killing of a human being without malice aforethought, either expressed or implied. It is distinguished from voluntary manslaughter by the absence of intention. It is normally divided into two categories, constructive manslaughter and criminally negligent manslaughter, both of which involve criminal liability.
Constructive manslaughter
Constructive manslaughter is also referred to as "unlawful act" manslaughter. It is based on the doctrine of constructive malice, whereby the malicious intent inherent in the commission of a crime is considered to apply to the consequences of that crime. It occurs when someone kills, without intent, in the course of committing an unlawful act. The malice involved in the crime is transferred to the killing, resulting in a charge of manslaughter.
For example, a person who fails to stop at a red traffic light while driving a vehicle and hits someone crossing the street could be found to intend or be reckless as to assault or criminal damage (see DPP v Newbury[9]). There is no intent to kill, and a resulting death would not be considered murder, but would be considered involuntary manslaughter. The accused's responsibility for causing death is constructed from the fault in committing what might have been a minor criminal act. Reckless driving or reckless handling of a potentially lethal weapon may result in a death that is deemed manslaughter.
Involuntary manslaughter may be distinguished from accidental death. A person who is driving carefully, but whose car nevertheless hits a child darting out into the street, has not committed manslaughter. A person who pushes off an aggressive drunk, who then falls and dies, has probably not committed manslaughter, although in some jurisdictions it may depend whether "excessive force" was used or other factors.
Involuntary manslaughter
Involuntary manslaughter is the unlawful killing of a human being without malice aforethought, either expressed or implied. It is distinguished from voluntary manslaughter by the absence of intention. It is normally divided into two categories, constructive manslaughter and criminally negligent manslaughter, both of which involve criminal liability.
Constructive manslaughter
Constructive manslaughter is also referred to as "unlawful act" manslaughter. It is based on the doctrine of constructive malice, whereby the malicious intent inherent in the commission of a crime is considered to apply to the consequences of that crime. It occurs when someone kills, without intent, in the course of committing an unlawful act. The malice involved in the crime is transferred to the killing, resulting in a charge of manslaughter.
For example, a person who fails to stop at a red traffic light while driving a vehicle and hits someone crossing the street could be found to intend or be reckless as to assault or criminal damage (see DPP v Newbury[9]). There is no intent to kill, and a resulting death would not be considered murder, but would be considered involuntary manslaughter. The accused's responsibility for causing death is constructed from the fault in committing what might have been a minor criminal act. Reckless driving or reckless handling of a potentially lethal weapon may result in a death that is deemed manslaughter.
Involuntary manslaughter may be distinguished from accidental death. A person who is driving carefully, but whose car nevertheless hits a child darting out into the street, has not committed manslaughter. A person who pushes off an aggressive drunk, who then falls and dies, has probably not committed manslaughter, although in some jurisdictions it may depend whether "excessive force" was used or other factors.
Join Date: Sep 2009
Location: over the rainbow
Age: 75
Posts: 562
Likes: 0
Received 0 Likes
on
0 Posts
This is the advise from the Crown Prosecution Service to its own reviewing lawyers:
(I have edited out parts which do not arise here).
Transport Offences: Legal Guidance: The Crown Prosecution Service
Assuming that advise is followed the views of the CAA will be relevant. The views of the CAA may be influenced by the many benefits arising from air display flying. Such benefits being carefully noted by the AAIB in its report.
Aside from the two relevant offences under the ANO 2015, both of which are punishable with fines and/or terms of imprisonment, the focus in recent posts here has been on whether a charge of manslaughter should/could be brought and proved.
Manslaughter comes in different forms. The only form of it, in my opinion, which is relevant here is as set-out below. I have attempted to reduce it to language which can be readily understood by a non lawyer.
Involuntary Manslaughter arising from the performance of what in ordinary circumstances would be a lawful act, but which becomes unlawful only by reason of the manner in which it was performed. Evidentially it is a difficult charge to prove. The prosecution would have to establish that the conduct in question was "reprehensible" (to quote from recent English case law). To draw an analogy with offences on a highway, it is easy to see that driving a car whilst drunk or at an excessive speed in a built-up area, could be categorised as "reprehensible". However if a motorist was driving within the law but was involved in a fatal accident caused by his momentary inattention, the driving whilst probably careless would not support a more serious criminal charge which required that the driving was dangerous.
(I have edited out parts which do not arise here).
The CAA regulates the safety of civil aviation. In particular, the Air Navigation Order 2005 (ANO), made under section 61 of the CAA creates a number of offences designed to secure the safety of civil aircraft, some relate to the conduct of passengers and air traffic controllers as well as to aircrew. In particular, you should note the following:
Article 73 prohibits any person acting recklessly or negligently in a manner likely to endanger an aircraft, or any person therein;
Article 74 prohibits any person recklessly or negligently causing or permitting an aircraft to endanger any person or property;
You will therefore have a choice of proceeding under the CAA or the ANO. Some offences under the CAA are summarily only, whereas an equivalent offence under the ANO may well be triable either way, such as offences under Articles 73, 74 and 75. You should therefore consider:
the likely disposal of the case
the level of danger, actual or perceived, occasioned by the defendant's actions.
If you are reviewing any case involving the issue of aircraft safety you are strongly advised to consult the Civil Aviation Authority. Such prosecutions can pose difficult evidential problems and the Authority, who have a great deal of knowledge and experience in this area, can offer helpful advice. In the first instance, you should contact the Secretary and Legal Adviser.
Article 73 prohibits any person acting recklessly or negligently in a manner likely to endanger an aircraft, or any person therein;
Article 74 prohibits any person recklessly or negligently causing or permitting an aircraft to endanger any person or property;
You will therefore have a choice of proceeding under the CAA or the ANO. Some offences under the CAA are summarily only, whereas an equivalent offence under the ANO may well be triable either way, such as offences under Articles 73, 74 and 75. You should therefore consider:
the likely disposal of the case
the level of danger, actual or perceived, occasioned by the defendant's actions.
If you are reviewing any case involving the issue of aircraft safety you are strongly advised to consult the Civil Aviation Authority. Such prosecutions can pose difficult evidential problems and the Authority, who have a great deal of knowledge and experience in this area, can offer helpful advice. In the first instance, you should contact the Secretary and Legal Adviser.
Assuming that advise is followed the views of the CAA will be relevant. The views of the CAA may be influenced by the many benefits arising from air display flying. Such benefits being carefully noted by the AAIB in its report.
Aside from the two relevant offences under the ANO 2015, both of which are punishable with fines and/or terms of imprisonment, the focus in recent posts here has been on whether a charge of manslaughter should/could be brought and proved.
Manslaughter comes in different forms. The only form of it, in my opinion, which is relevant here is as set-out below. I have attempted to reduce it to language which can be readily understood by a non lawyer.
Involuntary Manslaughter arising from the performance of what in ordinary circumstances would be a lawful act, but which becomes unlawful only by reason of the manner in which it was performed. Evidentially it is a difficult charge to prove. The prosecution would have to establish that the conduct in question was "reprehensible" (to quote from recent English case law). To draw an analogy with offences on a highway, it is easy to see that driving a car whilst drunk or at an excessive speed in a built-up area, could be categorised as "reprehensible". However if a motorist was driving within the law but was involved in a fatal accident caused by his momentary inattention, the driving whilst probably careless would not support a more serious criminal charge which required that the driving was dangerous.
Join Date: Dec 2013
Location: Norfolk
Age: 67
Posts: 1
Likes: 0
Received 0 Likes
on
0 Posts
Considerable effort was made in the AAIB report to cover possible altimeter, ASI errors and power setting readings. The AAIB report found many faults, but none of them could be construed as being primarily responsible for the crash.
The question that is likely to be asked of any jury is whether the pilot was reckless in continuing the loop maneouver when it became apparent that the minimum gate height had not been achieved at the top of the loop?
An experienced pilot should be aware of their approximate altitude even without the aid of cockpit instruments.
If lack of practice time due to fuel, cost, and timed life component restraints rendered the pilot's judgement of altitude and attitude unreliable, should they have attempted recovery or continued the maneouvre immediately it became apparent something was going wrong with the display?
Perhaps the flying costs would only be covered by the display organisers if the full display sequence was flown?
Finally, was the pilot fully briefed and aware of airspace restrictions and correct exit routes in event of an in flight emergency. This is also covered to some extent in the AAIB report.
If you just read the AAIB report, one might be drawn to some quite damning conclusions. The important thing to bear in mind is that nothing in that report can be used in court and AAIB reports can not be used to prove or demonstrate fault or liability. Any evidence presented must be from an independent investigation conducted by the police and they will have a much harder job of creating a watertight case for the CPS to take to court.
The question that is likely to be asked of any jury is whether the pilot was reckless in continuing the loop maneouver when it became apparent that the minimum gate height had not been achieved at the top of the loop?
An experienced pilot should be aware of their approximate altitude even without the aid of cockpit instruments.
If lack of practice time due to fuel, cost, and timed life component restraints rendered the pilot's judgement of altitude and attitude unreliable, should they have attempted recovery or continued the maneouvre immediately it became apparent something was going wrong with the display?
Perhaps the flying costs would only be covered by the display organisers if the full display sequence was flown?
Finally, was the pilot fully briefed and aware of airspace restrictions and correct exit routes in event of an in flight emergency. This is also covered to some extent in the AAIB report.
If you just read the AAIB report, one might be drawn to some quite damning conclusions. The important thing to bear in mind is that nothing in that report can be used in court and AAIB reports can not be used to prove or demonstrate fault or liability. Any evidence presented must be from an independent investigation conducted by the police and they will have a much harder job of creating a watertight case for the CPS to take to court.
Never forgotten that snippet of wisdom.
Join Date: Jun 2000
Location: last time I looked I was still here.
Posts: 4,507
Likes: 0
Received 0 Likes
on
0 Posts
The question that is likely to be asked of any jury is whether the pilot was reckless in continuing the loop maneouver when it became apparent that the minimum gate height had not been achieved at the top of the loop?
This might be repetitive, but....this might have been the last point of escape as things were going wrong. Has it not been established that the entry height was too low and the speed too low. This meant the a/c did not have enough potential & kinetic energy. This was the start point, and perhaps root cause. It was then a a too low G pull up. This one can surmise that it was not surprising the 'gate' at the top of the looping manoeuvre was not achieved.
So perhaps the question for any jury would asked whether the pilot was reckless in not achieving the start gate, never mind the top gate. One leads to the other, and the start gate parameters are directly under the pilot's control with little stress, startle factor or surprises due to competent planning & self-briefing. However, perhaps the pilot was distracted on arrival by something not yet revealed and that caused the low energy at the the start gate.
This might be repetitive, but....this might have been the last point of escape as things were going wrong. Has it not been established that the entry height was too low and the speed too low. This meant the a/c did not have enough potential & kinetic energy. This was the start point, and perhaps root cause. It was then a a too low G pull up. This one can surmise that it was not surprising the 'gate' at the top of the looping manoeuvre was not achieved.
So perhaps the question for any jury would asked whether the pilot was reckless in not achieving the start gate, never mind the top gate. One leads to the other, and the start gate parameters are directly under the pilot's control with little stress, startle factor or surprises due to competent planning & self-briefing. However, perhaps the pilot was distracted on arrival by something not yet revealed and that caused the low energy at the the start gate.
Although the entry parameters are important and indicate whether you are likely to make your gate at the top, the final decision is made before committing to nose down at the apex of the looping manoeuvre. That decision is fundemantal to low level aerobatics.
There is mounting pressure on the CPS from the families of the deceased for a decision on that no later than the next coroner's hearing, which is on 24th January.
Join Date: Sep 2009
Location: over the rainbow
Age: 75
Posts: 562
Likes: 0
Received 0 Likes
on
0 Posts
That was a civil damages claim not a criminal trial. Entirely different rules regarding admission of evidence and the balance and burden apply. Quite apart from anything else a civil claim is tried by a Judge alone. Any criminal trial will be tried by a Judge and Jury.
In civil damages cases just about anything is admissible. The weight given to it by the Judge is a different matter. Closer to the flames here is the decision of the Divisional Court refusing the Police's application for disclosure of the "evidence" held by the AAIB. If the report, without the source materials, could be introduced as "evidence", there would be no need to have made the application.
In civil damages cases just about anything is admissible. The weight given to it by the Judge is a different matter. Closer to the flames here is the decision of the Divisional Court refusing the Police's application for disclosure of the "evidence" held by the AAIB. If the report, without the source materials, could be introduced as "evidence", there would be no need to have made the application.
Thread Starter
Join Date: May 2007
Location: Banished (twice) to the pointless forest
Posts: 1,558
Likes: 0
Received 0 Likes
on
0 Posts
What's the history of the crown calling AAIB investigators as witnesses then?
If the prosecution are not allowed to rely on the report, is there a method of preventing them "discovering" the same facts by the police interviewing, under caution, AAIB staff?
That way, leaving the report aside, they can ask the questions of a witness, who has a good understanding of what he discovered.
If the prosecution are not allowed to rely on the report, is there a method of preventing them "discovering" the same facts by the police interviewing, under caution, AAIB staff?
That way, leaving the report aside, they can ask the questions of a witness, who has a good understanding of what he discovered.
I don't own this space under my name. I should have leased it while I still could
The description "Top Bloke" is entirely subjective and can be taken in many ways from 'consummate professional' to 'life and soul of the party'. In other words without context it is meaningless.
In the thread context I see subsequent posters have given a better assessment. Cheers.
Join Date: Apr 2010
Location: London
Posts: 7,072
Likes: 0
Received 0 Likes
on
0 Posts
"I cannot think of any circumstances by which the Police could interview under caution civil servants employed by the AAIB."
The Police are empowered to interview ANYONE if they think a crime has been committed and that includes members of the Royal family - I don't think anyone has any "protection" against that
The Police are empowered to interview ANYONE if they think a crime has been committed and that includes members of the Royal family - I don't think anyone has any "protection" against that
Join Date: Sep 2009
Location: over the rainbow
Age: 75
Posts: 562
Likes: 0
Received 0 Likes
on
0 Posts
it is the words under caution I was questioning. To interview a person under caution the police have to suspect the person of having committed an offence.
It is all quite simple.
1. There are offences -- which I set about above under the ANO which the Police could charge.
2. If the Police wish to charge a more serious offence they need to have all their ducks in a row.
3. Under Statute save where the High Court gives permission -- and it has refused it in this case -- the Police cannot rely on any statements obtained by the AAIB or on any calculations made the AAIB.
4. The police are however free to employ their own experts.
5. If they wish to take a statement from anyone other than an employee of the AAIB, they are free to do so. Equally those being asked to assist are free to withhold their consent.
6. If the Police wish to interview a person whom they suspect may have committed an offence, they are free to do so before he is charged providing he is cautioned. A person cautioned has the right to refuse to answer.
The wording of the caution is:
You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.
You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.
1. There are offences -- which I set about above under the ANO which the Police could charge.
2. If the Police wish to charge a more serious offence they need to have all their ducks in a row.
3. Under Statute save where the High Court gives permission -- and it has refused it in this case -- the Police cannot rely on any statements obtained by the AAIB or on any calculations made the AAIB.
4. The police are however free to employ their own experts.
5. If they wish to take a statement from anyone other than an employee of the AAIB, they are free to do so. Equally those being asked to assist are free to withhold their consent.
6. If the Police wish to interview a person whom they suspect may have committed an offence, they are free to do so before he is charged providing he is cautioned. A person cautioned has the right to refuse to answer.
Last edited by roving; 3rd Dec 2017 at 17:15. Reason: add
Join Date: Jul 2007
Location: Hadlow
Age: 60
Posts: 597
Likes: 0
Received 0 Likes
on
0 Posts
Given the above, am I right in thinking that the police may request an interview with an AAIB investigator involved in investigating the accident in question.
If so, I'm probably also right in thinking that any such request will be met with a two-fingered salute. Quite right too IMvHO.
If so, I'm probably also right in thinking that any such request will be met with a two-fingered salute. Quite right too IMvHO.
Or not, as the case may be.
The AAIB has an MoU with both the CPS and ACPO (Association of Chief Police Officers) providing for cooperation and evidence/information sharing.
The AAIB has an MoU with both the CPS and ACPO (Association of Chief Police Officers) providing for cooperation and evidence/information sharing.