There is so much hot air being expelled in this thread but that above really does leave me gobsmacked :ugh:

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 :ugh:

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.......

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 ...

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.

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?

This judicial decision goes against ICAO Annex 13:

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.

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.

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

A truly excellent description.

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......

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.

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?

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.

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.

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.

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.

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.

So what? Just because it happens to you doesn't mean it should apply to others.

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.

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.

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

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.

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).

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.

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.

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

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.:{

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.

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.

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.

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.

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..................

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 :hmm:

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!"

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.

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.

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.

ICAO Annex 13 states the purpose of air accident investigations. It is not the immunity from prosecution that some people think.

Nick Lappos says:


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.

Are we trying to understand the laws of the land here or are we trying to re-write them?

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.