Pilots on Trial
 

I was asked to post this website address by a number of pilots for an article that I wrote on the trend to criminalize aviation for the September issue of Air Transport World.
Geoffrey Thomas

http://www.atwonline.com/current_feature.cfm

I thought that the major difference between a crime and an accident lies in "mens rea" - a guilty mind? Meaning that for a crime to be committed there must be intent. Even culpable negligence would require evidence of a reckless act, done despite full knowledge of the likely outcome.

Without direct intent or at least recklessness, there can be no culpability. I know the lawyers can have a field day, with their usual semantics over the meaning of words and actions, but to the rest of us the meaning is surely clear.

A very disturbing trend, indeed. Protections are needed if accident investigations are ever to prevent future ones from occuring.
http://www.surfsidehawaii.com/aatwa.gif

Ed--Welcome aboard. This is a good board to add perspective and clense the pallete.TC

Perhaps it will come to the point where passangers have to sign disclaimers when they buy a ticket stating that they will not take action against the aircrew in the event of an accident?

I vividly remember seeing some of the trial of a poor BA captain who had made a couple of mistakes going around from an autoland approach that didn't stabilise. The talk at the time was that the main reason why he was prosecuted was because the AAIB had its hands full with Kegworth and couldn't spare any resources to investigate the incident properly, so it used the criminal process instead. Even if that wasn't true, I've always thought it was outrageous overkill when you consider what he'd actually done and in what circumstances. I'm sure that many here will know and remember the details much better than I, although I was shocked when an already sorry tale ended tragically.

Which leads me to ask, do people here think that there is any room for the criminal process when things go badly wrong? I'm thinking about pilots who, for example, fly when they know they've drunk too much too recently. Or pilots who deliberately adopt unsafe non-standard practices, perhaps over the objections of other members of the crew, because they think they know better. Would immunity from prosecution really be a good thing?

I agree, though, that the trend towards ready resort to the criminal process is deplorable, especially when most crew errors are made by people keenly aware that they are likely to be the first at the scene of any accident, and when the consequences of any error are unlikely to be directly proportional to the gravity of the error. Is too much of this driven by headline- or vote-seeking prosecutors? Too much by the perceived need in some places to pander to media pressure? Is there an argument for ICAO to intervene on a worldwide basis to take prosecution decisions out of the hands of non-aviation authorities, to try to ensure that criminal investigations are only launched at the suggestion of accident investigators who are aware of the consequent detriment to the investigation process?

Globaliser, if you're talking about the DXB-LHR Heathrow Penta go-arounds, I believe you may have missed the point.

As for the rest of it, I don't believe anyone would disagree that pilots who either deliberately or recklessly endanger their aircraft, cargo, crew and passengers should be prosecuted. Negligence is, in the circumstances of our industry, criminal.

However, nobody should ever be put in fear of their careers for making a mistake.

The big question, of course, is where does "mistake" end and "negligence" begin? A pragmatist would argue that the courts should decide this. But a jury of lay people won't understand anything about what goes on in aviation. So what's the answer?

Some years ago there was an interesting article in the BALPA log concerning the number of co pilots criminally charged for not stopping the Captains 'illegal' actions that resulted in incident/accidents. Perhaps someone in possession could post it here?

pilots on trial
 

Geoffrey Thomas has posted an erudite and provocative post which deserves better than some of the replies it recieved.
I hesitate to reply to someone like Old Phart who has written 26 posts in 19 days. I really don't have the time to compete on that level - and I'm retired!! A man causing death by dangerous driving has no intent to do that, no 'mens rea'. It's done out of stupidity or ignorance or arrogance or incompetence. And when any of these four (or others) are applied to a 'professional' who is experienced and fully trained then I am afraid that he or she could be culpable - they 'should have known better'. And Capt Stable stating that 'a jury of lay people won't understand anything about what goes on in aviation' negates the whole jury system. What about finance, tort, company law, criminal law etc? These can be equally and more complex and often need expert direction but only in extremely arcane circumstances should they be taken away from the normal legal system.
By the by, concerning the poor soul involved in the Penta Approach case, was it ever considered that it might have been a factor that the company regulations stated that if the cloud base was below 1,000 feet all approaches were to be made on autopilot, so this pilot was carrying out a procedure - manual ILS approach below 1,000 feet in cloud - which he had been specifically forbidden to practice outside of the simulator, because he didn't have access to automatic flight. Nothing ever fails to automatic so perhaps there should be more practice of manual flight to limits in poor weather. Just a thought.

juries
 

just seen the post about juries being composed of lay people who dont understand aviation, so what? if im charged with dangerous driving should the jury be composed only of people who hold a driving licence? of course they shouldnt.

Canberra, whilst most people who don't hold a driving licence understand a fair amount about what goes on up the front end of a car, do you really think they are qualified to judge what would constitute a mistake by a pilot and what would amount to negligence? You think they would understand the pressures leading a pilot into making errors in the heat of the moment?

I note you are ex-RAF Ops. and ex-Emerald. Are you a pilot?

Captain Stable

Not quite sure what your getting at - are you saying that anyone involved in a crime that is in any way complex (aviation, fraud, company law etc. etc.) should not be tried by jury?

If we start down the road of having only 'expert' judges looking at cases, then the whole shooting match could fall into disrepute. It is a basic tenet of British Law that you are judged by your peers in open court.

As for the original point about wether flight crew should be legally responsible for their actions - of course they should, Engineers are already prosecuted if they are criminally negligent, as are all other professions.

Globiliser:
Just a small correction. I seem to remember that the AAIB were not involved in this incident with the BA aircraft at LHR. There was some comment that it would have been better if the airplane had slightly scratched something as they would then have carried out an enquiry and not the CAA (who did and subsequently elected to prosecute).

Lou Scannon

Hmm - I can see that pilots would feel less bothered about the thought of being judged "by their peers" in open court than by the lay public.

The trial by jury system, although it has a great heritage, is now so distorted by the legal and media process that it is flawed in many cases. I for one would think that an enquiry by a neutral group of professionals would be a better approach in many technical cases - and trial by jury ought not to be permitted in property cases where the amount of money involved is less than twice the cost of running the court for the time involved.

Captain Stable

By the time two highly skilled lawyers have made their arguments on the basis that they are trying to win the case in a contested process, I wonder who could really understand what happened?

The jury would undoubtedly be faced with a great deal of convincing and conflicting evidence, some from experts.

I would prefer to see a "no fault" approach where unearthing the truest possible understanding of what happended would be more important than winning.

Young Paul

Who is going to select this 'neutral' group and ensure that they are unbiased.

I for one would be very suspicious of any so-called group of 'experts' deciding on criminal cases.

Whilst everyone agrees that the jury system is not perfect, its like capitalism, fatally flawed but nobody has come up with a better system.

:D

Ombudsmen are used in many industries, or tribunals, or arbitration services. I don't see why such a concept can't be transported to the airline world. I'm sure that airlines, passenger groups and unions would be prepared to subscribe to fund a suitable group, given that the alternative is paying substantial legal fees. Make it a branch of the CAA in the UK, perhaps, but with substantial autonomy - perhaps like CHIRP.

There is a better system than capitalism, and a better one than democracy - unfortunately, it requires a radical change within people that they aren't able to bring about themselves before it works.

We are talking about being judged in a criminal case in a Court of Law - I don't see how an Ombudman would fit into that situation.

AFAIK Ombudsman are never employed in criminal cases.

As for the idea of specialist jurors who have a detailed knowledge of the merits of the case in hand, this idea has been mooted for complex fraud cases - mainly by the prosecution who find it very difficult to secure convictions in that type of case - I don't think the original poster who started this thread had the idea that not enough flight crew were being prosecuted!

;)

Captain Stable asks: Yes.
Juries frequently decide complex matters far removed from their own worlds. In any body of 12 people chosen at random there is a cross-section of experience, academic achievement and intelligence. Bear in mind that even if someone hasn't got a good (or any) academic record it doesn't mean he/she is not intelligent. Where a criminal trial involves technical matters, juries almost invariably hear evidence from experts called as witnesses by the opposing sides. I think we will gradually move towards a system where experts are appointed by the court, or appointed by agreement between the parties, thereby removing the risk of bias.

I recently defended a helicopter engineer accused of manslaughter following a crash which killed three people. The engineering issues were complex and I doubt if all the jurors fully understood all of them. But, I have no doubt whatsoever that they were fully capable of considering the circumstances in which the engineer came to make the mistake which had fatal consequences. And, after the Judge had explained it to them, fully understood the legal difference between ordinary negligence and the higher degree of negligence required before someone is guilty of manslaughter. (The engineer was acquitted.)

Of course barristers for each side put forward opposing arguments on the evidence, but we are not permitted to argue law to the jury. Matters of law are for the Judge. During the 'Summing Up' the Judge explains the relevant law to the jury in ordinary language and how they should apply it to the facts which they find to be proved when deciding upon their verdict(s).

Not surprisingly, the jury system is most commonly criticised when a jury which has heard all the evidence returns a verdict which the critics - who have not - think is wrong. I don't suggest I have always agreed with all vericts in all the jury trials in which I've been involved over the years, but it is only extremely rarely that I haven't been able to understand how/why the jury came to its conclusion.

In an aviation case which requires an examination of what a pilot did, and the circumstances in which he did it, I'd much prefer a jury chosen at random to a jury consisting only of pilots.
Pilots (like barristers) are very harsh on their own, often far too harsh. Look at the posts we often see on PPRuNe when it appears that a pilot may have made an error. Many pilots seem to adopt a 'holier-than-thou' approach and many more are far too quick to condemn without waiting for all the facts to emerge.

I do. IMHO, it should depend upon the facts/circumstances.
The article by Geoffrey Thomas raises some very interesting questions - far more interesting than the pros and cons of the jury system :)
The article quotes Paul McCarthy, VP-technical standards at the International Federation of Airline Pilots Assns as saying: "The need to obtain the testimony of those individuals involved in an accident - even if it may disclose errors which are self-incriminating - so that the cause of the accident can be determined far outweighs any benefit that could be derived from a criminal prosecution."

I think there's much in what he says.
Is fear of prosecution really a deterrent?
Are pilots not more likely to think, consciously or sub-consciously, 'I won't do this because it might kill someone - including me.'

Is any useful purpose achieved by prosecuting people who make a mistake, even a serious mistake?
I wouldn't say prosecution is never justified but, in the vast majority of cases, we have much more to gain (in terms of flight safety) by a full and frank disclosure of all the facts. That is highly unlikely to happen when the pilots (and other aviation professionals) under investigation know they are at risk of being prosecuted and possibly going to prison.
Which course is more beneficial in the longer term?

Concerning the Penta incident at LHR there should, in my opinion, have been a full incident/accident inquiry by AIB.

AIB would have drawn conclusions and made recommendations on an impartial basis.

If AIB had commented that the flight had been operated in a negligent manner then it would have then been reasonable for the case to go to court.

The jury would then have had an unbiased view and made their deliberations accordingly.

In my opinion this case was a travesty of justice.