The Ivy: in vino veritas?
It was over a glass of champagne at The Ivy restaurant in London I learned the real reason why the judiciary and police in most of the world rush to prepare prosecutions against pilots and air traffic controllers following a fatal airline accident.
Apparently judges and the police are so bored of handling tedious, everyday issues like divorce, fraud, and theft, that an airline accident offers them the chance to enter an unfamiliar world of exciting technology, a world in which they can exercise their legal and investigative skills on something new, and demonstrate mastery of impressive issues in what is guaranteed to become a high profile case.
Says who? Well, I was attending a dinner for the speakers at an aviation law conference. While there I became involved in a discussion about the Concorde fatal crash near Paris Charles de Gaulle in 2000 as an example of this urge to prosecute. The choice of subject was prompted by the fact that, just a few days before the Ivy gathering, a French judge had announced that Continental Airlines and five individuals from three other organisations are to face manslaughter charges over the death of all on board the Concorde and four people on the ground.
Why prosecute Continental? The metal component alleged to have cut Concorde’s tyres is said to have fallen off a Continental DC-10 that took off shortly before Concorde did.
Given the French judiciary’s scattergun approach to prosecution in cases like this, it mystifies me why they haven’t gone for the throat of Aeroports de Paris, which failed to keep its runway clear of debris. Incidentally, that should not be interpreted by the French legal system as encouragement to do so; it just seems a strange omission from an otherwise comprehensive use of the list of potential targets for prosecution. It seems likely the only reason the judge didn’t charge the pilots is that he couldn’t because they died in the accident.
Early in the Concorde crash investigation Ken Smart, heading the UK team working with the French investigators, bemoaned the fact that, at the awful accident site, the police and judiciary were standing around not knowing what to do; but as soon as one of the professional investigators showed an interest in a piece of debris it was removed and locked up as evidence for the prosecution. Not a great way to find out what happened so as to prevent a recurrence, but, hey, this is apparently about creating a fascinating case for lawyers to work on for years to come.
It was a senior Paris-based French lawyer who explained this judicial fascination with aviation tragedy. I could have dismissed the statement as the natural product of relaxed, pre dinner banter, but she was serious. The French judiciary are not obliged to prosecute following accidents, she explained, any more than the British judiciary are, but in France they always choose to go for prosecution, while in the UK they hardly ever do – and then only when the technical investigation has been completed.
This contemporary lawyer’s explanation of judges’ tendency to over-indulge professionally when aviation accidents are involved reminds me of the judicial investigation into the 1979 Mt Erebus disaster. An Air New Zealand DC-10 on a chartered Antarctic sightseeing flight crashed into Mt Erebus, near McMurdo Sound. Justice Peter Mahon’s verdict contained some sound judgements, but a court of appeal decided he had exceeded his authority in choosing to pursue an alleged cover-up by Air New Zealand, and his evidence supporting the allegation was demonstrated to be flawed in almost all respects. There was something about the zeal of Mahon’s pusuit of his convictions that demonstrated that egotism can overcome judicial professionalism.
Today there is something worrying about the obsession demonstrated by Brazilian politicians, police and the judiciary with the 2006 fatal mid-air collision between a Gol Boeing 737-800 and Embraer Legacy. In the firing line are the two pilots that survived the collision – the Legacy’s crew – and the air traffic controllers. At this point, justice has nothing to do with it, justification everything.