Just culture: 'we've been going the wrong way'

The tendency for national judicial systems almost automatically to bring criminal prosecutions in the event of commercial aircraft accidents is a growing global phenomenon, but it is not clear what is causing it.

This issue was addressed at a Royal Aeronautical Society conference in London on 28 April, and the delegates - including some very experienced lawyers who regularly act for airlines - came to some surprising conclusions. They also, with an air of mild surprise, generally voted it the most successful conference in the long history of the RAeS Air Law group.

Its ambitious agenda was entirely summed up in the event name: "The Proposed EU Regulation on Air Accident Investigation; the Criminalisation of Air Accidents and the 'Just Culture'".

I would never have guessed before the event that the European Commission's presentation of the principles behind its new draft regulation on improving accident investigation in Europe would have been generally well received, but it was. More of that later.

Back to criminalisation. Most people present, including the aviation lawyers who dominated the delegate list, think the growth of automatic criminal prosecution following aircraft accidents is undesirable and illogical. At the same time there were several robust challenges to the aviation industry's almost evangelical contention that a "just culture" system encouraging internal voluntary safety reporting is intrinsically good, and it should therefore be embraced unconditionally by the judiciary.

The benefits of a just culture were fully recognised, but the way in which the argument in favour of a just culture is being pursued was criticised, basically on the grounds of naivety.

It is naive, the conference heard, to believe the aviation industry can appeal for a privilege not accorded to any other business sector - that of conditional immunity from judicial investigation.

So has a "just culture" been killed off by the law?

No, not entirely, but it hasn't been achieved yet anyway, so we haven't lost anything.

But what of the future? Well, the lawyers present believed a better balance can be struck between the seemingly incompatible demands of running a good safety reporting system and a judicial system, and it also seems that the European Commission's draft rules for a new European air accident investigation system may offer some steps toward providing that balance.

I won't go over it all again here, because you can read about it in this week's Flight International magazine and make up your own mind about whether a new European law might show the world the way to a Just Culture.