IN FOCUS: Europe attempts to balance accident investigation with judicial imperatives

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In the past two years, the EU has altered its laws concerning air accident investigation to help achieve the "balance between safety and accountability" that Tim Brymer, of Clyde and Co, describes. The new rule is gently revolutionary, and an optimist might even hope for a knock-on effect among countries that tend to follow Europe's lead.

In April 2010, at the same Royal Aeronautical Society conference on aviation law at which Dr Francis Schubert described the difficulties of getting the judiciary and public to accept the concept of a "just culture", Mikolaj Ratajczyk, then air safety policy officer at the European Commission's directorate general for mobility and transport, explained that new accident investigation rules in draft form were being presented to the European Parliament.

They would, if approved, eliminate the need for the judiciary to act for accident victims because the proposals would include the requirement for investigations to take account of the interests of those harmed by the event - or their relatives.

Ratajczyk said the draft regulation on accident investigation did not stop there. It acknowledged the need for a balance between effective safety investigations and judicial proceedings. He explained that the Commission's intention was that "advanced arrangements [should] be concluded between the safety investigation authorities and judicial authorities" to ensure the protection of sensitive safety information, such as pilot statements, or notes made by the investigators, to ensure these are "protected and disclosed only in exceptional circumstances".

In October 2010, the new legislation (EU regulation 996/2010) was approved more or less as Ratajczyk predicted. It states: "The sole objective of safety investigations should be the prevention of future accidents and incidents without apportioning blame or liability."

This is lifted straight out of the International Civil Aviation Organisation's Annex 13 on accident investigation, but its re-statement in EU law leaves no room for doubt among member states.

RESTORING BALANCE

Only a month before the enactment of the new law, French accident investigation agency BEA published a final report on an Airbus A320 post-maintenance test-flight crash in the Mediterranean, off Perpignan in southern France. Contrary to normal French judicial practice, a decision was made not to prosecute anyone. Whether this was influenced by the impending legislation is impossible to say, but at about the same time the long-running judicial investigation into the 2000 Aerospatiale/British Aerospace Concorde accident proceeded to a court hearing.

In December 2010, the court ruled that a mechanic working for Continental Airlines was guilty of sloppy maintenance that caused a metal strip to detach from a Continental aircraft on to the Paris Charles de Gaulle airport runway, slashing a main gear tyre on the Concorde during take-off, causing the crash. Perhaps that case had too much momentum to stop.

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Concorde's French and British certification meant both countries were involved in the investigation

Just after the Concorde crash, at the start of the accident investigation, the then head of the UK Air Accident Investigation Branch Ken Smart - involved because of Concorde's joint French and British certification - said he was horrified the French police and judiciary were given prior right to take possession of any items at the crash site if they believed it might be evidence in an assumed criminal prosecution. Smart said because of their lack of aviation expertise, the judiciary's technique for choosing potential evidential pieces was to observe which objects the professional investigators showed interest in, then isolate those as potential exhibits. The investigators could not do their job until the judiciary released the objects.

EU 996/2010 now attempts to restore a balance: "As it is essential to ensure clear rights for safety investigations, member states should, in compliance with the legislation in force on the powers of the authorities responsible for judicial investigations and, where appropriate, in close collaboration with those authorities, ensure that safety investigation authorities are allowed to carry out their tasks in the best possible conditions in the interest of aviation safety.

"The safety investigation authorities should therefore be granted immediate and unrestricted access to the site of the accident and all the elements necessary, to satisfy the requirements of a safety investigation should be made available to them without compromising the objectives of a judicial investigation."

Under this rule, the interests of both technical investigators and the judiciary are served. The regulation gives the investigator responsibility for the "preservation of evidence", working in co-operation with judicial authorities if they have become involved, and also the responsibility for calling in the police or judiciary if at any time during the investigation it suspects the law may have been broken. It also lists the type of information that must be treated as confidential, and that which "shall not be made available or used for purposes other than safety investigation or other purposes aiming at the improvement of aviation safety". These include voluntary statements.

The section of the law that deals with the sensitive issue of how confidentially disclosed information may be protected, and how the operation of a just culture could be respected in practice, states: "The civil aviation safety system is based on feedback and lessons learned from accidents and incidents which require the strict application of rules on confidentiality in order to ensure the future availability of valuable sources of information. In this context, sensitive safety information should be protected in an appropriate way. An accident raises a number of different public interests such as the prevention of future accidents and the proper administration of justice. Those interests go beyond the individual interests of the parties involved and beyond the specific event. The right balance among all interests is necessary to guarantee the overall public interest.

VICTIM ASSISTANCE

"The civil aviation system should equally promote a non-punitive environment, facilitating the spontaneous reporting of occurrences and thereby advancing the principle of just culture. The information provided by a person in the framework of a safety investigation should not be used against that person, in full respect of constitutional principles and national law."

Without going into fine detail about the legislation held in EU 996/2010, it requires that each member state's accident investigation organisation is fully competent, totally independent, and has the resources, authority and funding to carry out all aspects of its task.

All provisions for using a network of member state investigation agencies are laid down, as is the requirement for a system of information exchange - not only about accidents but about "occurrences".

As Ratajczyk predicted it would, the regulation sets out to ensure the investigators consider the interests of the victims of an accident and their relatives so the judiciary does not have to act as if it is the only agency that can represent them.

It requires that "the victims and their relatives or their associations" are kept informed about the investigation, and any relevant facts that have been established. It is specified that the names of those on board should be made available to relatives within 2h of the accident, and that names shall not be provided to any other party until the relatives have been informed.

The responsibility for providing assistance to relatives is not laid on the shoulders of the investigation agency: "Each member state shall establish a civil aviation accident emergency plan at national level. Such an emergency plan shall cover assistance to the victims of civil aviation accidents and their relatives."

The plan will usually be that the airlines provide the assistance, and the state ensures that they do. Built into the regulation is the requirement that it shall be reviewed, starting on 3 December 2014.