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. The issue was addressed at a Royal Aeronautical Society conference in London on 28 April.

The general tenor of the conference suggested most delegates thought the growth of automatic criminal prosecution following aircraft accidents was undesirable and illogical. At the same time the aviation industry's contention that a "just culture" system that encourages internal safety reporting is intrinsically good and should be embraced by the judiciary was strongly challenged.

Concorde crash, ©Sipa Press/Rex Features
The French court case over the Concorde accident in 2000 is only now being heard. Picture: Sipa Press/Rex Features
The benefits of a just culture were not denigrated, but the way in which the argument in favour of it is being pursued was robustly 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.

Senior barrister Charles Haddon-Cave confirms it is becoming more common for criminal prosecutions almost automatically to follow aircraft accidents. As a consequence, he says, the industry is tending to engage in "defensive engineering, not just technical but personal and administrative", commenting that company procedures are now being designed as "a bulwark against criticism" rather than as an improved way of doing things.

This heightens the tension between the operators' need for a benign corporate and legal environment in which to run an internal voluntary safety reporting system, and the judiciary's duty to examine data to determine whether a failure was criminal or not, which tends to kill voluntary disclosure.

Haddon-Cave suggests that the system's performance would improve through "simplification of process" and a management structure that clearly defines lines of responsibility. At the RAeS conference, he gave voice to what became a theme, calling for the creation of a "balance" in national governance between the purposes of accident investigators and the judiciary, suggesting that the law, when it is deemed that possible wrongdoing needs to be investigated, should be used for "prosecution, not persecution".

Haddon-Cave suggests that, to balance the needs of safety management systems and proper technical investigation with those of the judiciary, accord needs to be reached on three components: what protection should there be for those who voluntarily supply information about system faults for the benefit of safety; how can solemn undertakings by witnesses to an accident or incident be honoured so that the witnesses do not invoke the right to silence; and what scope is there to ensure that the results of a technical accident investigation are not misused?

Skyguide, the Swiss air navigation service provider that has had extensive recent experience of prosecution following the mid-air collision of two airliners over Überlingen, southern Germany, in July 2002, provides its perspective on the campaign to promote a "just culture".

Skyguide's chief operating officer Dr Francis Schubert says that "the aviation industry is partly to blame for the lack of progress in the implementation of a just culture". He says the content and format of the communication "needs to be revisited", as it was drawn up unilaterally, with regard only to the aviation industry's needs and priorities, with little attempt to understand the constitutional and social imperatives that motivate judicial systems.

The message has been too purist, he says, and it has relied on an unfounded assumption that safety overrides justice. He says: "The way the Just Culture message is currently expressed is neither understandable nor acceptable by the judicial authorities or the general public." The increase in the criminalisation of aircraft accidents is testimony to this fact, says Schubert.

 SAS crash, ©Sipa Press/Rex Features

The Italian legal system prosecuted air traffic controllers for a pilot's mistake in fog. Picture: Sipa Press/Rex Features

And it is not just the tendency to prosecute the frontline operatives that is increasing, he says. He points out that prosecutions are "leaving the frontline and climbing the corporate ladder", and that organisational failures as well as individual faults are being targeted.

Schubert says that judicial proceedings are even taking place following events where there has been no physical damage, and that the failure being targeted is hypothetical - a risk that has not been addressed. That tendency gives rise to the corporate reaction that Haddon-Cave described as "defensive engineering".

Schubert says the industry has not, seemingly noticed that the place of a just culture in the system has drifted away from its original spirit as defined in the International Civil Aviation Organisation's Annex 13 (the standards for accident investigation). The latter simply stressed the need for the protection of data produced within the framework of safety investigations, whereas the current message being propagated in the name of the just culture is that the right of the judiciary to prosecute following an aviation accident or incident is being challenged. That, he argues, is untenable.

Schubert is not arguing that a just culture should or could not exist. Judicial intervention, he says, should not be automatic, it should take place only in defined circumstances, and these need to be agreed: "The occurrence must have resulted in a formal accident, as defined by ICAO. A [judicial] investigation into an incident should only be considered if there is evidence of a concrete danger and not only of a hypothetical risk; [and] there must be clear evidence of gross negligence or deliberate criminal intention." The ultimate objective of a just culture, says Schubert, is to ensure that "only those very rare occurrences that meet the definition of a criminal offence are treated by the judicial system."

Not only should the investigators and the judiciary know their duty, tasks and limitations concerning aviation incidents, but they should also receive improved training that would ensure that the potential for misunderstanding between the two parties is reduced, Schubert argues.

Technical investigators should be trained in drafting reports to prevent legal misreading of the conclusions, and judicial staff in charge of aviation cases should be trained in the practical, operational and technical aspects of transport. Europe, he suggests, could establish a team of international specialists with both a legal and technical education, and that expertise could be made available to judicial authorities in Europe and even beyond.

Another call for an international, or even "universal" aviation law would start by simplifying it. Proposed by veteran UK aviation lawyer Harold Caplan, the thesis is that "the only aeronautical offences should be operating without an appropriate licence, or in breach of a licence condition". Licences would cover the design, manufacture operation and repair of aircraft, aeroengines and their components, and equipment used in air traffic management. Personal licences would be issued to pilots and front line air traffic management operators. Consequently, the only powers that regulators would need would be those required to issue, suspend or withdraw licences, to order remedial education or training where needed, and to obtain all information required to discharge their powers competently. The logic of this is that the ordinary law would apply to all other aspects of aviation as it does to other businesses - it is unrealistic for aviation to seek special privileges under the law, Caplan maintains.

Caplan does, however, concede that for this to work, much of the specialist infrastructure that shores up aviation's existing operational edifice has to be in place. This includes ICAO for agreeing standards and recommended practices (SARPS). Licences, indeed, would be based on ICAO SARPS, and licence holders would lose their certificates for failing to adhere to a code of good practice.

Caplan says aviation needs to demonstrate that it is fully in control of its safety, because if it can do that, licencing as described would be the only regulatory requirement. Where regulation is needed to define good practice, says Caplan, there should be three layers: hard rules that are "never to be consciously breached"; soft rules that contain options or acceptable means of compliance; and discretionary guidelines that indicate where qualified personal or professional judgements may prevail.

Caplan's final provision is that "parties to the Chicago Convention would agree to enact appropriate legislation in support of the above steps, and to discontinue national aeronautical standards".

Paris-based lawyer Simon Foreman explains the French judiciary's seeming inability to hold back from prosecution in the case of aircraft accidents in France, even though in almost all cases the accused are acquitted. He says that however good a technical job accident investigators make of determining the cause of an accident, they have no mandate to consider the rights of those who are the victims of the mishap.

In the UK, he points out, there is a coroner's court that performs that function, but in France the only statutory organisation that can investigate the case on behalf of the victims is the criminal court. The result of this is that the judiciary has first call on any object it deems might be evidence at the scene of an accident, which means the legal system may prevent or delay the technical investigators from pursuing their inquiry.

This happened in the case of the inquiry into the Aerospatiale/British Aerospace Air France Concorde crash at Paris Charles de Gaulle airport in 2000, but it has taken until now for the criminal case to come to court, and the case is now being heard. Caplan notes that the airline and its insurers had arranged for full pecuniary compensation to victims and their relatives to be paid out within a year of the accident without the need to go to court. This is an established practice among the major global airlines now, which Caplan says makes the Concorde court case look distinctly marginal in its potential usefulness to society.

Meanwhile the controversial European Commission draft proposal for setting up a European "network" of national air accident investigation agencies that could share resources, was advanced as a more legally practical proposal than creating a centralised supra-national one. Foreman said the draft offered France an opportunity to redress some of the imbalance in its own system by requiring the judiciary to justify any demand to take charge of evidence.

The air safety policy officer at the European Commission's directorate general for mobility and transport Mikolaj Ratajczyk explains other aspects of the draft rules that would, theoretically, eliminate the need for the courts to act for accident victims, because the proposals include the requirement for investigations to take account of the interests of those harmed by the event, or their relatives.

The draft requires that there be "better protection of the rights of victims of air accidents." These rights are seen to include access to information about the progress of the investigation; an assistance plan to be established by every member state; airlines will be required to produce lists of all persons on board within an hour (the precise time is being debated); there should be faster and more complete implementation of safety recommendations, and a requirement that the aviation authority justify any decision to reject a recommendation; and finally the establishment of a shared European database of safety recommendations.

Ratajczyk says the draft regulation on accident investigation does not stop there. It acknowledges the need for a balance between effective safety investigations and judicial proceedings. He explains that the Commission's intention is 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". The draft also calls for the uniform interpretation and implementation of Annex 13, removing national discretion about how to interpret its provisions.

The role in the proposed European air accident investigation system for the European Aviation Safety Agency, also a sensitive subject, was clarified at the RAeS conference. Chief legal adviser to EASA, Frank Manuhutu, says the agency will not take part in the investigation process, but it would participate as the representative of the state of aircraft design, as the aircraft certificator (if it was a European aircraft), and it definitely will be essential that it has "access to information and data" to carry out its role as regulator and to see recommendations carried out.

The long legal debate about how a just culture should interface with the investigation process and the judiciary seems to be maturing, but most of the world has not woken up to this fact. Perhaps Europe's experience of setting up a new system could be the crucible in which the new, more balanced relationship could be forged.

Source: Flight International