The criminalisation of air accidents is likely to get worse before it gets better - if indeed it ever does get better. That is the consensus in the air transport industry itself, and among the specialist lawyers who serve it.

If this consensus proves correct, the dream of operating a successful industry-wide "just culture" to generate healthy internal incident reporting systems is under threat, endangering the objective of introducing safety management systems (SMS) in airlines worldwide.

An effective SMS depends completely on an open reporting culture, which in turn depends on trusting that those who volunteer information will not have it used to criminalise them.

"There is little doubt that the criminalisation of air accidents is on the increase," says Tim Brymer, a partner in London-based law firm Clyde & Co. "The laudable concept of balancing safety and accountability inherent in a just culture has largely failed."

In 2006, the Flight Safety Foundation drew up a joint resolution with France's Air and Space Academy; the Royal Aeronautical Society (RAeS); the Civil Air Navigation Services Organisation; the European Regions Airline Association; the International Federation of Air Traffic Controllers' Associations; the Professional Aviation Maintenance Association; and the International Society of Aviation Safety Investigators.

The resolution named nine fatal airline accidents which provoked criminal prosecutions in six national jurisdictions - Brazil, France, Switzerland, Italy, Greece and the USA - and argued that aviation safety was being harmed by these actions.

Speaking at the RAeS in London two years later, Dr Francis Schubert, chief operating officer of Swiss air navigation service-provider Skyguide, said the message about just culture had been too purist, and it had relied on "an unfounded assumption" that safety overrides justice.

He said: "The way the just culture message is currently expressed is neither understandable nor acceptable by the judicial authorities or the general public." Schubert maintained that the rise in criminalisation of aircraft accidents is testimony to this fact.

Assuming Schubert was right, have things moved on since then? No, according to Brymer: "The problem is that the message put forward by the aviation community has simply not been understood by either the judiciary or the general public.

"There is little doubt that the just culture concept is regarded with scepticism and suspicion as, in effect, a special pleading. Prosecution is largely by default given that convictions rarely result." Brymer added that this was as a result of either failure of the prosecution to establish a case or plea-bargaining.

On the other hand, the EU has recently framed a new law governing air accident investigation in an attempt to achieve a balance between the objectives of the judiciary to determine whether criminality was involved, and the need for the aviation industry to be able to run a real-time self-diagnostic system without having it plundered in the name of justice.

Brymer observes that in most countries, after an accident involving death or personal injury, both civil and criminal investigations are normally instituted at the outset. However, the relationship between the two investigations - the technical and the judicial - can be very different from country to country, he explains.

"The interplay between these separate investigations and related proceedings vary from jurisdiction to jurisdiction and there is no single reference point for all cases brought."

It is this lack of consistency which agencies such as the International Civil Aviation Organisation would like to change. "Action from ICAO is urgently needed in view of the lack of uniformity between states and nations and the need to outline standards in relation to negligence and innocent mistakes," says Brymer.

"However, this has to be coupled with education of the judiciary and politicians to carefully weigh the decision or pressure to prosecute, together with the impact which this inevitably has on the exchange of safety information," he adds.

Most judiciaries see themselves as necessarily independent, owing nothing to society except to do their job to ensure that if the law is broken, justice is served. But how justice should be served can vary from country to country.

Brymer explains that as a general rule, in legal systems based on the Napoleonic Code, pursuit of the potentially guilty party is deemed essential. He points out that in almost all countries with laws formed on the basis of private systems influenced by the Napoleonic Code - including Italy, Netherlands, Belgium, Spain, Portugal, Poland and Romania - when fatal accidents occur, criminal indictments are more or less guaranteed.

Looking further afield, Brymer has observed that under the Japanese Civil Code nearly every act which involves a fatality results in a prosecution. In Asia, every time a pilot survives a fatal accident, criminal liability will be assessed. "The position in Latin America is not quite so clear cut, although research shows that roughly 50% of fatal accidents result in criminal prosecutions," he adds.

In its new law dealing with the investigation of aircraft accidents, the EU begs to differ. Indeed the regulation states that its purpose is dual: to regulate both "the investigation and prevention of accidents". It says: "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."

Whether or not a particular nation's judiciary chooses to take heed of that argument depends on how it sees its role. Does it see itself as an integral part of society or simply an agency for the defence of the letter of the law and for exacting retribution?

Brymer explains that a just culture will not protect those who have broken the law, either deliberately or via gross negligence, and it is not the job of the judiciary to protect a just culture. However, it is perfectly possible for the judiciary to carry out its task while respecting the purpose of a just culture. "It is fundamental that full judicial immunity has no part to play in a just culture. Egregious conduct falls outside."

Creating a balance is the thing, says Brymer: "All existing definitions of just culture draw a line between acceptable and unacceptable behaviour. A wilful violation is not acceptable, whereas an honest mistake is.

"There must be a line drawn between legitimate and illegitimate behaviour. However, where the line is drawn - and who gets to draw the line - remains uncertain." And whether safety management systems work in the future or not also depends on that decision.

Source: Flight International