It's official: the threat of individual criminal prosecution following an aviation accident involving inadvertent human error stops flight safety advancement.

Everybody in aviation knows that is true, but now a doctorate study by a pair of Cypriot lawyers - one also an academic and the other also an airline pilot - has demonstrated it. Not only does the threat of prosecution deter skilled aviation people from voluntarily reporting incidents that allow risks to be identified, it persuades those involved in mishaps to adopt their right to silence - and not just in court. The study has revealed an increasing tendency by courts to use data provided to official accident investigators as if it were legally admissible evidence, without having to prove it. The result of this is that aviation people are being advised by their lawyers to maintain their right to silence before accident investigators, knowing their testimony may later be used against them in court.

It is counter-intuitive to air traffic controllers and pilots to refuse to help accident investigators, but that is what almost all the world's national judicial processes are motivating them to do. The study has also established that the tendency to prosecute automatically following accidents is becoming more common, far from abating in response to cogent arguments from the International Civil Aviation Organisation.

Meanwhile, the study has found the socio-judicial argument that the fear of punishment successfully deters error to be completely misguided. In fact it can produce precisely the opposite effect, especially in air traffic controllers, by putting them under greater stress. The study found that controllers are particularly aware of the fact that they can be successfully prosecuted and imprisoned for an unintentional error.

Justice was not designed to deter error. Its purpose is to deter wrongdoing. Unintentional error is not wrongdoing. But try telling that to the world's judges.

This exceptional study has also looked at some potential legal alternatives to the way things are handled now, at least in the European Union. But ideas do not have borders. One is to have a European aviation tribunal consisting of lawyers who also have aviation expertise, who could determine whether there is a case for prosecution in the courts. The study found "overwhelming support" for such an establishment among pilots and controllers. The European Commission and Parliament, advised by the European Aviation Safety Agency, would do well to look at the idea.


Source: Flight International