Air accidents will increasingly be treated as criminal events unless aviation authorities can muster a global push to achieve a better balance between the roles of accident investigators and the judiciary, according to a London aviation law specialist.

Delegates to a Royal Aeronautical Society conference on the criminalisation of air accidents in London on 28 April were warned that it is becoming more common for criminal prosecutions almost automatically to follow accidents.

Charles Haddon-Cave QC said that as a consequence the industry is tending to engage in "defensive engineering, not just technical but personal and administrative".

Procedures are now being designed as "a bulwark against criticism" rather than an improved way of doing things, he added.

The conference examined the tension between the need for operators to run an internal voluntary safety reporting system - without which a safety management system cannot operate - 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 suggested the system's performance would improve through "simplification of process" and a management structure that clearly defines lines of responsibility. He also called for "balance" in national governance between the purposes of accident investigators and the judiciary, suggesting the law should be used for "prosecution, not persecution".

During the conference a consensus appeared to develop that the International Civil Aviation Organisation is the agency through which this should be achieved, and that its recent High Level Safety Conference in Montreal was the first step along that road.

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.

Paris-based lawyer Simon 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, rather than the present system that allows the judiciary to remove evidence for its own purposes, thus impeding the task of the accident investigators.

Source: Flight International