Bringing criminal charges into aviation occurrences resulting from inadvertent operational errors may hinder the development and free exchange of safety information which is essential to improve aviation safety, with a potential adverse effect on it.
Recent years have seen a trend in two particular factors: first an increase in the use of safety data collection systems and their contribution to flight safety compared with that gained from accident and incident investigations. Second there has been an increase in the number of occasions on which information gained either from accident or incident analysis or from safety data collection systems has been used in criminal or disciplinary proceedings against the individuals involved. A recent example of note was the use of an air accident investigation report in the criminal trial of a Japan Airlines pilot. In the event, the captain was found not guilty of charges arising out of death and injuries caused when his aircraft encountered turbulence.
In a small number of extreme cases there has been considerable tension between the criminal and technical investigation authorities and their respective responsibilities. Unfortunately those tensions are likely to be at their greatest in the immediate aftermath of a major accident with large scale loss of life when media or political demands for a scapegoat are at their most insistent and the likelihood of an objective determination of the best manner of resolving the situation is perhaps at its lowest.
At the 35th ICAO Assembly in Montreal between 28 September and 4 October 2004 a draft resolution is to be debated which is designed to secure greater legal protection and confidentiality for information in safety data collection systems, whether obtained voluntarily or under compulsion. In its briefing for the debate ICAO identifies three categories of safety data collection systems: self-reporting, electronic capture (e.g. Flight Operations Quality Assurance programmes) and direct observation (e.g. audit crews observing from the flight deck). These systems, which provide much information on errors which do not result in an incident, combine with investigations into accidents and incidents to provide aviation entities with a fuller understanding of the threats to safety. Neither source is complete on its own. And while there is considerable protection from the possible adverse effects upon individuals of the (often mandatory) processes associated with accident and incident investigation, there is less legal protection in relation to the continuous (and often voluntary) process of safety data collection systems.
The background memorandum does though note how in investigations Annex 13 effectively gives the last word to the authorities responsible for the administration of justice:
"...statements from persons, communications, medical and private information, cockpit voice recorders (CVR) and transcripts, and opinions expressed in analysis of information shall not be made available for purposes other than for accident/incident investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations."
ICAO’s view is that there is insufficient protection in respect of the information available from safety data management systems and without such protection being in place there is a risk of compromising current high standards of safety and the open safety culture. The briefing credits the good safety record of international civil aviation to a culture of exchange of information, by which the study of errors leads to the implementation of preventive actions.
The draft resolution entails two elements that could result in legal changes:
- The Council would develop legal guidance to assist ICAO member states to enact domestic legislation to protect information obtained from safety data collection systems;
- Member states would be urged to examine their existing legislation and adjust it as necessary.
On its face, the resolution would not change an enormous amount because it is limited to data collection systems (rather than the material available in the more serious incidents and accidents) but should serve to focus attention on what is something of a grey area. The debate is likely to be time-consuming (the briefing reflects work over the period to 2007) so immediate legal changes are some way off.
The issue points up the very difficult balance that has to be struck between the maintenance and advancement of flight safety and the due administration of justice. If, as the ICAO proposal notes, "[it remains undisputed that] the majority of operational errors are inadvertent: welltrained, well-intentioned people make errors while maintaining, operating, or controlling well-designed equipment" there must be a case for creating an environment in which the maximum benefit is drawn from the routine assembly of information and where there is every encouragement for individuals to come forward without fear of repercussion. Nevertheless there are the cases where criminal justice is called for, and the briefing notes that no group of individuals should be above the law. The present debate is unlikely, for the reasons identified above, to cover this aspect directly but the principles should be of equal application to more serious cases.
