Pilots should beware indulging in honesty if they survive an accident. The world is increasingly populated by police and politicians looking for opportunties to prove their own effectiveness.
Despite being signed up to the International Civil Aviation Organisation's Chicago Convention which states that data gathered during accident investigations shall not be used for any other purpose than determining the accident cause so as to prevent recurrence, more of the world's countries than ever appear to equate "cause" with "blame".
This leads them to initiate criminal prosecution against individuals involved in the event, despite the fact that the definition of an accident is that it is unintentional. Only if it can be established that the unintended outcome was the result of deliberate flouting of approved procedures despite the known risk of doing so does the issue warrant the attention of the criminal law. Lawyers and police can thunder onto the scene of a crash or emergency landing without any expertise in investigation, disrupt the technical examination and pervert the search for an accident cause into a search for individuals who could be prosecuted.
The sage advice of an aviation lawyer to pilots who wish to avoid prosecution - and airlines who wish to protect their employees - was presented to delegates at the Flight International Crew Management Conference in Brussels last week. He said that the first thing to do is not to answer questions - even from investigators, let alone police - until you have a lawyer present. There is no harm, lawyer Tim Brymer advised the delegates, in telling the truth provided it is limited to facts of which you are certain. You should not, however, be drawn into speculation about what occurred.
The care that must be exercised to avoid prosecution typifies the difference between an investigation and a criminal prosecution. In the former, openness leads to investigative success, but if it is tainted by the simultaneous search for criminality, the openness is strangled.
Brymer reminded the delegates of a case in New Zealand in which the police wanted quick access to the cockpit voice recorder (CVR). The International Federation of Airline Pilots Associations advised the accident pilots to adhere to their right to silence, and the local crews agreed that if the police were provided with the CVR, they would cease voice communication in flight decks in favour of hand signals. It worked. The law was changed to protect CVR data. That might not work everywhere, but intelligent action within the law to prevent damage to proper accident investigation by demonstrating criminal prosecution's counter-productive effects should be adopted more often.
Source: Flight International
