A process exists for separating the investigation of accident causes from the system of justice, but it is often ignored or abused
Imagine an accident investigation system in which the purpose was to determine who is innocent and who is guilty, then punish the guilty "pour encourager les autres".
Actually it is not necessary to imagine it – this is the way most of the world's states effectively conduct their accident investigations. And that is despite the fact that the same states are signatories to the International Civil Aviation Organisation treaty in which they pledge that the sole purpose of an accident investigation is to determine the cause – or, normally, the many causes – and make recommendations to reduce the chances of a similar event occurring again.
It would be interesting to take a poll of politicians and lawyers around the world at this point in the story to find out whether they can actually see the difference in effect between the two types of investigation described above.
The most common national mindset on the best way to prevent accidents appears to be this: the cause of an accident is that someone was guilty of something; the purpose of the investigation is to find out who was guilty; and the remedy is to punish the wrongdoer so people will avoid being guilty of the same act, mistake or failure in the future. The last of these, of course, describes a criminal law system – not to be confused with the right of one party to sue another for damages through the civil courts.
What actually happens after an air accident in most countries is that, even if a technical inquiry is mounted, the law has first call on material evidence, and bringing prosecution against perceived guilty parties can precede the establishment of evidence. This is more likely to happen in countries that have codified law, such as France and Germany, than in those operating a common law system, such as the USA and the UK. But how the law is actually wielded also depends on national cultural influences. Multiply these factors by the number of countries in the world and it is easy to see how complex it would be to promote a single system, operable across the globe, of separating technical accident investigation from the rule of law without impeding either. ICAO tried to do it with Annex 13 to the Chicago Convention – the annex that defines accident investigation's purposes and methods. The only trouble is, most countries still do not apply it as ICAO intended because the local criminal law system hijacks the process. The organisation is now planning another attempt to persuade the world that ignoring the tenets of Annex 13 is disastrous for aviation safety. But, to be brutally honest, it is clear that ICAO is not particularly optimistic that its attempt will succeed.
The ramifications of the current situation are legion: prosecutions are brought soonest against those who are at the front line – the pilots, air traffic controllers and mechanics. It generates a climate of fear of being "found out" even after unintentional mistakes, which spells death to any confidential or open reporting system intended to help operators identify potential risks before they cause harm. The effectiveness of an investigation is damaged by the aim of determining a guilty party, which has the secondary effect of making all parties to the accident spend their time dodging blame and trying to place it elsewhere. Finally, once a "guilty" party has been identified, then incarcerated, fined or otherwise punished, the job is done. There needs to be no further analysis – so there is none.
Potentially, things could now get even worse. With the increased mandating of flight operations monitoring, carriers hold massive amounts of data intended purely for operations quality control. If courts are allowed to subpoena this data without the protection of a system for establishing whether it is relevant, then data that happens to suggest an act or omission can be treated by some legal systems as if it were evidence of guilt.
In the end the courts have a right to try any case in which a criminal act is believed to have taken place, but the law must understand that an Annex 13 investigation establishes technical facts and operational analysis – it does not establish evidence in the legal sense. If the courts see fit to prosecute after the investigation is complete, they can use the facts and analysis, but they have to establish evidence of criminal intent or negligence themselves. Any other system not only impedes safety by creating a cover-up culture – it endangers justice itself by creating scapegoats.
Source: Flight International
