There is a template for air accident investigation that the world has agreed, but which most states do not use. This must change
Yet again, with the Italian investigation into the Tuninter ATR 72 ditching near Palermo, Sicily, the world is going to be treated to an example of how air accident investigation should not be done. It may or may not be significant that Flight International says this; the important fact is that the International Civil Aviation Organisation says so, and has done as long as anyone can remember.
This is not a statement about the competence or the goodwill of the Italian officials carrying out the investigation. Nor is it a matter of singling out Italy as a unique example of air accident investigation malpractice, because most countries in the world still carry out investigation back to front. The last really high-profile example of how air accident investigation should not be carried out was the French investigation of the Air France Concorde accident near Paris in 2000.
The issue is the relationship between the judiciary and the team of professional, technical air accident investigators, and this relationship is determined by the laws of the country that is carrying out the investigation. ICAO’s Annex 13, which defines the objectives and methodology of air accident investigation, is part of the treaty to which Italy and France are both signatory states, yet they show absolutely no intention of carrying out their obligations under the treaty.
Annex 13 says the purpose of accident investigation is not to allocate blame, but purely to find out the causes of an accident as quickly as possible so as to prevent it happening again. In the course of a technical investigation, the areas where blame might lie tend to become evident anyway, but the report of the accident investigation itself is not supposed to be used as evidence in a court of law if, for example, criminal negligence is suspected. The court is free to use the technical investigation as an accurate indication of where to look for evidence, but it has then to establish the evidence and its validity according to law, not - as investigators can do - to deduce a “probable cause”.
In countries that operate an air accident investigation as Italy and France do, the judiciary are ultimately in control of the investigation, in the sense that they have the last word on any decision, however large or small, that has to be taken during the process of establishing what happened. And while the technical investigators are aiming to do just that – to establish what happened and why – the judiciary has a completely different remit: to establish whether any individual or organisation should be prosecuted, and if so to begin assembling the legal evidence for the prosecution.
There are many reasons why this situation is less than ideal for all parties, which is why ICAO says investigation should not be done this way. Firstly, the two objectives – to assemble evidence to prove guilt, and to assemble information to establish what happened and why – frequently clash. When they do, the technical investigators take second place, causing delay in their attempts to prevent similar events. Secondly, the fact that police and the prosecution service are actively in control of the investigation from the start militates against openness in the investigation. It causes all parties to the accident to hide behind lawyers when, ideally, they should be working openly with a team that is trying to establish the cause.
In other words, it makes potential witnesses act as if they were the potential accused. In some countries – particularly in the Pacific Rim – pilots in accidents are charged on the presumption that they must have done something wrong, and then they live for months with a charge hanging over them before the courts either drop it or proceed – usually the former.
Thirdly, the judiciary are not aviation nor accident specialists, and although they have access to expertise from technical accident investigators, their different processes serve to impede the gathering of technical data.
This is a pointless state of affairs. It does not take a major change in the law of any country to make its air accident investigators custodians of evidence on behalf of – or even with the assistance of – the judiciary and the police. The technical investigators are the experts. Let them get on and complete the assembly and analysis of the data and then, with the cause of improved flight safety served, the law can do any additional work appropriate in the light of what has been determined.
Source: Flight International
