Flying in the Face of Criminalization: The Safety Implications of Prosecuting Aviation Professionals for Accidents

March 3, 2011

The recent criminal convictions arising from the July 2000 Concorde crash near Paris renewed the concerns of aviation professionals and provide a timely backdrop for the work of Sofia Michaelides-Mateou and Andreas Mateou, both lawyers.

The authors tell us that there generally are two different investigations following an aviation accident: the technical investigation, designed to find the cause(s) of the accident, and the judicial investigation, the purpose of which is to assess blame. However, they do not cleanly distinguish between a judicial process that is criminal, potentially involving prison, and one that is civil, the purpose of which is to compensate the victims of the crash.

The problem, they contend, is that often the conclusions of the technical-investigation report are used to criminally prosecute flight crews, mechanics and air traffic control personnel. Too often, the judicial authorities take control of the physical evidence, with the ensuing criminal-investigation processes ruining the physical evidence for accident-investigation purposes.

Of course, the converse is also true. The scientific examinations and destructive procedures utilised by the civil authorities can make the items inadmissible as criminal evidence.

The authors argue that criminal prosecution of individuals for omissions and negligent actions, as opposed to actions based on intent or wilfulness, which are the usual criminal standards, is chilling and potentially dangerous. What individual faced with possible criminal prosecution, especially in countries of questionable process, would voluntarily open up and tell "the whole truth"? Here, we are given many examples of problems with competing jurisdictions, evidence battles, incarceration of individuals and wrestling matches between agencies within a single nation and between nations. In short, it's a mess.

What to do? The authors correctly point out that the civil authorities should be given priority over the evidence. They even go so far as to propose the establishment of a European Accident Investigation Branch to standardise the technical-investigation process. It is a laudable idea, especially if such an agency mirrored the UK's Air Accidents Investigation Branch, perhaps the best in the world.

But after decrying criminal prosecution, which I agree has no place where the conduct is unintentional or simple carelessness, the authors suggest a European Aviation Court to standardise criminal prosecutions arising out of aviation accidents. Anything would be better than the current confusion, but this is not a step in the right direction.

An important area left unaddressed is what to do when there are violations of criminal laws (distinct from aviation laws), such as when volatile oxygen generators were found to have been placed on the ValuJet DC-9 that crashed in the Florida Everglades in 1996, in violation of state and federal hazardous-materials laws. Do the violators get a pass simply because they committed their crimes in the aviation context? The answer has to be no, but what should be done?

The authors provide a great public service by detailing such horrendous post-crash events as the Air France Airbus A320 tragedy in 1988, where Louis Mermoz, the French minister of transportation, announced, just as the technical investigation had begun, that there was no problem with the aircraft. Later, the French Bureau of Enquiry and Analysis for Civil Aviation Safety cleared the aircraft and found operational error, which raised issues of its credibility, since the French government was heavily involved in the design, construction, certification and marketing of this aircraft - and in the accident investigation.

Where an accident investigation is carried out by qualified independent investigators, its factual findings (not conclusions) should provide the basis for post-accident remedial measures as well as civil legal actions. Criminal prosecutions are another matter, however, and need to be addressed.

Flying in the Face of Criminalization: The Safety Implications of Prosecuting Aviation Professionals for Accidents

By Sofia Michaelides-Mateou and Andreas Mateou. Ashgate, 234pp, £55.00. ISBN 9781409407676. Published 1 November 2010

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