Addressing Criminal Prosecutions In Aviation Disasters

by James T. Crouse on January 21, 2011

in Commercial Air Travel

In reference to our blog regarding criminalization of aviation accidents, posted here on December 10, 2010, I wanted to post the following book review that I just did on Flying in the Face of Criminalization. The review will be published in The Times of London Higher Education Magazine within the next month or so.

The recent criminal convictions arising out of the July 2000 Concorde crash renewed the concerns of aviation professionals and provide a timely backdrop for the work of British writers  Drs. Sofia Michaelides-Mateau and Captain Andreas Mateau, 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. The authors do not cleanly distinguish between a judicial process that is criminal, potentially involving prison, and one which is civil, the purpose of which is to  compensate the victims of the crash.

The problem, according to these authors, is that often the conclusions of the accident 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 true.  The legitimate scientific examinations and destructive procedures utilized 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, willfulness or recklessness, 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?”  The authors give us numerous 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, at least indirectly, that the civil authorities should be given priority over the evidence.  They even go so far as to suggest the establishment of a European Accident Investigation Branch to standardize the technical investigation process.  A laudable idea, especially if such an agency mirrors 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 standardize 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 placed on the ValuJet DC-9, violating 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 to do about this situation?

The authors provide a great public service by detailing such horrendous post-crash events as the Air France Airbus A320 crash demonstration crash in 1988, where the French Minister of Transportation announced, shortly after the crash and as the technical investigation had just begun, that there was no problem with the aircraft.  Later, the French BEA cleared the aircraft and found operational error, raising credibility issues 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 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.

{ 3 comments… read them below or add one }

Kurt Holz March 13, 2011 at 3:50 pm

I would be held criminal liable if I accidentally run a red light and kill a bus full of children. The criminal charges would be “involuntary” in nature, but criminal nonetheless. I am accountable for my actions.

Why then should an airline pilot, co-pilot, or other crew members be held to a different standard? Because we don’t want them to “clam up”?? There must be a better argument than that?!?

I understand that the daily actions of an airline pilot, like that of a police officer, have amplified ramifications (i.e. death and/or serious injury). But this alone does not exempt them from criminal accountability.

Aviation is a intricate and complicated industry and therefore should have a matching regulatory system. We already have the NTSB for independent investigations and the FAA for regulatory oversight. We now need the legislative and judicial side to catch up.

I liken the regulation of the aviation industry to Wall Street regulation. Wall Street is an extremely complicated industry with nightmarish consequences in the case of intentional and unintentional wrong doings. But Wall Street also has the legislative and judicial infrastructure to regulate the overly complicated industry.

Aviation needs that regulatory infrastructure so pilots unions, airlines, and aviation companies can no long hide behind arguments like those voiced in this blog and many other venues.


James Crouse March 29, 2011 at 12:16 pm

Thanks for you comment.

It is a difficult issue. The problem is the two competing investigations which can cause problems if the efforts are not coordinated from the start. In some countries, the criminalization is so strong that there is never a civilian investigation or punishment. There is also the issue of malfeasance vs. nonfeasance, corporate vs. individual. I find it hard to believe that common negligence should cause a pilto to be convicted of manslaughter, but you are correct–if in a car, the “pilot” would be!


Omar Malik, former RAF pilot and BA captain March 17, 2011 at 6:16 pm

As a former RAF pilot and BA captain who served on national and international aviation security committees for 15 years and has a Ph.D in the subject, I enjoyed James’ excellent review of Flying in the Face of Criminalization in Times Higher Education (3 March 2011). He touched on several fundamental issues.

The interests of the accident investigators are always likely to clash with the interests of those seeking accountability, whether for criminal or civil offences or for mismanagement. All of these interests are important and valid. I suggest that the criterion in deciding their priority should be, which of them more closely serves the general good? Generally this will be the accident investigation, because it will more clearly advance flight safety than the others. In some cases, the prosecution of offenders and the extraction of compensation will also have a valuable and salutary effect, but this must be decided on a case to case basis. This suggests the general rule that the accident investigators should control the investigation, but should be mindful of the legitimacy of the other interests. As in other aspects of disaster management, relationships between the various interests should be established as a matter of course, and be in place before the occurrence of an accident.

This same principle of prioritising applies during the immediate rescue operations, to which the preservation of evidence must take second place. The principle may also apply when terrorist attack is suspected; minute traces of forensic evidence will be vitally important. In such cases terrorism experts must work closely with accident investigators and they must have a very important say in the handling of evidence. Again, relationships should be established before the event.

James is right to say that the objectivity of the investigation must be sacrosanct, and that it must be protected from direction by politicians and other vested interests. However there are major disadvantages to a pan-European agency, as we have found for more than 20 years in aviation security.

Such agencies work at the pace of the slowest, and to the lowest common denominator. Action is bound to upset somebody, therefore inaction is the default mode. It also establishes a highly paid bureaucracy whose main interest becomes the preservation of the highly paid bureaucracy. I believe the best solution to be autonomous national agencies, with a formal liaison committee. Those who cook the books are, and will remain, well-known. In the end their political machinations will bring upon them exactly the public odium which their politicians seek to avoid, and they will learn better behaviour. Meanwhile their victims need the safeguard of legal redress in a European or international court.


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