The criminalisation of aviation accidents has brought many discussions in the field of aeronautics. There have been disagreements concerning the purpose of criminalisation of a professional mistake. The aim of criminal justice is to guarantee retribution and prevention. One of the problems that come with criminalisation is the dilemma faced by the aviation professionals on whether to give full information during technical investigations, at the risk of self-incrimination. The dilemma is intensified by the difference in legal systems throughout the world. Aviation experts may find themselves criminally liable in one country but not in another. Therefore, aviation safety is put at stake when professionals are unable to put their faith in the process of accident investigation. Boards have been established to set regulations and/or mete out penalties to aviation personnel. In most cases, there is a long chain of events that precede an aviation accident.
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Thus, it is probable that the error that causes the eventual crashing of the plane may occur long before the accident after being facilitated by different individuals and departments. Therefore, it becomes unfair for an individual to stand a criminal trial for an action expedited by many people. This paper discusses the criminalisation of aviation accidents and the effects it has had on the field of aviation. It considers the consequences, fairness, and wisdom of criminalisation on individuals and the industry as a whole. It advocates the implementation of a just culture policy to eliminate the challenges that come with the criminalisation of aviation accidents.
The criminalisation of aviation accidents, particularly in cases of inadvertent errors, has triggered serious debates among legal and aviation commentators. Cases filed by aviation professionals after an accident has become ubiquitous. This situation leaves aviation professionals with chilling emotions, especially when researchers who conduct independent safety investigations seek such experts with the aim of getting the necessary data to improve aviation security measures. Moreover, since prosecution and the investigations often comingle, aviation professionals presume that such information may be used to incriminate them. This paper examines whether the criminalisation of aviation accidents serves a useful purpose, considering the various challenges it faces.
The philosophy around Criminalisation of Aviation Professionals
According to Bartsch (2013), a crime is either an act or an omission that is in contravention of laws or regulations laid out by an authority that holds legitimate power to set a conviction. A crime is a combination of two elements, namely men’s rea and actus reus. Men’s rea refers to a guilty mind, while actus reus refers to the wrongful act itself. For one to be held criminally liable, the standard of proof that is beyond rational doubt must be met. The practise of holding criminal charges against individuals responsible for aviation accidents has triggered many debates. The reason for such prosecutions may stem from the need to hold someone responsible in case of fatalities or to deter negligence as a way of increasing the confidence that passengers have in aviation safety. Conversely, holding prosecutions against aviation professionals may shun them from giving information about the accident that is crucial for improving aviation safety in fear of prosecution (Dekker, 2013).
Deker (2010) asserts that the first identifiable case where parties to an aviation accident were prosecuted took place on 8th October 1979 when a Swissair plane crashed in Athens. The flight exceeded the runway, killing fourteen of the passengers. The pilots were charged with negligent bodily injury, negligent manslaughter, and disturbing the safety of air services. They were sentenced to four years in prison, but the sentence was later converted into a fine. In the US, the first case when aviation professionals were prosecuted was in 1999, following the explosion of oxygen generators in a ValuJet. The accident killed all the 110 people who were on board. SabreTech Inc. was charged with 110 counts of manslaughter, 110 counts of murder, and 1 count of unlawful transportation of hazardous materials. Three of its employees were also charged separately with crimes related to the accident. The National Transportation Safety Board (NTSB) permitted the Federal Bureau of Investigation (FBI) to take part in the investigation. After the investigation was carried out, not all the employees were found guilty. Most charges against the company were dropped or overturned on appeal (Mateou & Michaelides, 2012).
The Swiss Prosecution of July 2002 involved a case where a passenger jet and a cargo aircraft collided in the air in Southern Germany, killing all the 71 people on board both planes. Although the accident occurred over German territory, the collision happened in the airspace controlled from Zürich by a private Swiss company, Skyguide. German Federal Bureau of Aircraft Accidents Investigation learnt in 2004 that the collision was because of faults in the Swiss ATC system. In 2006, eight of Skyguide’s employees were charged with manslaughter by the Swiss prosecution team. In September 2000, four managers were convicted, three workers got deferred prison terms, and one was acquitted (Nemsick & Passeri, 2012).
Views on the criminalisation of Aviation Accidents
Concerns on the aviation prosecutions that target the professionals following an aviation accident have been rising. Foremost, most commentators question the wisdom of judicial actions. The basis of the claim is the belief that aviation prosecutions are seen to disrupt autonomous safety investigations since most people become reluctant to share their insights on suspected mistakes and violations. In fact, prosecutions have the norm of substantiating their claims using technical reports. In Falcon 900-B Accident, the Greek court found the defendant (the captain of the plane) guilty of criminal negligence and sentenced him to five years in prison after basing its judgment on the prosecution report, which was a compilation of independent technical reports that had been conducted by aviation professionals. Efforts by the defence team to stop the court from using the document were futile. Similarly, in MD-11 Accident case, the court considered the technical investigation admissible, despite claims by the defendant that such a move was inconsistent with the applicable statute (Bartsch, 2013).
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Consequently, Mateou and Michaelides (2012) observe that aviation cases have discouraged most professionals from participating in safety improvement forums since they fear that their statements could be used against them in court. Those who opt to participate seek the indulgence of a union representative or an advocate. As such, they are likely to avoid mentioning crucial information unless they are assured of protection. In effect, companies are compelled to introduce confidentiality policies to protect their employees from criminal responsibility, which in the end, harms both safety and justice efforts (Dekker, 2010). Furthermore, it tarnishes the honest disclosure policy, which aims at enabling professionals to share information that could help companies in terms of quality and safety development (Steemson, 2011).
Secondly, the prosecution of aviation professionals is unfair. It is biased to punish one for errors that occur when he or she performs a professional action without a criminal intention. The crime is also selective in nature since what amounts to a criminal offence in some countries has no consequences in other states. Moreover, it is apparent that aviation accidents are barely caused by a single event. They encompass a chain of several causative system failures (Dekker, 2013).
Human errors are inevitable, particularly in the aviation industry. They transpire not because pilots and aviation workers opt to neglect clear guidelines. Instead, they are inexorable consequences of high-tech systems. Nonetheless, the developers of such systems never intend or anticipate such mistakes to occur. As such, when such errors cause an accident, they do not amount to a men’s rea, that is, guilty mind. Therefore, judicial actions that evolve from such events are unwarranted (Nemsick & Passeri, 2012).
Furthermore, the objective of judicial actions is vague. Most professions, including aviation, already have disciplinary boards that are in charge of monitoring and reprimanding professionals (Steemson, 2011). The institutions are best placed to deal with profession-related issues. Presumably, the legal action may be driven with the goal of maintaining social order. In the current world, the aviation industry has close-to-flawless systems. Thus, accidents should not be unheard. Consequently, a majority of the society believes that aviation accidents occur in the knowledge of the professionals, and hence they should be punished. Unfortunately, this move may only lead to reprimanding innocent individuals and creating tension among aviation professionals.
Implications of criminalisation of the pilot/operator for aviation safety
The purpose of punishment is to condemn a wrong and deter potential reoccurrence. Moreover, one of the basic tenets of law provides that people should always remain accountable for their wrongs. Likewise, the prosecution of pilots, mechanics, and other aviation experts is met to ensure that they are accountable for their crimes and caution other professionals to be watchful with their actions. The ultimate goal of aviation prosecutions is to improve the quality and safety of the aviation industry (Mateou & Michaelides, 2012). While this goal remains the objective of the judicial actions against aviation professionals, a major concern is the implications on the industry.
Mateou and Michaelides (2012) who knew about criminalisation of aviation accidents admitted that they would not participate in safety investigations reports unless they received proper legal advice. The basis for the claim was because they assumed that the information would be used against them. Mateou and Michaelides (2012) observed that most aviation professionals regard criminalisation aviation accidents as a barrier to safety. It triggers distress among workers. Pilots argue that judicial actions should only be relevant in cases of gross negligence.
According to Bartsch (2013), independent safety reports that succeed an aircraft accident are of great importance to the aviation companies. They help policymakers to initiate proactive strategies that enhance aviation safety. Presently, technical aviation investigations focus on determining the underlying and active shortfalls that contribute to an accident. However, with the surge of prosecuting aviation professionals, pilots and aeronautic engineers prefer to remain silent to avoid repercussions that damage their career and interfere with the accuracy of the reports (Nemsick & Passeri, 2012). In the end, the situation impedes security advancement.
Most aviation administrators proactively engage in constant quality and safety improvement programmes. However, legal actions taken against other aviation managers in the near past set a negative precedent. Aviation managers will soon begin to put more focus on initiating non-punitive and privacy policies in an attempt to protect their career and/or ignore safety enhancement strategies. This move will have a damaging impact on the safety of air transport, which is regarded as one of the most secure transport systems (Sparaco, 2010).
However, such challenges do not suggest that aviation officials should be granted absolute immunity. Such blanket immunity contravenes fundamental legal doctrines of the rule of law and natural justice. Under criminal law, one is considered guilty where an actus reus (act or oversight) and men’s rea are witnessed. If the intention of the law is to reprimand malefactors, then taking legal actions against pilots for involuntary mistakes is unjust. However, aviation professionals who engage in premeditated acts should be punished. The claim implies that policymakers should strive to create a just culture in the aviation industry where evildoers are reproached, and those who share information are rewarded. This strategy will have the effect of encouraging aviation experts to offer quality services while being cautious to avoid reckless acts. Most countries are already implementing a Just Culture (JC) policy where the stakeholders seek to reconcile the need to maintain accountability and safety (Mateou & Michaelides, 2012). The approach seeks to create a balance that will blur threats of criminalisation. The legislators argue that only the judiciary is best qualified to distinguish between voluntary and involuntary actions (Bartsch, 2013).
Pilots cannot share information when they believe that it is likely to injure their reputation and career. Conversely, such information is crucial when drafting technical reports (Steemson, 2011). Safety can be improved by amending the errors that cause aviation accidents. Yet, such errors can only be accurately outlined in technical reports. Therefore, policymakers should commit themselves to initiate laws that protect aviation professionals when sharing information to the researchers. Moreover, evidence retrieved from technical reports should be made inadmissible in courts to eliminate the legal impasses that evolve when judicial surveys co-mingle with the independent safety investigations (Dekker, 2010).
Every form of transportation or industry comes with risks of accidents due to machine or human errors. Aviation is not any different. Accidents tend to occur from time to time. Accidents may be caused by technical problems in the aircraft while others may be caused by human errors or miscalculation. Prosecutions of aviation professionals have caused debates within the aeronautics spheres. Although it is needful to penalise errant pilots and other aviation professionals, commentators criticise the move to punish involuntary mistakes. When an aviation accident occurs, it is important for the aviation professionals to assist in the investigation into the accident. However, in the case where the pilots risk self-incrimination, they are bound to withhold information that may be crucial to the prevention of subsequent accidents. In most cases, investigators use the reports compiled using the technical investigations, thus reducing the willingness of aviation personnel to cooperate. For these reasons, except in cases of wilful criminal acts, aviation accidents should not be criminalised. The judiciary should be given the responsibility to draw the line between wilful acts and involuntary actions.
Bartsch, R. (2013). International Aviation Law: A Practical Guide. Vermont: Ashgate Publishing, Ltd.
Dekker, S. (2010). Pilots, Controllers and Mechanics on Trial: Cases, Concerns and Countermeasures. International Journal of Applied Aviation Studies, 10(1), 31-49.
Dekker, S. (2013). The Field Guide to Understanding Human Error. Vermont: Ashgate Publishing, Ltd.
Mateou, A., & Michaelides, S. (2012). Flying in the Face of Criminalisation: The Safety Implications of Prosecuting Aviation Professionals for Accidents. Vermont: Ashgate Publishing, Ltd.
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Nemsick, J., & Passeri, S. (2012). Criminalising Aviation: Placing Blame before Safety. Mass Torts, 10(2), 13-22.
Sparaco, P. (2010). Unfairly Judged. Aviation Week & Space Technology, 172(46), 81-81.
Steemson, J. (2011). Aviation Prosecutions. RoSPA Occupational Safety & Health Journal, 41(10), 20-21.