Mr. Sean Gates, Kenyon SVP of Legal Services

The following is a guest post from Kenyon Senior Vice President of Legal Services, Sean Gates, considered by many to be the best aviation lawyer in the world. Mr. Gates retired from niche-law firm Gates Aviation in 2013 and is now a non-practicing solicitor. At Kenyon, he provides clients with expert opinion and legal counsel in the immediate aftermath of an accident. You can read more about his expertise here.

Aviation Safety and the Rights of Individuals – The Need to Square the Cirlce

There are certain rights afforded to protect individuals in most countries in the event they are implicated in criminal investigations.  Significant amongst these are the rights to have a lawyer present in interviews by investigators of criminal activities and to refuse to answer questions in such interviews to avoid self-incrimination. These rights are incorporated in the European Convention on Human Rights.  However the application of international and European law to aircraft accidents significantly qualifies the protection afforded by the Convention which shortfall can only be resolved by international and European legislation. Until such legislation is in place, individuals caught up in an official investigation should consider their own rights to liberty before fully cooperating with the investigating authorities. Reliance on so-called “Just Culture” concepts in this context is misplaced.

At first sight the concerns expressed in this article may seem misplaced. The provisions of Annex 13 to the Chicago Convention of 1944 set out the rights of the investigators to call for evidence and to interrogate witnesses, all of which is subject to the overriding proviso in Chapter 3.1 that “the sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents.  It is not the purpose of this activity to apportion blame or liability.”

Annex 13 finds its echo in Europe in recital 4 of the Regulation (EU) No 996/2010: “the sole objective of safety investigation should be the prevention of future accidents and incidents without apportioning blame or liability.”  The EU Regulation entitles investigators to call and examine witnesses and to require them to furnish or produce information or evidence relevant to the safety investigation (Article 11(2)(f).  Article 23 requires member states to “lay down the rules on penalties applicable to infringements of this Regulation.  The penalties provided for shall be effective, proportionate and dissuasive”.  According to recital 35, penalties should, in particular, “allow for the sanctioning of any person who contrary to this Regulation…obstructs the actions of a safety investigation authority….by refusing to provide…material information and documents…or, having knowledge of any occurrence of an accident or serious incident, does not inform the relevant authorities thereof.”

Clearly a thorough investigation of aviation accidents is to be desired to secure it’s overriding purpose of preventing recurrence of such accidents and given that blame is off the agenda.

However, and regrettably, accident investigations and reports have a great deal to do with blame up to and including criminal prosecution; so that the provisions referred to above concerning the sanctity of the investigation process and report cannot be relied on by those implicated or interrogated in the investigation for a number of reasons.

The Annexes to the Chicago Convention are not deemed part of the Convention and are not, therefore, subject to the rules governing enforcement of treaties between states, so contracting states are not obliged to implement or comply with the standards of an annex.  This is emphasised by Article 26 of the Convention which provides that a State in which an accident to an aircraft occurs…..”will institute an enquiry into the circumstances of the accident in accordance, insofar as its laws permit, with the procedure (in Annex B).”  Article 14(3) of the Regulation which concerns protection of sensitive safety information provides “the administration of justice….may decide that the benefits of the disclosure of the records……for any other purposes permitted by way outweigh the adverse domestic and international impact that such action may have on that or any future safety investigation.” By this means, the overriding rights of judicial authorities as provided in national law are acknowledged; effectively sanctioning free access by prosecutors to the official investigation.

Given that prosecutors are entitled to such access to the extent permitted under national law, one would expect that the Annex and Regulation would similarly protect the rights of individuals against self-incrimination and to the benefit of Counsel.  It is, after all, the case that accident reports are routinely relied upon, particularly in civil law countries as the definitive guide to the factual circumstances giving rise to the accident.  Recent experience in Greece in connection with the Helios accident in 2005 underlines this.  Defendants were convicted even though material evidence as to causation was lost by the investigation committee because the Appeal Court treated the investigation itself as being conclusive making any re-examination of the accident superfluous; thereby depriving the Defendants from any effective opportunity of challenging the report’s conclusions and the opinions based on those conclusions.

Although the European Convention on Human Rights preserves the rights of individuals not to self-criminate, there are a number of derogations from that right and in any event, since the accident investigators are not judicial authorities, neither the right to remain silent nor the right to Counsel can routinely be enforced by reference to the provisions of the ECHR.  To obviate the hardship so caused there is, at least in the UK, an understanding between the judicial authorities and the AAIB (the body responsible for accident investigations) enshrined in a Memorandum of Understanding of 2008 which stresses that “the public interest requires that safety considerations are of paramount importance, the consequences of which may mean that the interests of an AAIB investigation have to take precedence over the criminal investigation.”  This does not, of course, entirely replace the rights taken from those who are  potential accused but represents the high water mark so far as that protection is concerned within Europe.

Plainly the absence of ordinary rights afforded to key witnesses who may become suspects or accused in criminal proceedings is a matter of very considerable concern to those parties in the event of an accident as it is or should be to all those who are post holders in any affected organisation up to and including members of the Board.  This concern should be exacerbated by the increased frequency with which criminal prosecutions follow aircraft accidents; as in Valujet 1996, Concorde 2000, SAS 2001, DHL Bashkirian 2002, Helios 2005, and Spanair 2011, to name some of the more recent cases.

Given the potential consequences of an accident investigation to individuals and corporations, the example given in the UK by the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 at section 12(1) which provides:

“no report which is required….to be published shall be so published if, in the investigating inspector’s opinion, it is likely to affect adversely the reputation of any person, until the investigating inspector has:

(a) Where it appears to him to be practicable so to do, served a notice under this Regulation upon that person….and

(b) Made such changes to the report as he thinks fit following his consideration of any representations which may be made to him in accordance with paragraph (3) below by or on behalf of the person served with such notice”

should represent the minimum level of protection for the rights of the individuals and the guarantee they need to cooperate fully with investigators to advance the prime purpose of securing and increasing safety in the industry .

Section 12  goes some way to protect those implicated in the investigation and has the additional benefit of addressing the iniquities of what has become known as the  “party process.”  This process is described in detail in the report of the prestigious Rand Corporation entitled “Safety in the Skies”. Rand was requested by the US accident investigation organisation, the National Transportation Safety Board, to investigate the influence of the process on accident investigations.  The party processes the shorthand description of the process whereby investigation authorities involve third parties such as the manufacturers of the subject aircraft to provide experts and resources to investigate the causes of an accident. Shortage of resources has meant that the party process replaces the desirable goal of an entirely independent agency and Rand recognised that it “presents a clear and present danger to the integrity of the investigative process – parties that face potentially enormous economic losses if they are found to be the cause of an accident could attempt to disrupt or bias an investigation.”  One might add that this is all the more the case where criminal proceedings might ensue.

The difficulty particularly for individuals and airlines is that they are rarely nominated as advisers to the accredited representatives appointed by the accident investigation agency. Therefore, they have no direct input, access or ability to challenge the investigation which is increasingly conducted by an agency overseeing external parties and particularly  the manufacturers of the aircraft which are themselves under investigation.  Given the very significant interests of those parties in the outcome of any investigation, Rand recommended a series of steps be taken by the NTSB to bring back in house more of the functions of the investigation.   Those steps are echoed in EU Regulation 996/2010 where, at Article 3.6, “the safety investigation authority shall be given by the respective Member State the means required to carry out its responsibilities independently and shall be able to obtain sufficient resources to do so.  In particular:

(d) The safety investigation authority shall be allocated a budget that enables it to carry out its functions and shall

(e) have at its disposal…..qualified personnel and adequate facilities…..to enable the…examination of the aircraft, its contents and its wreckage”.

In the light of the current economic plight of the EU, it seems unlikely that this article will be realised in the near future or that there will be any meaningful steps taken to dilute the party process; to the considerable disadvantage of those who may be implicated in the report; face criminal prosecution as a result of it and yet have no opportunity to challenge the official report either during the investigation; or in any subsequent criminal proceedings.

A number of conclusions can be drawn from the state of the law regarding accident investigations and recent experiences.  Principal among these must be that anything said to accident investigators can and should be expected to be used in criminal proceedings against the interests of those making the statements and their employers.  Other than in the UK, there is no effective opportunity for those not within the “party process” to participate in or challenge the findings of the accident report either within the framework of the investigation itself or in subsequent criminal proceedings.  Those proceedings are likely to be protracted over many years.  The impact of criminal proceedings on individuals is financially and emotionally devastating, as it can also be on their employers regardless of conviction or acquittal. This is because of the time the proceedings take; their cost and the mentally debilitating process of defending what are quite often accusations that are unfounded, expensive to challenge, and poorly understood by judges who are not competent to comprehend complicated technical matters.

The question plainly arises what can and should be done to address these injustices.  To some extent, the UK has blazed a path with the Memorandum of Understanding referred to above as with the provision in the UK Regulation regarding the rights of those implicated in investigations.  Those measures would be relatively easy to adopt in the European jurisdictions where many of the abuses identified in this article are tolerated.  The assault on the party process proposed in the EU Regulation should at last begin (even though regrettably, the most effective means of achieving this by creation of an EU wide investigatory body was dismissed when the Regulation was under consideration).  Since it is unlikely that specialist criminal courts with judges with a technical background will be created, aviation bodies should actively be seeking to develop a formal process to educate prosecutors and judges on aviation issues.

Special pleading for a “just culture” environment in aviation should finally be recognised as being wishful thinking and industry should instead focus on taking positive practical steps to represent and defend the interests of its members along the lines of the recommended practice on Criminalisation of the European Regional Airlines Association.  This calls for support to individuals and organisations threatened by criminalisation as a result of accidents and clear policies on the financing of the defence of prosecutions, the supply of technical expertise to support those accused and the development of relationships with those in the party process to inhibit the use of criminalisation either as a defence to perceived threats in respect of their own activities or as an offence to intimidate those involved in the accident from seeking compensation for their losses.