Safety: The Blame Game

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Safety is of paramount importance to the aviation industry. But the increasing trend toward launching criminal investigations after accidents threatens the free reporting of vital information.

Last year was the safest in aviation history. Programs such as the IATA Operational Safety Audit (IOSA), together with an increased focus on data sharing and data analysis, promise an even safer future.

There are still challenges, however. One concern is an increasing trend toward criminal investigations into accidents, either after or concurrent with the safety investigation.

These two types of investigation usually have conflicting interests. The sole aim of the safety investigation is to find out what went wrong and to use this information to prevent a similar accident happening again. The criminal investigation, on the other hand, tries to find out who is to blame for an accident and then punish those concerned.

“The goals of a criminal investigation and a safety investigation are not the same, and the investigations are not conducted in the same way,” explains Gary Doernhoefer, IATA General Counsel. “Safety investigators try not to reach any conclusion or form any hypothesis during the investigation itself. Their goal is to defer reaching a conclusion until they have exhausted the collection of facts. They are trained to undertake the investigation in this way, which can actually be quite difficult.

“The legal approach is to form a hypothesis about what happened and then try to seek out and present evidence to support that hypothesis,” he continues.

Information flow

The concern is that criminalizing airline accidents will suppress the free flow of safety-related information. This would clearly have a detrimental effect on aviation safety.

The safety culture of the aviation industry is now founded on data gathering—not just after an accident, but as a normal course of operations. It requires constant observation and reporting of potential problems, and the sharing of this information across the industry. This leads to constant improvement in general global safety standards.

A number of states and airlines have developed voluntary disclosure programs (VDPs), which encourage the reporting of safety-related incidents by offering the frontline reporter (typically the flight crew, cabin crew or maintenance crew) immunity from disciplinary measures. This is part of a Just Culture.

For example, if a pilot in the United States accidentally violates a regulation or makes a mistake, and then reports the incident immediately after the flight, the pilot will not be penalized. As long as the incident was not intentional or seriously negligent, the Federal Aviation Administration (FAA) will not suspend or revoke the pilot’s license. It has been extremely successful and helps gather important safety information.

“Voluntary reporting of small mistakes can lead to a pool of important information from which patterns emerge,” says Guenther Matschnigg, IATA Senior Vice President, Safety, Operations and Infrastructure. “This can result in changes being made to operational procedures, with significant safety benefits.”

Just as a lack of reports does not mean an organization is safe, an increase in reported events does not mean an organization has become less safe. A change in Danish law in 2001 to a non-punitive stance resulted in the number of air traffic control safety reports rising from 15 a year to 900, according to Naviair, Denmark’s air traffic service provider.

In fact, it is precisely because the aviation industry has had such an incredible safety record that VDPs are becoming ever more important as a source of safety-related information. The ratio of accidents to flight operations continues to fall, meaning forensic evidence is becoming increasingly specific to an actual incident.

As Mary Peters, former US Secretary of Transportation, puts it: “In commercial aviation, the strategy of problem identification through analysis of accident data has just about reached its limits. Nearly all of the FAA’s work now belongs in the realm of precursors to an accident, and precursors to the precursors.

“As accidents become more rare, the work of accident prevention moves further and further back in the unfolding chronology of the risk, identifying contributory factors and potential contributors long before they manifest themselves in a disaster.”

Data as evidence

As long as flight crew know they will not face disciplinary action from their aviation regulatory body if they self-report safety issues, the flow of information will continue, and safety will be enhanced. After all, it is argued only a very small proportion of human action is deliberate and deserves sanctions of appropriate severity.

“But the criminalization of accidents creates a problem,” says Doernhoefer. “Having gathered all this data for the purposes of improving safety, the industry is becoming increasingly concerned that the data can then be used to prosecute in a court. This is not just the data related to a specific incident, but any report that might be construed as part of the evidence.”

The upshot of all this is that, if the confidentiality of the information is broken and it ends up being used in criminal court cases, frontline personnel are going to be increasingly unwilling to self-report, and a rich seam of safety data will be lost.

The problem is becoming particularly obvious in countries where there is a strong civil law culture, such as France, Italy and Japan, where it is more likely the courts and judges will attempt to override the accident investigators and bring in safety information that was reported before the accident as evidence in court.

Perhaps the classic case of this was the criminal case that followed the Air France Concorde disaster in Paris. Ten years after the accident, a single mechanic from Continental Airlines was found guilty of manslaughter because a small titanium strip fell off a Continental Airlines aircraft on the runway before Concorde took off. He received a suspended sentence. Charges against Air France and the designers of Concorde were dropped, and Aéroports de Paris was not held to account over its failure to perform a runway inspection. Prosecuting a frontline individual does not address the safety issue. In Japan, the focus is often put on prosecuting the line managers or management of the company employing the frontline individual.

“We are not promoting a no-blame culture and nobody is saying certain evidence should be completely off limits to courts,” says Doernhoefer. “But it is simply counter-productive to global aviation safety if lawyers can freely mine data gathered for safety analysis and use it as evidence in a criminal case resulting from an accident.”

Need for education

Michael Comber, Director of ICAO Relations at IATA, notes that ICAO Annex 13, especially in its attachment E, provides legal guidance on the protection of information used for safety data collection and processing systems. “It tries to guide states in ensuring that a balance is struck between the need for the protection of safety information to improve aviation safety and the need for the proper administration of justice,” he says.

Not all judges take this into account, however. There is no clear global standard regarding the admissibility of previously reported safety information as evidence in a criminal case. Courts in different jurisdictions will interpret the matter in different ways.

Last year, ICAO established a Task Force on Safety Information Protection to provide input on the improvement of these provisions. ICAO considers it essential that there are legal safeguards to protect information in order to encourage reporting. This is likely to require some time, though.

While the ICAO Taskforce continues to work towards redrafting Annex 13 provisions, there is another approach that may bear fruit more rapidly: education of the judiciary.

Some specific efforts at education appear to have had immediate results. Brazil’s aeronautical accident investigation and prevention center (CENIPA) developed an educational program for judges and prosecutors to explain the risks of unfettered disclosure of aviation safety information. The issue was presented at a workshop for the legal education of judges and has had a positive response.

In a subsequent court decision, access to CENIPA’s safety investigation information by police and federal prosecutors was limited by a judge based on item 3.1 of Annex 13 to the Chicago Convention.

In October 2011, CENIPA presented a paper to the ICAO Regional Aviation Safety group regarding this successful education campaign. “When the members of the Judiciary Branch develop a deeper understanding of the world aviation system, as well as of the aviation industry practices and, especially, of international agreements, including the Annexes to the 1944 Chicago Convention, they are enabled to make better judicial decisions concerning the protection of flight safety information, independently of the fact that the country still does not have a specific law regarding the subject,” the paper concluded.

Awareness of the issue is now increasing and judges are beginning to rule that certain evidence may not be appropriate in certain cases. Protection of certain data for the public good of safety improvement may, often, be the more appropriate route.