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Accident Investigation, Safety Data Disclosure & Related Legal Procedure: UK
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and Legal Process
Important Caveat: The information contained in this summary is based upon the current situation. This may not have prevailed at the time when a criminal prosecution has been brought in the past
Accident & Serious Incident Investigation
The Air Accidents Investigation Branch (Aircraft Accident Investigation Branch (UK) (AAIB)) is responsible for investigating all Accidents and Serious Incidents in broad accordance with the provisions of ICAO Annex 13. The Branch is also responsible for determining whether an Incident is a Serious Incident as described in the Annex. The Branch is an independent unit of the Department for Transport and it’s Head, the Chief Inspector of Air Accidents, reports directly to the Secretary of State for Transport. The applicable national regulation is the UK Statutory Instrument for the Investigation of Civil Air Accidents and Incidents, which incorporates the requirements of EU Directive 94/56 of 21 November 1994, and is largely compliant with the current (Ninth) edition of Annex 13. The Annex 13 Recommendation in Chapter 5 that “any judicial or administrative proceedings to apportion blame or liability should be separate from any investigation conducted under the provision of this Annex” and the Standard, in the same Chapter, which requires that “The State…shall recognize the need for coordination between the investigator-in-charge and the judicial authorities” is met in the UK by the 2008 Memorandum of Understanding between the three transport accident investigation agencies and the Crown Prosecution Service.
Safety Occurrence Reporting
A Mandatory Occurrence Reporting Scheme is administered by the Regulator, the Civil Aviation Authority (CAA). This scheme is mandated under Article 142 of the Air Navigation Order (ANO), which implements the EU Regulation No 376/2014 of 3 April 2014. It is stated by the CAA that “the sole objective of occurrence reporting is the prevention of accidents and incidents and not to attribute blame or liability.” It is also stated that all reports will be de-identified before being distributed outside the Authority solely in the interests of aviation safety. There is also provision in the Air Navigation Order that, with the exception of ‘gross negligence’, no criminal proceedings shall be implemented in respect of un-premeditated or inadvertent infringements of the law, which come to the attention of the relevant authorities only because they have been reported under the Mandatory Occurrence Reporting Scheme.
Failure to report a mandatory occurrence, or making a false occurrence report (under ANO Article 142), is a criminal offence and under Article 148 of the ANO is subject upon summary conviction to a fine not exceeding the scale maximum (£5000 in 2009) and, upon indictment, to a fine or imprisonment for a term not exceeding two years or both.
Attachment ‘E’ to the Ninth Edition of ‘ICAO Annex 13 effective 23 November 2006 contains generic guidance on the protection of safety data from inappropriate use which is reflected in applicable UK legislation.
Freedom of Information Legislation - Accident Investigation
Exemptions from the provisions of the Freedom of Information Act 2000 are available, primarily under Chapter 14: Section 31(2)(e) (ascertaining the cause of an accident), and are largely based upon the public interest in not interfering with air accident prevention. It is noted, in guidance on exemptions from disclosure, that there are already statutory provisions which prohibit disclosure of information by the AAIB to which section 44 of the Act is relevant. More generally, it is accepted that a disclosure likely to prejudice the exercise by the AAIB of its duty, to establish the cause of accidents, would in any case be contrary to the public interest. Also, some of the information collected by AAIB investigators is, for a variety of reasons, provided in confidence specifically to assist the investigation. The disclosure of such information beyond the direct requirements of the investigation is likely to result in reduced co-operation from such sources in the future. See also the exemptions in sections 30(2) (information obtained/recorded by investigating authorities from confidential sources), 40 (personal information), 41 (information provided in confidence) and 43 (commercial interests). Again, such disclosures could prejudice the exercise by the AAIB of its functions and be contrary to the public interest. There may also be occasions where national security/defence exemptions will be relevant to information held by the AAIB. However, accident investigations are capable of serving more than one purpose, and there may be another investigation being undertaken with a view to apportioning legal responsibility for an accident. Because of that, other exemptions likely to be relevant in this area include:
- other parts of section 31 such as prejudice to the administration of justice
- section 32 (court records) - where, for example, a criminal prosecution or other legal proceedings are a possible outcome
- section 40 (personal information) - for example where the role of an individual in an accident is an issue
- section 43 (commercial interests) - for example where the role and reputation of a business is at stake
Action to suspend, revoke or impose restrictive conditions upon a licence held by flight crew, certified aircraft maintenance engineers, or air traffic controllers "cannot be taken in order to punish the licence holder... (it) may only be taken if the conduct of the person concerned is such that he does not meet the criteria for holding such a licence...or approval". There is a right of appeal against licensing action provided that the process is initiated within 14 days and a guidance document is published.
In practice, it has been historically rare for licensing action to be taken in respect of professional flight crew and maintenance engineers but slightly less so in respect of air traffic controllers. However, many observers consider that the application of the statement about ‘criteria’ has not always been transparent or necessarily consistent in the past.
With the exception of Magistrates Courts, which are empowered to determine by summary conviction minor offences against criminal or civil law, and are restricted in the penalties which they may impose upon conviction, the Judicial System for criminal prosecution in all parts of the UK follows the adversarial model in which the opposing parties present their cases before a Judge. Magistrates are required to refer a criminal case to a higher court for trial if they assess that the maximum penalty which they would be able to impose might be inadequate, or there are issues of legal complexity, or the defendant requests this. The structure and administration of justice, but not the principles, vary between England & Wales, Scotland and Northern Ireland. Criminal and Civil justice is obtained through two separate court systems which converge at the level of Appeal. The Court system in both cases is hierarchical so that disputed outcomes can be considered by higher Courts.
Criminal Justice for minor offences such as the breach of rules and regulations is usually administered by Summary Courts where Magistrates dispense judgment and the penalty for a offender may have been pre-determined in the case of England & Wales and Scotland by association with the Standard Scale of fines which contains five bands levels with maximum fines which change periodically in line with monetary inflation . Any significant criminal prosecutions take place after indictment on specific charges before a Judge and Jury. Defendants usually obtain legal representation, but are not required to. The Jury determines the verdict after direction on legal matters by the Judge and the Judge then determines the Sentence and may also require costs to be paid. Any Appeal against either conviction or sentence is heard before a panel of Senior Judges in a higher court and “leave to appeal” beyond that may be granted if a matter of potential or actual legal significance is found to exist.
Cases of civil litigation for damages between ‘claimants’ and ‘defendants’ are heard before a single Judge who sits without a Jury. Legal representation is almost universal in such cases. The determination of each case is delivered as a detailed written judgment some time after the completion of the Court Proceedings, which are usually held in open court. There is an increasing trend, subject to the agreement of the parties involved, in the use of various means of ‘Alternative Dispute Resolution’ (ADR) especially Arbitration. In this way, proceedings are kept private and costs are reduced.
Where criminal behaviour is suspected, investigation in minor cases is carried out by the Police or the UK Regulator the Civil Aviation Authority as a delegated specialist agency. In most cases, however, and in all those with any significant sentencing outcome, the investigation is carried out by the Police who then deliver the results of their investigation to the Prosecutor. In this case, there is provision for liaison between the Prosecutor and the Police during the investigation but the Prosecutor is not directly involved in the conduct of the investigation.
The Decision to Prosecute
In minor cases throughout the UK, the decision to bring a criminal charge is made by the investigating agency - the Police or the Civil Aviation Authority. In England and Wales, the consideration of evidence and the exclusive authority for deciding whether a Criminal Prosecution should be brought, except for matters which can be dealt with in Summary Courts, is vested in the Crown Prosecution Service (CPS) led by the Director of Public Prosecutions (DPP). In determining whether a prosecution should be brought. The CPS assesses the evidence assembled in a case against two criteria which are contained and described in more detail in a published ‘Code of Practice’ :
- Is there sufficient evidence to provide a realistic prospect of a conviction?
- If so, is it in the Public Interest to bring a prosecution?
Prosecutions for minor offences brought by Police or the Civil Aviation Authority in Magistrates Courts are expected to follow the same Code of Practice. Equivalent process exists in Scotland and Northern Ireland.
The selection of a charge or charges by the Prosecutor where discretion exists should, under the Code of Practice, meet the following criteria:
- Reflect the seriousness and extent of he offending.
- Give the Court adequate powers to sentence and impose appropriate post-conviction orders.
- Enable the case to be presented in a clear and simple way.
The Code observes that in following the above guidance, "...Prosecutors may not always choose or continue with the most serious charge where there is a choice".
Prosecutors are obliged to consider alternatives to prosecution which may include a simple or conditional caution. The latter is intended to be used where it is considered that the Public Interest justifies a prosecution but the interests of the suspect, victim(s) or community would be better served without one.
Many criminal charges have to be brought within six months of the alleged offence being committed but more serious charges such as manslaughter/homicide have no limit.
Grounds for Criminal Prosecution of individuals
Any failure to comply with the requirements of the UK Air Navigation Order is a criminal offence. Article 148 of that Order provides that if any provision of the Order or Regulations made under it or any provision contained in the current European aviation safety Regulations is contravened, it will be a criminal offence. Schedule 14 of Article 148 provides for maximum penalties upon Conviction according to the relative severity of the offence. Most offences are liable on summary conviction to a fine not exceeding Level 4 on the Standard Scale . A smaller number are subject upon summary conviction to a fine not exceeding the scale maximum (£5000 in 2009) and, upon conviction after indictment, to an unlimited fine or imprisonment for a term not exceeding two years or both. These include under Article 74, “endangering the safety of persons or property on the ground”. A single offence, endangering the safety of an aircraft, is liable upon summary conviction to a fine not exceeding the scale maximum (£5000 in 2009) and, upon conviction after indictment, to an unlimited fine or imprisonment for a term not exceeding five years or both.
Criminal prosecutions for endangering an aircraft, its occupants, or by operation of it, persons or property on the ground because or willfully reckless or grossly negligent behaviour as defined under ANO Article 73, are almost unknown in the case of aircraft being operated for the purposes of public transport. The first, and so far only such prosecution of a professional pilot operating a public transport flight, was the prosecution brought by the Civil Aviation Authority in 1989 (see case studies). Under more recently-adopted practices, any similar prosecution would be subject to a more specific test now applied under the Code for Crown Prosecutors
Flight Crew working hours limitations are covered by separate Regulations which allow for offenders to be prosecuted .
Grounds for Criminal Prosecution of Entities
Under the Corporate Manslaughter and Corporate Homicide Act 2007 , which became law on 6 April 2008 and is applicable throughout the UK, an organisation is guilty of corporate manslaughter if the way in which its activities are managed or organised causes a death and this amounts to a gross breach of a duty of care to the person(s) who died. A substantial part of the breach must have been in the way activities were organised by senior management of the organisation. The term ‘senior management’ is open to legal interpretation according to context but is defined in the Act as those persons who play a significant role in the decision-making process about how the company's activities are managed and organised. The threshold for the offence is gross negligence. The way in which activities were managed or organised must have fallen far below what could reasonably have been expected.
If convicted, an organisation faces penalties which include an unlimited fine, remedial orders and publicity orders. A remedial order will require an organisation to take steps to remedy any management failure that led to death(s). The Court can impose an order publicising the fact the company has been convicted of the offence, providing details, the amount of any fine imposed and the terms of any remedial order made. Guidance issued indicates that the fine levied could range between 5% and 10% of the gross annual turnover of a business. So far, no cases have been brought which relate to the duty care to air passengers. Guidance on the Act is available
Manslaughter and Endangering under Common Law
Manslaughter or Endangering are likely to figure in the majority of significant criminal prosecutions of individuals whose negligence is alleged to have been cause for prosecution. Since both are Common Law Offences in the UK, they have no legislative definition and much depends upon differences in the degree of culpability, for instance through intent. Involuntary manslaughter occurs if someone kills without intending to cause death or injury, but was blameworthy in some other way. Also, either manslaughter or endangering may be associated with the notion of gross negligence. This is based on the supposition that a duty of care was owed to those killed, injured or placed at risk and that their death or injury or risk of same was attributable to a breach of this duty of care sufficient to constitute the criminal conduct of gross negligence.
Cases in which individuals are defendants are rare in the UK even if those persons have been found guilty of a related criminal offence. Entirely separate proceedings are required which do not require criminal liability to have been proved. Such proceedings are more likely to be brought against entities as defendants because of their greater assets and, in many cases, their liability insurance cover.
Major UK Fatal Accidents to multi crew public transport aircraft attributed primarily to Human Error since 1989 inclusive 8 January 1989 British Midland Boeing 737-400 crash near East Midlands Airport as a result of incorrect flight crew response to the malfunction of a single engine which resulted in the wrong engine being shut down, see the Report on the accident to Boeing 737-400 G-OBME near Kegworth, Leicestershire on 8 January 1989
Criminal Prosecutions arising from major UK fatal aircraft accidents since 1989 inclusive: None
Criminal Prosecutions in the UK arising from significant incidents to multi crew public transport aircraft since 1989 inclusive: None