Criminal Liability of Pilots - CLOP

The criminalisation of air accidents threatens safety management philosophy

By: David Learmount London

The criminalisation of air accidents is likely to get worse before it gets better - if indeed it ever does get better. That is the consensus in the air transport industry itself, and among the specialist lawyers who serve it.

If this consensus proves correct, the dream of operating a successful industry-wide "just culture" to generate healthy internal incident reporting systems is under threat, endangering the objective of introducing safety management systems (SMS) in airlines worldwide.

An effective SMS depends completely on an open reporting culture, which in turn depends on trusting that those who volunteer information will not have it used to criminalise them.

"There is little doubt that the criminalisation of air accidents is on the increase," says Tim Brymer, a partner in London-based law firm Clyde & Co. "The laudable concept of balancing safety and accountability inherent in a just culture has largely failed."

In 2006, the Flight Safety Foundation drew up a joint resolution with France's Air and Space Academy; the Royal Aeronautical Society (RAeS); the Civil Air Navigation Services Organisation; the European Regions Airline Association; the International Federation of Air Traffic Controllers' Associations; the Professional Aviation Maintenance Association; and the International Society of Aviation Safety Investigators.

The resolution named nine fatal airline accidents which provoked criminal prosecutions in six national jurisdictions - Brazil, France, Switzerland, Italy, Greece and the USA - and argued that aviation safety was being harmed by these actions.

Speaking at the RAeS in London two years later, Dr Francis Schubert, chief operating officer of Swiss air navigation service-provider Skyguide, said the message about just culture had been too purist, and it had relied on "an unfounded assumption" that safety overrides justice.

He said: "The way the just culture message is currently expressed is neither understandable nor acceptable by the judicial authorities or the general public." Schubert maintained that the rise in criminalisation of aircraft accidents is testimony to this fact.