Aviation Safety leaders face a growing challenge in convincing prosecutors to be diligent in filing criminal charges against pilots, controllers and others involved in aircraft accidents.
Globally, there is a growing tendency of prosecutors and judges to seek criminal sanctions in the wake of aviation accidents, even when the facts do not appear to support findings of sabotage, criminal negligence or willful misconduct .The trend may be associate with the publics increased desire for accountability in many areas of industry-not just in aviation.
Without accountability through administrative remedies, such as civil penalties and license suspensions or revocations, one might argue that criminal prosecution in some situations would be reasonable. However, administrative and civil remedies nearly always exist and research by a Flight Safety Foundation working group found almost no adequate basis, other than willful conduct, for punishing individuals and companies further by subjecting them to risk of imprisonment or the equivalent of a corporate death sentence, particularly in an industry where safety reputations mean everything.
The aviation community all too well realizes that a single aviation disaster has many devastating consequences. Most importantly, lives are lost. Family members and friends of the victims mourn these losses; most seek answers, many seek change, and some seek revenge. Like the entire aviation industry, they want to know what happened, and why. In time, and with hard work, many lessons are learned. Possibly, the best way to honor victims of tragedy is to make sure all relevant information is obtained that might prevent future accidents. If individuals are not helpful to investigators out of fear of being prosecuted and sentenced to jail, investigators may never discover the truth.
 
Vital To Improve Safety
Most accidents are the result of human errors and often arise in context of a series of acts and omissions. Aviation technology is imperfect still, and individuals are even less perfect. Most professionals in any profession make mistakes in their everyday jobs. These mistakes in their everyday jobs. These mistakes normally go unnoticed and rarely result in real harm. Aviation, however, can be most unforgiving .For decades, the system has progressively elevated to its current high level of safety. In part because the industry has been permitted to conduct thorough investigations and collect complete information about the causes of accidents.
Nowadays, accidents in aviation are fortunately rare, so rare that sometimes we cannot learn sufficiently only from them .To learn, we need also  to ask pilots,controllers,technicians-operational people often trying to balance multiple goals under time pressure-to tell us their stories, to pass on their insights, their experiences-what went wrong  and what went right, what may be worth changing and should not be touched, where the gains are and where, if we act ,we will produce more side effects than benefits. When we punish these people, these valuable intelligence officers working on the front line, for their honest mistakes, we cut our information sources, we obstruct our capability to improve safety, we deny our society an opportunity for safer flights. This effect is also extended to the wider community of colleagues when one of them is ‘victimized’. By doing this we put a bomb in the works of the delicate improvement machine.
Prosecutors face the difficult duty to seek justice and protect society. It is their duty to seek justice, not merely to convict. Their crucial role is to protect the innocent as well as identify the guilty, to respect the rights of the accused as well as recognize the interests of the public. As prosecutors are quintessential public-interest lawyers, the aviation community has to make a case towards them as to how it learns and improves aviation safety for the same public, the same society that prosecutors protect.
Increased Criminalization
“Criminal Prosecutors are becoming increasingly eager to press charges against pilots, air traffic controllers and other aviation professionals involved in aircraft accidents, and that eagerness is a growing threat to flight safety” says Flight Safety Foundation President and CEO William R. Voss.
“The safety of the travelling public depends on encouraging a climate of openness and cooperation following accidents,” Voss said.” Overzealous prosecutions threaten to dry up vital sources of information and jeopardize safety.”
“In situations of gross negligence, willful misconduct or reckless conducts, the judicial authorities need to pursue their own, separate investigation,” Voss said. “The future lives of passengers depend on the vital safety information that is gathered during an accident investigation. The aviation industry is not against holding aviation professionals accountable if there is a case to answer. But it is important that everything follows international standards.
 
International Standards
International Standards set forth by the International Civil Aviation Organization (ICAO) say that discipline or punishment for people involved in an aviation accident or incident is appropriate only if evidence shows that the occurrence “was caused by an act considered, in accordance with the law, to be conduct with intent to cause damage, or conduct with knowledge that damage would probably result, equivalent to reckless conduct, gross negligence or willful misconduct.”
ICAO also says that the only objective of an accident or incident investigation should be to prevent future accidents and incidents, not to determine blame or liability of anyone involved in the occurrence-and, international aviation leaders say, not to supply data to criminal prosecutors.
In many cases, the risk that the threat of criminal prosecution places on the future safety of air travel greatly may outweigh and societal benefit in satisfying the inherent human desire for revenge or punishment in the wake of a terrible loss. The same sentiments were expressed in an October 2006 resolution approved by Flight Safety Foundation, the Royal Aeronautical Society, the Academie Nationale deIAir et deIEspace and the Civil Air Navigation Services Organization.
The resolution said, “The paramount consideration in an aviation accident should be to determine the probable cause and contributing factors in the accident, not to punish criminally flight crews, maintenance employees, airline or manufacturer executives, regulatory officials or air controllers. By identifying the ‘what’ and the ‘why’ of an accident, aviation safety professionals will be better equipped to address accident prevention for the future. Criminal investigation can and do hinder the critical information –gathering portions of an accident investigation, and subsequently interfere with successful prevention of future aviation industry accidents.”
The joint resolution may assist prosecutors to step back and see the wisdom in preserving an existing aviation safety system that has worked remarkably well in reducing aviation accidents.
Towards a just culture and accountable officers.
Since the approval of the resolution, prosecutors generally become less likely to file charges against “people on the line,” Voss said. Instead, the emphasis appears to have shifted to managers who were accountable for failed systems, he said.”This is more consistent with what we talk about in good safety practices-the concept of accountable executives,” he said.”However ,it does still have a little bit of a chilling effect because it makes people in executive positions uncomfortable—-It’s a thing  that’s hard to celebrate ,but you also have to acknowledge that it probably reflects an emerging understanding of safety issues on the part of prosecutors.”
In addition, he noted that the government agencies that investigate accidents have become increasingly likely in recent years to cite weak safety practices or safety cultures within aviation organizations among causes, or contributing factors, of accidents.
The International Federation of Airline Pilots Associations IFALPA found that in cases in which aviation personnel have been prosecuted for negligence, judges and juries often have been reluctant to convict. According to IFALPA “There is recognition that it is fundamentally wrong to convict someone criminally for trying to do their job. There are several examples where pilots have been acquitted. In each case, the pilot was attempting to respond to either malfunction or highly unusual circumstances and got it wrong. Where there have been convictions, the circumstances have been far more political than legal.
“IFALPA believes that all personnel should be held accountable for their decisions and actions in a safety –critical system.However, experience have shown that criminal prosecution makes no contribution to improving system safety”.
Actions that do improve safety include accidents investigations, mandatory safety reporting schemes, and flight operational quality assurance (FOQA) programs and similar data analysis programs, all predicated on a “just culture”. ICAO defines a just culture as a culture that recognizes that personnel should freely share critical safety information without fear of punishment while also accepting  that, in some instances, there may be a need for punitive action .If this standard is met for these reporting programs, it is almost certain that the prosecutorial standards will be limited to intentional acts.
Voss said that,”for the sake of safety and a just culture, safety investigators, plus those who are being investigated must have complete confidence in the integrity of the process.
Achieving that trust will be difficult, he said, noting that the public and government officials frequently favor prosecution of those involved in accidents.
“We need to be realistic,” Voss said.
“We’re not going to get major changes in regulations, and we’re not going to change any constitutions. We need to just talk to prosecutors so that they can do a better job of balancing the rights of individuals [...]