Crashes aren't crimes

Aviation safety is perpetually a story of two steps forward, one step back. Traffic-alert and collision avoidance systems (TCAS) and terrain awareness and warning systems (TAWS) were two steps forward. The huge increase in air traffic was a step backward in safety terms. More recently, safety management systems (SMSs) and satellite-based navigation are improvements. The latest step backwards? Criminalization of accidents.

Increasingly, serious aviation accidents result in two investigations — one by the national accident investigation authority and another, sometimes following and sometimes in parallel, by criminal investigators.

Prosecuting pilots, air traffic controllers, and operators (including airlines) is all the rage worldwide. This has nothing to do with civil liability for accidents, in which victims or their families sue for compensation, and which has age-old legal precedents. Criminal investigations and charges for aviation accidents are relatively new, and a hindrance to what should be the overriding goal of making flying even safer than it already is.

Specific charges against pilots and air traffic controllers have included “causing death through a reckless, careless and dangerous act”; “criminal negligence causing bodily harm and dangerous operation of an aircraft”; “manslaughter and negligent flying causing death”; and “negligent homicide and negligently disturbing public transport.” Being killed may or may not put an individual beyond the reach of the law, depending on how you look at it — the pilots of an ATR 42 taking off in icy conditions at Milan, Italy, in October 1987, who died along with 34 passengers, were posthumously charged with murder and convicted.

Sentencing can be drastic. In the Korean Airlines DC-10 accident in Tripoli, Libya, in 1989, in which four crewmembers, 68 passengers and six persons on the ground were killed, the pilots who were arrested by the Libyan authorities were sentenced to life imprisonment and extradited to Korea. Following the midair collision in Zagreb (Yugoslavia, now Croatia) in 1976 in which all 176 people aboard both flights were killed, the upper-sector assistant air traffic controller who was on duty at the time of the accident was found guilty and served 27 months in prison. In another accident, Italian courts sentenced the captains to 10 years’ imprisonment, and in an accident that occurred at Milano Linate Airport, the courts imposed sentences ranging from six to eight years.

It's not only courts -- in Europe, judges are in charge of criminal investigations -- and prosecutors who are wielding the law like a club. Now victim family groups are getting into the act. Families of some passengers lost on Air France 447, which plunged into the South Atlantic in 2009, are petitioning a Paris court to ground all Airbus A330s while investigating a possible software bug.

It's only human in the wake of a tragedy to look for someone to blame. However, no major airline or any of its employees countenances any deviation from standard operating procedures and civil aviation regulations that, in turn, are the product of experience gained over many years from previous accidents. Everything about the operation of an airline flight is governed by strict rules. Pilots conduct checklists before every phase of flight, and there are specialized checklists for abnormal and emergency situations. The International Civil Aviation Organization has standard phraseology for pilot-air traffic control radio communications to reduce the chance for misunderstanding. It's fair to say that, as far as human behavior in the system goes, nothing is left to chance. (There are exceptions among dodgy Third World airlines and, perhaps, a few commuter airlines -- although the Colgan Air crash has focused a lot of healthy attention on commuter deficiencies.)

Of course human error does occur. For the most part the system is "error tolerant": all kinds of cross-checks and automated warnings are built in. Technical glitches happen too, such as the A330's alleged flight control software problem. But technical faults rarely cause accidents themselves; engineers design for redundancy, so that if one part of the system goes haywire, there's an alternative or back-up.

Here's the point: nobody deliberately causes an accident, and carelessness is extremely rare. Airlines, air traffic control towers, maintenance facilities, and route control centers don't tolerate slacking. Besides, civil aviation authorities like the Federal Aviation Administration and European Aviation Safety Agency aren't shy about intervening in the interest of safety.

So how can you justify prosecuting people for making mistakes? What in retrospect was a mistake seemed, at the time and under the circumstances, the right thing to do. How to prove they were negligent (and I believe negligence is not a normal part of the criminal code)? I say you can't. Judges and prosecutors, who usually don't understand aviation operations anyway, go for convictions because they think it makes them look good to the public or they convince themselves they're acting on behalf of safety.

But fairness isn't the only issue. Criminalization of accidents dries up the flow of information about errors that could be precursors to accidents. Several airline and business aviation groups have systems that encourage pilots and others to confidentially report errors, which are aggregated and analyzed to see how the system could be made safer. This takes place under a "no blame" or "just culture" regime, based on the idea that it's more important to find out what kind of errors are being made, where, when, and why, than to punish individuals for inadvertent mistakes.

Confidential reporting systems depend on confidentiality. Few people are going to risk reporting their own errors if a criminal investigation can get its hands on the paper trail, which has happened a number of times. Nor is an operator going to feel comfortable with records of errors, collected to find problems that can be rectified, if the record is within the reach of a hungry prosecutor.

The existing aviation safety institutions are best placed to learn the lessons of accidents and apply them. That system works, as shown by the astonishingly low civil aviation accident rates in the U.S., Europe, and Asia-Pacific. With rare exceptions, criminal law is a blunt weapon where surgical precision is the best guarantor of flying safely.