Prosecutors worldwide continue to meddle in ongoing aviation accident investigations hampering efforts to improve air safety and prevent similar accidents in the future.

With the trend toward criminalization already having a chilling effect, according to Kenneth P. Quinn, general counsel of the Flight Safety Foundation (FSF), “the situation may get worse before it gets better and we are seeing it get worse.”

In addition to the obvious impact on the accident investigation itself, such trends threaten some of the greatest contributions to aviation safety such as the Aviation Safety Action Program (ASAP), which calls for self-reporting to catch trends that could lead to an accident.

The fear is that ASAP, and other programs aimed at using data-driven methodologies to improving aviation safety could ultimately become a mine of information for those seeking to criminalize aviation accidents and incidents.

According to Quinn, a partner at the law firm of Pillsbury, Winthrop Show Pittman LLP, the best defense is to relay on the fundamental concept of “preserving a just culture.”

Stated Quinn: “A voluntary disclosure program, which fosters an environment to admit mistakes, is a very good thing to have when in the crosshairs of a criminal prosecutor inasmuch as the prosecutor wants to know you have a corporate culture that does not force people to avoid or deny mistakes.”

But people are people and “to ere is human, to report is not,” said Quinn, who believes “there is a need for safety professionals to openly discuss errors without fear of reprisal.”

That need prompted the FSF, Royal Aeronautical Society in London, the Academie Nationale de l’Air et de l’Espace (ANAE) in Paris and the Civil Air Navigation Services Organisation (CANSO) in Geneva to draft a Joint Resolution Regarding Criminalization of Aviation Accidents that:

• Declares that the paramount consideration in an aviation accident investigation should be to determine the probable cause of and contribution factors in the accident, not to punish criminally flight crews, maintenance employees, airline or manufacturer management executives, regulatory officials, or air traffic controllers.

• Declares that absent acts of sabotage and willful or particularly egregious reckless misconduct, criminalization of aviation accidents is not an effective deterrent or in the public interest.

• Urges states to exercise far greater restraint and adopt stricter guidelines before officials initiate criminal investigations or bring criminal prosecutions into the wake of aviation disasters.

• Urge states to safeguard the safety investigation report and probable cause/contributing factor conclusions from premature disclosure, and use directly in civil or criminal proceedings.

• Urge national aviation and accident investigating authorities to assert strong control over accident investigations, free from undue interference from law enforcement authorities.

The U.S. has been largely spared from sensational aviation criminal trails, but six men linked to the defunct Platinum Jet Management were recently charged in connection to the February 2, 2005 crash of a Bombardier Challenger CL-600 at New Jersey's Teterboro Airport. The business jet crash left 20 hospitalized. Prosecutors allege that breaches of federal law were to blame.

The privately chartered flight to Chicago Midway Airport failed to take off. The aircraft broke through a fence, crossed a busy highway clipping two cars and struck a warehouse, causing a fire. The accident injured eleven people onboard the aircraft and nine more on the ground.

The National Transportation Safety Board found that the flight crew had miscalculated the aircraft's center of gravity and that overfilling the fuel tanks had moved it too far forward.

According to a federal indictment company personnel were "routinely undertaking and concealing dangerous fueling and weight-distribution practices." It also accused Platinum Jet Management of operating commercial charters without a valid license. The indictment went on to accuse the charter company of using pilots that lacked proper training.

Quinn called the Platinum Jet Management criminal case “a difficult case, a very difficult and disturbing case.” The veteran aviation trial attorney said the prosecutor in this matter has does his homework. “I do believe the Department of Justice has been very thorough as regards the grand jury investigation, has been very professional,” he said.

But Quinn sees a growing tendency of verdict-hungry prosecutors and judges to seek criminal sanctions in the wake of aviation accidents, even when the facts do not support findings of terrorism, sabotage, criminal negligence, willful misconduct or particularly egregious reckless conduct. He says there is a tendency to turn an aviation accident site into a crime scene. And there is an expanding net of potential defendants, including pilots, air traffic controllers, air safety regulators, aircraft designers and corporate officers.

“In recent years, prosecutors and willing judges around the world have turned the powerful weapons of criminal prosecution against what are simply tragic accidents, the result of mistakes, not willful actions,” Quinn remarked. “…Prosecutions have turned into persecutions and chilled the free admission of mistakes.”

Accident investigations and criminal trials are “two very different cultures,” said Quinn. “To seize and hold evidence and order interrogations is just flatly at odds with gaining safety information,” he added.

Quinn argues that administrative and civil remedies, such as steep fines, license suspensions or revocations, nearly always exist for those seeking answers, change or revenge. “Increasing safety in the aviation industry is a greater benefit to society than seeking criminal punishment for those ‘guilty’ of human error or tragic mistakes,” reasons Quinn.

He said prosecutors have less to suspect if an aviation firm has a good just culture program in place.

In the face of an indictment, said Quinn, the biggest problem is a coverup charge. “That’s what gets you in trouble,” he added. He advises that within the first 72 hours, one should:

• Take a crash course in the local laws

• Include in contingency plans, a response to a criminal inquiry

• Hire experienced counsel

• Consider insurance notification and reservation of rights to pay for criminal defense

• Ensure that the company or individuals do not misrepresent or try to alter the facts

• Preserve documents and emails

• Conduct an internal company investigation

• Open a dialogue and cooperate “within reason” with the prosecutors.

A year from now, a French court will try Continental Airlines and five individuals for the crash of an Air France Concorde SST on July 25, 2000, killing 113 people. The defendants, including the person who oversaw the development of the supersonic jetliner, are charged with involuntary manslaughter. Continental has denied any responsibility for the fatal accident and said it will fight any charges. Quinn said the trial is “highly troubling.”

The Concorde crashed after taking off from Charles de Gaulle Airport. The crash investigation concluded that a narrow strip of titanium had fallen onto the runway from a Continental DC-10 that took off before the supersonic aircraft. The debris burst a tire on the departing Concorde sending shrapnel into the aircraft’s fuel tanks, igniting a fire. Air France filed a lawsuit against Continental following the discovery of the metal strip.

Among the five individuals who will face charges in a French court are two Continental technicians. A second person who worked on the Concorde development and the head of France’s civil aviation authority at the time of the crash will also stand trial.

A French prosecutor alleges that the Continental workers failed to follow normal procedures over repairs to the DC-10 and that Continental itself had been negligent in maintaining its fleet of DC-10s.

An earlier French judicial report said the Concorde's manufacturer Aerospatiale, now part of plane-maker EADS, failed to correct its design after more than 70 incidents involving the plane's tires occurred.

The prosecution says France's civil aviation chief was also negligent because his agency had the responsibility to enforce design safety for the Concorde, which did not provide extra shielding to its underwing fuel tanks until after the 2000 crash.

The crash of New York-bound Flight 4590 was the only fatal accident involving the small Concorde fleet that was retired in 2003. “It’s terrifying to think that someone can be prosecuted eight years after the fact,” said FSF President and CEO Bill Voss.

He added: "Like other recent and failed attempts to criminalize aviation accidents in France, these manslaughter charges appear rather dubious and short-sighted. Absent willful intent or highly egregious conduct, we seriously question the basis for putting companies and aviation professionals through the ordeal of criminal prosecutions. In addition, we're very concerned criminal prosecutions will discourage the free flow of information from operators to management to regulators, to the detriment of aviation safety.”

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