Possible Injustice in Just Culture

Transcription

1 Possible Injustice in Just Culture Norwegian Civil Aviation Authority Presentation By: January 2015 Kevin Humphreys Director Safety Regulation Irish Aviation Authority

2 EU Definition of Just Culture Means a culture in which front line operators or others are not punished for actions, omissions or decisions taken by them that are commensurate with their experience and training, but where gross negligence, willful violations and destructive acts are not tolerated. 1/ 1/ Commission Regulation (EU) No. 691/2010 of 29 July 2010, Official Journal of the European Union, Brussels, L2013, 2010

3 Dictionary Definition of Just Fair or impartial in action or judgment Conforming to high moral standards; honest Consistent with justice; a just action Rightly applied or given Legally valid; lawful Well founded; reasonable Correct, accurate or true 2/ 2/ Collins English Dictionary, Harper Collins, Glasgow G4 ONB, 1995

4 Malaysia Air Lines Flight MH370 En Route Kuala Lumpur to Beijing 08 March 2014 You Tube: 4

5 Aberfan, South Wales 21 October 1966 Death Toll: 116 Children and 28 Adults You Tube: 5

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12 Chance and Mortality 3/ There is no desirable way to die death by organ failure is a ghastly business in a modern hospital, far too long prolonged. Death by dementia is something few of us would wish on our worst enemies. Sudden and wholly unexpected death leaves a crater in the lives of loved ones 3/ Chance and Mortality The Guardian, Saturday, 03 January 2015 p. 32

13 Universal Declaration of Human Rights 4/ Article 6. Everyone has the right to recognition everywhere as a person before the law. Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protections against any discrimination in violation of this Declaration and against any incident to such discrimination. Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. 4/ Glendon, Mary Ann, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York, Random House 2001) p.311/312

14 Universal Declaration of Human Rights4/ (cont d) Article 9. No one shall be subjected to arbitrary arrest, detention or exile. Article 10.Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of anty criminal charge against him Article 11. (1) Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. 4/ Glendon, Mary Ann, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York, Random House 2001) p.311/312

15 Universal Declaration of Human Rights4/ (cont d) Article 11. (2) No one shall be held guilty of any penal offense or of any act or omission which did not constitute a penal offense, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offense was committed. Article 12. No one shall be subject to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. 4/ Glendon, Mary Ann, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York, Random House 2001) p.311/312

16 Criminalisation of Error In their study of the criminalisation of aviation professionals, authors Mateou and Mateou outline several cases where, as a result of both the advancement in the investigation of aviation accidents as well as the greater demand by modern society for accountability, the judicial authority has an increasing impact on the events subsequent to an aviation accident. 5/ 5/ Cited in Sofia Michaelides-Mateou and Andreas Mateou, Flying in the Face of Criminalisation, The Safety Implications of Prosecuting Aviation Professionals for Accidents, (Surrey, England: Ashgate Publishing Limited, 2010), p. 3

17 Criminalisation of Error (cont d) Mateou and Mateou 6/ examined 34 fatal accidents which resulted in criminal charges being taken against either the pilots, engineers, air traffic controllers or management certification authorities or manufacturers. 6/ Sofia Michaelides-Mateou and Andreas Mateou, Flying in the Face of Criminalisation

18 Criminalisation of Error (cont d) In examining the intermingling of the judicial and technical investigations and how use was made of evidence from the technical investigation by a court of law, they found cases that involved the prosecution of pilots, air traffic controllers and aviation regulators. 7/ 7/ Michaelides-Mateou and Mateou, Flying in the Face of Criminalisation, p. 55

19 Criminalisation of Error (cont d) Unless the appropriate authority for the administration of justice determines that this disclosure outweighs the adverse domestic or international impact such impact may have on any future investigation. 8/ (Italics added). The above italicised caveat may be identified as the fundamental problem with the criminalisation of error and the difficulty in achieving justice when professionals give their testimony to a body on the understanding that the information will not be used for any purpose other than safety enhancement. 8/ ICAO Annex 13

20 ICAO on Blame or Liability Any investigation conducted in accordance with the provisions of this annex shall be separate from any judicial or administrative proceedings to apportion blame or liability. 9/ 9/ ICAO Annex 13 to the Convention on International Civil Aviation, International Standards and Recommended Practices, International Civil Aviation Organisation, Quebec, Canada, 2010, p.53

21 Churchill You will have the greatest trade, you have all the gold. But these things do not oppress my mind with fear because I am sure the American people under your leadership will not give themselves over to vainglorious ambitions and that justice and fair play will be the lights that guide them. 10/ 10/ Jennent Conant, The Irregulars. Roald Dahl and the British Spy Ring in Wartime Washington, (New York: Simon & Schuster Paperbacks, 2008), p. 273

22 Justice and Safety UN ICAO Universal Declaration of Human Rights

23 ICAO s Definition of Safety The state in which the possibility of harm to persons or of property damage is reduced to and maintained at or below an acceptable level through a continuing process of hazard identification and safety risk management. 11/ 11/ ICAO Doc 9859, Safety Management Manual (SMM), AN/474, 2 nd Edition, International Civil Aviation Organisation, Canada, 2009, p. 2.2

24 Managing the Risks of Organisational Accidents Irrespective of the concept invoked to define what safety is at a particular point in time, as society progresses it demands a higher degree of safety. Thus, safety is a target moving continuously towards zero risk. 12/ 12/ James Reason, Managing the Risk of Organisational Accidents, (Hants, England: Ashgate Publishing Limited, 1997), p. 176

25 Purposes of an Accident or Incident Investigation To identify and then describe the course of the events (what, where and when?); To identify the direct causes and contributing factors that led to the accident (why?); To identify measures to reduce risk in order to prevent future similar accidents from occurring (learning); To evaluate the basis for potential prosecution and blame; To evaluate the question of guilt in order to avoid the liability for compensation. 13/ 13/ Michaelides-Mateou and Mateou, Flying in the Face of Criminalisation, p. 31

26 Culture Few phrases occur more frequently in discussion about hazardous technologies than safety culture; few things are so sought after and yet so little understood. 14/ 14/ Reason, Managing the Risk of Organisational Accidents, p. 191

27 Occurrence Reporting Despite having failed to protect information given in accident investigations, all safety thinking believes that from a reporting culture a learning culture will develop and this can all be accomplished in a just culture.

28 Collecting Safety Information The sensitive nature of safety information is such that the way to ensure its collection is by guaranteeing its confidentiality, the protection of its source and the confidence of the personnel working in civil aviation. It is this protection of sources and the confidence of the people reporting which form the main problems of guaranteeing a just culture in reporting systems. Similar to ICAO and accident information protection, protections are not universal and are subject to domestic legislation.

29 Cultural Difference Whilst acknowledging that in aviation safety there are cross cultural issues, it is easy to portray one culture as perhaps better or more suited than another. It is recognised that different cultures have strengths and weaknesses. When applied to aviation safety, cross cultural endeavours are designed to build upon cultural strengths as they related to safety practices while minimising the downside of cultural weaknesses. From an administrative or academic viewpoint such statements are common sense. 15/ 15/ A.J. Stolzer, C.D. Halford and J.J. Goglia, Implementing Safety Management Systems in Aviation, (Surrey, England: Ashgate Publishing Ltd., 2011), p. 151

30 Cultural Difference (cont d) The real world of aviation safety is considerably different. This is particularly evident when an aircraft built by a large Western consortium is operated by a non-western airline and crashes on the high seas. Very quickly international convention is strained and contentious cross cultural issues come Into play to the detriment of aviation safety. 15/ 15/ A.J. Stolzer, C.D. Halford and J.J. Goglia, Implementing Safety Management Systems in Aviation, (Surrey, England: Ashgate Publishing Ltd., 2011), p. 151

31 EUROCONTROL on Preserving Justice Just Culture Task Force, as a classical drama where two antagonists are involved, one with the aim of preserving justice by investigation and prosecuting possible perpetrators and the other with the aim of enhancing aviation safety through independent investigation and reporting.

32 Justice (cont d) To expect to find a single definition of justice may be a hapless and pompous task. What constitutes justice even within natural societies is subject to profound disagreement. In general, justice is about identifying to whom rights are owed and to whom associated duties should be assigned and how much of the burden of protecting those rights each action with duties should bear. 16/ 16/ Paul G. Harris, World Ethics and Climate Change, (Edinburgh: Edinburgh University Press, 2010), P. 32.

33 Justice (cont d) The media and politicians demand to know what went wrong and what is the organisation going to do? There is a clamouring for information on who made a mistake? Who should be held responsible? Orders for discovery, freedom of information and legislation means that people who have already submitted reports of mistakes and safety problems can fall in the hands of those for whom it was not intended, perhaps a prosecutor. Here Dekker 17/ talks about the unfortunate operator, say a pilot or an air traffic controller or a doctor or nurse, whom he refers to as the view from below 17/ Sidney Dekker, Just Culture, (Surrey, England: Ashgate Publishing Ltd., 2011)

34 Justice (cont d) Is justice something that meets legal criteria (which needs a lawyer) or is justice what takes difference perspectives, interests, duties and alternative consequences into evaluation for which an ethicist may be needed. 18/ 18/ Sidney Dekker, Just Culture, (Surrey, England: Ashgate Publishing Ltd., 2011)

35 Munich The captain, James Thain was held responsible by the German Ministry of Transport for having not cleared the wings of snow and ice. However, the real reason the aircraft crashed was established with the help of the British Airline Pilots Association. Captain Thain appealed, failing in his first appeal to be absolved of blame and finally being absolved in Although not criminally charged, Captain Thain s professional life was destroyed and he was dismissed by British European Airways (BEA), which was considered a gross miscarriage of justice. 19/ 19/ Ronald Hurst, Pilot Error, (London: Crosby Lockwood Staples, 1976) p. 53.

36 Public Inquiry In the case of Napoleonic code countries, after an aircraft accident, a judicial investigation will take place in parallel with a technical investigation. In common law countries, Commissions of Inquiry are set up only when there appears to be a public need. It is this element of gravity or public need which brings unfortunate publicity upon the enquiries. Two conflicting interests exist in such a Public Inquiry. The first is the need to demonstrate to the public that all the facts are brought forth, and that no individual or organisation, whether State or commercial, can hide their errors or responsibilities. Secondly, the general publicity causes heartbreak and misery to the bereaved by the general and sometimes ghoulish levels of interest. 20/ 20/ Hurst, Pilot Error, p. 248.

37 Criminalisation of Error (cont d) On the topic of the criminalisation of human error flight safety has been vocal. The focus of our efforts has been on the legal protection of safety information. Increasingly, voluntarily provided safety information is being used in court cases, sometimes even trivial cases. We are not talking about the usual states with lax protection but advanced aviation nations like Canada and UK. It is one thing to see confidential information disclosed in the emotional turmoil of a major accident, it is another to see it casually offered up by the courts in the normal course of business. The judges rightly point out that there is no protection for this information under common law or legislation. Even though your regulator may have agreed to protect information and promised not to use it against the person who made the report, that promise has no bearing on anybody else who might want to use it. 21/ 21/ William Voss, AeroSafety Workd, The Journal of Flight Safety Foundation, March 2001, Vol. 6, Issue 2, p.7.

38 Justice (cont d) is a process not a result and truth is not the only goal of a trial, we want privacy, fairness, equality and finality. Every time we play with the rules to make it easier to convict the guilty we make it easier to convict the innocent. 22/ Quoting Seamus Heaney, that before any process of renovation we should take stock and shore up the vital foundations. 23/ Kennedy says that law is the supreme regulator, a civilising force. As it is put in Hurst, air law is part of general law. 24/ 22/ Helena Kennedy, Just Law, The Changing Face of Justice and Why it Matters to Us All, (London: Vintage, 2004), p / Kennedy, Just Law, The Changing Face of Justice and Why it Matters to Us All, p / Kennedy, Just Law, The Changing Face of Justice and Why it Matters to Us All, p. 30.

39 Thank You END