Presented by: George Leloudas, Solicitor and Sean Gates, Senior Partner Gates and Partners 20 St. Mary At Hill, London, EC3R 8EE Tel: +44 (0) Fax: +44 (0) Accident Investigations & Criminalization of International Aviation International Aviation Liability & Insurance Conference Institute of Air & Space Law, McGill University 30 October 2009

Criminalization Aviation safety until the late 1970s adopted a reactive approach: learn from mistakes and implement detailed safety regulations Modern approach is proactive: scientific risk-management, learn from “near accidents”, encourage pilots and engineers to report hazards, non- punitive working environment

Legal framework ANNEX 13 to the Chicago Convention on International Civil Aviation on Aircraft Accident and Incident Investigation ANNEX 13 to the Chicago Convention on International Civil Aviation on Aircraft Accident and Incident Investigation Council Directive 94/56/EC establishing the fundamental principles governing the investigation of civil aviation accidents and incidents Council Directive 94/56/EC establishing the fundamental principles governing the investigation of civil aviation accidents and incidents The Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 The Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996

Shortcomings Abuse of the investigation process from accident investigators and judicial authorities Blurred role for accredited representatives Unorthodox interrogation techniques for a safety investigation Discriminating access to the material

What needs to be done? International law Clarify the role of accredited representatives Right for witnesses to appear with Counsel Wider participation in the investigation Treaty protection for confidential reporting - Chicago Convention amendment Any State or individual suffering injury to have the right to report the abuse of an investigation process to ICAO ICAO to be given the right to set aside the accident report and conduct an independent investigation ICAO to be given the right to suspend a State for breach of Annex 13

What needs to be done? Industry Declaration of mutual support and assistance following an accident No voluntary assistance to criminal prosecutors when in breach of Annex 13 Withdrawal of voluntary assistance to Investigating State where Annex 13 breaches are anticipated. Lobby ICAO and Governments to ban simultaneous criminal prosecutions and provide ICAO with enforcement power

Overall aims Improve safety standards Improve safety standards Protect human rights of aviation personnel Protect human rights of aviation personnel Stand against scapegoating by media and prosecutors Stand against scapegoating by media and prosecutors

Criminalization Thank You