Fuji. What has CAP1404 and the process I describe got to do with the Criminal Justice Act. This is a deliberation of risk and appropriate remedial training to mitigate future risk offered to avoid the draconian measure of a prosecution and therefore not subject to the CJA.
If you really wanted to go for the sledgehammer approach and prosecute the pilot in each of my scenarios I think you would have a point except of course, I would imagine it would simply be accepted by the court that any competent pilot would appreciate the potential risk posed the unauthorised penetration of controlled airspace and actually the fact that you nearly banged a into BigJet or not is irrelevant.
QuoteThis is a deliberation of risk and appropriate remedial training
It is nothing of the sort. You are suggesting whether the pilot should be sent on a course, receive a warning letter, be suspended or worse, should depend on different consequences, for exactly the same infringement, that no pilot could reasonably foresee.
An analogy. You speed 33 mph. In one scenario you are offered a speed awareness, in another, a warning. In both the speed was the same. The reason given is that in the first there was a child hidden behind a wall on the side of the road which could have ran out, in the second case there was no child. In reality they are the same offence, should carry the same consequence, whether the child was in the wrong place at the wrong time unseen by the driver is irrelevant.
The CJA is relevant to the extent it sets the bar as to how the deliberation should be applied. It is applied in exactly that way for the speed awareness course.
The lessons a pilot might need to receive have nothing to do with whether a bigjet happened to be unforseen on finals or whatever, but everything to do with whether he infringed by 100 feet or 500 feet, and what actions he subsequently took.
[ Post deleted, as we do not allow “outing” attempts on EuroGA – whether successful or not – please see Guidelines ]
Cub, Fuji’s point is very valid. To continue his driving analogy, take the following two scenarios based on the premise that some police forces allow a tolerance of 10% plus 2mph to allow for speedometer error, and that some do not.
In scenario 1 a driver with no intention of speeding but who is unaware that his speedometer is under reading elects to drive at 25mph down a road with a 30mph speed limit. He is unaware that his actual speed is 29.5mph and unfortunately a child runs out into the road immediately in front of him. He is unable to stop in time and runs over the child killing him or her. I think that any sane person would regard this as nothing more than a tragic accident, the consequences of which could not have been seen or avoided. Thus no charges are brought against the driver who simply has to live with the awful consequence of being in the wrong place at the wrong time.
In scenario 2, the same driver who is still unaware of the inaccuracy of his speedometer and still with no intention of speeding, drives at 30mph along the same road. As far as he is aware he is not speeding even though his actual speed is 35mph.
The same child runs out in front of the car just as before, and with the driver unable to stop in time the child meets the same fate.
In the second scenario the police may decide to prosecute for speeding even though the driver had no intention of doing so, but no one, I hope, would consider that a charge of murder be brought against him for the consequences of an unintentional offence even though the potential outcome of that offence might range from the innocuous to the horrendous.
It is the act of infringement and any associated mitigation or aggravation which requires consideration to be given to the penalty, not the actual or potential consequences, of which we are all aware and which of course is the reason that infringement is an offence in the first place
Comparing speeing, which in the vast majority is deliberate, with airspace busts, where almost all are inadvertent, is not helpful and very, very wrong.
The main reason we have this debate is that the CAA’s process is clearly modelled after how speeding gets prosecuted, and is neither fair nor does anything constructive to solve the problem – unless you count fear as a solution.
Cub,
as I am not flying in the UK, I am reading this thread with a view to the just culture debate that is going on as you are surely aware about prosecution of simple negligence cases up to federal courts in some countries.
My question to you would be if there is any form of just culture applied in this whole process, insofar as if a pilot who has unintentionally infringed on an airspace has the chance to file a report about the incident which would then, unless gross negligence or intent are proven, cause the CAA to forego sanctions.
It appears to me that in recent times the system of just culture is being dismantled after years and years of it being established as a contribution to aviation safety. I wonder what your take on this is, particularly in the case of unintentional infringements.
From your posts you appear to agree that not every infringement is equally serious. The question arises therefore whether a zero tolerance approach without any means of applying just culture by self-reporting is not overshooting the original intention.
I have no qualms about going after people who behave recklessly or stupid, i.e. who are intentionally trying to evade detection by switching off their transpoders while in critical airspace (not necessarily infringing but i.e within the rather tight airspace corridors available) or people who refuse to use GPS/moving maps in this day and age and infringe because of this. However, I question the benefit of a zero tolerance approach to the extent that every minor infringement which is reported and fully understood by the participants must, as it appears, lead to sanctions. Again, the question of just culture remains.
I highly appreciate your contributions in this thread here but I can also see that it appears that a quite massive lack of trust exists between pilots and those trying to keep the airspace safe but particularly towards those who apply the sanctions. This is a general problem these days, as the cases of prosecuted pilots and ATCO’s show, therefore I think it is worth considering.
Mooney Driver. You are completely correct to mention a Just Culture and the whole premise of CAP 1404 is to deliver a constructive and proportionate response based around proper examination of causal factors and risk, whilst endeavouring to stop the necessity of applying the judicial system to these safety events and criminalising the perpetrators. The whole process is underpinned by a Pilot Infringement Questionnaire which is a voluntary contribution by the pilot to detail their recollection of the event and the situation that led to it. It is made clear that this contribution is not admissible in any legal proceedings and is a vital component in establishing causal factors and mitigating circumstances. The handling of this data and indeed the treatment of pilots throughout this process is based around the application of a ‘Just Culture’ but of course, is not a No Blame Culture and does not protect somebody from criminal action when gross negligence is demonstrated.
Certainly not every infringement results in sanctions against the pilot, I think CAP 1404 and the associated statistics published on the ASI website make that clear in relation to the total number of events, but each safety event is recorded and investigated in accordance with EU legislation.
Cobalt/ Mike. You continue to think of airspace infringements in relation to a driving offence and formal punitive action under a legal system. CAP1404 describes and delivers a completely different risk based approach to the management of these safety events and clearly that approach is nothing like and certainly not modelled on state methodology for the management of driving offences.
I still postulate that in a lot of cases where the CAA takes no further action it is because the evidence of infringement and/or question of identity is not clear cut. There must be a lot of these and we hear no mention of them.
My belief is that these cases are being added to the ‘no further action’ stats and bolstering an impression of leniancy/proportionality, yet they more properly belong in the ‘unsolved crimes’ category.
I challenge those involved to state that, for the total infringements reported in a given month, each and every one comes with conclusive proof that would support prosecution of a particular individual if it were thought appropriate.
Graham. I challenge you to deliver that level of detail in relation to every infringement event and retain a Just Culture!! It is exactly that reason that EU legislation prevents the routine sharing of MOR reports, these days.
Actually the detection, tracking and identification of infringements is relatively straight forward with modern surveillance systems. If you start from the premise that you are trying to determine a level of risk associated with the event then the identity of the pilot is irrelevant other than that their contribution to the investigation by way of a Pilot Infringement Questionnaire is important in identifying the causal factors which led to the event.
What I can assure you is that pilots involved in incidents judged as high risk events or causing significant delay are not routinely going unidentified. I think the published statistics reflect that.
@Cub, The air transport industry — as well as many other “dangerous” industries such as rail transportation — have achieved a very high level of safety precisely because they do not view (unintentional) inappropriate actions by individuals as primarily being the fault of the individual but something that the system has to accommodate and if it doesn’t is is a fault of the system. In fact, the air transport industry pioneered this view.
Considering that I still do not understand why the CAA (and apparently also you) see infringements as a pilot problem exclusively, to be addressed by retraining and/or sanctions.
