Anti N-reg provisions - EASA FCL and post-brexit UK FCL

Graham wrote:

That ‘judge will assume’ question is one reason I’m extremely glad to be living in a country where one has a right to a trial by jury for any reasonably serious offence.

Well, then you may be considered resident because the jury says you are. I don’t see how a trial by jury will improve the legal complexities.

Airborne_Again wrote:

Well, then you may be considered resident because the jury says you are. I don’t see how a trial by jury will improve the legal complexities.

Of course it may still go against you. But it’s a far more reassuring prospect than it being decided by a government employee whose future career prospects depend on them not upsetting those who have brought the prosecution. I am far happier with my barrister arguing the point to 12 members of the public who’ve not made their mind up yet than I am with attempting to convince a government employee who’s already made their decision.

Recently in the UK we’ve had a well-publicised reminder of one of the most valuable and necessary functions of a jury – their ability to say “yeah…… but no” to the powers that be.

My point is that with a right to a jury trial the outcome is uncertain. In most European countries the outcome will be as @Malibuflyer says – the regulation will be found to apply to you, regardless of the merits of your argument, because that’s what the regulator and the state want and ultimately it’s a paid employee of the latter making the decision.

Graham wrote:

that’s what the regulator and the state want and ultimately it’s a paid employee of the latter making the decision.

I guess you don’t believe in the independence of the judiciary?

Airborne_Again wrote:

I guess you don’t believe in the independence of the judiciary?

I guess the degree to which such independence exists varies from place to place, and also on the importance of the particular case to the state / government’s interest. Even the judicial apparatus of your own country – one regarded a bastion of freedom, tolerance and absence of such political machinations – found itself doing some very odd things with regard to trying to extradite (from the UK) a particular man wanted by the US Government. The UK judiciary was likely ‘non-independent’ in this same matter, too.

But fundamentally, when the chips are down, do I believe in the total independence of the judgement of an employee from the interests of their employer? No. Specialist technical fields like aviation magnify the problem, because the judge – usually lacking specialist knowledge – tends to defer to the ‘expert’, i.e. the regulator.

The essence of the jury system is placing judgement in the hands of people who have no interest in the outcome and cannot be influenced or sanctioned.

Graham wrote:

doing some very odd things with regard to trying to extradite (from the UK) a particular man wanted by the US Government.

I agree, but that’s the exception rather than the norm. The case raised a lot of criticism against the government. Also, I’m not sure that this case was ever presented before a judge.

Airborne_Again wrote:

I agree, but that’s the exception rather than the norm. The case raised a lot of criticism against the government. Also, I’m not sure that this case was ever presented before a judge.

Indeed it never got that far, but if it had done so then the outcome would have been in no doubt. The UK judiciary was complicit too – the original decision to grant Sweden’s extradition request stunned most legal observers, firstly because no charges had actually been brought and the request was to extradite him for a ‘preliminary investigation’, secondly because the offence he was being investigated over had no direct equivalent in English law, and thirdly because they offered no reason why, if they “just wanted to talk to him” they couldn’t do that remotely or in the UK.

In the end it was largely passage of time that derailed these efforts. Going into the Ecuadorian embassy ran Assange down a blind alley, but it did allow Sweden off the hook because they could tell the Americans they’d tried their best but it was outwith their control.

My bet is that the Americans came to the Brits and said “you need to give us Assange” and the response from the Brits was “we’re not going to do that – it looks bad – but we can kick him out of the country, ask someone else to extradite him for something unrelated” and then for whatever reason Sweden popped up as the middleman. What the Americans had over Sweden at that time that compelled them to do their bidding, we’ll never know. My guess would be something personally embarrassing for whoever was in charge in Sweden at the time, and the Americans never followed through on that threat because (a) the Swedes did try their best, and (b) it wouldn’t have achieved anything.

So judicial independence when the chips are down? No. Everyone has a boss…

Graham wrote:

And who would prosecute you, where?

That is the question. Two things are likely:
- You could just get an administrative fine from one of the countries you are flying in. In theory you might fight against it in front of a court – but we see in many cases like airspace infringements that pilots seem to be much more confident on their legal opinion in Internet forums than they are when it comes to actually take a “wrong” administrative opinion in front of a court.
- More relevant is the case that the insurance company would deny coverage after an accident has happened because they claim you’ve been flying w/o a license. There has been a case e.g. of an accident with a PA-46 in Germany. The pilot had the proper US papers but not the EASA type rating that was required for the PA-46 at that time. Accident report concluded that the pilot was flying w/o required license.

Graham wrote:

It is not unknown for people to ignore attempts by a foreign government, or supra-national body, to prosecute them.

Sure – but esp. in terms of “traffic offenses” it is not unknown for foreign governments to seize the means of transportation (car, yacht, plane) in such cases next time they have the opportunity…

Graham wrote:

So judicial independence when the chips are down? No. Everyone has a boss…

If you’re right, then no court would ever pass a judgement against the government’s desire and that’s clearly not true. In recent years we’ve had some spectacular court cases in Sweden with far-reaching effects where various representatives of the indigenous Sami people have taken the Swedish government to court and won.

And that’s cases with national consequences, not just a case of some individual being sentenced for flying without a license.