Aviation safety vs the “prosecutorial imperative”. Indiscriminate prosecutions erode safety culture

This report contains extensive extracts from the Keynote Remarks of Jeff Shane, IATA General Counsel, to the Tort Trial & Insurance Practice Section of the American Bar Association Aviation and Space Law Committee National Program, in Washington, DC on 22-Oct-2015. Mr Shane addresses a key area of concern to those dedicated to applying lessons learned from airline accidents in the cause of improving air safety.

Major improvements in safety management have come with the advent of voluntary reporting systems, dating back to the 1970s. Mr Shane recounts that these systems have been encouraged by regulators in a number of countries as part of a non-punitive, "just culture" approach to safety regulation. There is an emerging consensus among regulators and airlines alike that a "just culture" approach yields greater benefits than a regime characterized by enforcement penalties. Essential to the success of such systems is that the information furnished through such systems be held in strict confidence.

However, Mr Shane was concerned at a persistent "prosecutorial imperative" - that judges, prosecutors, and trial lawyers often seek access to this material and, "in a growing number of cases, they have succeeded." If this trend were to continue, says Mr Shane, "the essential flow of safety information would simply dry up" as those with valuable knowledge fear the legal consequences of sharing information.