151. Memorandum submitted by the British
Air Line Pilots Association
INTRODUCTION
British Air Line Pilots Association (BALPA)
is an independent trade union and professional association representing
some 8,000 members, all of whom are employed in a safety critical
capacity as flight deck crew in large and small airlines, helicopter
companies and training schools.
BALPA represents members industrially, with
their employers and with the regulator (CAA) on flight safety
issues and in accident investigation.
BALPA welcomes the publication of "Corporate
Manslaughter—The Government Draft Bill for Reform"
and the opportunity to respond to the paper and draft Bill.
AVIATION ACCIDENT
STATISTICS 1992-2001
Our analysis of the accident data derived from
the CAA database indicates the following:
UK Airlines (Passenger) Aeroplanes 5,700 kg MTWA
(max take off weight authorised)
133 reportable incidents with
15 serious injuries
UK Airlines (Cargo) Aeroplanes >5,700 kg MTWA
4 fatal accidents
18 reportable accidents with
6 fatalities and 2 serious injuries
UK Airline <5,700 kg MTWA
4 fatal accidents—6 crew and 16 passenger fatalities
11 reportable accidents and 5 serious injuries
UK Public Transport Helicopters
2 fatal accidents—2 crew and 14 passengers
20 reportable accidents and 5 serious injuries
UK Police, Ambulance and Search & Rescue
Services
3 fatal accidents—9 fatalities and 2 serious
injuries
15 reportable accidents
UK Non Public Transport Aircraft >5,700 kg
MTWA
7 fatal accidents—11 crew fatalities
21 reportable accidents
UK Non Public Transport Aeroplanes <5,700
MTWA
118 fatal accidents
1,820 reportable accidents—190 fatalities and
117 serious injuries
UK Non Public Transport Helicopters <5,700
kg MTWA
30 fatal accidents
219 reportable accidents—56 fatalities, 27
serious injuries
Without going into the specifics of any case
we do know, from litigation on behalf of bereaved families, that
management failure lay at the heart of some of the above accidents.
In an industry where safety is absolutely critical
to ensure the well being of flight crew, passengers and public,
BALPA welcomes the new offence that targets serious failings in
the strategic management of a company's activities that have resulted
in death.
Some of the accidents and fatalities listed
above may have been avoided with greater care over acts, or omission
to act. It is important that responsibility for management failure
not only applies to the corporate body but also to owners, directors
and the senior managers who are ultimately responsible for the
management failure.
The term "senior manager" should not
allow responsibility to be passed to front line employees or middle
managers.
THE CROWN
Immunity of the Armed Forces while training for
combat
In the case of the Army, its combat training
is carried out away from the public; we do not see tanks
at high speed down our high streets or see infantry carrying out
bayonet charges in local parks. Therefore, combat training immunity
for the Army is unlikely to affect the public. However, military
aircraft do use "public airspace" for combat training
(eg low flying over the Lake District not in Danger Areas, and
in other airspace in transit to/from Danger Areas) and it could
be argued that almost all military flying is training for combat,
including that carried out in "public airspace". We
would not like to see military aviation using a blanket defence
of "combat training" in any possible corporate manslaughter
situation. Although we have used an analogy with the Army, we
do not comment on the Royal Navy's combat training, save to say
that some of these can be said to be carried out in "public
waters'. In summary, we would like to see the combat training
immunity addressed in more detail to avoid future defence claims
of blanket immunity.
UNINCORPORATED BODIES
When applying for a Type A licence to fly an
aircraft (20 seats or more) or a Type B licence (19 seats or less)
there is no legal requirement for the applicant to be a corporate
body, in fact the holders of some Type B licences are sole traders.
Either the law needs to be extended to include unincorporated
bodies or the rules on licensing need to change so that only incorporated
bodies are granted licenses. It can also be seen by the above
statistics that the Police, ambulance and search and rescue air
services should not be outside the scope of the offence.
CAUSATION
Paragraph 49 opens with the statement that:
". . . the management failure must have caused the victim's
death." Consider two scenarios: in the first, the management
failure, gross negligence, disregard for risk to life etc causes
the victim's death. The Draft Bill addresses this scenario. In
the second scenario, the management exhibits exactly the same
behaviour and attitudes, but due to other fortuitous circumstances,
such as extraordinary medical skill or plain good luck, the victim
does not die. Although outwith the terms of this Bill, we believe
that the culpability of the management should be the same or very
similar in the two scenarios. An analogy here is that attempted
murder is about as serious as murder itself, because the defendant's
intention and attitude is the same in both cases. It is accepted
that "attempted manslaughter" is an oxymoron but we
submit that management failings and gross negligence in this scenario
should be addressed, although possibly elsewhere.
EXTENT
Some foreign registered airlines have their
largest base in the UK, it would be iniquitous if they were allowed
to be outside the scope of this legislation.
SANCTIONS
We agree that fining the Crown would serve little
practical purpose, provided that the Crown is fully subject to
the court-imposed remedial orders advocated in "Sanctions".
However, public perception might be dissatisfied with the Crown
"getting away with" non-payment of a heavy fine that
would be imposed if a non-Crown body was in the dock. Something
might need to be done to allay public concern in this area.
EXTRA-TERRITORIAL
JURISDICTION
When we read this paragraph we were concerned
that it appeared not to apply to aircraft away from the UK but
we then saw in clause16 of the draft Bill that it does so apply;
we strongly support this inclusion.
SCHEDULE TO
THE BILL
We trust that bodies such as the Met Office
are included under their umbrella ministry.
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