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13 May 2009 : Column 281WH—continued

I repeat that he was not required to leave the selector in the automatic position.

However, the report inconsistently concludes that a contributing factor in the accident was the omission of returning the pressurisation mode selector to auto after unscheduled maintenance of the aircraft. It is that conclusion which forms the foundation of the prosecution of Mr. Irwin.

Since the accident, Mr. Irwin has carried out certain tests recorded on video in the presence of various aviation experts. The tests demonstrate that it is unlikely that he had left the pressurisation mode selector in the manual position after depressurising the aircraft.

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The draft final report was issued by the Greek board in May 2006. It was sent to the various entitled states for comment under the provisions of “Aircraft Accident and Incident Investigation”, which is annex 13 to the Chicago Convention 1944. Despite the fact that Mr. Irwin’s alleged omission was the key to the predicted accident scenario, the Greek board would not give permission for him to have a copy of the draft report. After representations by Helios Airways, he was eventually allowed to see only those pages that related directly to his actions. Even though he was unable to appreciate the full picture, having only been given selected pages, he made limited comments through his lawyer on 11 July 2006. Although the state agency is entitled to receive a copy under annex 13, chapter 6.3 of the Chicago convention, the United Kingdom Air Accidents Investigation Branch did not receive a copy of the draft final report when it was first issued.

On about 23 July 2006, the AAIB was able to send a copy of the report to Mr. Irwin to enable him to make significant and substantial comments. He was given 28 days to submit his comments, instead of the usual 60 days mandated by Greek law. Mr. Irwin acknowledged receipt of the report on the following day and included details of the tests he had carried out. On 26 July, the AAIB forwarded these comments to the Greek board by e-mail and post. On 4 August, the AAIB forwarded Mr. Irwin’s final comments, which again included details of the test, to the Greek board by e-mail and post. Mr. Irwin requested:

The state of the United Kingdom is entitled to make such a request under the provisions of annex 13, chapter 6.3. The state of Greece is obliged to comply with such a request under the same provision, but it did not do so. Although the AAIB was led to believe that Mr. Irwin’s comments had been received by the Greek board, it has since transpired that the comments were either not received or have been mislaid. Therefore, details of the tests that cast reasonable doubt on the contention that Mr. Irwin left the selector in manual were neither included in nor appended to the final report.

Annex 13, chapter 5.13 of the Chicago convention makes provision for an investigation to be reopened if new and significant evidence becomes available. As the comments of the state of the United Kingdom on behalf of Mr. Irwin do not appear to be in the possession of the Greek board and have not been included in or appended to the final report, they constitute new and significant evidence—obviously, as they were not included.

The UK AAIB has been asked to make representations to the Greek board to reopen the investigation to consider the comments of the state of the United Kingdom on behalf of Mr. Irwin, particularly those related to the tests. Annex 13, chapter 3.1 of the Chicago convention states:

It has always been the case that any major air accident has been investigated with the sole purpose being not to apportion blame, but to take the evidence from that investigation to prevent accidents from occurring in future. The Greek final report into this accident is being
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used openly as the basis for the criminal charges that Mr. Irwin now faces, although his statement was not taken under caution and he was not afforded the usual protection of persons under investigation for criminal wrongdoing.

There is no direct evidence that Mr. Irwin’s actions contributed to the accident, yet he has been publicly vilified at extreme personal cost. Mr. Irwin’s name was released to the United Kingdom, Greek and Cypriot media during an extremely emotional time—children were on board the flight—and as a consequence he became a figure of public hate. Mr. Irwin’s actions were portrayed in the media as a causal factor in this accident, and he is now facing criminal prosecution in Greece.

Even if Mr. Irwin had left the selector in manual, which he did not, it is a basic principle in aviation that an aircraft engineer is never responsible for configuring an aircraft for flight: this is the sole responsibility of the flight crew, as part of their pre-flight checks, and the ultimate responsibility rests with the captain.

The cost of a criminal defence in Greece is prohibitive and Mr. Irwin faces the prospect of funding his defence personally. A small amount of funding for all the defendants was secured when the Greek charges were initially served. However, there is now a parallel criminal prosecution in Cyprus and although Mr. Irwin is not yet named in the Cypriot proceedings, this has placed an immense strain on the diminishing funds that are available. Those funds will shortly be exhausted. Mr. Irwin is not in a position to continue funding his defence personally, although the failure to mount a proper defence could lead to a custodial sentence in Greece—a life sentence.

It is anticipated that the Cypriot proceedings will overtake the Greek proceedings: they are already at an advanced stage, owing to the differences in the two criminal justice systems. Mr Irwin will not be entitled to a reimbursement of the fees paid in Greece, regardless of the outcome of the proceedings. For the sake of clarity, it is important to highlight the fact that parallel criminal proceedings in two different European jurisdictions are as yet not prohibited, though this is the subject to debate at European Commission level.

Thankfully, Mr. Irwin is not included in both cases, but the double proceedings do have an impact on him. The legal resources are now split between two countries and the funding has to be divided between both cases to ensure that a full and proper defence is mounted in both courts. Mr. Irwin’s legal team believes that he may not receive a fair trial in view of the damaging and speculative press stories that circulated in the aftermath of the accident.

This accident had a huge emotional impact in both Greece and Cyprus. Mr. Irwin’s name and actions were freely discussed in media reports and his home address was also published. Despite receiving various retractions from the UK press after the defamatory comments had been published, the belief remains in the public’s eyes that his actions caused this accident. Various senior aviation experts disagree with this allegation, but, as far as Mr. Irwin and his family are concerned, the damage has been done. If the case is allowed to continue in Greece, it is obvious that the media-fuelled speculation and rumours will have an effect on the courts.

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Neither Helios Airways nor Mr. Irwin had access to any of the components of the pressurisation system after the accident. They cannot therefore review the tests done during the investigation or carry out their own independent tests. The relevant components are still being held by the Greek Government, although the major part of the wreckage has been released.

I have a number of questions to ask the Minister, of which he is aware. Will he address Mr. Irwin’s case with his counterpart in Greece? In light of the issues highlighted in this debate, it is apparent that the prosecution in Greece is misconceived and the use of the accident report is inappropriate under the circumstances. Can the use of the official accident report in respect of criminal prosecutions be raised by the UK with the International Civil Aviation Organisation? Will the Government assist Mr. Irwin with his defence costs in Greece?

Article 1 of European Union Council directive 94/56/EC of 21 November 1994, establishing the fundamental principles governing the investigation of civil aviation accidents, states:

Both the UK and Greece have adopted this directive. Will the Minister now make representations to the EU for its members to adhere to the overriding objective of the directive and prevent the misuse of air accident reports being used to criminalise aviation? Will the Minister make representations to the UK AAIB to request that the investigation be re-opened in accordance with annex 13, chapter 5.13 of the Chicago convention, in the light of the evidence that was not considered by the Hellenic Air Accident Investigation and Aviation Safety Board?

4.28 pm

The Minister of State, Ministry of Justice (Mr. David Hanson): I thank the hon. Member for Mid-Bedfordshire (Nadine Dorries) for the way that she presented a complex case that is of extreme importance to her constituent and to the wider community impacted by the air accident in Greece. I also thank her for giving notice of some of the issues that she wished to raise. It is helpful for me to know about such matters in detail so that I can try to respond accordingly.

As the hon. Lady mentioned, the accident led to the loss of 121 lives and it is, understandably, an emotive issue in Greece. The Greek authorities take it particularly seriously. The implications of the Helios accident of 14 August 2005 have already been brought to the attention of the Ministry of Justice and of my colleagues in the Home Office, the Foreign and Commonwealth Office and the Department for Transport. The Government are willing to help and support where we can, as far as we can, wherever possible.

The Government take cases such as that of Mr. Irwin, as set out by the hon. Lady, very seriously. For that reason, as well as answering the debate, I want to offer her an opportunity to meet Ministers in the Ministry of Justice to raise these issues outside the Chamber and discuss them in more detail, if that would assist her.

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I am acutely aware—the hon. Lady described it so clearly—of the incident’s impact on Mr. Irwin and his family. The prospect of facing criminal charges for manslaughter with criminal intent, as well as his naming in the media, to which she also referred, have placed him under considerable strain emotionally and financially. I cannot begin to imagine the nightmare that he is going through, faced with a tragic accident that needs to be investigated and needs to be resolved and on which we all need to have answers as to why the incident occurred.

The hon. Lady mentioned a number of key points, and it is important that I respond to them. I want to touch on the principle of mutual recognition and the European arrest warrant. The general principle is that the Government should not and do not interfere in the judicial systems of other countries, particularly when the principle of mutual recognition is fundamental to our relationship with the other country.

We expect other EU member states to follow international and European standards that guarantee the rights of our citizens, and there must be mutual trust in the operation of member states’ legal systems. An important principle is that just as we would not want other member states to interfere in the judicial proceedings of the United Kingdom and those that take place in our jurisdiction, we would not, in normal circumstances, intervene in proceedings in other member states.

The proceedings being discussed today, which the hon. Lady presented very well on behalf of her constituent, are at an early stage. If proceedings continued to prosecution, and indeed to conviction, a number of safeguards through EU mutual recognition instruments are in place and would be of assistance. The most important for the UK is the European arrest warrant.

That warrant contains robust safeguards against extradition of UK nationals to another member state if there is a request for extradition. Those safeguards include double jeopardy, the passage of time and the age of the subject. In addition, the request for a warrant must be agreed by a district judge, who must be confident that ordering extradition would not be in breach of the subject’s human rights.

As the hon. Lady said, the EU is also negotiating an instrument to prevent separate prosecutions from taking place in two member states based on the same case and the same facts. That will prevent some of the difficulties facing Mr. Irwin in relation to the financial implications of two criminal prosecutions.

The hon. Lady raised a number of key questions and recorded the history well. I will try to respond to those key questions in particular, because they are the nub of the matter for her and her constituent. She asked whether I would contact my counterpart in the Ministry of Justice in Greece to discuss these issues and Mr. Irwin’s case. The proceedings against him are at an early stage.

On that basis—this will disappoint the hon. Lady—it is difficult for the Government to raise the case with the Greek authorities because that would be seen as interfering with the independence of the investigation. I will keep the matter under review and, as ever, we can continue to consider whether we can discuss it in future, depending on the outcome of progress on prosecution. However, until such time as the Greek authorities have determined their course of action, this is a particularly difficult matter for us to raise.

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The hon. Lady asked whether we can raise the issue of the use of the report with the International Civil Aviation Organisation, in particular whether we will raise the use of the report in the criminal prosecutions. As she mentioned, paragraph 5.12 of annex 13 of the Chicago convention provides that Greece, as the state conducting the investigation of the accident, should not make evidential statements and certain other records available for purposes other than accident or incident investigation. That is clear under the convention.

However, an exception allows for the appropriate authority for the administration of justice to determine that its disclosure outweighs the adverse domestic and international impact that such action may have on that or any future investigation. If any records, such as the accident report, are being used in the prosecution, it is likely that their disclosure has been considered and permitted by the appropriate courts in Greece. I will certainly investigate that issue, and we can return to it if the hon. Lady takes up my offer of a meeting.

The hon. Lady rightly raised the important point of the defence costs, which I can understand will be a burden for Mr. Irwin, particularly as Helios Airways does not have the indemnity that I would have hoped it had. She considered the issue in relation to the separate prosecution in Cyprus, where Mr. Irwin may have to fund the majority of his defence from his own funds and will not be reimbursed for any costs.

However, I hope that it helps the hon. Lady to know that the administration of justice in Greece, including provision of legal assistance, is a matter for the Greek authorities. Article 6(3)(c) of the European convention on human rights makes it clear that Mr. Irwin has the right to defend himself through legal assistance of his own choosing and that legal assistance is to be given free when the interests of justice so require.

If Mr. Irwin finds himself finally being prosecuted and having to fund his own defence, he should urgently make representations—I am sure that the hon. Lady can help him with that—to the Greek authorities to enable him to access the legal assistance to which he would be entitled.

The hon. Lady also raised the question whether the Government will make representations to the EU for member states to adhere to the objective of Council directive 94/56 on investigation of civil aviation accidents. Annex 13 to the Chicago convention provides:

I recall the hon. Lady quoting the same tract, and that objective is mirrored in Council directive 94/56. However, that does not mean that criminal proceedings should not be brought against persons who are believed to have been responsible for an accident, nor does it prohibit the use of the factual evidence contained in an accident investigation report to support such proceedings. That will be a difficult issue in relation to her constituent and the representations that she has made today, but that is the position.

The hon. Lady asked me to consider inquiring whether the Government would make representations to the UK air accidents investigation branch to reopen the investigation. I appreciate that this answer will disappoint her, but the investigation can be reopened only with the
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approval of the Greek authorities. While there are strong arguments that the setting of the pressurisation mode selector should not be considered a causal factor in this accident, it is not a significant issue from an accident prevention point of view. There are no air safety grounds for reopening the investigation, as far as I have been advised, so we cannot ask the AAIB to reopen the case.

When the hon. Lady has reflected on what I have said, and if she believes that there are further grounds to consider, I am happy to discuss those issues in our meeting and consider them on behalf of the Government. We recognise that this case and the prospect of criminal damages and charges are causing great distress to Mr. Irwin. I pay tribute to the hon. Lady for presenting a complex case professionally on behalf of her constituent. She will want to consider my answers. Some are disappointing to her, but I am willing to meet her, and to meet Mr. Irwin if that is appropriate, to discuss what assistance the Government can provide at this stage. Subject to progression of the case and formal prosecution, mechanisms are available whereby the British authorities can consider the issues in detail, given the complexities involved in making any approach to the independent Greek judiciary and the role of member states within the EU.

I hope that my comments are of some help to the hon. Lady and I thank her for raising this case today.

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