Recent Developments: Criminalising Human Error

Over the last few months I've been noticing a disturbing trends across many areas of society, the return of problems we thought we had moved beyond.

The rules based international order is under increasing pressure, with dictators like Putin testing the resolve of western democracies in Ukraine, Trump imposing indiscriminate tariffs on very dubious legal grounds in breach of WTO rules (rules which the US largely wrote!), and fracturing of alliances that have kept the world from global conflicts for over 80 years.

 We are seeing rising rates of diseases we thought we had essentially eradicated such as small pox, as vaccination rates drop in certain areas of the world under a deluge of misinformation super charged by social media algorithms that drive attention, controversy and anger over truth, nuance or understanding. The aftereffects of Covid and everything that went with have left us exhausted and apprehensive of a world more chaotic and fragile than we imagined it was. Whatever the causes, the sense I get is that as societies we seem to be more grumpy, less trusting, cynical, less understanding and more judgmental.

 One area in particular where I'm seeing a negative trend is in how we respond to human error after an accident. I teach an aviation safety management course and one of the examples we use is the 1989 Kegworth crash. The cause of the crash was initially attributed to pilot error. The aircraft had suffered an engine failure and the pilots had accidently shut down the healthy engine, flying the damaged one to the point of destruction.

 The pilots had made a costly error, that's true, but it was not the full story. The design of the cockpit displays, inadequate training programs, lack of regulatory oversight and other factors all played a role. Quite apart from those, the aircraft engine had a design flaw, which was the primary cause of the engine failure in the first place. Putting all of these factors together, there is a good chance they if you had put another set of pilots in the same circumstances, they may well have made the exact same mistake.

It was easy to blame the pilots for this accident, you sack them and you've solved your problem. But that would be to overlook the many safety weaknesses in the aviation system that contributed to this accident. Kegworth was a step to recognising that simply blaming the operator was neither just, nor the way to improve safety. A lot of work was done in subsequent years through developments like Just Culture, human factors, and understanding the nuances of human error.

 That is not say that people should not be held accountable for their actions, particularly if those actions are malevolent or express knowing disregard for safety. But that accountability should be grounded in the science of how humans perform work, so that it is just. To put it simply, the mere fact a person makes an error, doesn't mean it's just to punish them, it's more nuanced than that.

 However, there seems to be an increasing trend lately to once again assign blame for accidents to the person "at the sharp end", such as the pilot, and calls for them to be punished. In Australia a jury recently convicted a pilot of dangerous flying for mishandling an emergency landing after an engine failure and he received a suspended prison sentence.

 There have been a number of accidents and near misses in the past year in the United States involving aircraft at busy airports. The US Secretary of State for Transport Sean Duffy blamed pilots and called for them to lose their licences and pay the price for it, even though the official investigations in those incidents had not been completed and we don't yet know all the facts and circumstances.

On the 13th of March South Korea charged two air force pilots with criminal negligence after accidentally bombing a village during a training exercise. The prosecuting authorities stated that the pilots made errors when they entered coordinates into the aircraft systems. The investigation is still ongoing. Now it may be that the pilots' actions were so outrageous that criminal sanction is appropriate, perhaps there were several crosschecks or safety steps that the pilots bypassed without any good reason knowing that doing so was highly reckless. So I'm not saying that the criminal prosecution is wrong, I don't know all the facts. But the fact that this prosecution has commenced before the investigation is even complete does make me very uneasy.

 Most recently in the Captain of a commercial flight was charged in the United Kingdom with not maintaining continuous radio communication with air traffic control. He pleaded guilty and was fined around £4,500, the first prosecution of this type of incident in the UK. The failure to maintain radio contact had led to RAF fighter aircraft intercepting the aircraft, a significant expense. Nevertheless, it does appear that the communications failure was a mistake from an ordinarily high performing pilot, rather than a deliberate act.

 The risk of jumping straight to blame and criminal sanction is that we may miss latent safety weaknesses lurking in the system, or that their contribution is downplayed. Do we understand what the chances are that another pilot might make the same error if we put them in similar circumstances? An indiscriminate move to blame and punishment would make aviation less safe, not more.

 I sincerely hope this trend is not a sign of things to come. Justice requires we treat human error with understanding and nuance, saving punishment for only when it is truly fair and appropriate. This is a time when principled leadership is vital if we are going to resist that ever present temptation to grasp the quick and simple solution - reflexive blame. It is a mirage.  I hope we hold on to the progress we've made since Kegworth, be quick to understand, slow to condemn, and support a Just Culture so we can maintain fairer and safer societies.

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