On the flight into Cyprus there was a log entry which had indicated a
pressurisation problem with the aircraft. The Duty Engineer carried out a
pressurisation check which disclosed no fault during the course of which the
aircraft was pressurised by introducing air from the APU and selecting the pressurisation mode selector (PMS) to manual to close the outflow valve. The cabin was depressurised by opening the outflow valve to allow air to escape. According to the accident investigation report the conclusion was drawn by the investigators that the PMS must have been left in MAN with the outflow valve still almost closed after the maintenance procedure was carried out and that the flight crew never switched the PMS to auto as a result of which the aircraft never pressurised.

There are obvious defects with this logic; not least that the aircraft would not have depressurised after the engineering test and the aircraft door could not have been opened to allow the Engineer to leave it; and that the flight crew have the obligation to configure the aircraft systems. The engineer was not allowed to participate in the investigation other than by way of being interrogated by the investigators and his submissions when the draft report was issued as to the obvious errors in the conclusions were first lost then ignored as not being submissions made by an accredited representative of on of the participating States.

The Engineer has been convicted of manslaughter in Greece on the basis that he was negligent in leaving the PMS in manual and that that negligence led to the accident. Evidence submitted at the trial to the effect that it was not the Engineer’s duty to configure the aircraft pre-flight even if, which was denied, the PMS was left in manual was ignored by the Court. The Court refused to allow the engineer the opportunity of demonstrating on a live aircraft that if the switch had been left in manual by the engineer he could not have exited the aircraft and that if the aircraft had been in manual when the doors were closed prior to departure there would have been highly apparent pressure surges which could not have failed to alert the flight crew.

In Greece the Bar Association to which each lawyer belongs periodically requires its members to participate in strike action. Though the concept is unrecognisable in the UK, this is unexceptional in Greece. When a Bar Association calls its members out on strike, they must comply or risk losing their licence to practice. The Courts recognise these strikes and customarily will adjourn hearings until the strike is over which is usually a matter of a day or two. In this case, in a staggering breach of the human rights of the Defendants including the Flight Engineer, the Court refused to adjourn the hearing with the result that several witnesses’ evidence was given to Court in the absence of the lawyers for the Defendants and in a flagrant breach of their right to representation.

The matters of acute concern are that these circumstances illustrate yet again that in certain European Countries criminal prosecutors routinely rely on the official accident investigation as a road map for prosecution despite prohibitions on its abuse for this purpose in the applicable international treaty; the standard of evidence required to convict aviation personnel is very low; and the quality of the Criminal Courts in some of those Countries is also not what would be regarded as adequate in the UK. Notwithstanding these issues and as a consequence of the UK’s participation in the EU, UK citizens are vulnerable to being extradited to any European Country on the issue of an extradition warrant issued in that Country and without any form of judicial review in the UK. UK citizens must then face the rigours of criminal trials in Courts which are demonstrably below the standards in the UK and where the evidence against them is based on an investigation in which their evidence can be compelled and they have neither the right of legal representation nor the opportunity at the draft report stage to raise issues affecting their reputation and potentially their freedom from prosecution.

In this case the Engineer was a UK citizen working in Cyprus. He has been resisting attacks on his reputation since 2005 when the Greek investigators improperly published his address and defending criminal proceedings in Greece for manslaughter based on the transparently incorrect conclusions as to his conduct drawn in the accident report. Several hundred thousand Euros have been expended in the defence of the prosecution in Greece. Further funds will be needed to conduct an Appeal.

A number of conclusions can be drawn from this saga:

1) Accident investigations need to be managed by aviation professionals with extreme caution and professionalism, given the illegitimate but real potential of a criminal prosecution.

2) Employers should take whatever steps are necessary to protect the interests of their employees in the context of the criminal prosecutions including supporting them with regard to the cost of those proceedings.

3) There should be targeted lobbying of the relevant EU Commissioners regarding the conduct of accident investigation reports and the use of those reports in criminal proceedings and as to acceptable standards of criminal justice in Europe and of national Governments to the effect that until there are acceptable standards in Europe, the UK should suspend its recognition of European arrest warrants or alternatively require the States requesting such warrants to be issued to demonstrate at least on a prima facie basis that there is a case to answer.