Primarily for general aviation discussion, but other aviation topics are also welcome.
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User avatar
By gaznav
#1705630
profchrisreed wrote:
Flyin'Dutch' wrote:Going back to what was written before, I would not expect for infringements due to a moment of inattention to be dealt with any different as a speeding offence due to a similar moment of inattention, ie a speed awareness course.


There is a difference though, as the analysis I posted before shows.

Infringements which don't cause loss of separation just get a warning letter (repeat infringements etc aside).

Infringements which do cause loss of separation etc get the course.

I've already said that I'm not comfortable with a system where the outcome of a breach of the law differs according to factors outside the infringer's control or knowledge. If it's OK, I'd like those running the system to explain why, in order to convince the regulated (that's us) that it's not a purely arbitrary choice.


Chris

I am surprised that as a legal expert that you ask this. Surely this is covered by Section 143 of the Criminal Justice Act 2003: “Determining the seriousness of an offence”? Where specific attention should be paid to the consequences of the crime?

“In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.”


Is it not the final 4 words that would apply in this instance?

Then you have the 4 tests for levels of Culpability for sentencing purposes:

Where the offender;

1. Has the intention to offend, with the highest culpability when an offence is planned. The worse the harm intended, the greater the seriousness.

2. Is reckless as to whether an offence is caused, that is, where the offender appreciates at least some offence would be caused but proceeds giving no thought to the consequences even though the extent of the risk would be obvious to most people.

3. Has knowledge of the specific risks entailed by his actions even though he does not intend to cause the offence that results.

4. Is guilty of negligence.

Then a whole bunch of aggravating or mitigating factors to take into account.

I thought all of this was normal practice in UK Law??

Best, Gaz
User avatar
By PaulB
#1705634
....so the person that blunders through the overhead of XXX but got lucky as they did it during a quiet period, gets off lighter that the guy that does exactly the same but in a busier period and causes loss of separation?

Gaznav, according to your post, they should both have seen the harm that might have occurred (and, indeed, did occur for one of them) so both been treated the same?

IANAL so probably have this all wrong.....

(Typo edited)
Last edited by PaulB on Thu Jul 11, 2019 11:42 pm, edited 1 time in total.
User avatar
By FlarePath
#1705635
Having passed the on-line test and getting nice e-mails telling me that I ws a very good boy for passing, this was followed up by a letter informing me in no uncertain terms that this will be held on record for life and will be used if any future "allegations" are made.

Question, do attendees on the AIA course also have this on their record for life, This
of course is where speeding and flying part company as speeding offences are on your licence between 3-5 years then "forgotten".
Last edited by FlarePath on Thu Jul 11, 2019 11:31 pm, edited 1 time in total.
User avatar
By flybymike
#1705636
Given that virtually all infringements are unintentional mistakes then the first three of Gaz’s numbered items do not apply, and even negligence would not apply to the majority of infringementss where distractions etc outside the control of the pilot are applicable.
User avatar
By Miscellaneous
#1705638
PaulB wrote:....so the person that blunders through the overhead of XXX but got lucky as they did it during a quiet period, gets off lighter that the guy that does exactly the same but in a busier period and causes loss of separation?

That's generally how life works Paul. Think of the difference in potential consequences of inadvertently running a red light.
User avatar
By gaznav
#1705641
I think the problem here is that you are all trying to be too binary about this - each and every infringement will be different. It is absolutely impossible to have exactly the same infringement by 2 different pilots - there are just so many variables involved (some are infinite). So the ICG Panel have to make a judgement within the guidelines published in CAP1404. I would be really surprised if there wasn’t also extra guidance material to steer the panel. This panel will need to use this judgement, just like a Court of Law, to come up with a suitable and reasonable ‘sentence’ via the means available - letter of caution, online course, AIA course, suspension of license pending either a flight test or further enforcement action. If no two infringements are ever the same then how can you possibly cry ‘foul’ to a panel judgement unless you (as an outsider ‘forumite’) know every single parameter surrounding it?

I’ll give you a clue - you can’t! :thumright:

There is one last thing you can do as an offender if you decide that the judgement is too harsh or incorrect - elect to go to Court. Oddly enough, it would seem that many aren’t that sure of themselves to take that option as all Court proceedings are published and we see very few of them reported (and they would be either way, I’m sure).
User avatar
By Sooty25
#1705645
gaznav wrote:
There is one last thing you can do as an offender if you decide that the judgement is too harsh or incorrect - elect to go to Court. Oddly enough, it would seem that many aren’t that sure of themselves to take that option as all Court proceedings are published and we see very few of them reported (and they would be either way, I’m sure).


I think you will find it is the cost and stress involved that stops people going to Court! You can be damned sure the CAA will rock up with an expensive barrister intent on winning rather than seeing justice done.

If you genuinely believe otherwise, you are either a fool or have absolutely no experience of the British legal system.
User avatar
By PaulB
#1705647
FlarePath wrote:Having passed the on-line test and getting nice e-mails telling me that I ws a very good boy for passing, this was followed up by a letter informing me in no uncertain terms that this will be held on record for life and will be used if any future "allegations" are made.

Question, do attendees on the AIA course also have this on their record for life, This
of course is where speeding and flying part company as speeding offences are on your licence between 3-5 years then "forgotten".


Interesting question.... if you’d been to court and been fined and got a criminal record into the bargain, would that conviction not become “spent” after some period of time? If so, why should the lesser sanction be retained for life? (I assume the lesser sanctions don’t involve getting criminal records?)
User avatar
By PaulB
#1705648
Miscellaneous wrote:
PaulB wrote:....so the person that blunders through the overhead of XXX but got lucky as they did it during a quiet period, gets off lighter that the guy that does exactly the same but in a busier period and causes loss of separation?

That's generally how life works Paul. Think of the difference in potential consequences of inadvertently running a red light.


But it’s not any possible consequence, it a consequence that might forseeably have occurred.
User avatar
By PaulB
#1705649
flybymike wrote:Given that virtually all infringements are unintentional mistakes then the first three of Gaz’s numbered items do not apply, and even negligence would not apply to the majority of infringementss where distractions etc outside the control of the pilot are applicable.


To whom is the duty of care owed for negligence to apply in the sort of cases that we are speaking of?
User avatar
By Miscellaneous
#1705650
PaulB wrote:But it’s not any possible consequence, it a consequence that might forseeably have occurred.

You've lost me there Paul. :?
By IMCR
#1705652
Gaznav - do you not think there may be the problem?

You are asking the panel to make decisions of judgement without the evidence being properly tested. The reason our judicial system works, is because both sides of the argument are tested with the judge ensuring the rules are followed.

That is surely why in other areas the rules are far more prescriptive. Consider the rules on speeding. There are clear parameters on who will receive the speed awareness offer, who the points, and who a Court hearing. There is very little room for interpretation. Everyone knows where they stand.

The CAA have defined what comprises a minor infringement. Surely, if the consequence was a warning letter that would be clear. The real danger is when you allow various options without any scrutiny of the evidence other than behind closed doors.

The CAA then rightly go on to say if it is a second infringement, or more serious, then a course will be the outcome, and if yet more serious, formal proceedings.

My concern is there seem to be far too many experienced pilots whose cases would seem to fall within the first category, at least in the terms written by the CAA, which is the only point of reference.

I asked earlier whether the data will be made available to judge the effectiveness of the course on re-infringing. Would this not be fundamental to giving us confidence the courses are working, as would any repeat infringements between letter and course.

This is all data in the public domain for speed awareness courses after all.
User avatar
By FlarePath
#1705655
There is one last thing you can do as an offender if you decide that the judgement is too harsh or incorrect - elect to go to Court.


"Offender" = guilty

"Judgment is too harsh"=already decided guilt.

"elect to go to Court" no chance as guilty decision already made.
User avatar
By Sooty25
#1705656
Maybe a Judicial Review is required.
By peterh337
#1705687
There are several obvious problems with

- comparing a CAS infringement with speeding in a car
- treating all CAS infringements as a criminal offence (the CAA has confirmed this to a friend of mine)

The first obvious one is the 3000ft/5000ft add-on which the UK - alone in Europe - does. That is like the police tweaking their speed cameras so that anybody 0.1mph above the limit has 20mph automatically added to his speed. So 30mph becomes 30mph. 30.1mph becomes 50.1mph which is obviously more serious. And 40mph becomes 60mph which (being 30 over the limit) would, based on the guidelines I recall, produce a 6 month ban. The ban is a similar idea to creating a loss of separation, and is no less artifically created in this case.

Equally obviously is adopting the position that every infringment needs punishment. That is a moral high ground acquisition tactic which nobody can argue with in an online forum, but it doesn't stand up. It presumes that ATC are incapable of doing their job, for a start. Everybody knows that the vast majority of speeding cases don't create a hazard. The rest of Europe manages infringements satisfactorily. What can't the UK?

CAP1404 was drawn up behind closed doors and is interpreted and operated behind closed doors.

Nobody will get a lawyer to defend an infringment case because they will lose and pay out something like 5k, plus the cost of the lawyer (another 5k-10k). It is like defending speeding. The exception would be where ATC were arguably complicit, which happens in some small % of cases (I have heard of some, and certainly been in some where I didn't infringe but easily could have done). If that happened to me and I had a recording of the exchange I would certainly get a lawyer. I always have a GPS track record, FWIW. Sometimes ATC makes a mistake, but they are protected by Just Culture. Pilots don't get that protection. The other day I got cleared for an ILS using very nonstandard terminology...
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