The Usual Dilemma – Soliciting Information versus Ascribing Responsibility

The usual dilemma has surfaced in the Grenfell Tower inquiry. I must say I was expecting it to do so at some point.

https://www.theguardian.com/uk-news/2020/jan/30/people-who-worked-on-grenfell-tower-could-face-life-sentences

The dilemma in its current form amounts to this.

1. Civil engineers, regulators and others involved with buildings want to find out causally what went on during building and refurbishment of Grenfell Tower; how decisions were made and why; whether tasks were performed according to specification; whether there were adequate specifications; and so on. The full story. For prophylactic reasons. (There are of course other stakeholders, such as survivors, who have additional reasons for wanting to hear the full story.)

2. Some of those involved in building and refurbishment may have been culpable of criminal behavior, such as gross negligence, in executing the task. The police are investigating that, as they must. Since people died in the fire, that could lead to criminal charges of gross negligence manslaughter, brought by the Crown Prosecution Service (CPS), for which the sentence can be as high as life imprisonment.

3. In GB and many other countries, everyone has a fundamental right not to self-incriminate.

4. Some important witnesses may well invoke their right not to self-incriminate during the Inquiry, and stay silent. That defeats the purpose of 1. It is also thoroughly understandable, if you are worried about spending your life in prison for having performed what you then understood to be your job in the then-customary manner.

People may have various opinions about this, as expressed in the article, but it is a fundamental conflict in accident inquiries that has never been solved, and may never be solved.

It has been a major issue in commercial aviation accidents for decades. There are some countries, such as France, Germany and Brazil, where criminal investigations take precedence (indeed in some countries are required, and then prosecutions are required if formal evidence of formal malfeasance is shown to exist).

I made some observations on some cases at the 9th Bieleschweig Workshop in Hamburg in 2007: https://rvs-bi.de/Bieleschweig/ninth/LadkinB9Slides.pdf . The dilemma had become particularly prominent at that time because of the Concorde accident, the GOL mid-air collision and the Lathen maglev-train accident.

There are also countries, such as GB, in which a criminal prosecution is undertaken only when it is in the public interest. This is an explicit requirement for criminal prosecutions in English law. It is in theory open to the CPS to declare that it is in the public interest for participants to give full evidence to the Inquiry and not in the public interest for them to stay silent. So there is an option for CPS to undertake not to prosecute (ever). I understand that such an option to forego prosecution is not available in Germany. Neither, I understand, is it available in France.

It is hard to see how this dilemma could be resolved uniformly and satisfactorily. Impatience with the use of ICAO Annex 13 accident reports (which are explicitly intended for prophylactic use and not to ascribe responsibility) in legal proceedings to ascribe responsibility has been continually expressed by various people in aviation whenever it happens, which is … almost always. However, ascribing responsibility for mishaps, followed by appropriate reparations, is a social good which has a much longer human history than human aviation, or trains or cars.

Some of us had a chat about this history back in July 2019. Results as follows. Here is Mosaic law expressed in the Bible in Deuteronomy 22:8, in the version of William Tyndale https://en.wikipedia.org/wiki/William_Tyndale :

When thou byldest a new housse, thou shalt make a batelmet vnto the roffe, that thou lade not bloude vppon thine housse, yf any ma fall there of.

Here is the King James version:

When thou buildest a new house, then thou shalt make a battlement for thy roof, that thou bring not blood upon thine house, if any man fall from thence

It is not the oldest instance. The code of Hammurabi is held to be even older (ca. 1754 BCE):  https://fs.blog/2017/11/hammurabis-code/

I would be happy to hear from anyone who has other examples.

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