ELOM:2023:003 | Concerns about the airmanship of a private pilot | North Holland

Decree, order or decision | 22-03-2023

PPS Decision

in the case against the pilot of a single-engine aircraft, referred to below as the suspect.

Reason for the investigation

The investigation was launched following two occurrence reports from a port authority about a private pilot. One report describes an occurrence on [date in year] 2021 in which the pilot took off from the taxiway and flew close to another aircraft on the taxiway. The other report describes an occurrence on [date in year] 2022 in which the same pilot took an abnormal approach followed by a hard landing. The Aviation Occurrence Analysis Bureau (ABL) referred these reports to the PPS on 15 July 2022.¹

In the first report alone, the ABL did not initially see sufficient cause for a presumption of intent or gross negligence. However, following the second report, it was considered that the suspected negligence was of such a nature that the PPS should be informed. The ABL found that in both cases the pilot had also failed to comply with his reporting obligation. Additional considerations included 'the emphatic call for action from the port authority and the fact that the pilot involved initially denied the first and second occurrences'. According to the ABL, 'the inspectorate therefore has insufficient cause to intervene'.

¹ This referral is based on the cooperation agreements between the PPS and the ABL under Just Culture. The PPS does not generally have access to occurrence reports made under Regulation 376/2014. The ABL only pursues such reports if it suspects that the boundaries of Just Culture have been crossed, i.e. in cases of suspected intent or gross negligence. The PPS can then investigate whether or not that is the case. See also Section 3.1 of the Instruction for criminal investigation and prosecution of civil aviation occurrences.

Suspected offence

Violation of Article 5.3 of the Aviation Act.

Hearing at the public prosecutor's office

After the aviation police report was received by the prosecutor's office on 30 January 2023, the suspect was invited for an interview with the aviation prosecutor. The suspect accepted that invitation and was assisted by a lawyer at this interview.

Facts and circumstances

Based on the police investigation and interview with the suspect, the aviation prosecutor arrived at the following findings.

Regarding the reported hard landing on [date in year] 2022

The report on this occurrence stated that the aircraft with identifier PH-[XXX] (which
later turned out to be the suspect's aircraft) was reported to have commenced landing at Midden Zeeland Airport on [date in the year] 2022 at an excessive speed and approach altitude. At a distance of 150 metres before the end of the runway, the aircraft is said to have stalled, causing it to plummet from a height of 6 metres. The reporting party referred to the contents of the report as a witness. No other evidence emerged from the investigation. The suspect has denied making any such landing that day. That the content of the report requires nuancing can also be inferred from the aviation police's comment: 'The airport manager's observation that the PH [XXX] plummeted from a height of 6 metres should result in structural damage, but there is no evidence of that.'

In relation to the reported near miss on [date in year] 2021

According to the report on the near-accident on [date in year] 2021, the PH-[XXX] aircraft at Midden Zeeland Airport took off with three people on board from the taxiway instead of the runway, while at the same time another aircraft with 11 parachutists on board was taxiing down the same taxiway. PH-[XXX] passed over the other aircraft at an altitude of about 5-10 metres. The reporting party referred to the contents of the report as a witness.

When asked, the pilot of the other plane testified about the event as a witness. He saw that a small plane was in front of him at the end of the taxiway, that this plane turned and switched on its landing lights. The plane then came straight towards him. He explained that he could not swerve because planes were parked there and the runway to the right was in use. He felt like a 'sitting duck'. The plane came straight towards him at high speed, over the taxiway and then, in his estimation, flew over him at about 3 metres. He was very shocked and thought it was extremely dangerous.

Another witness also observed the occurrence. He said he remembered the occurrence well and was very shocked. He was flying halfway on final approach with a student when he heard the suspect's voice. It was quite busy because of an open day, but he had a clear overview. He saw the suspect on the taxiway, then turn around and take off over the taxiway. At that time, another aircraft taxied from the parachuting centre over the same taxiway in the opposite direction. The suspect headed straight for that plane and was just able to fly over it, at a very low altitude. According to the witness, it was a miracle that nothing went wrong. The witness described it as life-threatening.

The suspect first stated during the interview that he may have taken off partly over the taxiway. After being presented with that statement, he said that he would not contest it.

Decision

With regard to the occurrence on [date in the year] 2022, the aviation prosecutor ruled that the investigation did not produce sufficient evidence to establish that the suspect participated in air traffic in such a way that it caused (possible) danger to persons or property.

However, the aviation prosecutor’s opinion, the investigation into the near-accident on [date in the year] 2021 did provide lawful and convincing evidence for suspicion.

The aviation prosecutor further noted his regret that action was not taken soon after this near miss. In the aviation prosecutor's opinion, the report on this in the context of Just Culture should have been referred to the PPS much sooner, especially as resources for other intervention appeared inadequate and various stakeholders had concerns about the suspect's airmanship. Based on the case file, the aviation prosecutor shared those concerns and therefore suggested to the suspect that he voluntarily take an exam with an examiner to be appointed by the Dutch CAA, the Human Environment and Transport Inspectorate (ILT, Dutch abbreviation for ‘Inspectie Leefomgeving en Transport’), to test whether or not the concerns were justified. However, the suspect decided to stop flying and surrendered his pilot's licence to KIWA on 20 March 2023.

After verifying this on 22 March 2023, the aviation prosecutor dismissed the case in its entirety. The first suspicion was dismissed because there was insufficient evidence of an offence. The second suspicion was dismissed due to changed circumstances. A penalty would not have any added value.