Aviation cases (Opportuun 22/6)

Magazine | 01-10-2022

Aco Verhaegh, the policy officer and public prosecutor for aviation affairs and officer Katja van Bijsterveldt

'OK people, you have heard the case study about the pilot of the Piper Malibu. Let's hear what you have to say. What should an aviation officer do now? You have six choices. A: do nothing, so dismiss the case? B: A conditional dismissal? C: a fine? D: community service? E: a jail sentence? Or F: a disqualification from flying? You have half a minute left.' Speaking is Aco Verhaegh, the policy officer and public prosecutor for aviation affairs of Noord-Holland district. On 19 October, he and officer Katja van Bijsterveldt spoke from a screen - online - before a gathering of more than 100 members and guests of the Royal Netherlands Aeronautical Association (KNVvL). Flight enthusiasts rack their brains over the case. Which is as follows.

Piper Malibu

The captain of a Piper Malibu powered aircraft has just taken off from Texel and is heading for Breda. At a flying altitude of just over four hundred metres above the Kop van Noord-Holland, he approaches glider airfield De Noordkop. He takes no detours and steers his six-seat American single-engine low-flying plane straight ahead. At that time, a glider also takes to the skies from De Noordkop. The occupants in the glider cannot see the Piper at that moment: being winched up at an angle makes that impossible. At an altitude of 425-450 metres, the glider levels out. Only then do the occupants see the horizon. And, to their horror, a Piper Malibu on a collision course. Fortunately, the glider's transponder is on. It is often not switched on during winch take-offs, as it can also cause disturbance to other air traffic during rapid take-off. But now it is, and so the Piper pilot gets an alert from his TCAS, the traffic collision avoidance system. The pilot intervenes, steering sharply to the left, averting the danger. When the occupants of the glider set foot on solid ground again, they contact the aviation police, who inform the PPS. A suspected violation of regulation SERA.3205 ('Proximity') of the Standardised European Rules of the Air (SERA) arises: 'An aircraft must not be operated with an aircraft in such proximity to other aircraft as to create a collision hazard.' And violation of Article 5.3 of the Aviation Act: 'Participating in air traffic in such a way as to endanger persons/objects.' The Piper pilot is invited by aviation prosecutor Katja van Bijsterveldt and public prosecutor's clerk Aco Verhaegh for an interview at the public prosecutor's office in Haarlem. 'The captain did not believe he violated any rules,' the aviation prosecutor said at the KNVvL meeting. 'He had not flown into restricted territory. Not too high, not too low, not too fast, not too slow. And he took the right evasive action when he saw the glider. If there were any lessons to be learned from the occurrence, they should be learned by glider sector: glider pilots and winch users can look more closely at oncoming traffic before take-off. Aco and I told him that, for example, 'the aviation guide' states that glider operations must be taken into account up to 1800 feet, but that did not change his statement.'

KNVvL members have since given their answers. 35 per cent of them want a fine; 35 per cent see more in a conditional dismissal; 23 per cent think a disqualification from flying is appropriate; and 7 per cent want to dismiss the case. No one chooses community service or jail time. Public prosecutor’s office clerk Aco Verhaegh racks up the tension a little more. 'The Aviation Criminal Procedure Directive assumes that such an offence is subject to summonses in connection with a flight disqualification being demanded.

But a different decision followed. Katja took into account this captain's experience and the fact that he had never been in contact with police and justice before. But she did want to instil the norm in this captain. After all, he should have known that if he comes close to a glider airfield and does not fly well around it, he should pay very close attention. Katja proposed a 1,000-euro settlement to him. The Piper pilot accepted that.'

Whirling rotor blades

Just under three weeks later, public prosecutor's office clerk Verhaegh and prosecutor Van Bijsterveldt visited the aviation police at Schiphol-East. They had to endure a photo shoot just outside, during which they could barely hear the Opportuun magazine photographer's directions and their hair got blown all over the place. The reason? Whirling rotor blades of police helicopters propelled the air down with great force.

The photo shoot took place a good stone's throw from where climate activists from Greenpeace and Extinction Rebellion had protested a few days earlier. Some used a grinder to cut through a fence, others cycled around the apron or chained themselves to small business and private planes. That is punishable, say the two, who further declined to comment on the ongoing investigation in which the Royal Netherlands Marechaussee made more than 400 arrests.

In the criminal investigations dealt with by Van Bijsterveldt and Verhaegh, the danger or potential danger posed by the suspects to aviation (aircraft, gliders, balloons, parachutists, paramotor trikes, drones) plays a central role. Prosecutor Katja van Bijsterveldt: 'For that reason, an assault in the arrivals hall is not a matter for us. Similarly, a pilot suspected of a sex crime will simply end up at the local sexual offences officer's office specialising in that area. And the pubic prosecutor’s office treats fraud by airline staff as an 'ordinary' fraud case.'

'But,' continued prosecutor's office clerk Aco Verhaegh, ‘if an assault takes place in the aircraft, or if the fraud involves forging a pilot's licence or certificate, then it is a case for us. That could compromise flight safety.'

Just Culture

Anyone who speaks to Aco Verhaegh (now a policy officer and public prosector’s office clerk for four years - 'I wanted to be a jet fighter pilot from an early age') and Katja van Bijsterveldt (aviation prosecutor since September 2019 ('It's really cool looking at those helicopters') does not see a public prosecutor who eclipses the prosecutor's office clerk. Verhaegh knows has at least as many scars on his back from aviation whip as his public prosecutor. The aviation portfolio, he knows, is multi-faceted. There are simple, common cases, such as the one against unruly passengers: troublemakers on the plane who do not obey the captain's instructions. But there are also complex cases, which require the PPS to have a lot of knowledge. That is knowledge of all the players in aviation, such as pilots, instructors, air traffic control officers, airport managers and maintenance engineers. Knowledge of how aircraft work. And knowledge of the ever-growing mountain of local and international regulations in the aviation industry. And although the public prosecutor and public prosecutor's office clerk are backed by the aviation police - police officers with a pilot’s licence men whose aviation and legal expertise the two prosecutors praise - there is a large grey area. The question of what conduct should be brought to court is often hard to answer.

The concept of 'Just Culture' has grown in aviation law, which is endorsed by the PPS. In short, according to Just Culture, no one is punished in the absence of intent or gross negligence. The idea behind this is that the people concerned will be more likely to report safety issues and that lessons can be learned from them. When the PPS hears about occurrences in which those involved take responsibility by reporting those incidents transparently and trying to learn from them, that counts in their favour. Conversely, failure to take that responsibility may be a reason for the PPS to take criminal action. In criminal investigations, people are encouraged to take responsibility. For example, one pilot was asked why he had not reported a near-collision or contacted the other pilot, who had been greatly shocked by it and was still suffering from it. Both men turned out to be open to discussing it and that turned out beyond expectations. 'I don't know how the PPS looks at it, but as far as I'm concerned this is how flyers resolve it,' the victim had said. Instead of a fine, which might be appropriate to the grossly negligent flying behaviour, it was suggested that he hold an information session at his flying club to share the lessons learned with his clubmates. The case was dismissed under that condition.

The PPS treats commercial and general aviation a bit differently, explains Aco Verhaegh. 'We are less on top of commercial aviation. They have professional safety management systems, investigate incidents themselves and learn from them. That is not always the case in general aviation, which includes, for example, private pilots and flying clubs. They do not always have a mandatory safety management system, let alone one as professional as LVNL, KLM, TUI or Transavia have. Moreover, a private pilot is not always affiliated with a sector organisation, which makes self-resolution work a bit differently.'

Just Culture in the Netherlands also means that reports from aviation do not automatically end up with the police and the PPS. As well as the information the PPS receives through direct reports, police reports and inspections, reporters can also report incidents confidentially to the Aviation Occurrence Analysis Bureau (ABL) of the Environment and Transport Inspectorate of the Ministry of Infrastructure and Water Management. The ABL decides what to forward to the judiciary. The ABL and the PPS have agreed that the ABL will only forward reports in which there is a suspicion of intent or gross negligence. And to establish when that is or is not the case, they discuss the matter in a case conference with representatives from the world of commercial aviation, and nowadays also general aviation. Among other things, that consultation covers threshold cases where there is room for discussion as to whether criminal action is appropriate. That way, the aviation industry and criminal law enforcement officers learn from each other about what behaviour is risky and crosses the criminal justice line. Such consultations and other meetings at which the PPS shows its face have promoted understanding of the PPS's deliberations in recent years. Aco Verhaegh hopes to do his PhD soon on 'the relationship between Just Culture and criminal enforcement in aviation', a topic that also provided leads for the PPS decision in the following case.

Bird strike

One morning in May 2019, an instructor gives 'air traffic circuit training' to a student pilot over Hilversum airport. That circuit is the route landing pilots must choose, 'inserting' them at the right point and allowing them to land one by one. Suddenly, the instructor sees a plane heading straight for the airport. Immediately, the instructor takes over the controls from his student pilot. He reduces speed and swerves to the left. He believes that this prevents a collision. The instructor wants to speak to the other pilot directly about the occurrence, but that is no longer possible. The Belgian pilot, who made a stopover in Hilversum on his way from Antwerp to Ameland to pick up a friend, has already flown off again. The instructor therefore reports the occurrence to Hilversum's airport manager. When the pilot returns later that day, the airport manager of Hilversum airport (which bills itself as 'the greenest and cosiest airport in the Netherlands') tries to confront him about it. But it won't be easy. The airport manager is told that the pilot flew 'a great circuit': 'And if you have a problem with that, just call the aviation police.' The airport manager does exactly that. While the pilot, who lives in Belgium, continues to tell the aviation police during the first telephone contact that 'nothing happened' and the 'Hilversum airport is being overzealous', five months later - when he is heard as a suspect - he tells a different story. He claimed he had suffered a bird strike and had flown this way 'for the sake of the safety of the people on the ground, his aircraft and himself'. 'At the hearing at the subdistrict court,' says Katja van Bijsterveldt, 'the pilot repeated that story and presented 'evidence': handwritten statements from witnesses on Ameland who had 'wiped the bird's blood off the stabiliser of his plane'. I didn't believe any of that story, so I asked the judge to stay the case and hear those witnesses. That was done, and the story ended up in tatters.' Aco Verhaegh: 'If you have really have a bird strike, you thoroughly inspect your plane and don't take off again five minutes after you land. And the fact that the pilot refused to have a proper talk about the occurrence with the airport manager is not in keeping with Just Culture.' At the hearing, on top of the €1,000 that Van Bijsterveldt had earlier proposed as a settlement, a six-month conditional disqualification from flying was eventually demanded. The judge also rejected the bird strike story, partly because the transcribed radio communications made no mention of it. Although the judge shared concerns about the pilot's attitude, the court did not honour the demand for the disqualification of the pilot's licence. However, the judge did fine the pilot €2,000 of which €1,000 was conditional. Van Bijsterveldt noted that the PPS's actions went down well with the aviation community. 'They have seen that the PPS issues a summons when there is really something wrong. Everyone in the industry approves of the pilot being dealt with this way. It is not how the industry wants pilots to behave. They want you to be able to talk to each other about what happened.'

The All-you-need-is-love case

Aco Verhaegh illustrates the fact that the PPS does not only scrutinise the actions of captains in the event of aviation occurrences,  but also those the underlying organisation, with the All-you-need- love case. 'For their 2020 Christmas special, the All You Need is Love TV programme took a young man to meet his girlfriend in a castle. He was dropped off at the castle by helicopter. The helicopter company had arranged this. It had a generic exemption, but was simply not allowed to land there under to provincial rules. The captain had received a form from the company stating that everything was in order. And he had no doubt about that either, because it had always gone well in previous assignments too. Long story short: formally, the pilot should have checked, but we understood he had not. The case against him was dismissed. In fact, the company had incited him to commit this offence. The company received a settlement proposal of two thousand euros. This took into account that the company had temporarily lost its exemption in the relevant province. They agreed to the proposal.' European air traffic control officers regularly marvel at their Dutch counterparts. What?! Does LVNL itself report it to the PPS when they come across serious occurrences? Does LVNL itself put that on their website, followed by actions taken on it? And it ís indeed quite remarkable, says Katja van Bijsterveldt. 'Because in the Netherlands too, the aviation industry was afraid for a while to report occurrences at Schiphol or elsewhere to the PPS. But there is sound thinking behind that approach to reporting. Flying is not without its risks, but pretty safe if you manage and control them. That means being open about occurrences and willing to learn from them. That is the message Air Traffic Control Netherlands is now putting out. I think that's something special, and Aco and I are quietly proud that we as the PPS have contributed to the trust the aviation industry places in the PPS today. Criminal law is no longer a scary word in those circles. This is also to the advantage of people involved in aviation person or suspects. If you want to tell your side of a story, a paper file almost always adds colour. In their favour.'

Katja van Bijsterveldt and Aco Verhaegh can be reached at aviation@om.nl