Essay: PROTECTION OF EVIDENCE, CUSTODY AND REMOVAL OF AIRCRAFT

Annex 13 of the ICAO SARPs spells out the aircraft accident and incident investigation. Under chapter 3, the responsibility of the State where an incident or accident occurs ranges from protection of evidence to custody and removal of the aircraft. When a crash, as an example of unfortunate incident or accident, occurs, the territory of the State where it occurred shall protect every potential evidence by preserving them from being damaged or lost and take a full custody evidence so as to avoid more damage or unauthorised contact till proper investigation is completely carried out.
While the State of Occurrence have a more job to do, other key players that must be involved in this incident or accident include State of Registry, State of the Operator, State of Design or State of Manufacturer. Without any form of delay whether through telephone, email, Aeronautical Fixed Telecommunication Network (AFTN) or facsimile, the State of Occurrence must noticy the above players of this unfortunate incident or accident. However, when the State of Occurrence is not aware of a serious incident, the State of Registry or the State of the Operator, as appropriate, shall forward a notification of such an incident to the State of Design, the State of Manufacture and the State of Occurrence. While the notification had been gotten, it must be acknowledged as soon as possible. Alongside this notification, they must give the State of Occurrence required information that details the aircraft identity, the flight crew and passengers on board. They may wish to send delegates for inspection. The State of Occurrence must be aware of the identity of the delegates by their names, contact details and also when they would be arriving the State of Occurrence. Any request forwarded to the State of Occurrence for the proper preservation of all evidence till there delegates or representatives show up to inspect must be granted so as to facilitate the conduct of investigation. Once a proper investigation has been conducted and there is no need of keeping the aircraft of concern in custody, the State of Occurrence must release custody to the delegates of interest.
As it has been illustrated above, the safety processes in case of incidents or accidents in a State of Occurrence, must as well be replicated if it happens in a State of Registry. Should there be dangerous goods on board the aircraft, a State of Operator must immediately send detailed information to this effect upon the receipt of notification of the incident or accident.
Responsibility for Instituting and Conducting Investigation
Concurring to the recommendation in chapter 5 of Annex 13, The State of Occurrence should establish an investigation into the occurrences of a serious incident which could be done by delegating the whole or any part of the conducting of such investigation to another State or a regional accident investigation organization by mutual arrangement and consent. To facilitate the effectiveness of this investigation, the State of Occurrence must use all available mercenaries for it.
In a situation where an incident or accident had occurred in the territory of a non-Contracting State and such a State is not willing to carry out investigation on this occurrence, the State of Registry must take it up. However if both refuse to do so, the State of Operator, Design or Manufacture shall establish and carry out a proper and cooperative investigation with the State of Occurrence (or even without them if they are not interested as well)
Accident or incident may occur outside the territory of any State. If this happens, the nearest State to this location must assist in conduct of investigation and give response to the request forwarded to them by the State of Registry.
In the process of carrying out accident or incident investigation in the scene of the accident or incident, total independence and unhampered access to the wreckage and other relevant material (which may include flight recorders and ATS records) must be given to authority in-charge of the investigation. The independence shall be given when gathering and recording data and when conducting analysis on the relevant information. They can issue recommendations and reasons behind the cause of accident or incident. Before a report is compiled to finalize the investigation, autopsy examination and medical examination can be carried out by the State conducting the investigation.
It is very important that the State conducting investigations facilitates the coordination between the investigator-in-charge and the judicial authorities. Should there be conflicts between them, whether on the custody of flight recorders and its recordings or the custody of the wreckage, it must be resolved respectively by allowing a judicial authority official to keep custody of it and can as well move the recording to a recognised and qualified place to do a read out and also for the wreckage, such official or any official appointed shall monitor the movement of the wreckage to the place of examination.
Interference during investigation is an unlawful act. If such is noticed, the investigator-in-charge must notify the aviation security of the State(s) of concern to take action. Confidentiality of information acquired during investigation is very vital. It must be kept classified for the purpose of accident or incident investigation unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations. At the end of all this, the investigation report must feature all these that are relevant to the incident or accident in the appropriate sections or appendices. Others may not be disclosed. In addition, names of the persons involved in the accident or incident shall not be disclosed to the public by the accident investigation authority.
When an investigation has been finalized and closed, it will only be re-opened by the State, which conducted the investigation if there is new evidence worthy of importance. However, when the State, which conducted the investigation, did not institute it, that State shall first obtain the consent of the State, which instituted the investigation. Besides, if an aircraft that was declared missing was found, the case may have to be re-opened again.
As it is been discussed, information is very important in the conduct of investigation. In regards to this, the State conducting investigation are permitted to request for information relevant to the investigation from any State having such information for facilities or services in connection with the aircraft involved in the incident or accident. This is also applicable to State of Registry and State of the Operator; they have the responsibility of making provision for flight recorder records and pertinent information on any organization whose activities may have directly or indirectly influenced the operation of the aircraft when demanded by the State conducting investigation coupled with
When it comes to participation in the investigation, it is made glaring in the Annex 13 that the State of Registry, the State of Operator, the State of Design, and the State of Manufacture have the right to appoint authorized representative to form part of the investigation. A State that have directly provided information, facilities or expert, on request, to the State carrying out an investigation shall be part of the investigation team through who they appoint.
Most times when there is an air-crash, the location of crash may destroy a lot of lives and properties of people who are not on board and they are citizens of another State. In a case like this, this State of concern may appoint their representative to join the investigation who will go to the location of incident or accident coupled with the access to relevant information of public interest and a copy of the final report of investigation. With the full involvement of the State, the have the right to release relevant information to the public, which gives identification of victims and if there are any survivors, they can conduct meetings with them.
The Final Investigation Report
According to Annex 13, in chapter 6, the State, which conducted the investigation, has the sole right to declare a report of investigation to be circulated, published or made accessible. No other participating State must release such document without the permission of the State that conducted the investigation. While concluding the report, a draft copy shall be giving to the State that started the investigation, the State of Registry, State of Operator, State of Design, State of Manufacture and other States which were among the investigation team. Within sixty days starting from the day of receiving the draft, any of the above State can make comments on the draft report in which would be considered by the State compiling the report if the State so wishes the comment is attached. When the report is ready, all the above States who got the draft report of the investigation must get a copy of the final report. Also, the State that suffered serious loss of lives and properties and the States that made provision for important information, substantial facilities and experts must also get this final report. Within the time frame of twelve months, this report should be available to the public via Internet or in form of hard copy in the interest of safety. In an event where the State conducting the Investigation cannot make the report available to the public within twelve months, they must make an interval statement publicly annually on the day of anniversary of the occurrence, which must explain the present state of the investigation, and other things attach to it. In addition to where the final copies of report would be sent to, ICAO must also get a copy of the report of accident involving an aircraft with a minimum mass of 5700kg.
The purpose of this report has to do with measure to prevent subsequent accidents from happening. And a State must institute and continue an accident and incident database to enable the operative analysis of information on the actual or possible safety insufficiencies and to regulate any preventive action needed.
Contracting States to the Chicago Convention are obliged to comply with the Standards set out in the Annexes to the Convention, so far as they are able to do so, and are encouraged also to comply with Recommended Practices.
3.5.1 Formulation of SARPs
SARPs are created through international cooperation, consensus, compliance and commitment (which means four ‘Cs’ of aviation namely; Cooperation in the formulation of SARPs; Consensus in their approval; Compliance in their application; and Commitment to adhere to this ongoing process). ICAO standards and other provisions are developed in the following forms:
(1) Standards and Recommended Practices – collectively referred to as SARPs;
(2) Procedures for Air Navigation Services – called PANS;
(3) Regional Supplementary Procedures – referred to as SUPPs; and
(4) Guidance Material in several formats
The formulation of new or modified SARPs starts with a proposition for activity from the ICAO itself, or from Contracting States involved. Recommendations additionally may be put together by international Organizations. For technical SARPs, analysis is first carried out by the ANC on all the available proposals. Mutual and essential agreement is reached through series of meeting held on this work. While in their course of making advancement, various consultative components are utilized for more and deeper contributions. Every involved Contracting State are welcome to orchestrate their interest in these meetings with equivalent and one voice. International organization interested in being spectators to these meetings are not exempted. Technical issues dealing with a specific subject and requiring detailed examination are normally referred by the ANC to a panel of experts. Less complex issues may be assigned to the Secretariat for further examination, perhaps with the assistance of an air navigation group.