Independent Accident Investigation— the Right of Each Citizen and Society’S Duty Pieter Van Vollenhoven

Feature Railway Accidents and Safety Independent Accident Investigation— The Right of Each Citizen and Society’s Duty Pieter van Vollenhoven In this article I want to turn a spotlight on But Why Independent step, it was limited in some ways because a subject that is very close to my heart— Investigations? the required investigation was not independent investigations into the causes specifically independent and only applied of transport-related accidents and Let me now turn to the need for to the aviation sector. I believe this was incidents. My interest dates from my independence. Why do I believe that because society of the 1950s was unaware national service days as a pilot in the accidents and incidents should be that the scope of a criminal inquiry is Royal Netherlands Air Force. I gained my investigated independently? Because a restricted to discovering the direct cause first experience of investigating accidents judicial inquiry attempting to apportion of an accident, not the underlying causes. as a lawyer and reserve officer and after blame (and perhaps financial Moreover, any possible suspects identified returning to civilian life, I have been compensation for the victims) is not the during such a criminal inquiry are not privileged to chair a number of boards on right ‘instrument’ for finding exactly what obliged to make statements that might transport safety, starting first with the happened. If lessons are to be learned incriminate them. Dutch Road Safety Board. Although the for the future and steps are to be taken to Clearly, establishing the truth by main task of this Board is to advise the prevent the same thing happening again, independent investigation requires Dutch government on road safety policy, it is essential to find out what went wrong statutory guarantees to ensure that we also managed to gain some experience and caused the accident. witnesses are free to tell the truth without of investigating accidents. I have also In fact, it has been known since 1951 that fear of legal consequences. An chaired the Railway Accident Board, a different type of accident investigation, independent investigation cannot be which was established 43 years ago to or what we now call in-depth successful if a government simply carry out independent investigations into investigation, is needed. Although the establishes a committee. Successful, the causes of accidents. The Dutch term ‘independent’ was not used at the independent investigations need to be Transport Safety Board (DTSB) was time, Annex 13 to the International Civil anchored in law with regulations and established on 1 July 1999 for the same Aviation Organization (ICAO) Convention provisions governing the investigators’ purpose to investigate accidents and adopted in 1951 specified that an powers, such as the power to decide incidents occurring anywhere in the investigation into the causes of an which statements and reports can be made transport sector—even including pipelines. accident had to be held separately from public. Moreover, the final report may the investigation into the party or parties not be used as admissible evidence in Why A Right to Independent to blame. subsequent judicial or civil proceedings. Investigations? Although this was a major conceptual In other words, we are talking about two Because independent investigations are the only way to establish exactly what happened and by establishing exactly what happened, they put an end to any public concern in the aftermath of the accident. In addition to the humane aspect of helping the victims and their families come to terms with their suffering, independent investigations teach lessons for the future to prevent similar accidents happening again. Furthermore, independent investigations make our actions transparent, which helps democracy function properly. In other words, independent investigations are of great significance to society. But only if people have a right anchored in law to independent investigations can we guarantee that they will be carried out. Mr van Vollenhoven (second from left) at site of fatal railway crossing accident in Voorst on 16 June 2000 (DTSB) 14 Japan Railway & Transport Review 33 • December 2002 Copyright © 2002 EJRCF. All rights reserved. entirely different methods—independent and responsibility for the accident, which was other words, the rules of practice—which judicial—with a completely different legal caused by unrepaired track, when it said were being applied even in training— framework for the independent investigation. that it knew the track section was in poor were at odds with the paper rules. And it I have many reasons for feeling so strongly condition and that 81 more sections were turned out that the engineers who had about the need for independent in a similar state. At the time of the 1999 written the rules had never discussed investigations—transparency is one Paddington crash, Railtrack was making matters with the maintenance workers or reason. Safety is a complex subject in all profits of £1.9 million a day but found better vice versa. business sectors and is beset by many safety systems too expensive to install! In the end, the independent investigation conflicting interests. All too often, safety I should like to give two examples that led to very different conclusions about the takes a back seat when profits come into clearly demonstrate the striking difference causes of the accident and the report of play. Indeed, in some cases, the parties between investigation to apportion blame, the Safety Board led to the decision to involved stand to gain if the true causes and investigation into the causes of an drop all criminal charges. of an accident are never revealed. accident. In Holland, a motorist caused Some examples of where safety has played a very serious accident by apparently Tensions between Independent a secondary role to other interests include ignoring a red light. Witnesses stated that and Criminal Investigations designers cutting the number of expensive the light was red, but he insisted that he emergency exits in tunnels; haulage had not seen the light. To the police, it It cannot be denied that there is some companies dangerously overloading seemed quite obvious that he was to tension between the two types of trucks to increase profits; ferry boat blame. But a similar accident occurred investigations. The body of civil law on operators who avoid port delays by not at the same junction 2 years later and the the subject is expanding rapidly and chaining down vehicles in bad weather; witnesses’ statements were almost where criminal proceedings are instituted, or individuals like you and me breaking identical to those of the previous accident. there is an increasing tendency to speed limits because we are in a hurry to Subsequent accident investigation prosecute rather than to drop charges. meet a deadline or get to a meeting. showed that a wet road in combination Moreover, it is impossible to give A recently leaked letter in the aviation with light at a certain angle produced an watertight legal guarantees that the results sector said, ‘It is not the purpose of optical illusion that prevented motorists of independent investigations will not be maintenance to discover defects, but to seeing the traffic lights. used in criminal or civil proceedings. This establish whether the plane can still safely My second example has to do with a train conflict has been the subject of many be used for the coming period.’ that jumped wrongly switched points at international conferences but experience In short, business is often a question of 120 km/h when the normal maximum has shown that independent investigations priorities and sadly, safety is not always a speed for the points in that switched can be carried out in good faith. People priority. I feel that this fact alone is position was 40 km/h. Luck prevented attach so much value to them that the sufficient to justify the need for the train derailing at high speed but the general view expressed at conferences is independent investigations. police were interested because two track that there is a moral obligation to enhance Long before the Space Shuttle Challenger workers were killed. The points were safety through independent investigations crash, there had been memoranda with being serviced when the disaster nearly and if litigation is a risk, then so be it. warnings about possible leaks in the O- happened and had moved because the But there is one another essential rings of the solid-fuel boosters, but maintenance workers had not secured difference between two criminal and suspending the space shuttle programme them according to the rules. At first it independent investigations. I refer here would have been very expensive. seemed clear who was to blame but to independent investigations called Two days before the 2000 Hatfield rail independent investigation showed that incident studies, which are very important crash, Railtrack Chief Executive Gerald no-one had been following the written in enhancing safety. Corbett said that the British railway rules for years. Why? Because if the Since prevention is better than cure, safety privatization had made the nation’s workers followed the book they could boards are now increasingly turning their railways less safe and more chaotic. only service one or two sets of points each attention to incident studies. I recall an Privatization put a structure in place to day, but they were expected to service six incident involving a Boeing 747 that had produce maximum returns for Railtrack or seven sets. been cleared for take-off to Los Angeles shareholders with profits taking priority Moreover, train services were not to be at the same moment a tractor was given over safety. Railtrack admitted disrupted by the maintenance work. In permission to tow an aircraft across the Copyright © 2002 EJRCF. All rights reserved.

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