A Personal View expressed by Dr. Rebekah Tanti-Dougall

A Personal View expressed by Dr. Rebekah Tanti-Dougall

Disruptive passengers continue to be a major concern and challenge for the aviation industry, posing a serious threat to both the safety and security of aircraft. However, despite various stakeholders investing significant resources to combat the issue, the lack of real progress we are seeing in reducing the number of incidents involving unruly passengers begs the question: Where is the weakest link?

The Legal Framework

The Tokyo Convention (1963) was instrumental in defining what we term ‘unruly passenger behaviour’ and it applies to ‘acts which, whether or not they are offences against the penal law of a State, may or do jeopardise the safety of the aircraft or of persons or property therein or which jeopardise good order and discipline on board’.

This broad terminology allows for various acts to fall under the remit of the Tokyo Convention, and permits behaviour that would not be classified as an offence in a particular jurisdiction to be treated as a criminal act when committed on an aircraft. Furthermore, the term ‘may’ allows for discretion that permits an even broader applicability thereof.

Due to the limitations found in the Tokyo Convention, the more recent Montreal Protocol (2014) – which has yet to be ratified – makes important changes thereto, further providing an effective legal framework. However, despite the international legal instruments regulating disruptive passengers, the industry still encounters all-too-frequent disruptive passenger behaviour on board aircraft.

The Industry’s Approach

The aviation industry is well aware of standards and operating procedures in place to mitigate the threat. Through the implementation and improvement of measures to prevent unruly behaviour through early detection and intervention, it may be said that the industry is going to great lengths, with some companies implementing a zero tolerance policy for such behaviour.

So, having accepted that the industry is playing its part, and having seen collaboration of States on a global level to develop international legal instruments, one has to ask whether such efforts are being undermined further along the chain.

Prosecution Against Unruly Behaviour

One must examine whether such international legal instruments are being enforced at the national level, be it by local enforcement authorities or the judiciary of the individual Member States. It would be futile to have in place a legal framework designed to handle a wide spectrum of disruptive behaviour, as well as the industry fulfilling its part on the one hand, and then on the other have local enforcement authorities or judicial systems that do not comprehend the serious implications that such unruly behaviour may have on board an aircraft, and hence fail to contribute towards the prosecution and punishment of offending individuals.

…warnings or trivial fines…do not constitute sufficient enforcement commensurate to the threat…

Not only must national legislation reflect international law for the prevention and prosecution of disruptive behaviour, but national authorities, such as the police and the judiciary, must also enforce a zero tolerance approach towards such behaviour. This would ensure that individuals who exercise disruptive behaviour on board aircraft are prosecuted and penalised appropriately.

Therefore, there should not only be focus on how air carriers and airport personnel respond to disruptive behaviour and on their methods of detecting and reporting such behaviour, including preventing individuals from boarding, but there must also be emphasis on the legal consequences in order to help discourage individuals from becoming unruly in the first place.

Understanding the Threat

Moreover, in order for prosecution to be effective, the judiciary must acknowledge the severity of the threat. The Crown Court in the United Kingdom did just that with the following statement: ‘Travelling on a plane places a special duty on passengers to behave in a reasonable and orderly manner’ owing to the fact that one is in a ‘small metal tube high up in the sky and a relatively small incident would have catastrophic consequences’.

This statement was issued by Judge Sam Katkuda when sentencing Ms Janine Cooper, a British national, to three months in jail for hurling drunken abuse at terrified passengers on an Air Malta flight to Heathrow in 2003.

In conclusion, unruly behaviour on aircraft should not be tolerated. Warnings or trivial fines issued to individuals for trying to storm cockpit doors or lighting cigarettes on board do not constitute sufficient enforcement commensurate to the threat. Any passenger who poses any threat to aircraft should feel the full force of the law.

Dr. Rebekah Tanti-Dougall LL.B., LL.M. (IMLI), LL.D., is a lawyer with law firm Advocates, Tanti-Dougall & Associates. She is a legal advisor on aviation law, specialising in safety and security. She lectures in aviation law and is the legal advisor to the Bureau of Air Accident Investigation (Malta). Contact: rtd@tdlegal.com.

Dr. Rebekah Tanti-Dougall LL.B., LL.M. (IMLI), LL.D.
Dr. Rebekah Tanti-Dougall LL.B., LL.M. (IMLI), LL.D.