Virgin Australia flight VA41 from Brisbane to Denpasar was the subject of mid-air drama on 25 April 2014. A passenger, named by media sources as Matthew Lockley, caused a disturbance which ended in his removal from the aircraft after landing in Bali.
Initial reports betrayed some confusion as to whether or not the aircraft was being hijacked. Little more was known except that a passenger had rushed forward and banged at the flight deck door, and that the transponder squawk code “7500” had been selected by the crew. This code typically indicates a potential hijacking but, importantly, under Australian rules and standard practice elsewhere also indicates any of a variety of “unlawful interference” with the aircraft. There are conflicting media reports about whether pilots indeed contacted air traffic control by radio to issue a distress call.
Flight crew actions
Naturally, forced or armed attempts to take over control of an aircraft constitute hijacking, but other actions by passengers are also species of unlawful interference. The International Air Transport Association (IATA – the world’s major air carrier professional association) published guidance on Unruly Passenger Prevention and Management in December 2012, and this sets out 3 main categories of offences aboard aircraft:
- Offences classed as acts of terrorism (eg, bomb threats, hijacking);
- Offences that are subject to the Tokyo Convention (ie, those which could endanger the safety and good order on board the aircraft such as failure to comply with the directions of crew members); and
- General offences (eg, threatening/abusive behaviour, public order offences, smoking etc)
Australia’s “Aeronautical Information Publication” as published by Airservices Australia (otherwise known as the AIP) sets out the procedural actions for pilots of Australian registered aircraft, and includes a chapter on procedures for suspected unlawful interferences. The principal obligation of pilots (apart from the primary one of maintaining the safety of air navigation for the flight), is to:
endeavour to inform ATS [air traffic services/control] of this fact, along with any deviation from the current flight plan and any other significant factors affecting the operation. (AIP, ENR 1.13, 1.1)
At paragraph 6.4.2 the AIP describes the appropriate transponder code for pilots to set when an aircraft is subject to unlawful interference – 7500. The importance of the selection of this code is that it gives air traffic controllers a defined set of tasks and priorities in order to best safeguard the aircraft (which may be in distress). Thus, controllers seeing this code from an aircraft must provide it with priority in all respects, transmit all information which is pertinent to the conduct of the flight without expecting a reply from the aircraft and relay messages between the aircraft and appropriate authorities on the ground.
Thus, in all respects, the selection of code 7500 by the crew was the most appropriate action and one fully in line with the airline, and the individual pilots’, legal obligations upon becoming aware of the disturbance in the cabin. It would, in light of the above, be of little relevance if the pilots had radioed a distress call or not, as the relevant controller actions would have been triggered until the emergency code had been cancelled or the matter somehow safely resolved.
Cabin and other crew actions
If the selection of the correct transponder code by the pilots was correct, what about the conduct of the cabin crew in physically restraining Mr Lockley? Again, pragmatism dictates behaviour in such circumstances and the pilot in command, as the person with final responsibility for the disposition of any flight, has the authority to command cabin crew to restrain unruly passengers.
Disembarkation and prosecution of unruly passengers
The Convention on Offences and Certain Other Acts on Board Aircraft, signed at Tokyo on 14 September 1964 (Tokyo Convention) controls certain elements of unruly passenger behaviour on international flights. In particular prosecution of unruly passengers and offloading of such passengers is controlled by the Convention. A country where a plane lands to offload a disrupting or unruly passenger cannot in most instances automatically prosecute the passenger.
The Convention has a jurisdictional gap which means that while the pilot in command may disembark the unruly passenger at any airport the receiving country/authority does not have to take delivery of that person and prosecute them unless they also are a signatory to the Tokyo Convention. When a pilot in command “delivers” such an unruly passenger to a competent authority of a country which has ratified the Tokyo Convention, that authority may: take delivery of the person, and if they are satisfied that circumstances warrant it, take custody of the person or take other measures to secure their presence.
In this instance, as Indonesia has ratified the Tokyo Convention, that is what happened.
In terms of the jurisdiction of criminal law, Australian law applied on the aircraft in question as the aircraft was Australian registered. For the purposes of Indonesia’s ability to extradite or expel Mr Lockley (should they wish to do so), the alleged offences committed aboard are considered to be “Australian” offences. Indonesian jurisdiction (as the country of the flight’s destination) does not automatically apply to this flight under the Convention.
April 2014 updates to the Tokyo Convention
Between 26 March 2014 and 4 April 2014 a diplomatic conference in Montreal was held in order to consider revisions to the Tokyo Convention brought about by the significant increase (especially in the last decade) of unruly passenger incidents on international flights. This resulted in 100 nations and 9 international organisations and institutions adopting the Montreal Protocol 2014. This makes some simple but necessary changes to the Tokyo Convention, and closes the loophole referred to above (eg, extending jurisdiction over the criminal acts of those onboard international flights, including unruly passengers, to not only the country of the aircraft’s registration but that of the country of destination of the flight). The Protocol includes other clarifications, including enabling protections afforded to the crew to the relatively new role of in-flight security officers (commonly known as “sky marshals”).
The Protocol will not enter force until 22 countries ratify it, and so for the Virgin Australia incident described herein, only the unamended Tokyo Convention applies to Mr Lockley’s disruptive behaviour. Thankfully, as signatories to the Tokyo Convention, Australia and Indonesia are both well versed in handling such situations diplomatically with the likely result being that Mr Lockley, if no decision is made to prosecute in Indonesia, may very well be pursued by the Civil Aviation Safety Authority for breaches of Australia’s strict liability aviation laws upon his return to Australia.
Offensive and disorderly behaviour on an Australian aircraft carries with it a penalty of 50 penalty units (AUD $8,500) pursuant to Regulation 256AA of the Civil Aviation Regulations 1988 (Cth).
Written by Shine Lawyers. Last modified: April 29, 2014.