HM Senior Coroner for West Sussex v Chief Constable of Sussex [2022] EWHC 215 (QB): Restrictions on the disclosure of materials to Coroners’ Courts in cases involving air accident investigations
In 2015 at the Shoreham Airshow, a devastating crash during an aeronautical display led to the deaths of 11 individuals and the serious injuring of many more. Miraculously, the pilot of the aircraft involved survived the crash, and was acquitted of any criminal wrongdoing at a trial at the Old Bailey in 2019. However, the Coroner’s inquests charged with establishing how the 11 individuals killed came by their deaths have yet to be concluded. In an application by the senior coroner for West Sussex to the High Court for disclosure of certain materials, the court considered not only the narrow issue of whether such materials ought to be disclosed, but engaged in a wider examination of the interplay between the Coroners’ Courts and other bodies charged with investigating the facts of how such accidents occur.
The context in which these issues arose was, admittedly, somewhat unusual, if not unique. That context is the internationally sanctioned regime provided for the investigation of air accidents. That regime, conceived in the Convention on International Civil Aviation (“the Convention”) signed by states parties in Chicago in 1944, and incorporated into both EU and domestic UK law, stipulates that certain materials shall not be made available for purposes other than the accident or incident investigation unless the competent authority (the High Court in the UK) determines that “their disclosure or use outweighs the likely adverse domestic and international impact such action may have on that or any future investigation” (Standard 5.12, Annex 13 of the Convention). Such material includes “cockpit voice recordings and airborne image recordings”. In the UK, the statutorily recognised body charged with investigating air accidents is the Air Accidents Investigation Branch (“AAIB”). The default position in law, then, is that only the AAIB will have access to such materials for the purpose of completing their investigation.
In the Shoreham Airshow case, the coroner specifically sought the disclosure of footage from a Go-Pro camera that the pilot had activated in the cockpit during the display, and various expert reports that formed part of the criminal proceedings which referred to that footage. Notably, Edis J – the trial judge in the criminal proceedings – had ruled (sitting in his capacity as a High Court judge) that the Go-Pro footage should be disclosed to the police by the AAIB, as the interest in disclosing it for the purpose of fully informing a criminal investigation outweighed the deleterious impact of so disclosing it.
One of the crucial issues which emerged in the criminal trial, and which ultimately led to the pilot’s acquittal, was the possibility that he had been suffering from some form of cognitive impairment at the time of the accident, which led to him incorrectly – and ultimately fatally – carrying out a certain manoeuvre. The AAIB, which produced its report into the accident in 2017, did not find that cognitive impairment played any role. Following the acquittal of the pilot, the AAIB reviewed its investigation afresh, but concluded in 2020 that there was no new or significant evidence of cognitive impairment and that its original findings remained valid.
However, before the coroner, a further report was presented in support of the pilot’s position. That report, produced by Dr Mitchell, postulated the possibility that a particular mechanism of cognitive impairment, caused by cerebral hypoxia, had not been considered by the AAIB. Notably, Dr Mitchell was a friend of the pilot, and a pediatric oncologist rather than an expert in aviation medicine or neurology. Nevertheless, the coroner considered that this report gave rise to a “credible suggestion” that AAIB’s investigation was incomplete. This, the coroner argued, meant that the investigation of this issue should be carried out by her, which in turn required the disclosure of the protected material.
The High Court, however, rejected the coroner’s application. The court pointed to the substantial harm that would be caused by routinely disclosing such material in coronial proceedings in the absence of “credible evidence” that the AAIB’s investigation was “incomplete, flawed or deficient”. Most importantly, such an approach would have the effect of dissuading people from assisting air accident investigations generally, for example, by simply refusing to install or activate cockpit video recording equipment. As against this, there was, the court considered, little benefit to duplicating the task of objectively investigating the facts of such incidents. The AAIB has an important role as the state entity with the greatest expertise in investigating such incidents. The court concluded, the coroner should treat the AAIB’s report and findings as evidence as to the cause of the accident. Very rarely will a coroner be able to look behind such a report.
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