Case Comment: HM Senior Coroner for West Sussex v Chief Constable of Sussex  EWHC 215 (QB)
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. 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 the balancing exercise that is required to be carried out between the benefits of disclosing such material, and the harm caused to the integrity of air accident investigations by such disclosure.
The context in which these issues arose was 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 airbourne 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 investigations.
During their investigation of the incident, the police applied to the High Court for disclosure of various materials gathered during the course of the AAIB’s investigation. That application was made under Regulation 18 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 (SI 1996 No. 2798) (since superseded by Regulation 25 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2018 (SI 2018 No. 321)).
In what was referred to by their Lordships’ judgment as “the Sussex case” the Divisional Court granted that application, but only in part. Whilst the police sought the disclosure of various materials, including witness statements gathered by the AAIB, only their application to obtain footage from a Go-Pro camera that was installed in the cockpit by the pilot at the time of the crash was granted. In refusing to order the disclosure of witness statements obtained by the AAIB, Singh J, delivering the judgment of the Court, noted the significant chilling effect that the possibility of such disclosure would have on people called upon to provide candid accounts to AAIB investigators, as well as the unfairness involved in disclosing accounts given to the AAIB under their powers compulsion to the police who, for good and well-established reasons, have no such powers of compulsion.
Even in granting the police’s application for disclosure of the Go-Pro footage, the judgment of the Court was confined to the specific facts of this case, with Singh J drawing a distinction between the Go-Pro footage and voice and flight data recording that normally has to be created as a matter of legal duty by those operating the aircraft. In relation to the former, the footage is normally collected voluntarily by pilots for leisure or commercial purposes, and, the court concluded, pilots would not be deterred from gathering such footage by the possibility of it being disclosed.
When the police and CPS applied, at the eleventh hour, for an order allowing them to use that same footage not just for their investigation, but as evidence to place before the jury during the criminal trial which followed, Edis J concluded that the balance lay in favour of allowing the material to be used at trial. Again, however, His Lordship did so on a narrow basis:
“It seems to me that the additional damage to the integrity of the air accident investigation system which will transpire from the order I propose to make is much less serious on these particular facts than would generally be the case. It also seems to me that, where, as a result of a completed criminal investigation, a jury trial is on foot in which the jury is considering 11 counts of homicide, the interest in public justice is unusually high. And, therefore, it seems to me that both sides of this balance are unusual but that, on the particular facts of this case, I should make the order sought. It follows, I trust, from the way in which I have sought to express myself, that the decision I have made offers no departure from the principles set out in the Convention and the two sets of regulations and the manual. This is a highly fact specific decision on facts which are likely to be highly unusual, if not unique.”
However, the High Court rejected the Coroner’s application for disclosure of that same material. The Court pointed to the substantial harm that would be caused by routinely disclosing such material to Coroners’ Courts 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.
Thus, in the legally unusual realm of air accident investigations, the scope for the disclosure of materials gathered by the AAIB even to facilitate police investigations, will be highly restricted, and perhaps limited to criminal investigations of homicide offences, and even then in certain limited circumstances. Moreover, a comparable international regime exists in relation to the investigation of accidents and incidents at sea. The Marine Accident Investigation Branch (MAIB) is the body within the UK charged with investigating such matters under the the Merchant Shipping (Accident Reporting and Investigation) Regulations 2012 as amended, which implements similar international agreements relating to the conduct of such investigations, and similarly restricts the scope for the disclosure of materials to third parties. Given the similarities, it seems certain that the various court rulings that have emerged from the Shoreham Airshow case will apply equally to maritime investigations also.