Air accidents and the production of material gathered by the Air Accident Investigation Branch; R (Secretary of State) v HM Senior Coroner for Norfolk & BAPA [2016] EWHC 2279 & Chief Constable of Sussex Police v Secretary of State for Transport & BAPA [2016] EWHC 2280

This article is by Michael Rawlinson QC and Patrick Vincent of 12 King’s Bench Walk.

The Divisional Court has given new guidance to coroners and the police restricting their ability to demand production of material given to the Air Accident Investigation Branch (“AAIB”) whilst discharging their respective fact finding obligations where air crashes had led to death.

Background

The Air Accident Investigation Branch is charged with the statutory duty of determining how accidents involving aircraft occurred so that their re-occurrence can be avoided. Associated with that duty is the power to require production of documents and responses in interview from witnesses. The AAIB can therefore acquire a wealth of material (very often including cockpit voice and flight data recorder (“CVFDR”)) which, naturally, is of great interest to the families of the deceased, their lawyers and the coroners before whom inquests are listed. Equally it may be of interest to the police when they consider whether there is evidence of the commission of a crime. This raises the issue of what are the relative powers of the various investigatory bodies and which other (if any) has the right to demand that the AAIB yield up its treasure?  It can quickly be seen that whether or not such disclosure can be obtained may affect a wide range of claims such as claims for negligence arising out of pilot error or aircraft maintenance or for product liability arising out of faulty design – whether in this jurisdiction or within foreign jurisdictions.

The degree to which AAIB report material can be disclosed arose in a pair of cases before a powerfully constituted Divisional Court (Lord Thomas of Cwmgiedd LCJ; Singh J) in R (Secretary of State) v HM Senior Coroner for Norfolk & British Airline Pilots Association [2016] EWHC 2279 (“Norfolk”) and Chief Constable of Sussex Police v Secretary of State for Transport & British Airline Pilots Association [2016] EWHC 2280 (“Sussex”).

In Norfolk the Senior Coroner had demanded from the Chief Inspector of the AAIB the CVFDR and a full transcript of the voice recording. She had fined the Chief Inspector for default when the AAIB had refused to comply. The AAIB applied to quash both the demands and the fine. In Sussex the police force investigating the Shoreham air crash made similar demands to those made by the Senior Coroner in Norfolk. In both cases BALPA, the airline pilot’s union, intervened.

The Court’s Approach

The Court in both cases commenced with a detailed review of the basis upon which AAIB investigations are protected. In essence that protection arises at three levels, namely at the level of international treaty (“the Chicago Convention” (1994)); a directly applicable European Directive (“Regulation (EU) No. 996/2010”) and domestic legislation implementing the European Directive (Part III Civil Aviation Act 1982; Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 (SI 1996/2798) (“the Civil Aviation Regulations 1996”).

This cascade of this authority worked as follows:

• Annex 13 to the Chicago Convention (10^th Ed) lists a series of documents and sources of evidence which, if provided to the State body charged with investigating an air accident (in the case of the UK that is the AAIB of course) shall only be used for ‘accident or incident investigation’ and shall not otherwise be made available unless “the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action [i.e. disclosure] may have on that or any future investigations”. Included within the list of protected materials are statements of witnesses, medical information relating to witnesses and CVFDR
• The Chicago Convention is incorporated both directly and indirectly into UK law: directly via s. 60 of the Civil Aviation Act 1982 and indirectly via the EU Regulation
• The UK domestic Civil Aviation Regulations 1996 referred to above were passed to implement the EU Regulation within the UK jurisdiction.
• Article 14 of the EU Regulation and Regulation 18 of those 1996 Regulations when taken in combination broadly reflect the balance set out in Annexe 13 of the Chicago Convention: similar categories of information as referred to in the Convention are to be gathered only for the purpose of accident investigation and once gathered must not be disclosed unless a competent Judicial authority determines that the benefit of disclosure outweighs the harm which is presumed to arise should disclosure be ordered. The presumed harm is that there would be a ‘chilling effect’ on candour either in the cockpit or to the AAIB if it was known that such material could easily be disclosed.

Norfolk

In Norfolk the Coroner’s argument that (a) she had the power to demand that records be produced to her pursuant to Para 2 Sched 5 of the Coroners and Justice Act 2009 –  in pursuance of her enhanced investigatory role under Middleton and (b) that this power ‘trumped’ the provisions of the above regulatory regime were rejected for a number of reasons:

1. Her power to demand those documents was a general one, given to her by statute to cure the mischief that without it, she could not obtain disclosure in any circumstances where it was not offered voluntarily [45].
2. Such a general power could not ‘trump’ the domestic and European civil aviation regulatory regime since that regime as enacted reflected accurately the intention of the framers of the Chicago Convention, namely ‘the prevention of accidents and incidents. Their purpose is not to apportion blame or liability’ [21].
3. The specific provisions of Regulation 18 of the domestic Civil Aviation Regulations 1996 expressly precluded the Coroner from demanding the documents:
   • She was caught by the prohibition on disclosure by AAIB ‘to any person for purposes other than accident or incident investigation’ (she had argued that she was not ‘any person’). This was swiftly rejected [42-44].
   • The only competent authority which could actually demand that the Secretary of State for Transport/AAIB yield up the documents was the High Court (in England and Wales) (see Regulation 18(3)). Even then, the High Court could only make such an order in favour of a party to judicial proceedings and where the interests of justice outweighed the adverse impact of disclosing (Regulations 18(2) and (4)).
4. In any event the Coroner’s power to require disclosure was limited to situations where the request was not incompatible with an EU obligation. It was found that to require any person to make disclosure to the Coroner would be incompatible the EU Regulation and would therefore be unlawful [52].

It should be noted that none of this applies to documentation which is actually reproduced or annexed to the AAIB report when published. Equally the report of the AAIB may be adduced in evidence in any subsequent civil trial (Rogers v Hoyle [2014] EWCA Civ 257).

There was much parity of reasoning in Sussex albeit the issue arose in a slightly different context.

Sussex

In Sussex the Chief Constable was in fact making precisely the application to the High Court envisaged by Regulations 18(2) and (4). The Divisional Court was still left with the issue of how to exercise its discretion in regard to that application – however impeccably made. Only one antecedent judgment on the issue could be found in the UK. In that case – a Scottish one – disclosure had been ordered but that Judgment had on its face declared itself to create no precedent [2015] SLT 450 [58-60] (See Sussex [28]).

In answering the question of discretion, the Court adverted to the process of the hearing of the application. There were three stages: the first was public, the second was one where the public were excluded and the third where only the AAIB were present – as if it were a hearing to determine Public Interest Immunity. Those matters which fell within the second part of the process – the matters confidential to the parties – were dealt with in a confidential annex to the judgment which, of course, is closed to public perusal. Whilst such a procedure may be entirely reasonable, it is not one which enhances analysis.

Next, the Court divided the Chief Constable’s request in Sussex into three categories:

• Statements made by the pilot to the AAIB (‘Category 1’);
• Contemporaneous film footage taken by the pilot (‘Category 2’);
• Subsequent experimentation and review by others (‘Category 3’).

The Court quickly dismissed disclosure of Category 1. To permit disclosure of this would inhibit candour in those being interviewed which, in turn, would make it less likely that future similar accidents could be prevented. Further, it was not clear whether such interviews occurred after a caution had been administered [42-43]. Whilst the Court rejected the submission that disclosure should only be made if the grounds for a Production Order under the Police and Criminal Evidence Act 1984 could be proven to exist, the Court did hold that the sort of privacy considerations pertinent to the making of such orders were equally relevant to these applications. Overall, therefore it is very unlikely that such orders will be made in the future. Finally the Court made the observation that, if they wanted to, the police were at liberty to interview the pilot themselves under caution. [43-44].

Equally quickly the Court determined that the Category 2 footage should be disclosed. The video footage was not recorded consistent with a statutory duty to do so (such as existed in respect of the CVFDR. The release of the footage would be unlikely to deter future pilots from installing such equipment as it was done for their own private or commercial reasons.

All that can be said about Category 3 is that disclosure of it was not permitted but the reasons why it was not are contained in the confidential annex and therefore are not publicly available.

In addition to the specifics of the AAIB,  Norfolk also provided guidance as to the conduct generally of coroners where it is known that other parallel investigations are being undertaken.

1. Coroners, even those carrying out their extended function, are not experts and there appears to be no reason why they should try to second guess the AAIB who are [49]. The LCJ had more to say on the matter [55]:

“The submission reflected the tendency in recent years for different independent bodies, which have overlapping jurisdictions to investigate accidents or other matters, to investigate, either successively or at the same time the same matter. On occasions each body considers that it should itself investigate the entirety of the matter rather than rely on the conclusion of the body with the greatest expertise in a particular area within the matter being investigated. The result can be that very significant sums of money and other precious resources are expended unnecessarily.”

2. As a result, coroners should either adjourn their inquests until the AAIB has reported or proceed on the basis that the AAIB will determine the cause of the crash and hold it to be outwith the scope of the inquest.
3. The Coroner should not seek to reopen the cause unless there was credible evidence that the AAIB report was ‘incomplete, flawed or deficient’ and even then the matter could be cured by seeking short supplementary evidence from the AAIB itself following Roger v Hoyle [2015] QB 265 at [94]. Finally the LCJ effectively gave instruction to the Chief Coroner to reconsider the terms of the Coroners’ (Inquest) Rules 2013.