UK: The Disclosure Of Data Arising From Accident Investigations

Last Updated: 15 March 2017
Article by Adam Tozzi and Alex Stovold

Following an Application by the Sussex Police for sight of various data items held by the Air Accidents Investigation Branch ("AAIB") arising out of the tragic accident at the Shoreham Airshow, in Chief Constable of Sussex Police v Secretary of State for Transport [2016] EWHC 2280 (QB) the English High Court confirmed that it remains the sole authority for disclosure of data collected by the AAIB in its investigation of air accidents.

The decision was indicative that any future requests for disclosure are likely to be construed narrowly, with the Court more likely to conclude the adverse domestic and international impact of disclosure outweighs any benefit. However, pilots may still have areas for concern.

The request

On 22 August 2015 a Hawker Hunter crashed while performing at the Shoreham Airshow, West Sussex. The incident killed 11 people and injured several more, but the pilot survived. Pursuant to its authority under EU Regulation 996/2010, the AAIB investigated the incident, which included the retrieval of various items from the crash site, interviewing key witnesses (including the pilot himself) and undertaking various tests and analysis of the available data.

As part of the police investigation into the accident, the Chief Constable of Sussex ("the Chief Constable") made an Application for disclosure of certain items pursuant to Regulation 18 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 ("the 1996 Regulations").

Specifically, the Chief Constable sought material which fitted into three categories. Firstly, there were witness statements made in response to interviews or discussions with the pilot. Secondly, contemporaneous evidence from the flight itself, specifically film footage of the flight recorded by cameras that had been installed on the aircraft on a voluntary basis; and thirdly, material produced by various people subsequent to the accident, for example experiments conducted and tests done on various aspects of the flight.

The AAIB, represented by the Secretary of State for Transport, did not resist the Application and the AAIB's official position was that it was a matter for the Court to determine whether disclosure should be made having carried out the balancing exercise between different public interests which is required by Regulation 18. The British Airline Pilots Association ("BALPA") made submissions in opposition to the Chief Constable's Application to the effect that the Court could not order disclosure in a case unless the criteria for issuing a Production Order in the Police and Criminal Evidence Act 1984 (PACE) were satisfied.

The legal regime

The background to the investigation of air accidents can be found in international treaty, namely the Convention on International Civil Aviation, signed in Chicago on 7 December 1944, better known as the Chicago Convention ("the Convention"). Of particular relevance is Annex 13 (now in its 10th edition) to that Convention.

Paragraph 5.12 of Annex 13 states that, amongst other things, all statements taken from persons by the investigation authorities during the course of their investigation, cockpit airborne image recordings and any part of transcripts from such recordings, and opinions expressing the analysis of information including flight recorder information shall not be disclosed by the State conducting the investigation of an accident unless the appropriate authority for administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations.

Section 60 of the Civil Aviation Act 1982 provides for the making of an Order in Council for carrying out the Convention and any Annex thereto relating to international standards and recommended practices and generally for regulating air navigation. Further, Section 75 provides that any person who contravenes regulations made under Section 60 shall be guilty of an offence. The Secretary of State has indeed made regulations under Section 60 about air accident investigations – the 1996 Regulations.

The 1996 Regulations themselves originally implemented the obligations of the UK under Council Directive 94/56/ EC of 21 November 1994 ("the Directive") establishing the fundamental principles governing the investigation of civil aviation accidents and incidents. The Directive has now been repealed and replaced by Regulation 996/2010 ("the EU Regulation"), which came into force on 2 December 2010.

It is a fundamental feature of the Convention, and the subsequent EU and UK regime, that investigations into air accidents have a single objective. That objective is the prevention of accidents and incidents, and importantly not to apportion blame or liability. This is clearly set out in Article 3.1 of Annex 13 to the Convention, Article 5(5) of the EU Regulation and Regulation 4 of the 1996 Regulations.

Of particular importance to the Application in this matter were the relevant provisions in the EU and UK regimes, namely Article 14 of the EU Regulation and Regulation 18 of the 1996 Regulations.

Both contain broadly similar wording (although not identical) enshrining into both English and EU law that all statements taken from persons by the safety investigation authority in the course of the safety investigation, material subsequently produced during the course of the investigation and cockpit voice and image recordings and their transcripts should not be made available or used for purposes other than safety investigation unless the administration of justice or the authority competent to decide on the disclosure of records according to national law decides that the benefits of the disclosure of the records outweigh the adverse domestic and international impact that such an action may have on that or any future safety investigation.

The Chief Constable (and the AAIB) accepted when making the Application that the records sought and held by the AAIB were given a protected status under the applicable legal regime. Accordingly, the AAIB was unable to disclose the items unless an Order was made by the High Court.

Legal precedents

What was remarkable about this Application was that this was the first of its kind under English and Welsh law and there were only a handful of similar cases in other jurisdictions, including a decision in the Outer House of the Court of Session in Scotland in which it was ordered that disclosure should be made of the cockpit voice and flight data pursuant to Regulation 18 of the 1996 Regulations. However, that decision was carefully worded to ensure that there was no precedent created. Internationally, there have been cases in Australia, New Zealand and Canada, all of which turned on their own facts or were concerned with the country in question. Accordingly, as this Application was the first of its kind to have been made in England and Wales the High Court was forced (with the assistance of the parties) to devise the appropriate procedure for an Application. As part of this process, some of the hearing (and accordingly some of the judgment) was conducted (and reported) confidentially to prevent any prejudice to a subsequent criminal trial.

The Court's decision

Witness statements made by the pilot

The Court decided that the Application for disclosure of statements made by the pilot when interviewed by the AAIB would not be disclosable to the Chief Constable. This was for two main reasons. Firstly, there would be a "serious and obvious chilling effect" which would deter people from answering questions by the AAIB with the candour that was necessary when accidents had to be investigated by the AAIB. This would seriously hamper future accident investigations and the protection of public safety by the learning of lessons which might help to prevent similar accidents. It was very clear, according to the Court, that disclosure would be contrary to the fundamental purposes of the Convention regime which was carefully designed to encourage candour in the investigations of air accidents in order to learn lessons and prevent future accidents.

Secondly, it would also be unfair to require such disclosure. This is because the powers of the AAIB compelled witnesses to answer questions, which is quite different to the powers of the police. Further, there was no clear practice of giving a caution to any individual being interviewed by the AAIB. The manner of an AAIB interview (used to obtain the fullest possible information for an accident investigation) contrasted dramatically with a police interview being used to illicit evidence which might be capable of being used in a subsequent criminal trial.

There was nothing to prevent the police from conducting their own interviews with the pilot and accordingly it was described as "almost inconceivable" that the statements could be ordered for disclosure.

Cockpit film footage

The Court ordered that the AAIB were to disclose the film footage from the aircraft in question to the Chief Constable. The Court distinguished between the film footage in the accident as separate from cockpit voice and flight data recording the latter being normally required as a matter of legal duty (distinguishing this case). The cameras concerned were installed on a voluntary basis and for leisure and private commercial reasons. It appeared that the intention was to use the film footage obtained during the Airshow as part of a broadcast.

Accordingly, the Court was not persuaded that pilots would be deterred in the future from installing such equipment on a voluntary basis as they would continue to do so for their own private and potentially commercial reasons. Therefore, the Court concluded that the balance fell in favour of disclosure and the film footage had significant potential value for the police investigation as it was a contemporaneous recording of what happened during the flight.

Subsequent material created

This category was the part of the Application which was subject to strict confidentiality and this part of the hearing was heard privately. The judgment merely indicates that the Chief Constable's Application for disclosure was unsuccessful for the reasons set out in a confidential Annex to the judgment.

The material requested is simply detailed as data from test flights conducted by a specialist pilot and engineering reports on the mechanical state of the aircraft.

Conclusion

As part of the judgment, which clearly required a narrow amount of disclosure from the AAIB, various conditions were imposed on any further disclosure of the information by the Chief Constable, limiting it to a select number of uses. What is abundantly clear from the decision is that the High Court is likely to take a narrow view of any disclosure request made by the police. In particular, it would appear that witness interviews conducted by the AAIB are extremely unlikely ever to be the subject of an Order for disclosure. While the Court did not go so far as to say that it would never order disclosure it seems that the circumstances would have to be truly extraordinary before such disclosure would ever be required.

The required disclosure of the film footage is not surprising as this would no doubt assist the police in their investigations and act as a purely factual contemporaneous record of the flight.

Having carefully considered the balance of interest the Court was not prepared to order disclosure with regard to the expert reports. While the exact reasons for the refusal to order disclosure are unknown, it is submitted that the decision is not surprising in that the police are more than capable of seeking their own expert advice in relation to the engineering state of the aircraft and / or conducting test flights if so required.

Following on from the decision in Rogers v Hoyle [2014] EWCA Civ 257, in which the Court of Appeal decided that AAIB reports were admissible in civil proceedings, and the effect that decision had on the candour of witnesses required by the AAIB to fulfil its function, the current case was of real importance to the aviation community to determine whether there would be any further erosion of the protection afforded to AAIB investigations and reports.

It is therefore reassuring for pilots and those involved with aircraft accident investigations that it has now been confirmed that the Court will pay careful attention to the balance of interest as required by the Convention. Further, there is clearly a significant hurdle for any applying police force to overcome in the event disclosure is requested. While the decision probably ensures that witnesses will continue to speak to the AAIB with candour, it remains to be seen whether the installation of cameras in the cockpit will decrease as a result of it. The High Court thought that this would not be the case, but now this legal precedent exists the advice provided to pilots may affect the manner in which flights are recorded above and beyond a pilot's legal duty.

The Disclosure Of Data Arising From Accident Investigations

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