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Aviation: The High Court affirms itself as sole gatekeeper for disclosure of air accident investigation records

The High Court has handed down two judgments in which it had cause to grapple with both the interpretation and application of the robust protective disclosure regime under the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996/2798, Reg.18.

The High Court has handed down two judgments in which it had cause to grapple with both the interpretation and application of the robust protective disclosure regime under the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996/2798, Reg.18.

Reg 18 and air accident investigations

Reg.18 prevents disclosure of relevant records held by the Air Accidents Investigation Branch (AAIB) without an order of the High Court. Relevant records are defined by reference to international law, namely the Chicago Convention.

In R (on the application of the Secretary of State) v Her Majesty’s Senior Coroner for Norfolk [2016], the court affirmed its exclusive jurisdiction to order such disclosure. The broad powers in the subsequent Coroners and Justice Act 2009 could not override the specific legislation in the 1996 Regulations; that was not Parliament’s intention. The Coroner’s disclosure notices and fines against the AAIB were quashed.

The Chicago Convention neatly summarises the rationale behind such a strict regime: “if such information is distributed, it may, in the future, no longer be openly disclosed to the investigators. Lack of access to such information would impede the investigation process and seriously affect flight safety.”

The first application for disclosure under Reg. 18

In the Chief Constable of Sussex Police v Secretary of State for Transport & Anr [2016], the court was presented with what appears to be the first application under Reg.18 for disclosure.

The Chief Constable’s application arose out of the Shoreham air show disaster on 22/08/15 when a vintage aircraft crashed mid-stunt taking the lives of 11 people. It sought: (i) pilot statements; (ii) cockpit film footage; and (iii) material from post-accident testing.

The court had to balance the benefits of disclosure against the adverse domestic and international impact on current or future safety investigations.

High Court ruling: Chief Constable of Sussex Police v Secretary of State for Transport & Anr [2016]

In refusing to disclose all but the film footage, the court firmly underlined the importance of preserving the climate in which the AAIB investigate air accidents. It was “almost inconceivable” that the court would order disclosure of statements made to the AAIB as it would have a “serious and obvious ‘chilling effect’”, deterring those involved from answering with the candour required. Equally, it would be unfair given the AAIB had the power to compel answers, unlike the police.

The AAIB’s report into the Shoreham air show disaster is due to be released this Autumn.

 

Case reference: Chief Constable of Sussex Police v Secretary of State for Transport & Anr [2016] EWHC 2280 (QB)

Hannah Laithwaite / 12th Oct 2016


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