UK High Court denies disclosure of accident investigation data
Two High Court judgеments have set a major milestone in the protection of aviation safety by refusing to order disclosure to the police of a range of UK AAIB (Air Accident Investigation Branch) investigation materials. With those decisions, the judges have unequivocally affirmed the long-standing conviction of the aviation community: the integrity of an air accident investigation – including the information collected in that context – must be preserved and protected, by guaranteeing that there is no interference from any parallel or subsequent criminal or civil proceedings.
The question whether sensitive safety information can be used by courts as evidence in civil and criminal cases is not new. However, the issue had never been judged before within the context of European and International regulations, such as the EU regulations on accident investigation, ICAO annex 13 and the Fundamental Rights Principles. The UK High Court gives balanced judgements that, whilst recognising the rights for civil and criminal authorities to conduct their own investigations, preserves the independence of the safety investigations and the fundamental rights of the persons involved. It shows that it is possible and reasonable to preserve two public interests at the same time: the administration of justice and the protection of aviation safety.
The first decision concerns the Shoreham air show accident (22 Aug 2015), in which a vintage jet aircraft crashed during a display at the Shoreham Airport (England). The police had made an application to the High Court for access to a range of the AAIB’s safety investigation materials. In particular, the police asked for disclosure of the AAIB’s witness interview notes. They also asked for film footage from two cameras the pilot had voluntarily placed inside the cockpit.
The judges ruled that it is ‘almost inconceivable’ that the court would ever order disclosure of statements made to the AAIB, stressing that disclosure would have a ‘serious and obvious chilling effect’ which would tend to deter people from answering AAIB inspectors’ questions with the necessary candour and that this would ‘seriously hamper’ future investigations and the protection of the public. The Court also stated that it would be unfair to require such disclosure given the AAIB's powers to obtain answers to questions by compulsion.
However, the judges did order disclosure of the film footage but, in doing so, they emphasised that this was not mandatory CVFDR data but footage from cameras, which had been voluntarily installed for private leisure and commercial purposes. It is not, therefore, a ruling that CVFDR data can be disclosed.
The second case concerned the AgustaWestland helicopter crash in March 2014. A civilian helicopter crashed at Gillingham near the town of Beccles close to the Suffolk-Norfolk border (see more here). In that case, the coroner had ordered that the CVFDR information be disclosed. The coroner’s power to do this was challenged by way of a judicial review.
The High Court judges now ruled that coroners do not have the power to order the disclosure of AAIB investigation materials. Moreover, unless there is credible evidence that the AAIB's investigation is incomplete, flawed, or deficient, coroners should simply accept the AAIB’s conclusions, should not re-open the matter and should regard the cause of the accident as outside the scope of the inquest.
These two judgements are good news for the promotion of aviation safety in Europe. They incite confidence in the European and international aviation safety rules and recommended practices, and give strength to the important – but inherently fragile – ‘Just Culture’ environment upon which our aviation safety system so much relies. They have set the law in England and Wales and are likely to be influential in courts across the rest of Europe as they specifically consider European legislation.
Doubt, fear of repercussions and reprisal very often hover in the air when it comes to safety reporting, incident & accident investigations and the related data protection. This needs to change! Based on this very encouraging legal development Europe’s pilot community will do its utmost to defend Just Culture for the benefit of aviation safety.
In the coming weeks, ECA will provide you with a further, in-depth look at the judgements and their implications for aviation professionals across Europe.
The full story is available via BALPA.