Accident investigation

Regrettably major accidents happen. When they do, there are different public bodies conducting parallel investigations to discover what has happened and why. Whilst it is likely that these investigations will have overlapping jurisdictions and therefore no public interest in unnecessary duplication of evidence, recent cases have reinforced that it is vital that where evidence is obtained for the purposes of safety it is not disclosed for use in criminal proceedings.

In the UK, accident investigation is the responsibility of the Air, Marine and Rail Accident Investigation Branches (“AAIB”, “MAIB” and “RAIB”) which are stand-alone branches of the Department for Transport. All three Accident Investigation Branches were established to fulfil the UK’s duty under EU Safety Directives to create permanent bodies to undertake independent investigation of air, maritime and rail accidents. Each Branch operates within UK law through legislation. Their powers and duties are set out in different Civil Aviation; Merchant Shipping; and Rail (Accident Investigation and Reporting) Regulations ("the Regulations").

The RAIB was established in response to Lord Cullen's Inquiry Report in 2001 on the Ladbroke Grove (Paddington) Rail Accident and the subsequent 2004 EU Rail Safety Directive (2004/49/EU). The creation of the AAIB and MAIB gave effect to the UK’s international obligations to the Convention on International Civil Aviation and the International Maritime Organisation Code for the Investigation of Marine Casualties and Incidents.

For all three Branches, the purpose of investigating an accident is to determine its circumstances and causes, to improve safety and help avoid future accidents. They are not a prosecuting body and do not apportion blame or liability. Given their overriding purpose, evidence obtained in the course of a safety investigation will, save in exceptional circumstances, not be available to the police; only the Court can allow that.

Application for disclosure

Where an application for disclosure is made, the Court must consider the Regulations and be satisfied that the benefits of disclosure outweigh the adverse impact of disclosure on the investigation, any future investigation and public safety. For evidence obtained by AAIB and MAIB, given the UK’s international obligations, the Court must also factor in the ramifications for UK international relations.

If statements of witnesses to a safety investigation are disclosed to the police; witnesses will be unwilling to speak freely and frankly. Disclosure could ultimately deter people from assisting Accident Investigation Branches and hamper future safety investigations.

It was this “chilling effect” which lead the High Court on 28 September 2016 in Sussex Police v Secretary of state for Transport & Anor to refuse disclosure of evidence obtained by the AAIB. This case related to an investigation into an aircraft that crashed whilst performing a stunt at an air show at Shoreham. The aircraft crashed into the A27 killing eleven people.

As part of the criminal investigation, the Chief Constable of Sussex applied for disclosure of witness statements taken by the AAIB from the pilot. The Court refused disclosure as it would be contrary to the fundamental purpose of safety investigations to identify the lessons learnt and prevent future accidents.

Order for disclosure

In R (on the Application of Secretary of the State for Transport) v HM Senior Coroner for Norfolk and British Airline Pilots Association (also on 28 September 2016) Mr Justice Singh found that only the High Court has the relevant power to make the order.

This case concerned a different AAIB investigation, in relation to a four-fatality helicopter crash near Norfolk. To assist with the inquest the Coroner ordered the AAIB to disclose the cockpit voice and flight data recorder and/or full transcripts from those recordings. He later fined the AAIB for non-compliance. The Senior Coroner submitted that Coroners and Justice Act 2009, which was enacted to increase the coroner’s power to order disclosure, permitted those orders.

In considering the nature of the disclosure, and the duty of the Coroner to investigate certain deaths where there is reason to suspect they were “violent or unnatural” and the Court confirmed that where independent public bodies had overlapping investigatory jurisdictions, there was “no public interest in having unnecessary duplication of investigations or inquiries”.

However, the ability of the Coroner to order disclosure of information relevant to the Inquest did not ‘trump’ the Civil Aviation Regulations that specifically requires an application for disclosure to be made in the High Court. Mr Justice Singh further noted that as the High Court was used to dealing with international obligations it would be “surprising if Parliament had intended… to confer that important jurisdiction on a relatively lower judicial office”.

The rules for disclosure applications relating to the MAIB and AAIB are the same. Interestingly, the RAIB position is different; an application for disclosure from the RAIB can be made to either the Crown Court or High Court. However the Coroner has no apparent jurisdiction to order disclosure from the RAIB.