The High Court grants Sussex police access to cockpit video footage but stops short of allowing criminal investigators to review more substantive Air Accident Investigation Branch (AAIB) evidence of the Shoreham air show crash.

On 28 September 2016, the High Court handed down a ruling that would enable Sussex police to review the video footage from cameras mounted on board the Hawker Hunter that crashed into the A27 last August, killing 11 people. The ruling is the result of an application that the police made earlier in the year in order to gain access to evidence and records collected by the AAIB for the purposes of their own criminal investigation into the pilot, Andy Hill.

However, the High Court was clearly mindful of inadvertently prejudicing the current civil investigation and fearful of the wider ramifications of compromising the integrity of air accident investigations. Sussex police had wanted access to a range of evidence that included reports on human factors, engineering, tests and speed calculations, as well as records of interviews with the pilot, statements from air accident investigators and a risk assessment report. Lord Chief Justice Lord Thomas and Mr Justice Singh observed that obliging the AAIB to disclose this information could potentially have ‘a serious and obvious chilling effect’ on future air accident investigations ‘which would tend to deter people from answering questions by the AAIB with the candour which is necessary when accidents of this sort have to be investigated by it’ (paragraph 42 of the judgment).

Sussex police are investigating the pilot for manslaughter by gross negligence and a breach of Article 138 of the Air Navigation Order 2009 (ANO), which states that 'a person must not recklessly or negligently cause or permit an aircraft to endanger any person or property’ (now Article 241 of the ANO 2016). It is therefore incumbent upon them to carry out thorough enquiries in the interests of justice. However, as we argued in our previous bulletin on this matter, the rush to find criminal liability before the AAIB has concluded and presented its findings puts the ability to find out what actually happened in the skies over Shoreham that day at greater risk.

Incidentally, in a judicial review hearing held on the same day, the High Court reinforced the singular importance of the AAIB as an independent body with the greatest expertise in determining the cause of air accidents. It overruled the Norfolk coroner, who had ordered disclosure of cockpit voice and flight data recorder, following the Augusta Westland helicopter crash near Gillingham Hall on 13 March 2014, and who had fined the chief investigator £100 for failing to do so, pursuant to the Coroners and Justice Act 2009. Only the High Court can make such a disclosure ruling under the ANO. Mr Justice Singh stated that ‘it is important to emphasise that there is no public interest in having unnecessary duplication of investigations or inquiries. The AAIB fulfils an important function in that it is an independent body investigating matters which are within its expertise’ (paragraph 49 of the judgment).

The High Court’s acknowledgement that damaging the ‘no blame’ culture from an aviation safety perspective would have a chilling effect on the openness and co-operation of witnesses is a welcome one.

Had the High Court granted Sussex police full and immediate access to AAIB records or had granted the Norfolk coroner greater powers to force disclosure, the ramifications of prejudicing important and impartial air safety work at source would have been troubling and indeed chilling.