Hawker Hunter down at Shoreham
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All the experts on here now need to contact Sussex Police and put themselves forward as 'experts' as the police will need them to help understand the footage plus carry out the theory tests on the ideal required height/speed etc for the manoeuvre. Also, possible testing of aircraft instruments and examining the aircraft itself.
At the end of the day I do not see why they couldn't have access to both the footage and test results info, it is in the public interest to establish the facts and the police do not have the man power or expertise to do so. The only real experts are the AAIB unless the police call on another countries equivalent like the FAA to help them piece all the facts/information/evidence together.
They can't use anyone in the UK as most will have some form of connection to this incident, either via the pilot, owner, maintenance company, organisers or the AAIB which will result in a conflict of interest. After all the pilot is well known in the aviation business and has many friends, there is only a handful of maintenance companies that look after such aircraft (most of which this aircraft has been with) and presumably someone from the AAIB can't be used due to a conflict of interest (even if they haven't been involved with the investigation).
I await the AAIB report but fear this will be delayed to after the pre-inquest hearing in November and possibly the actual inquest itself. Then depending on the result will have wait and see if the HSE get involved with any prosecutions.
At the end of the day I do not see why they couldn't have access to both the footage and test results info, it is in the public interest to establish the facts and the police do not have the man power or expertise to do so. The only real experts are the AAIB unless the police call on another countries equivalent like the FAA to help them piece all the facts/information/evidence together.
They can't use anyone in the UK as most will have some form of connection to this incident, either via the pilot, owner, maintenance company, organisers or the AAIB which will result in a conflict of interest. After all the pilot is well known in the aviation business and has many friends, there is only a handful of maintenance companies that look after such aircraft (most of which this aircraft has been with) and presumably someone from the AAIB can't be used due to a conflict of interest (even if they haven't been involved with the investigation).
I await the AAIB report but fear this will be delayed to after the pre-inquest hearing in November and possibly the actual inquest itself. Then depending on the result will have wait and see if the HSE get involved with any prosecutions.
At the end of the day I do not see why they couldn't have access to both the footage and test results info, it is in the public interest to establish the facts ....
Let them get on with producing a factual report, then others can take it from there if they feel the need.
I await the AAIB report but fear this will be delayed to after the pre-inquest hearing in November and possibly the actual inquest itself. Then depending on the result will have wait and see if the HSE get involved with any prosecutions.
Last edited by wiggy; 28th Sep 2016 at 20:02.
It looks like the contents of the message sent out by BALPA to it's members I referred to in permalink #1006 is now in the public domain on another forum..that being the case this is the main body of the message, minus some preamble, part of which was an acknowledgement of the role the ECA and IFALPA played in proceedings:
Shoreham case
In the Shoreham case, the police made an application to the High Court for access to certain items of AAIB working materials. In particular, the police asked for disclosure of the AAIB’s notes of witness interviews. They also asked for film footage from two cameras the pilot had placed inside the cockpit.
The judges refused to order disclosure of the witness interview notes. They ruled that it is ‘almost inconceivable’ that the court would ever order disclosure of statements made to the AAIB. They said 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.
Augusta Westland case
In the Augusta Westland helicopter case, the coroner had ordered that the CVFDR information be disclosed to her. The coroner’s power to do this was challenged by way of a judicial review.
The judges ruled that coroners do not have the power to order the disclosure of AAIB investigation materials. The only court which can make any such order is the High Court. Plus, in an important legal development, the Lord Chief Justice ruled that, 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.
A ‘major milestone’
These two judgments are a major milestone in the journey to protect flight safety. They have now set the law in England and Wales and they are likely to be highly influential in courts all around the world as they specifically consider European legislation. The court has prioritised the importance of protecting the just safety culture and the integrity of air accident investigations above the need to investigate blame. Those answering AAIB inspectors’ questions can now do so knowing that the law says that it is ‘almost inconceivable’ that their interview records would be disclosed to the police or a prosecutor.
In the Shoreham case, the police made an application to the High Court for access to certain items of AAIB working materials. In particular, the police asked for disclosure of the AAIB’s notes of witness interviews. They also asked for film footage from two cameras the pilot had placed inside the cockpit.
The judges refused to order disclosure of the witness interview notes. They ruled that it is ‘almost inconceivable’ that the court would ever order disclosure of statements made to the AAIB. They said 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.
Augusta Westland case
In the Augusta Westland helicopter case, the coroner had ordered that the CVFDR information be disclosed to her. The coroner’s power to do this was challenged by way of a judicial review.
The judges ruled that coroners do not have the power to order the disclosure of AAIB investigation materials. The only court which can make any such order is the High Court. Plus, in an important legal development, the Lord Chief Justice ruled that, 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.
A ‘major milestone’
These two judgments are a major milestone in the journey to protect flight safety. They have now set the law in England and Wales and they are likely to be highly influential in courts all around the world as they specifically consider European legislation. The court has prioritised the importance of protecting the just safety culture and the integrity of air accident investigations above the need to investigate blame. Those answering AAIB inspectors’ questions can now do so knowing that the law says that it is ‘almost inconceivable’ that their interview records would be disclosed to the police or a prosecutor.
Last edited by wiggy; 29th Sep 2016 at 08:02.
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I fear for the families and those still suffering either mentally or physically that they will not get a true answer. It will be like the bin lorry incident and the Glasgow police helicopter crash. Basically nothing will end up happening just the report and maybe a court case that doesn't go anywhere. Those that maybe be accountable for this tragic incident will walk away.
It is as I originally asked if the AAIB uncover evidence that suggest/imply that through gross negligence/incompetency this contributed to the incident do they have to report the matter to the police/CPS/HSE/CAA or are they prevented from doing this due to not being able to release information. As obviously the police will want evidence to back up the allegations but the AAIB won't be able to provide it due their restrictions. I can fully understand they need people to be honest with them and not fear repercussions but lets be realistic here they wont be not 100% as reading any report you can work out who what where and why from reading an AAIB, regardless of what has or hasn't been said in an interview. The AAIB are masters at putting all the facts together and reading between the lines.
Interesting report on IBT website
However other evidence relating to the crash, including statements from surviving pilot Andrew Hill - plus reports on factors that may have contributed to the accident - will not be released due to the possibility of impacting on future investigations
So does that mean there is other facts that have yet to be disclosed to the public/press via interim reports.
It is as I originally asked if the AAIB uncover evidence that suggest/imply that through gross negligence/incompetency this contributed to the incident do they have to report the matter to the police/CPS/HSE/CAA or are they prevented from doing this due to not being able to release information. As obviously the police will want evidence to back up the allegations but the AAIB won't be able to provide it due their restrictions. I can fully understand they need people to be honest with them and not fear repercussions but lets be realistic here they wont be not 100% as reading any report you can work out who what where and why from reading an AAIB, regardless of what has or hasn't been said in an interview. The AAIB are masters at putting all the facts together and reading between the lines.
Interesting report on IBT website
However other evidence relating to the crash, including statements from surviving pilot Andrew Hill - plus reports on factors that may have contributed to the accident - will not be released due to the possibility of impacting on future investigations
So does that mean there is other facts that have yet to be disclosed to the public/press via interim reports.
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Or to put it more accurately:
PDR
These two judgments are a major milestone in the journey to protect owners, operators and pilots of aircraft from any consequences of mistakes and unprofessional behaviour even when they kill people. Comrades - our battle against the dark forces of professional accountability is nearly won!
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protect owners, operators and pilots of aircraft from any consequences of mistakes and unprofessional behaviour
However, in my opinion, when the only possible benefit is a crowd being able to watch needless low level aerobatic maneuvers in a heavy antique aircraft, there is little room for risk. It is the pilot first and foremost who is responsible to all other people, in assessing this, and assuring that all other people are not put at risk.
If the Hunter engine had disintegrated, and spit parts all over the countryside during a straight and level pass at 1000', and a person got hit by one, not good, but it would seem that the pilot was probably flying the plane in a way in which risk to other people was low. Choosing a path in the sky which requires high accelerations and direction changes, with less room around people, and little space for a back up plan is different.
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And I would be he first to say it's largely tongue-in-cheek. But only largely.
I'm a professional engineer (C.Eng) and the code of conduct I have to sign up to for this essentially says that I must disclose my mistakes and culpability freely and without thought for the personal consequences. So as a professional I just can't understand the concept that I should consider only providing a statement if it's excluded from any subsequent legal action.
In most legal system *people* have rights of non-self-incrimination (US 5th amendment, ECHR article 6 et al), but I would argue that Professionals (accredited members of Professions) in these sorts of situations have waived that right because of the responsibilities they hold. That's why these judgements trouble me.
I'm aware that there are probably few who would agree with me on that point, but then as a Professional I'm more concerned with the reality than any popularity consequences.
PDR
I'm a professional engineer (C.Eng) and the code of conduct I have to sign up to for this essentially says that I must disclose my mistakes and culpability freely and without thought for the personal consequences. So as a professional I just can't understand the concept that I should consider only providing a statement if it's excluded from any subsequent legal action.
In most legal system *people* have rights of non-self-incrimination (US 5th amendment, ECHR article 6 et al), but I would argue that Professionals (accredited members of Professions) in these sorts of situations have waived that right because of the responsibilities they hold. That's why these judgements trouble me.
I'm aware that there are probably few who would agree with me on that point, but then as a Professional I'm more concerned with the reality than any popularity consequences.
PDR
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The sentiment which worries me, as I understand PDR1 to also observe, is that a "professional", in this case pilot, might expect insulation from a finding of fault for misconduct or poor decision making after an accident because of competing legal/investigative interests.
If a conscious decision is made to carefully balance risk and reward, where society would agree that reward was high (like saving a life), that's worthy of the discussion about insulating the pilot. However, in my opinion, air display does not rise to the "reward" level, where risk to the public is acceptable. The pilot is the professional (as they are authorized to fly in the display) so they are responsible for not placing the public or the flight at risk, and must create and maintain the necessary margins of safety for that. Those margins will obviously be very different based upon aircraft type, which is exactly why the air display organizer becomes responsible for accepting the pilot based upon their experience in that type of aircraft. Once accepted, the pilot is largely responsible, and should not be flying as though there are no consequences.
If a conscious decision is made to carefully balance risk and reward, where society would agree that reward was high (like saving a life), that's worthy of the discussion about insulating the pilot. However, in my opinion, air display does not rise to the "reward" level, where risk to the public is acceptable. The pilot is the professional (as they are authorized to fly in the display) so they are responsible for not placing the public or the flight at risk, and must create and maintain the necessary margins of safety for that. Those margins will obviously be very different based upon aircraft type, which is exactly why the air display organizer becomes responsible for accepting the pilot based upon their experience in that type of aircraft. Once accepted, the pilot is largely responsible, and should not be flying as though there are no consequences.
Re the AAIB notes, police and the court judgement I think there's a bit of a danger of target fixation with Shoreham.
The danger of divulging AAIB notes verbatim to the police is that the simple knowledge that anything a crew member says to the AAIB could be passed verbatim to the Police would almost certainly have consequences for the pace of the AAIB investigation, and as a result could possibly effect public safety down the road (which is what the court ruling was about, not just the Shoreham case).
Crew members, no matter how professional, certainly would have to be very careful with absolutely everything they said to the AAIB if there's the danger of the CPS subsequently parsing every innocent sentence/comment looking for evidence of some wrong doing, and I suspect the crew would would be well advised to be lawyered up for every meeting, no matter how friendly the investigators are.
Just MVHO, but that does seem to have also been the opinion of the judges...
The danger of divulging AAIB notes verbatim to the police is that the simple knowledge that anything a crew member says to the AAIB could be passed verbatim to the Police would almost certainly have consequences for the pace of the AAIB investigation, and as a result could possibly effect public safety down the road (which is what the court ruling was about, not just the Shoreham case).
Crew members, no matter how professional, certainly would have to be very careful with absolutely everything they said to the AAIB if there's the danger of the CPS subsequently parsing every innocent sentence/comment looking for evidence of some wrong doing, and I suspect the crew would would be well advised to be lawyered up for every meeting, no matter how friendly the investigators are.
Just MVHO, but that does seem to have also been the opinion of the judges...
Last edited by wiggy; 29th Sep 2016 at 15:31.
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I believe it was a fairly straight forward issue for the Court. To allow evidence for possible prosecution and punishment of person(s) responsible for the death of those who perished or to protect the safety of millions of future lives.
I had little doubt as to the outcome right from the start.
It is so comforting to know here in the UK we are blessed with the likes of AAIB and a fine Judicial system.
I had little doubt as to the outcome right from the start.
It is so comforting to know here in the UK we are blessed with the likes of AAIB and a fine Judicial system.
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So what evidence does the coroner work with to provide their verdict. I am presuming it will be the evidence to date from the police but do they also use evidence provided by the AAIB such as the report etc.
We have all read AAIB reports and know that although they do not specifically lay blame they do infer as to whom/what caused the problem from which we can all say ' so the pilot was at fault because he ignored the low fuel warning and didn't follow guidelines/policy' or 'so a part failed due to excess wear but it wasn't due for inspection for another 300hrs so they have recommended a review'
So it will be interesting to read the AAIB report when it is finally published but the way it is going I would imagine it won't be done until after the coroners verdict at least has been done, which maybe after any associated court case.
We have all read AAIB reports and know that although they do not specifically lay blame they do infer as to whom/what caused the problem from which we can all say ' so the pilot was at fault because he ignored the low fuel warning and didn't follow guidelines/policy' or 'so a part failed due to excess wear but it wasn't due for inspection for another 300hrs so they have recommended a review'
So it will be interesting to read the AAIB report when it is finally published but the way it is going I would imagine it won't be done until after the coroners verdict at least has been done, which maybe after any associated court case.
So what evidence does the coroner work with to provide their verdict.
I've been around the block enough (amongst other things a witness at two miltary BoIs, one sadly a multiple fatal) to know that despite sentiment accident investigations are rightly things that cannot be rushed if you want the investigation team to reach a considered and objective conclusion. Even in the civvie world for major accidents you rarely see an AAIB report within twelve months, more like 18 months at least for a major accident, so I don't think the AAIB are being particulary slow with this one.
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Link to MOU between coroner and AIBs
https://www.gov.uk/government/public...roners-society
Looks like yet again the AAIB can only provide exactly the same info to the coroner as the CPS and if they require the protected items such as statements they have to go to the High Court. However, I note that it does state the coroner may wish to await the final report before setting a date for the inquest.
Therefore as there is a pre-inquest meeting due on the 21st November, it may indicate when we should expect to see the final report.
I know ours are fairly good I didn't expect any reports for 18 months at the earliest after all the AAIB don't just concentrate on one incident at a time. I note the report for the Hawker Hunter crash in the USA in 2012 was only published in 2016! Makes for some interesting reading.
https://www.gov.uk/government/public...roners-society
Looks like yet again the AAIB can only provide exactly the same info to the coroner as the CPS and if they require the protected items such as statements they have to go to the High Court. However, I note that it does state the coroner may wish to await the final report before setting a date for the inquest.
Therefore as there is a pre-inquest meeting due on the 21st November, it may indicate when we should expect to see the final report.
I know ours are fairly good I didn't expect any reports for 18 months at the earliest after all the AAIB don't just concentrate on one incident at a time. I note the report for the Hawker Hunter crash in the USA in 2012 was only published in 2016! Makes for some interesting reading.
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The full judgement in Sussex Police v SoS for Transport can be accessed here:
Sussex Police v Secretary of State for Transport & Anor [2016] EWHC 2280 (QB) (28 September 2016)
Hearing in July and judgement in September is about par for course bearing in mind holiday season and the 'long vacation' in the courts during August/September.
The new legal year and Michaelmas term will start on Monday with judges attending service at Westminster Abbey. Following which they go in procession to Parliament for the Lord Chancellor's breakfast.
Sussex Police v Secretary of State for Transport & Anor [2016] EWHC 2280 (QB) (28 September 2016)
Hearing in July and judgement in September is about par for course bearing in mind holiday season and the 'long vacation' in the courts during August/September.
The new legal year and Michaelmas term will start on Monday with judges attending service at Westminster Abbey. Following which they go in procession to Parliament for the Lord Chancellor's breakfast.
Interesting times and one that really needs guidance for the future to stop one public body chasing another public body with all the waste of time and resources it entails.
Sadly nobody seems willing / able to grasp the nettle.
Ultimately quite rightly the AAIB are the lead in the accident investigation but of course the coroner has a variety of verdicts to be considered and so whilst AAIB reports are great start / middle and end to the facts of the matter the objectives of the AAIB and coroner are not the same.
This leads to an awkward and damaging situation if as a result of matters arising that require a prosecution the quality of the AAIB's conclusion potentially gets questioned in open court by others.
All the while average Joe Blow and any victims just see cans get kicked and an odd and lengthy situation develop.
Sadly nobody seems willing / able to grasp the nettle.
Ultimately quite rightly the AAIB are the lead in the accident investigation but of course the coroner has a variety of verdicts to be considered and so whilst AAIB reports are great start / middle and end to the facts of the matter the objectives of the AAIB and coroner are not the same.
This leads to an awkward and damaging situation if as a result of matters arising that require a prosecution the quality of the AAIB's conclusion potentially gets questioned in open court by others.
All the while average Joe Blow and any victims just see cans get kicked and an odd and lengthy situation develop.
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An analysis of the two cases considered by the High Court
https://drystone.com/news/stephen_sp...cted_material/
Disclosure of protected material held by the Air Accident Investigation Branch.
On the 28th September 2016 the High Court (The Lord Chief Justice and Mr Justice Singh) delivered Judgement in two cases relating to the disclosure of ‘protected material’ held by the Air Accident Investigation Branch (AAIB) of the Department of Transport.
The first case, The Queen –v- Her Majesty’s Senior Coroner for Norfolk [2016] EWHC 2279 (Admin), arose out of an inquest following the crash of a Westland Augusta AW139 helicopter at Gillingham Hall, Norfolk on the 13th March 2014. The two pilots and both passengers were killed in the crash. During the course of the inquest the Coroner had ordered disclosure of the helicopter CVR (cockpit voice recorder) and FDR (flight data recorder) recordings and/or a full transcript of the CVR. This material was held by the AAIB as part of their investigation into the accident. The Chief Inspector of the AAIB refused to release the material and on two occasions the Coroner purported to impose fines on him for non-compliance with her order.
The Secretary of State for Transport challenged both the order for disclosure and the fines. On this occasion the Court did not consider the merits of the application save to say that where the AAIB had carried out an investigation, unless there was credible evidence that the investigation is incomplete, flawed or deficient, the findings and conclusions should not be reopened, and it was not for the Coroner to carry out his or her own investigation.
The Court, sitting as the Administrative Court, found that the Coroner had exceeded her powers in ordering disclosure of the material. In accordance with Annex 13 of the Chicago Convention and Regulation 18 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 the power to order disclosure of relevant records rests solely with the High Court. Relevant records are defined as:
a) all statements taken from persons by the investigation authorities in the course of their investigation;
b) all communications between persons having been involved in the operation of the aircraft;
c) medical or private information regarding persons involved in the accident or incident;
d) cockpit voice recordings and transcripts from such recordings;
e) recordings and transcriptions of recordings from air traffic control units;
f) cockpit airborne image recordings and any part or transcripts from such recordings; and
g) opinions expressed in the analysis of information, including flight recorder information.
and disclosure may only be ordered where
the [High Court] determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations.
The second case is of more practical interest as it related to a substantive application for disclosure. The Court reconstituted itself as a QBD Court to hear The Chief Constable of Sussex Police –and- The Secretary of State for Transport [2016] EWHC 2280 (QB). This was an application by Sussex Police for the release of material held by the AAIB as part of their investigation into the causes of the Hunter T7 crash at the Shoreham Air show. Eleven people on the ground had been killed and the pilot survived, albeit injured. Sussex Police are conducting a criminal investigation into the accident. Falling into a similar trap as the Norfolk Coroner, the police had initially sought a production order from the Crown Court before realising that the application had to be made to the High Court. It was accepted by the police that the material sought amounted to protected (relevant) material in accordance with Regulation 18 above. It fell into three categories. First there are the statements made in response to interviews or discussions by the pilot, Andrew Hill. The second category comprises contemporaneous evidence from the flight itself, which is not the product of any human action. In the present case the only material, which fell into that category, is the film footage of the flight, which was made by cameras which had been installed on the aeroplane in question on a voluntary basis. The third category of material is not contemporaneous but comprises material which has been produced by various other people subsequently. For example there have been experiments conducted and tests done on various aspects of the accident.
In dealing with the first category (the statements made by the pilot) the Court made the following observations (per Singh J at paragraphs 41 to 43 of the Judgement):
41. In my view it is almost inconceivable that statements made to the AAIB could properly be the subject of an order for disclosure when the appropriate balancing exercise is done by this Court. This is for two main reasons.
42. First, there would be a serious and obvious "chilling effect" 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. This would seriously hamper future accident investigations and the protection of public safety by the learning of lessons which may help to prevent similar accidents. As is clear from the text cited earlier from Annex 13 to the Chicago Convention, the EU Regulation and the 1996 Regulations, this would be contrary to one of the fundamental purposes of the regime in this area, which is carefully designed to encourage candour in the investigation of air accidents in order to learn lessons and prevent accidents in the future.
43. Secondly, it would be unfair to require such disclosure. This is because the powers of the AAIB, unlike the ordinary police, are such as to permit the compulsion of answers to questions: see Regulation 9 of the 1996 Regulations. Further, so far as I could discern from the hearing before this Court, there is no clear practice, to say the least, of giving a caution to the person interviewed. This is hardly surprising, since the purpose of such an interview is to obtain the fullest possible information in an accident investigation. This contrasts markedly with the purpose of a police interview, which is to elicit evidence which may be capable of being used at a subsequent criminal trial.
With regard to the second category of material (film from the onboard cameras) the court distinguished this material from data such as CVR/FDR where there is a legal obligation to carry the recorders. The British Air Line Pilots Association (BALPA), acting as intervener in the proceedings, had raised concerns that if this material were to be disclosed then it would inhibit pilots in what they said or what they did when confronted with an emergency. This in turn would hamper the ability of the AAIB to carry out its investigation duties. (It should be noted that there have been occasions in the past when CVR data has been erased prior to the AAIB obtaining possession of it).
The Court ordered disclosure of this material (with certain restrictions), again as per Singh J at paragraphs 48 to 50:
48. It is important to stress that the film footage in this case is unlike the cockpit voice and flight data recording which normally has to be created as a matter of legal duty by those operating aircraft. There was no such duty in the present context. For that important reason this case is distinguishable from that of the Lord Advocate case, which was considered by Lord Jones.
49. Furthermore, in my judgment, what is significant in the present case is that the cameras concerned were installed not only on a voluntary basis but for leisure and private commercial reasons. Indeed, on the evidence before this Court, it would appear that the intention was to use the film footage obtained during the air show in this way as part of a broadcast. I am, therefore, not persuaded that pilots would be deterred in the future from installing such equipment on a voluntary basis, since they would do so for their own private, and potentially commercial, reasons.
50. In the circumstances of the present case, I am satisfied that the balance falls in favour of disclosure rather than against it. The film footage has significant potential value for the police investigation in this case, since it is a contemporaneous recording of what happened during the flight itself.
The third category related to specialist investigations carried out on behalf of the AAIB. During the course of the hearing the Police dropped some of their requests and disclosure of the remainder was refused. It should be noted that the Court pointed out that there was nothing to prevent the Police from carrying out their own independent investigations.
51.......... In the private part of the hearing it was confirmed that the Chief Constable would not pursue his application for disclosure of speed calculations. It was also confirmed that he would not pursue the report of the Health and Safety laboratory.
52. I endorse those concessions. These are matters which there is no reason why the police could not themselves investigate. I also bear in mind that all relevant reports, including the speed calculation report, will be made public in annexes to the final version of the AAIB report, with only the names redacted.
53. What that therefore leaves for further consideration is two requests for disclosure. The first relates to reports of test flights which were done by a specialist pilot. The second relates to engineering reports on the mechanical state of the plane.
54. For the reasons which are set out in the Confidential Annex to this judgment, I would refuse those requests by the Chief Constable.
In reaching its decision the relevant test applied by the Court in determining whether to order such disclosure was whether the benefits of disclosure outweigh the adverse domestic and international impact that such action may have on that or any future safety investigation. The Court considered the case of Outer House of the Court of Session in Scotland in Lord Advocate 2015 SLT 450 (Lord Jones) (the Glasgow helicopter crash case where CVR data was ordered to be disclosed), and distinguished it on its facts, reminding itself that in his Judgement Lord Jones said that no precedent would be created by his decision and it was not anticipated that investigators would be routinely compelled to disclose cockpit voice recordings: see paras. 58-60 of that judgment.
Clearly the Court took the view that the public interest in encouraging frank co-operation with the AAIB outweighed the public interest in providing the information for use in the police investigation. Of particular note and hopefully application in any future cases is the observation “there would be a serious and obvious "chilling effect" 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.”
Supporters of the Just Culture approach will welcome this decision concerning aviation safety, balancing safety with accountability. It also injects more clarity into the criminal arena following concerns arising out of the Lord Advocate case and the civil case of Rogers –and- Hoyle.
https://drystone.com/news/stephen_sp...cted_material/
Disclosure of protected material held by the Air Accident Investigation Branch.
On the 28th September 2016 the High Court (The Lord Chief Justice and Mr Justice Singh) delivered Judgement in two cases relating to the disclosure of ‘protected material’ held by the Air Accident Investigation Branch (AAIB) of the Department of Transport.
The first case, The Queen –v- Her Majesty’s Senior Coroner for Norfolk [2016] EWHC 2279 (Admin), arose out of an inquest following the crash of a Westland Augusta AW139 helicopter at Gillingham Hall, Norfolk on the 13th March 2014. The two pilots and both passengers were killed in the crash. During the course of the inquest the Coroner had ordered disclosure of the helicopter CVR (cockpit voice recorder) and FDR (flight data recorder) recordings and/or a full transcript of the CVR. This material was held by the AAIB as part of their investigation into the accident. The Chief Inspector of the AAIB refused to release the material and on two occasions the Coroner purported to impose fines on him for non-compliance with her order.
The Secretary of State for Transport challenged both the order for disclosure and the fines. On this occasion the Court did not consider the merits of the application save to say that where the AAIB had carried out an investigation, unless there was credible evidence that the investigation is incomplete, flawed or deficient, the findings and conclusions should not be reopened, and it was not for the Coroner to carry out his or her own investigation.
The Court, sitting as the Administrative Court, found that the Coroner had exceeded her powers in ordering disclosure of the material. In accordance with Annex 13 of the Chicago Convention and Regulation 18 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 the power to order disclosure of relevant records rests solely with the High Court. Relevant records are defined as:
a) all statements taken from persons by the investigation authorities in the course of their investigation;
b) all communications between persons having been involved in the operation of the aircraft;
c) medical or private information regarding persons involved in the accident or incident;
d) cockpit voice recordings and transcripts from such recordings;
e) recordings and transcriptions of recordings from air traffic control units;
f) cockpit airborne image recordings and any part or transcripts from such recordings; and
g) opinions expressed in the analysis of information, including flight recorder information.
and disclosure may only be ordered where
the [High Court] determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations.
The second case is of more practical interest as it related to a substantive application for disclosure. The Court reconstituted itself as a QBD Court to hear The Chief Constable of Sussex Police –and- The Secretary of State for Transport [2016] EWHC 2280 (QB). This was an application by Sussex Police for the release of material held by the AAIB as part of their investigation into the causes of the Hunter T7 crash at the Shoreham Air show. Eleven people on the ground had been killed and the pilot survived, albeit injured. Sussex Police are conducting a criminal investigation into the accident. Falling into a similar trap as the Norfolk Coroner, the police had initially sought a production order from the Crown Court before realising that the application had to be made to the High Court. It was accepted by the police that the material sought amounted to protected (relevant) material in accordance with Regulation 18 above. It fell into three categories. First there are the statements made in response to interviews or discussions by the pilot, Andrew Hill. The second category comprises contemporaneous evidence from the flight itself, which is not the product of any human action. In the present case the only material, which fell into that category, is the film footage of the flight, which was made by cameras which had been installed on the aeroplane in question on a voluntary basis. The third category of material is not contemporaneous but comprises material which has been produced by various other people subsequently. For example there have been experiments conducted and tests done on various aspects of the accident.
In dealing with the first category (the statements made by the pilot) the Court made the following observations (per Singh J at paragraphs 41 to 43 of the Judgement):
41. In my view it is almost inconceivable that statements made to the AAIB could properly be the subject of an order for disclosure when the appropriate balancing exercise is done by this Court. This is for two main reasons.
42. First, there would be a serious and obvious "chilling effect" 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. This would seriously hamper future accident investigations and the protection of public safety by the learning of lessons which may help to prevent similar accidents. As is clear from the text cited earlier from Annex 13 to the Chicago Convention, the EU Regulation and the 1996 Regulations, this would be contrary to one of the fundamental purposes of the regime in this area, which is carefully designed to encourage candour in the investigation of air accidents in order to learn lessons and prevent accidents in the future.
43. Secondly, it would be unfair to require such disclosure. This is because the powers of the AAIB, unlike the ordinary police, are such as to permit the compulsion of answers to questions: see Regulation 9 of the 1996 Regulations. Further, so far as I could discern from the hearing before this Court, there is no clear practice, to say the least, of giving a caution to the person interviewed. This is hardly surprising, since the purpose of such an interview is to obtain the fullest possible information in an accident investigation. This contrasts markedly with the purpose of a police interview, which is to elicit evidence which may be capable of being used at a subsequent criminal trial.
With regard to the second category of material (film from the onboard cameras) the court distinguished this material from data such as CVR/FDR where there is a legal obligation to carry the recorders. The British Air Line Pilots Association (BALPA), acting as intervener in the proceedings, had raised concerns that if this material were to be disclosed then it would inhibit pilots in what they said or what they did when confronted with an emergency. This in turn would hamper the ability of the AAIB to carry out its investigation duties. (It should be noted that there have been occasions in the past when CVR data has been erased prior to the AAIB obtaining possession of it).
The Court ordered disclosure of this material (with certain restrictions), again as per Singh J at paragraphs 48 to 50:
48. It is important to stress that the film footage in this case is unlike the cockpit voice and flight data recording which normally has to be created as a matter of legal duty by those operating aircraft. There was no such duty in the present context. For that important reason this case is distinguishable from that of the Lord Advocate case, which was considered by Lord Jones.
49. Furthermore, in my judgment, what is significant in the present case is that the cameras concerned were installed not only on a voluntary basis but for leisure and private commercial reasons. Indeed, on the evidence before this Court, it would appear that the intention was to use the film footage obtained during the air show in this way as part of a broadcast. I am, therefore, not persuaded that pilots would be deterred in the future from installing such equipment on a voluntary basis, since they would do so for their own private, and potentially commercial, reasons.
50. In the circumstances of the present case, I am satisfied that the balance falls in favour of disclosure rather than against it. The film footage has significant potential value for the police investigation in this case, since it is a contemporaneous recording of what happened during the flight itself.
The third category related to specialist investigations carried out on behalf of the AAIB. During the course of the hearing the Police dropped some of their requests and disclosure of the remainder was refused. It should be noted that the Court pointed out that there was nothing to prevent the Police from carrying out their own independent investigations.
51.......... In the private part of the hearing it was confirmed that the Chief Constable would not pursue his application for disclosure of speed calculations. It was also confirmed that he would not pursue the report of the Health and Safety laboratory.
52. I endorse those concessions. These are matters which there is no reason why the police could not themselves investigate. I also bear in mind that all relevant reports, including the speed calculation report, will be made public in annexes to the final version of the AAIB report, with only the names redacted.
53. What that therefore leaves for further consideration is two requests for disclosure. The first relates to reports of test flights which were done by a specialist pilot. The second relates to engineering reports on the mechanical state of the plane.
54. For the reasons which are set out in the Confidential Annex to this judgment, I would refuse those requests by the Chief Constable.
In reaching its decision the relevant test applied by the Court in determining whether to order such disclosure was whether the benefits of disclosure outweigh the adverse domestic and international impact that such action may have on that or any future safety investigation. The Court considered the case of Outer House of the Court of Session in Scotland in Lord Advocate 2015 SLT 450 (Lord Jones) (the Glasgow helicopter crash case where CVR data was ordered to be disclosed), and distinguished it on its facts, reminding itself that in his Judgement Lord Jones said that no precedent would be created by his decision and it was not anticipated that investigators would be routinely compelled to disclose cockpit voice recordings: see paras. 58-60 of that judgment.
Clearly the Court took the view that the public interest in encouraging frank co-operation with the AAIB outweighed the public interest in providing the information for use in the police investigation. Of particular note and hopefully application in any future cases is the observation “there would be a serious and obvious "chilling effect" 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.”
Supporters of the Just Culture approach will welcome this decision concerning aviation safety, balancing safety with accountability. It also injects more clarity into the criminal arena following concerns arising out of the Lord Advocate case and the civil case of Rogers –and- Hoyle.
Last edited by Legalapproach; 21st Oct 2016 at 15:14. Reason: added link
