Chief Constable of Sussex Police v Secretary of State for Transport (First Defendant) British Airline Pilots Association (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singh,Lord Thomas of Cwmgiedd CJ |
| Judgment Date | 28 September 2016 |
| Neutral Citation | [2016] EWHC 2280 (QB) |
| Court | Queen's Bench Division |
| Date | 28 September 2016 |
| Docket Number | Case No: HQ16X01053 |
[2016] EWHC 2280 (QB)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
Mr Justice Singh
Case No: HQ16X01053
and
Mr Martin Downs (instructed by East Sussex Legal Services) for the Claimant
Mr David Manknell (instructed by Government Legal Department) for the First Defendant
Mr Martin Chamberlain QC and Mr Nicholas Yeo (instructed by Reynolds Dawson) for the Second Defendant
Hearing dates: 14 and 15 July 2016
Judgment Approved by the court for handing down
Introduction
The Chief Constable of Sussex makes this application for disclosure of certain items to be ordered pursuant to Regulation 18 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 (SI 1996 No. 2798) ("the 1996 Regulations"). It is common ground that such an application does have to be made and that it can only be made in the High Court. An attempt was made at one time to seek a production order from the Crown Court under the Police and Criminal Evidence Act 1984 ("PACE") but that was withdrawn once it had been pointed out that only the High Court can make an order of this kind in the present context. This Court was informed that this application appears to be the first of its kind to be made in England and Wales. The Chief Constable was represented before this Court by Mr Martin Downs.
The materials which are the subject of this application are in the possession of the Air Accidents Investigation Branch ("AAIB"), which is part of the Department for Transport.
The Secretary of State does not resist the application as such, since he considers it to be a matter for the Court to decide whether disclosure should be made, having carried out the balancing exercise between different public interests which is required by Regulation 18. However, Mr David Manknell appeared on behalf of the Secretary of State in order to assist the Court and also to point out the strong policy considerations which lie behind the legislative scheme in this area and which tend to militate against disclosure of the sort of materials which are in issue in this case. The Secretary of State submits that the disclosure of the material sought in this case would have a significant and adverse domestic and international impact on future safety investigations, something which the Court is required to weigh on one side of the balance. However, the Secretary of State recognises that there are other interests which must be weighed on the other side of the balance, in particular the public interest in the effective investigation and detection of crime by the police.
The British Airline Pilots Association ("BALPA") also appeared in the public part of the hearing in this case and made submissions in opposition to the Chief Constable's application for disclosure. In particular Mr Martin Chamberlain QC submits on behalf of BALPA that the Court cannot order disclosure in a case such as this unless the criteria for the making of a production order in the Police and Criminal Evidence Act 1984 ("PACE") are satisfied. In the alternative, he submits that, in conducting the balancing exercise which has to be performed by this Court, a weighty factor militating against disclosure should be the fact that, as he submits, those criteria in PACE are not satisfied.
The facts
On 22 August 2015 a Hawker Hunter T7 G-BXFI aircraft, piloted by Andrew Hill, crashed while performing a stunt at the Royal Air Force Association air show at Shoreham, West Sussex. The air show took place at Brighton City Airport (known as Shoreham Airport). The aircraft is an old one (approximately 60 years old). The aircraft struck the westbound carriageway of the A27. Eleven people were killed as a result. The pilot survived although he was injured.
A significant police investigation was initiated and is continuing. The police have taken approximately 330 statements so far.
An investigation into the crash was also launched by the AAIB. The AAIB has issued three Bulletins concerning the crash. The first revealed that the aircraft was not fitted with a flight recorder and no flight path information was recovered from the GPS. However, two image recording cameras were mounted within the cockpit.
At the hearing this Court was informed that the AAIB investigation has been completed and the final report is likely to be published in the autumn of this year.
Material legislation
The background to the relevant legislative scheme can be found in an international treaty: the Convention on International Civil Aviation, signed at Chicago on 7 December 1944 (Treaty Series No. 8 (1953)) (Cmd 8742). Often referred to as the Chicago Convention, this treaty has been updated from time to time. Of particular importance in the present context is Annex 13 to that Convention, which has the title 'Aircraft Accident and Incident Investigation.' Annex 13 is now in its 10 th edition (2010), although at the hearing before this Court we were also shown the 9 th edition (2001).
Of particular relevance to this case is para. 5.12 of Annex 13. In the 9 th edition, that stated as follows:
"Non-disclosure of records
5.12 The State conducting the investigation of an accident or incident shall not make the following records available for purposes other than accident or incident investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations:
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; and
e) opinions expressed in the analysis of information, including flight recorder information.
5.12.1 These records shall be included in the final report or its appendices only when pertinent to the analysis of the accident or incident. Parts of the records not relevant to the analysis shall not be disclosed.
Note.—Information contained in the records listed above, which includes information given voluntarily by persons interviewed during the investigation of an accident or incident, could be utilized inappropriately for subsequent disciplinary, civil, administrative and criminal proceedings. 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." [Emphasis added]
In the 10 th edition para. 5.12 takes the following form:
"Non-disclosure of records
5.12 The State conducting the investigation of an accident or incident shall not make the following records available for purposes other than accident or incident investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations:
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.
5.12.1 These records shall be included in the final report or its appendices only when pertinent to the analysis of the accident or incident. Parts of the records not relevant to the analysis shall not be disclosed.
Note 1.—Information contained in the records listed above, which includes information given voluntarily by persons interviewed during the investigation of an accident or incident, could be utilized inappropriately for subsequent disciplinary, civil, administrative and criminal proceedings. 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.
Note 2. – Attachment E contains legal guidance for the protection of information from safety data collection and processing systems.
5.12.2 The names of the persons involved in the accident or incident shall not be disclosed to the public by the accident investigation authority." [Emphasis added]
It will be apparent that there is no material difference between the 9 th and 10 th editions of Annex 13 for present purposes. Both make it clear that material such as that in issue in the present case (cockpit recordings and their transcripts) shall not be disclosed "for purposes other than accident or incident investigation" unless "the appropriate authority for the administration of justice" determines that "disclosure outweighs the adverse domestic and international impact such action may have on that or any future...
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