Frank Mulholland Qc The Lord Advocate For An Order In Terms Of Regulation 18 Of The Civil Aviation (investigation Of Air Accidents And Incidents) Regulations 1996
| Jurisdiction | Scotland |
| Judge | Lord Jones |
| Date | 19 June 2015 |
| Docket Number | P628/14 |
| Court | Court of Session |
| Published date | 19 June 2015 |
OUTER HOUSE, COURT OF SESSION
-
[2015] CSOH 80
P628/14
OPINION OF LORD JONES
In the cause
FRANK MULHOLLAND QC, THE LORD ADVOCATE
Petitioner;
for
An order in terms of regulation 18 of The Civil Aviation
(Investigation of Air Accidents and Incidents) Regulations 1996
- Petitioner: Brown QC, Ross;Scottish Government Legal Directorate
- Interested Parties: O’Neill QC, Macintosh;Balfour + Manson LLP
19 June 2015
Introduction
[1] On 23 August 2013, an AS332 Super Puma helicopter took off from the Borgsten Dolphin semi-submersible drilling platform, with two flight crew and 16 passengers on board. One hour and five minutes later, the aircraft, G-WNSB, crashed into the sea whilst on approach to Sumburgh Airport in the Shetland Islands. Four of the passengers did not survive. The Air Accidents Investigation Branch of the Department for Transport (“AAIB”) began an immediate investigation into the accident. That investigation has not been concluded.
[2] As required by the terms of article 37 and Schedule 4 of the Air Navigation Order 2009, the aircraft was carrying a combined voice and flight data recorder (“CVFDR”), and that device was recovered by the AAIB. The recorded data were downloaded, and comprise 78 hours of flight data and two hours of audio recording. The audio record consists of communications between the commander and co-pilot, radio transmissions and passenger announcements. Such recordings also capture other ambient sounds which may be important in the investigation of an accident or serious incident, such as a change in engine note.
[3] The AAIB has issued three bulletins concerning the accident. In the second of these, published in October 2013, the AAIB reported that the wreckage examination and analysis of recorded data had not revealed any evidence of a technical fault “that could have been causal to the accident”, although some work remained to be completed. The helicopter manufacturer had also analysed the recorded flight data and concluded that, in the last 30 minutes of flight prior to impact with the sea, the helicopter had behaved as expected based on the recorded control inputs, and no pre-impact malfunction was evident. That analysis also showed that the combination of nose-high attitude, a high rate of descent and high-power had placed the helicopter in a “vortex-ring” state. It is explained in the bulletin that, in a vortex-ring condition, the effectiveness of the main rotor is significantly reduced because of the associated airflow characteristics. The manufacturer’s modelling indicated that, in that condition, the reduced helicopter performance, together with the limited height available, meant that the impact with the sea was unavoidable. The third bulletin was published in January 2014, to highlight a safety concern relating to pre-flight safety briefings given to passengers, on the functionality of emergency equipment provided to them for UK North Sea offshore helicopter flights. Nothing was said in that bulletin about the cause or causes of the accident.
The present proceedings
[4] The Lord Advocate has petitioned the court to pronounce an order, in terms of The Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 (“the 1996 Regulations”), to ordain the Secretary of State for Transport to make the CVFDR available to him and Police Scotland. The petition was served on the Advocate General as the representative of the Secretary of State, and on CHC Scotia Limited (“CHC”), the operator of the aircraft, but neither has entered appearance. The British Airline Pilots Association (“BALPA”), the aircraft commander and the co-pilot have joined the process as interested parties, to oppose the application. The case came before the court for a hearing on 19 May 2015.
The Lord Advocate’s averments of fact
[5] It is averred on behalf of the Lord Advocate that the accident is being investigated by Police Scotland, under the direction of the Procurator Fiscal on behalf of the Lord Advocate, and in conjunction with the Safety and Regulation Group (“SARG”) of the Civil Aviation Authority (“CAA”). In the apparent absence of any technical fault, Police Scotland has asked SARG to provide an expert opinion on the performance of the flight crew of G-WNSB during the accident flight. The Lord Advocate avers that such an opinion requires to be based upon as accurate as possible an understanding of events in the minutes leading up to the crash, including any observations made by the flight crew. The CVFDR is a reliable and accurate source of such information, and the Procurator Fiscal has been advised that, in order that any expert opinion may be “of value”, “the expert must have access to information including” the CVFDR. In support of that averment, the Lord Advocate has produced a letter, dated 19 February 2014, from the group director of SARG.
[6] The Procurator Fiscal has formally requested that the AAIB make available the CVFDR for use in his investigation. The AAIB has refused to do so in the absence of an order from the court, under reference to the provisions of paragraphs 1 and 2 of article 14 of Regulation EU 996/2010 on the Investigation and Prevention of Accidents and Incidents in Civil Aviation (“the EU Regulation”). On 18 and 19 September 2013, the aircraft operator sent data, which had been recovered from the flight data recorder, to Police Scotland. The AAIB has subsequently advised the operator and Police Scotland that, in its view, such disclosure was contrary to the EU Regulation.
The answers for the interested parties
[7] The central ground of the interested parties’ opposition to the Lord Advocate’s disclosure request rests on the application of certain legislative provisions, which are discussed next in this opinion.
The flight safety framework
Investigations
[8] The Convention on International Civil Aviation was done at Chicago on 7 December 1944 (“the Chicago Convention”). The contracting States agreed, among other things, that they would collaborate in securing:
“the highest practicable degree of uniformity in regulations, standards, procedures, and organisation in relation to aircraft… in all matters in which such uniformity will facilitate and improve air navigation.”
To that end, it was also agreed that the International Civil Aviation Organisation (“ICAO”) would adopt, and amend as necessary, international standards and recommended practices and procedures, dealing with the investigation of accidents. (Article 37)
[9] On 11 April 1951, Annex 13 to the Chicago Convention was adopted by ICAO under the provisions of article 37. The ninth and latest edition of Annex 13, entitled “Aircraft Accident and Incident Investigation”, became applicable on 1 November 2001. When first adopted in 1951, the Annex contained standards and recommended practices for aircraft accident inquiries. (Foreword) It appears that, some years later, provision was introduced to Annex 13 for the investigation of incidents. (Table A) So far as is relevant in this case, an “accident” is defined as an occurrence associated with the operation of an aircraft, in which a person suffers a fatal or serious injury. An “incident” means an occurrence, other than an accident, associated with the operation of an aircraft, which affects or could affect the safety of operation. (Chapter 1) Chapter 3.1 of the Annex provides that:
“The sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability.”
[10] Chapter 5 concerns the investigation of accidents and incidents. In terms of chapter 5.12, the State conducting such investigation shall not make certain records, including cockpit voice recordings and transcripts from such recordings, available for purposes other than the accident or incident investigation:
“unless the appropriate authority for the administration of justice in that State determines that disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations.”
[11] Under the heading “Accident Prevention Measures”, chapter 8 requires States to establish a “mandatory incident reporting system to facilitate collection of information on actual or potential safety deficiencies.” (Chapter 8.1) It is recommended in chapter 8.2 that States should establish a “voluntary incident reporting system”. It is also recommended that such a system “shall be non-punitive and afford protection to the sources of the information.” (Chapter 8.3) In two notes to the last of these recommendations, the view is expressed that a non-punitive environment is fundamental to voluntary reporting, and encouragement is given to States to facilitate and promote the voluntary reporting of events that could affect aviation safety “by adjusting the applicable laws, regulations and policies, as necessary.” (The purpose of “notes” as used in the Annex is to give factual information or references bearing on the standards or recommended practices in question, but they do not constitute part of the standards or recommended practices.) (Foreword, “Status of Annex components”, paragraph 2(c).)
[12] On that overview of Annex 13, it can be seen that it is concerned with the regulation of three separate matters: (i) the investigation of accidents and serious incidents; (ii) mandatory incident reporting (otherwise known as mandatory occurrence reporting (“MOR”); and (iii) voluntary incident reporting. It is noteworthy that only the last of these is expressly recommended to be the subject of a “non-punitive” system.
[13] The 1996 Regulations re-enact the Civil Aviation (Investigation of Air Accidents) Regulations 1989, with amendments. They give effect to amendments made to Annex 13 of the Chicago Convention and they implement:
“Council Directive 94/56/EC of 21 November 1994 establishing the fundamental...
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