The Queen (on the application of the Secretary of State) v HM Senior Coroner for Norfolk British Airline Pilots Association (Intervener)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singh |
| Judgment Date | 28 September 2016 |
| Neutral Citation | [2016] EWHC 2279 (Admin) |
| Docket Number | Case No: CO/181/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 September 2016 |
[2016] EWHC 2279 (Admin)
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: CO/181/2016
and
Mr Keith Morton QC (instructed by Government Legal Department) for the Claimant
Ms Alison Hewitt (instructed under the direct access scheme) for the Defendant
Mr Martin Chamberlain QC and Mr Nicholas Yeo (instructed by Reynolds Dawson) for the Intervener
Hearing dates: 14 and 15 July 2016
Judgment Approved by the court for handing down
Introduction
In this claim for judicial review the Secretary of State for Transport challenges various decisions of the Senior Coroner for Norfolk, by which (i) she ordered disclosure to her of a cockpit voice and flight data recorder ("CVFDR") and/or a full transcript of that voice recording; and (ii) she imposed a fine for non-compliance with those orders. The Secretary of State submits that the Coroner has no power to make such orders as a matter of law and that an order of the High Court is required before such disclosure can be made.
The Coroner submits that she had the power to make the relevant orders by virtue of the Coroners and Justice Act 2009 ("the 2009 Act"), whatever the position may have been before that Act came into force.
The submissions of the Secretary of State are supported in substance by the Intervener, the British Airline Pilots Association.
At one time this case also raised the question whether, if an order of the High Court is required before such disclosure can be made, this Court should now require such disclosure. However, at the hearing before us it was made clear by Ms Alison Hewitt, who appeared on behalf of the Coroner, that such an application was no longer pursued: this is because the inquests in this case have already been concluded and there is no question of re-opening them. Accordingly this judgment will not consider that application further.
The facts
On 13 March 2014 a helicopter accident occurred near Gillingham Hall, Norfolk. An Augusta Westland AW139 G-LBAL crashed, resulting in the deaths of four men.
On 8 October 2015 a report into the helicopter accident was produced by the Air Accidents Investigation Branch ("AAIB"), which is part of the Department for Transport.
Inquests into the deaths were heard before the Coroner and a jury between 12 and 15 January 2016. In the period leading up to the inquests the Coroner ordered the AAIB and its Chief Inspector to disclose to her the CVFDR and/or a full transcript of the voice recording. The first notice requiring disclosure was dated 24 December 2015. Further notices were issued on 11, 12 and 13 January 2016.
The AAIB submitted that the Coroner did not have the power to make such orders and invited her to revoke them. The Coroner rejected those submissions in rulings dated 7 January 2016, 11 January 2016 and 12 January 2016. She twice fined the Chief Inspector £100 for non-compliance with the notices.
It is those notices requiring disclosure and the fines imposed on the Chief Inspector which are the subject of challenge in the present claim for judicial review.
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 investigations."
Part III of the Civil Aviation Act 1982 ("the 1982 Act") provides for the regulation of civil aviation. Section 60 of the 1982 Act confers power to make an Order in Council for carrying out the Chicago Convention, and any Annex thereto, relating to international standards and recommended practice and generally for regulating air navigation.
The Air Navigation Order 2009 (SI 2009 No. 3015) ("the Air Navigation Order") was made under section 60. Part 19 prohibits certain behaviour, including endangering the safety of an aircraft: Article 137. Article 152 of the Air Navigation Order requires the use in certain circumstances of a flight data recorder, a cockpit voice recorder or CVFDR as specified in Schedule 4 to the Order. A public transport helicopter must carry a four channel cockpit voice recorder capable of recording and retaining the data required to determine, by reference to a time scale, matters including the flight path; speed; altitude; engine power; main rotor speed; and the position of the pilot's primary flight controls: Schedule 4, paragraph 4, aircraft (14), Scale SS.
Section 75 of the 1982 Act has the sidenote 'Investigation of Accidents.' Without prejudice to section 60, it confers power to...
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