Disclosure of Protected Evidence Denied in Inquest following Shoreham airshow disaster

In this blog Cressida Mawdesley-Thomas considers the decision of the High Court in HM Senior Coroner for West Sussex v Chief Constable of Sussex Police & Ors [2022] EWHC.

This case arises out of the Shoreham air show disaster where 11 people were killed and 13 injured after a Hawker Hunter crashed onto the A27 on the 22 August 2015. The decision concerns the Coroner’s application for disclosure of cockpit recordings and related evidence.

The issues for the High court to determine were: (1) whether the disclosure sought was protected within the meaning of the applicable domestic and EU Regulations; (2) If it was protected, whether the Coroner’s application for disclosure should be granted. The High Court had little difficulty in concluding: (1) the cockpit footage was protected (this was accepted by the Coroner and was the basis for her application but was not accepted by all the interested parties); and (2) that the Coroner’s application for disclosure should not be granted as Dr. Mitchell’s paper did not amount to credible evidence (the test set out in Norfolk, below) that the AAIB’s report was incomplete or flawed as regards whether the pilot suffered from a cognitive impairment during the flight.

The AAIB Investigation
The accident was investigated by the Air Accidents Investigation Branch (‘AAIB’) who published their main report on 3 March 2017 and a supplementary report on 19 December 2019. The supplementary report considered whether the pilot, Mr. Hill, had suffered a cognitive impairment during the looping manoeuvre. The supplemental report concluded: “there was no new and significant evidence of cognitive impairment” and that “the findings of the (2017) AAIB investigation remain valid”. The AAIB accordingly declined to re-open their investigation.

Criminal Investigation
There was also a criminal investigation and trial in which the police sought a range of materials arising from the AAIB investigation. Following a contested hearing in 2016, the Criminal division of the High Court refused to grant the police access to any of this material, save for the Go-Pro camera footage of the flight, recorded within the cockpit by Mr. Hill, using his own camera. After the criminal proceedings concluded, where Mr. Hill was acquitted of all 11 counts of gross negligence manslaughter, the Coroner resumed the inquest.

The Coroner’s Application for Disclosure
The Coroner sought disclosure of (i) the Go-Pro camera footage recorded by Mr Hill (including both the original footage and the split screen montage created for the criminal trial); (ii) expert reports produced at his criminal trial which addressed the issue of cognitive impairment; and (iii) the transcripts of evidence given during the criminal trial.

Why was the Disclosure Sought?
The Coroner sought this disclosure because in September 2020 she was presented with a report by Dr. Mitchell, a paediatric oncologist and friend of Mr. Hill, who postulated a theory that a particular mechanism of cognitive impairment resulting from cerebral hypoxia may have been suffered by Mr Hill during the flight. Although it was pointedly noted that Dr. Mitchell “professes no expertise in aviation medicine or neurology.”

It was on the basis of Dr. Mitchell’s report that the Coroner submitted that there was a “credible suggestion” (the test in Norfolk is “credible evidence”) that the AAIB’s investigation was incomplete or flawed and she felt that this could not be safely disregarded.

Was the Disclosure Sought Protected?
It was submitted on behalf of the Smith and Schilt families, represented by Gerard Forlin QC, that the Go-Pro footage was not protected on the basis that the footage was made by Mr. Hill for his own personal purposes rather than under any legal obligation.

This was a surprising submission: for it to have been accepted the Court would have had to have found that both Chief Constable of Sussex Police v Secretary of State for Transport, British Airline Pilots Association [2016] EWHC 2280 (QB) (‘the Sussex case’); and BBC v Secretary of State for Transport [2019] 4 WLR 23 (‘the BBC case’) were decided in error. The Sussex and the BBC cases were concerned with the same Go-Pro footage with which the Court was concerned in this application. In both cases it was accepted that the footage was protected. This was also the conclusion reached by Dame Victoria Sharp P in this case after carefully considering the legislative regimes under EU and domestic law, which have as their framework the Chicago convention.

Annex 13 to the Chicago Convention provides that:
“(a) cockpit voice recordings and airborne image recordings and any transcripts from such recordings; …shall not be made available for purposes other than the accident or incident investigation” unless the state’s competent authority determines that “their disclosure or use outweighs the likely adverse domestic and international impact such action may have on that or any future investigation”.

The Chicago convention, as well as EU and domestic law, draws a distinction between cockpit voice and image recordings which are always protected, in anyone’s custody or control (and other records which are protected only where they are “in the custody or control of the accident investigation authority”. However, in this case the go-pro footage was from inside the cockpit and the High Court noted that the wording of annexe 13 to the Chicago convention was deliberately broad and intended to capture all airborne image recordings. It was also noted that annexe 13 makes clear that “cockpit footage should not be disclosed to the public under any circumstances.”

Conclusion – The Disclosure was Protected
The High Court therefore had little difficulty in concluding [@ 42]:

“that the [go-pro] footage and the evidential material in the [criminal] trial which is derived from or which refers to that footage, is protected material within the 2018 United Kingdom Regulations and may only be disclosed to the Coroner where the High Court is satisfied, pursuant to regulation 25(5) of the 2018 United Kingdom Regulations: “that the benefits of the disclosure of the record concerned outweigh the adverse domestic and international impact which the disclosure might have on the safety investigation to which the record relates or any future safety investigation.”

The Test for the Application
The Coroner sought disclosure on the basis that the test under r. 25(5) of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2018 (‘the UK Regulations 2018’), as set out above, was satisfied.
In her ruling from 21 April 2021 the Coroner accepted that she should act in accordance with the principles established in Secretary of State for Transport v Senior Coroner for Norfolk [2016] EWHC 2279 (Admin) (‘Norfolk’). In other words, in the absence of evidence that the AAIB’s investigation into the Crash was “incomplete, flawed or deficient”, she should not consider it necessary to re-investigate matters covered by the AAIB investigation.
The Coroner in her ruling set out that the AAIB report:

“appears to be silent on the mechanism of cognitive impairment now postulated by Dr Mitchell. …. My duty is to conduct a full, fair and fearless inquiry in circumstances where the inquest’s scope specifically includes consideration of the extent to which, if any the pilot suffered a cognitive impairment which affected his flying abilities and caused or contributed to the crash.”

Accordingly, the protected material was sought to assess whether the AAIB’s conclusions on the issue of cognitive impairment may have been incomplete.

The Basis for the Application – Dr. Mitchell’s Paper
The challenge to the AAIB report was founded on Dr. Mitchell’s paper which focused on the pilot’s “head tilt” in the Hunter, which he says is “fundamental to understanding the possible explanation of the Shoreham accident”. That head tilt is suggested to cause hypoxia because, together with the effect of the pilot’s helmet and lifejacket, it may have caused a significant reduction in blood flow in the arteries to the brain. However, as the High Court noted:

“Dr. Mitchell recognizes that this theory is rather unorthodox and prefaces the Paper by observing that the form of cognitive impairment he postulates is “neither widely recognised nor accepted by the aviation medical community”.

It was also noted that the Paper fell far short of the requirements of CPR 35 and Crim PR 19; although these requirements are not necessary in Coronial proceedings.

The Application for Disclosure
When considering the test under r. 25 of the UK Regulations 2018, the High Court weighed both the harm and benefit of disclosure.

The Harm
The High Court accepted the submission for the AAIB that one of the main benefits of the current culture of co-operation with AAIB investigations within the worldwide aviation community is that the AAIB generally receives prompt and direct access to the relevant witnesses and evidence. It was also accepted that because many investigations have an international dimension, there would be a significant potential adverse effect on the United Kingdom’s relations with other States, international bodies and the aviation industry.
The court held: “that the release of the footage in the present case could have a chilling effect on the further progress not only of voluntary fitting of such devices but also the agreement of international standards and regulations to mandate the fitting of cockpit image recorders for safety purposes.”

The Benefit
Whilst it was recognised that inquests serve an important function it was found there is no public interest in reinvestigation of matters already investigated by the AAIB. An important and narrowly prescribed exception to this position is a situation where, as Lord Thomas CJ explained in Norfolk, there is credible evidence that the AAIB’s investigation is incomplete, flawed or deficient. The judgment makes clear that “”Credible evidence” is the condition precedent or gateway – it is an important control mechanism” if the ground already covered by the AAIB is to be re-tread. It was noted that this test was not met. It was not open for the Coroner to find that Dr Mitchell’s report might in principle be capable of amounting to credible evidence that the AAIB’s investigation was incomplete, flawed or deficient.
It was set out within the judgment [@133] why Dr. Mitchell’s report did not amount to credible evidence. This included: his unorthodox approach, not being a specialist in aviation medicine or neurology and the fact that his report fell far short of the normal requirements in civil and criminal proceedings for expert reports. It was also noted that the report itself stated: “This paper is incomplete and is significantly impeded in being unable to provide substantive conclusions supported by clear evidence”. By contrast, it was also set out in detail how the AAIB report and the CAA, independently, having sought the assistance of range of experienced experts reached the conclusion that there was no evidence of any g-related impairment of Mr. Hill during the aerobatic sequence prior to the crash. Accordingly, the cognitive impairment issue had already been considered.

The Conclusion

It was therefore concluded: “…no public interest purpose is served by disclosing the protected material for use by Dr Mitchell or other experts who may be appointed by the Coroner to reinvestigate the cognitive impairment issue. As this is the basis for the Coroner’s application, there is no benefit in its disclosure to her.”

Practical Takeaways

  • This decision reinforces how cockpit footage is protected from disclosure unless the test under r. 25 of the 2018 United Kingdom Regulations is met;
  • For an application under r. 25 to be successful, credible evidence is required that the AAIB investigation was incomplete flawed or deficient;
  • The court, when weighing the ‘harm’ and ‘benefit’ of disclosure under r. 25 of the UK Regulations 2018 will be mindful that the Coronial court performs a similar investigative function to that of the AAIB, unlike a criminal court.

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