Jason Beer QC appeared for the Secretary of State for Transport in a significant new case concerning re-investigations by coroners

4 February 2022

The Divisional Court (the President of the Queen’s Bench Division and Saini J) today handed down judgment in HM Senior Coroner for West Sussex v Chief Constable of Sussex Police and ors. The decision is a significant one for coroners seeking to re-investigate matters that have already been investigated by one of the Accident Investigation Branches (the Air Accidents Investigation Branch, the Rail Accident Investigation Branch and the Marine Accident Investigation Branch).

Jason Beer QC appeared for the second defendant, the Secretary of State for Transport, who is responsible for the Air Accidents Investigation Branch (AAIB).

The Coroner is conducting inquests into the deaths caused by an aircraft crashing into the A27 during the Shoreham Airshow in 2015 – an incident investigated by the AAIB. She sought an order mandating disclosure of certain material, primarily the pilot’s Go-Pro footage. The AAIB opposed the application.

The Coroner first submitted that the Go-Pro footage might not be within the protection provided under Article 14 of the EU Regulation on the investigation and prevention of Air Accidents No. 996/2010 as the pilot had not been required to install a camera, instead choosing to do so. That submission was rejected: there was no justification for such a distinction in the language of the legislative scheme. Consequently, the footage was protected information within the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2018, and could only be disclosed under Regulation 25 if the court was satisfied that the benefits of disclosure outweighed any adverse impact on future air crash investigations.

In relation to this balancing exercise, the court accepted the AAIB’s submission that the disclosure of confidential information could cause significant harm to the investigation process by undermining trust and the incentive for cooperation with investigators. The court further concluded that there was no benefit to be gained from disclosure. The Court accepted that, following Secretary of State for Transport v Senior Coroner for Norfolk [2016] EWHC 2279 (Admin), in the absence of credible evidence that the investigation conducted by the AAIB was “incomplete, flawed or deficient”, the Coroner should not re-investigate the matters the AAIB had covered. The Coroner submitted that a paper produced by a friend of the pilot as to the possibility of his cognitive impairment during the flight raised a “significant question” as to the completeness of the AAIB investigation. She therefore sought disclosure in order to determine whether it was indeed necessary to reconsider certain matters. The court, however, emphasized that the requirement of “credible evidence”, as opposed to a credible suggestion, was an important control mechanism not easily surpassed. It had not been so in this instance.

The application for disclosure was therefore dismissed.

 

Jason Beer QC specialises in coronial law, especially in public law proceedings arising from the decisions of coroners

 


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Jason Beer KC

Call 1992 | Silk 2011

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