Shoreham: Accessing AAIB evidence, criminalisation and just culture

The High Court’s imminent decision on whether to grant the police access to confidential AAIB records reignites the debate about ‘just culture’ and criminalisation in air accident investigations.

This week, the High Court is expected to rule on whether Sussex police can have access to key material, including the flight deck voice recorder, to enable them to continue with their criminal investigation into last year’s Shoreham Air Show disaster. Under Regulation 18 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996, the Secretary of State, who is generally represented by the Air Accident Investigation Branch’s (AAIB) chief investigator in this instance, can make relevant records available for purposes other than accident or incident investigation if the High Court ‘is satisfied that the interests of justice in the judicial proceedings or circumstances in question outweigh any adverse domestic and international impact which disclosure may have on the investigation’. The disclosure in the ‘interests of justice’ principle is also enshrined in European law, under Article 14.3 of EU Regulation 996/2010 (the Regulation). The Regulation also reinforces the principles of ICAO Annex 13 which provides for international standards and recommended practices in relation to air accident and incident investigations, the primary objective of which is to prevent future accidents and incidents and not to apportion blame or liability. Inevitably, while the official air accident investigation and any criminal investigation are intended to remain entirely separate, the paths of the two investigations inevitably cross on numerous occasions throughout the process and are driven by entirely different agendas.

Determining whether to override confidentiality in the interests of justice continues to present significant challenges to aviation regulators, accident investigators and the industry at large. The fundamental principle which should underpin all accident and incident investigations is ‘just culture’. As Recital 24 of the Regulation clearly states, civil aviation systems aim to ‘promote a non-punitive environment facilitating the spontaneous reporting of occurrences’. Yet some argue that increasing pressure and, to some extent, public clamour to attribute blame and immediately criminalise investigations, as was seen in the aftermath of the Germanwings tragedy when the French public prosecutor was prominent in early public announcements, might be harmful to and fetter future accident investigation and reporting. Since the decision in Rogers -v- Hoyle [2014] EWCA Civ 257, third parties have been able to use AAIB reports as expert evidence for subsequent negligence claim proceedings, the court having recognised the impartiality and investigators’ expertise whilst grappling with submissions from both the Secretary of State and IATA that enabling AAIB Reports to be admissible as evidence could inhibit investigators’ work and discourage witnesses from assisting out of fear of being held to account in criminal or other civil proceedings.

However, in this scenario, Sussex police are not seeking to use an AAIB report which has yet to be published and is due in 2017. They want access to relevant material that the AAIB is using to compile the eventual report into why pilot Andy Hill lost control of his Hawker Hunter in an aerial manoeuvre which resulted in the vintage jet crashing into the A27, killing 11 people, on 22 August 2015; information which is usually confidential under the auspices of air accident investigation. It remains to be seen whether the High Court will use its discretion to permit the police access to cockpit voice recordings to determine whether the pilot should face prosecution or whether access for the purposes of criminal enquiry prior to the conclusion of the AAIB’s civil investigation could be prejudicial and contrary to the principle of ‘just culture’ and the overriding objective of accident investigations in general under ICAO Annex 13. The industry will await the outcome of this decision with trepidation as every erosion of confidentiality in air accident investigation compounds the theory that ‘just culture’ will never be entirely successful if confidential and sensitive information in air accident and incident investigations does not remain confidential.