Divisional Court – new and important judgment regarding aviation and coronial law

07 Feb 2022

Commercial and Regulatory, Inquests and Inquiries

On Friday the 4 February 2022 the Divisional Court of Dame Victoria Sharp, the President of the High Court and Mr Justice Saini handed down a complex and lengthy reserved judgment of 140 paragraphs. This is now the latest and arguably leading judgment on certain aspects of aviation and coronial law.

By way of background, this important judgment related to an application by the Senior Coroner for West Sussex for guidance concerning exactly what constitutes protected material under the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2018/321 emanating from Annex 13 of the Chicago Convention of 1944 and together with further guidance on the effect of the Supreme case of Maugham about the test of ‘unlawful killing’ at an inquest. The Coroner’s application was dismissed.

In HM Senior Coroner for West Sussex v Chief Constable of Sussex Police and othersĀ [2022] EWHC 215(QB), the facts related to the air crash at Shoreham in 2015 when eleven men died and many were injured when an aircraft crashed onto the A27 during an Airshow. The pilot had taken footage at the Airshow on his camera.

Gerard Forlin QC, who is acting for some of the families at the inquest, argued that generally GoPro or mobile phone type footage was different from built-in required recording device products, as they are often used for voluntary personal and commercial purposes, not regulatory ones.

The Divisional Court disagreed, stating that cockpit footage needed total protection from disclosure as “image recordings provide significant and unique evidence which can greatly assist in the effective investigation of accidents and the ability to identify measures to prevent reoccurrence“.

The Divisional Court further stated at Paragraph 41: “This benefit is the same, as it the risk of discouraging the fitting [of] such devices, regardless of whether the image recording is from a device that was required to be fitted, or was fitted voluntarily for any reason“.

In relation to coronial law, it was further submitted by Gerard and another party that after Maugham, only Coroner Courts have the ability to find an unlawful killing conclusion on a balance of probability. The ramifications of that going forward after there has been an official Investigation report required further guidance.

The Court analysed a lot of case law and stated at Paragraph 137 “At the level of principle there should not be duplicative investigations whether or not there has been a criminal prosecution preceeding an inquest. That fact does not dictate whether something less than credible evidence of deficiencies in an AAIB investigation should be required before such an investigation is reopened”.

This finding is of importance, as it means reopening investigations in the transport sector as well as in other scenarios, or reconsidering material after there has been a statutory investigation by the AAIB (or arguably the RAIB or MAIB ) will be extremely difficult.

Finally at Paragraph 13 Dame Sharp states “Members of the families of three of those who have died have been joined as interested parties and have made helpful written and oral submissions …[the] families… were represented by Gerard Forlin QC and Kirsten Heaven“.

Gerard was the QC for them at the in-person hearing in December 2021 instructed by Sarah Stewart of Stewarts.