The Disclosure Of Data Arising From Accident Investigations

Following an Application by the Sussex Police for sight of various data items held by the Air Accidents Investigation Branch ("AAIB") arising out of the tragic accident at the Shoreham Airshow, in Chief Constable of Sussex Police v Secretary of State for Transport [2016] EWHC 2280 (QB) the English High Court confirmed that it remains the sole authority for disclosure of data collected by the AAIB in its investigation of air accidents.

The decision was indicative that any future requests for disclosure are likely to be construed narrowly, with the Court more likely to conclude the adverse domestic and international impact of disclosure outweighs any benefit. However, pilots may still have areas for concern.

The request

On 22 August 2015 a Hawker Hunter crashed while performing at the Shoreham Airshow, West Sussex. The incident killed 11 people and injured several more, but the pilot survived. Pursuant to its authority under EU Regulation 996/2010, the AAIB investigated the incident, which included the retrieval of various items from the crash site, interviewing key witnesses (including the pilot himself) and undertaking various tests and analysis of the available data.

As part of the police investigation into the accident, the Chief Constable of Sussex ("the Chief Constable") made an Application for disclosure of certain items pursuant to Regulation 18 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 ("the 1996 Regulations").

Specifically, the Chief Constable sought material which fitted into three categories. Firstly, there were witness statements made in response to interviews or discussions with the pilot. Secondly, contemporaneous evidence from the flight itself, specifically film footage of the flight recorded by cameras that had been installed on the aircraft on a voluntary basis; and thirdly, material produced by various people subsequent to the accident, for example experiments conducted and tests done on various aspects of the flight.

The AAIB, represented by the Secretary of State for Transport, did not resist the Application and the AAIB's official position was that it was a matter for the Court to determine whether disclosure should be made having carried out the balancing exercise between different public interests which is required by Regulation 18. The British Airline Pilots Association ("BALPA") made submissions in opposition to the Chief Constable's Application to the effect that the Court could not order disclosure in a case unless the criteria for issuing a Production Order in the Police and Criminal Evidence Act 1984 (PACE) were satisfied.

The legal regime

The background to the investigation of air accidents can be found in international treaty, namely the Convention on International Civil Aviation, signed in Chicago on 7 December 1944, better known as the...