The Secretary of State, R (on the application of) v HM Senior Coroner for Norfolk & Anor

The general disclosure powers conferred on coroners by Schedule 5 to the Coroners and Justice Act 2009 do not override the specific statutory and European regime protecting air-accident investigation records. Disclosure of cockpit voice recordings, flight data and related transcripts may therefore be ordered only by the High Court in England and Wales, subject to the applicable balancing exercise. A coroner cannot use the general power to circumvent that scheme. Where an independent air-accident investigation is complete and there is no credible evidence that it was incomplete, flawed or deficient, a coroner should ordinarily rely on its findings rather than investigate the cause of the accident afresh.

The Secretary of State for Transport sought judicial review of notices issued by the Senior Coroner for Norfolk requiring the Air Accidents Investigation Branch and its Chief Inspector to disclose a cockpit voice and flight data recorder and a full transcript. The Coroner had also fined the Chief Inspector for non-compliance. The dispute concerned the interaction between the disclosure regime in the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 and Article 14 of Regulation (EU) No 996/2010, on the one hand, and the general disclosure powers in Schedule 5 to the Coroners and Justice Act 2009, on the other. The central issue was whether the 2009 Act made the Coroner an authority competent to order disclosure of protected records.

1. Claim allowed. Singh J held that, apart from the 2009 Act, the clear effect of Article 14 of Regulation (EU) No 996/2010 and regulation 18 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 was that, in England and Wales, only the High Court could order disclosure of the protected records. The word “person” in regulation 18 included a coroner, and there was no conflict requiring a different construction. If there had been a conflict, the EU Regulation would prevail.

2. Schedule 5 to the Coroners and Justice Act 2009 was enacted to remedy the former absence of any general power enabling coroners to obtain documents. Its general language did not override the specific and carefully crafted regime implementing international and EU obligations concerning air-accident investigations. There was no admissible legislative history indicating that Parliament intended such a radical alteration, particularly when the equivalent position in Scotland and Northern Ireland remained different.

3. The exception in paragraph 2(1)(b) of Schedule 5 applied because the ordered disclosure would breach an EU-law obligation. It was therefore unnecessary to decide finally whether paragraph 2(1)(a), referring to material which could not be required in civil proceedings, applied. Singh J expressed doubt that paragraph 2(1)(a) meant material which could not be required without an order of the High Court; it was more naturally read as material which could not be required at all.

4. The notices requiring disclosure and the fines imposed for non-compliance were quashed. The Coroner’s abandoned application for an order requiring disclosure by the High Court was not determined because the inquests had concluded and would not be reopened.

5. In concurring observations, Lord Thomas CJ emphasised that, absent credible evidence that an AAIB investigation was incomplete, flawed or deficient, a coroner should not ordinarily investigate the same accident afresh. The inquest could be adjourned pending the AAIB report or proceed on the basis that the report would determine the reasons for the crash. The findings and conclusions should not be reopened, although limited supplementary evidence might sometimes be appropriate.

First-instance judicial review in the Divisional Court of the High Court. The claim was granted and the Senior Coroner’s notices and fines were quashed.