Sussex Police v Secretary of State for Transport & Anor

Applications for disclosure of protected air-accident investigation records require the High Court to balance the benefits of disclosure against its adverse domestic and international impact on the relevant or future safety investigations. The statutory scheme in Regulation 18 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 is self-contained. Disclosure does not depend on satisfying the production-order criteria in PACE, although fairness and personal privacy remain relevant considerations. Statements obtained through compulsory investigative powers will rarely justify disclosure because of the chilling effect on candour and future safety investigations. The balance may favour disclosure of contemporaneous recordings made voluntarily for private or commercial purposes where there is no legal duty to create them and their evidential value is substantial.

The Chief Constable sought disclosure from the Air Accidents Investigation Branch of material relating to the Shoreham air-show crash. The application was made under Regulation 18 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996. The material included the pilot’s statements, cockpit film footage, reports of test flights and engineering reports.

The Secretary of State left the decision to the court but relied on the policy underlying the international, EU and domestic air-accident investigation regime. BALPA argued that disclosure could not be ordered unless the criteria for production orders under PACE were met. The central issue was whether the benefits of disclosure outweighed the adverse domestic and international impact on the present or future safety investigations.

1. Application of Regulation 18. The court held that Regulation 18 provides the applicable code for disclosure. The criteria for a production order under PACE were not a precondition, although policy considerations underlying PACE, including fairness and personal privacy, were relevant to the balancing exercise. The relevant question was whether the benefits of disclosure outweighed the adverse domestic and international impact on the present or future investigation.
2. Pilot’s statements. Disclosure of statements obtained by the AAIB from the pilot was refused. The AAIB could compel answers under Regulation 9, and disclosure would create a serious chilling effect likely to reduce the candour necessary for effective accident investigation. It would also be unfair to disclose material obtained through compulsory questioning without the safeguards ordinarily associated with police interviews.
3. Film footage. Disclosure of the cockpit film footage was ordered. Unlike ordinary cockpit voice or flight-data recordings, the cameras were installed voluntarily and there was no legal duty to create the footage. They had been installed for leisure and potentially commercial purposes, so disclosure was unlikely to deter comparable future use. The footage was a contemporaneous record with significant potential value to the police investigation. The balance therefore favoured disclosure.
4. Other investigative material. Disclosure of speed calculations and a Health and Safety Laboratory report was not pursued and the court endorsed that position, noting that the police could investigate those matters themselves and that relevant reports would be published with appropriate redactions. Disclosure of test-flight reports and engineering reports was refused for the reasons set out in the Confidential Annex.
5. The permitted disclosure was subject to conditions governing custody, onward disclosure to specified investigators and legal representatives, confidentiality, and return of the material at the conclusion of any criminal proceedings.