The British Broadcasting Corporation & Anor v The Secretary of State for Transport & Anor

Disclosure of sensitive air-safety investigation material to the public requires an objective balancing exercise. The benefits of disclosure must outweigh its adverse domestic and international impact on the relevant or future safety investigations. The importance of open justice is a substantial benefit, but it does not automatically justify public release of cockpit recordings. Annex 13 to the Chicago Convention, as incorporated into the applicable framework, distinguishes disclosure authorised by the competent authority from disclosure of actual recordings to the public. Where disclosure would risk damaging the just culture of air-accident investigation or the international standing of the safety investigator, and the reporting benefit is limited, disclosure may be refused.

The BBC and the Press Association sought an order under regulation 25 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2018 permitting disclosure to the media of Go-Pro cockpit footage from the aircraft crash which led to criminal proceedings against the pilot. The footage had previously been disclosed to the police and had been played to the jury in open court.

The Secretary of State and the British Airline Pilots Association opposed further disclosure. The issue was whether the benefits of disclosure to the media outweighed the additional adverse domestic and international impact which disclosure might have on the current or future safety investigations.

1. The Part 8 claim was refused. Regulation 25(5) required the court to decide whether the benefits of disclosure outweighed the adverse domestic and international impact which disclosure might have on the relevant or any future safety investigation.

2. The court accepted the strong importance of open justice and accurate contemporaneous reporting of criminal proceedings. Those considerations were relevant to the benefit side of the statutory balance. Privacy and related concerns were principally matters for the Crown Court under the applicable criminal procedure regime.

3. The court held that paragraph 5.12.5 of Annex 13 did not remove the competent authority’s power under paragraph 5.12 to authorise disclosure in an appropriate case. Read with Appendix 2, however, it distinguished disclosure authorised for specified purposes from disclosure of the actual recording to the public. The latter created particular risks because recordings could be copied and disseminated worldwide and indefinitely.

4. The evidence established two material adverse impacts. Public dissemination could damage the just culture which encourages pilots and others to co-operate candidly with air-accident investigations. It could also diminish the international standing of the Air Accidents Investigation Branch and confidence in the United Kingdom’s compliance with Annex 13. The concern that disclosure would deter pilots from voluntarily using Go-Pro equipment was given little weight.

5. Although responsible media use of the footage would make the trial clearer and more engaging, those benefits were limited. Other footage already available could give the trial substantial public impact. The court was therefore not satisfied that the benefits of disclosure outweighed the adverse impact on future safety investigations. The claim under regulation 25(5) was refused.