HER MAJESTY’S SENIOR CORONER FOR WEST SUSSEX v CHIEF CONSTABLE OF SUSSEX POLICE

Cockpit voice and image recordings are protected regardless of whether the recording device was required or voluntarily installed. Disclosure for purposes other than a safety investigation requires the High Court to be satisfied that the benefits outweigh the adverse domestic and international impact on present or future safety investigations.

A coroner should not duplicate an independent air-accident investigation unless there is credible evidence that it was incomplete, flawed or deficient. A mere credible suggestion, or a different view from an unqualified expert, does not meet that threshold. The balancing exercise gives substantial weight to the chilling effect that disclosure may have on cooperation with future investigations.

The claim arose from the Shoreham Airshow crash, in which eleven people died and thirteen were injured. The Senior Coroner sought access to cockpit footage, expert reports and criminal-trial transcripts to assess whether the AAIB investigation had been incomplete in relation to a suggested hypoxia-related cognitive impairment suffered by the pilot.

The material was said to be protected under Article 14 of Retained EU Regulation No 996/2010 and regulation 25 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2018. The central questions were whether the material was protected, whether the Norfolk threshold for reopening matters examined by the AAIB was met, and whether disclosure passed the statutory balancing test.

1. Protection of cockpit recordings. The Court held that Article 14(1)(g) of Retained EU Regulation No 996/2010 and the related international and domestic provisions protect all cockpit voice and image recordings and their transcripts. The legislation does not distinguish between mandatory equipment and a device installed voluntarily for personal or commercial purposes. The Go-Pro footage, and evidential material derived from or referring to it, was therefore protected.
2. Disclosure test. Regulation 25(5) required the Court to balance the benefits of disclosure against the adverse domestic and international impact on the relevant or any future safety investigation. The harm side carried very substantial weight. Disclosure could undermine confidentiality, cooperation by witnesses and experts, international collaboration, and confidence in cockpit recording systems.
3. Coronial reinvestigation. Applying Secretary of State for Transport v Senior Coroner for Norfolk [2016] EWHC 2279 (Admin), the Court held that there is ordinarily no public interest in duplicating the AAIB’s investigation. A coroner should be very slow to find credible evidence that an expert investigation was incomplete, flawed or deficient. The threshold is a condition precedent and cannot be replaced by a weaker test based on a credible suggestion, an implausible theory, or the possibility that another expert might disagree.
4. The Mitchell Paper could not amount even potentially to credible evidence supporting reopening the AAIB investigation. Its author lacked relevant aviation-medicine or neurological expertise, was not independent, and proposed only an additional possible mechanism without evidence that it had caused cognitive impairment. Disclosure would therefore produce no public-interest benefit capable of outweighing the substantial harm identified.
5. The Court declined to entertain wider attacks on the AAIB investigation. It was not an appellate court from the AAIB, and the Coroner’s ruling could not be collaterally challenged through the present application. The application was dismissed.