February 24 2022
The High Court has determined that the coroner investigating the Shoreham air crash may not obtain and use video footage of the accident captured by the pilot’s Go-Pro video camera.
On 20 December 2021, the High Court heard an application brought by the senior coroner for West Sussex for disclosure of protected material. On 4 February 2022, Dame Victoria Sharp, President of the Queen’s Bench Division, and Mr Justice Saini handed down their lengthy decision, which is now arguably the leading judgment on this point.
The application was brought as part of the senior coroner’s investigation into the deaths of 11 men in August 2015 when an aircraft crashed onto the A27 Shoreham Bypass while performing at the Shoreham Airshow. The pilot had taken footage at the air show on his camera.
The basis of the application was to seek guidance from the High Court in relation to what constitutes “protected material” under the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2018/321 arising from Annex 13 of the Chicago Convention of 1944. The coroner’s application was dismissed. The court said it was not satisfied that the benefits of allowing disclosure outweighed the dangers this posed to producing a “chilling effect” on the future use of recordings in aircraft and the ability of the Air Accident Investigation Branch to investigate air accidents.
Both the coroner and Gerard Forlin QC with Kirsten Heaven (instructed by Stewarts for the families) argued that Go-Pro or mobile phone footage taken from inside the cockpit by the pilot on his own device did not have the same protected status as footage generated by built-in recording devices. This is because it was taken voluntarily for personal and commercial purposes, not for regulatory reasons.
The court did not agree, stating that cockpit footage needed total protection from disclosure because “image recordings provide significant and unique evidence which can greatly assist in the effective investigation of accidents and the ability to identify measures to prevent reoccurrence”. Furthermore, the court found there was no distinction between footage taken for regulatory purposes and footage taken for other uses and said: “This benefit is the same, as is the risk of discouraging the fitting [of] such devices, regardless of whether the image recording is from a device that was required to be fitted, or was fitted voluntarily for any reason.”
The judgment also touches on the impact of the recent case of R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire in coronial inquest proceedings. Maughan gives the Coroner’s Court the ability to reach an unlawful killing verdict on a balance of probability. The High Court found that, in principle, there should be no duplication of investigation, and nothing short of credible evidence or deficiencies in an official statutory investigation would be required for investigations to be reopened. This will raise the bar in future cases as it means the judicial reopening of investigations or reconsideration of material following a statutory investigation will be extremely difficult.