Adopting Accident Investigation Branch reports and the requirement to conduct Inquests fairly

R(Mid and West Wales Fire & Rescue Service) v Senior Coroner for Pembrokeshire & Carmarthenshire and Marine Accident Investigation Branch [2023] EWHC 1669 (Admin) 12.7.23 (judgment here)


The High Court’s Norfolk[1] decision has sat uneasily with some in the coronial law community. Although coroners have a statutory duty to investigate a cause of death, the effect of the Norfolk case is that if an investigation into a fatal incident has been undertaken by one of the UK’s three Accident Investigation Branches (‘AIBs’)[2] the coroner is obliged to accept, wholesale, the conclusions of that earlier AIB investigation.

As the High Court emphasised in Norfolk a coroner will comply sufficiently with their statutory duties by treating the findings and conclusions of the report of an independent AIB as the evidence as to the cause of a fatal accident.

The thorny issue of whether this is an obiter statement or part of the ratio decidendi of the decision has, however, continued to be debated.  In the Shoreham Aircrash ‘Sussex’ case [3] the Senior Coroner neatly sidestepped the argument by saying that, even if this part of the judgment was merely obiter, she was still going to follow it, particularly as it was, on any analysis, strong guidance by a court that included the Lord Chief Justice (‘LCJ’).   However, that issue has now been put beyond question, having been fully argued before the court in this most recent MAIB case.

Mr Justice Eyre has now held that the determination in Norfolk that, as a matter of principle, there could be no public interest in the duplication of investigations, was a necessary step in the court’s reasoning and so was ‘clearly’ part of the ratio decidendi of Singh J’s Norfolk judgment (with which the LCJ agreed).

As a consequence, the main challenge to the Norfolk decision raised in the present case: that it was unfair to put the MAIB report before the jury and not allow further questioning of it, was dismissed.  Furthermore, an additional multi-pronged attack on the MAIB investigation (as being incomplete, flawed or deficient) and on the coroner’s ruling (as being inadequate and unlawful) also failed on every ground.

The background

In September 2019 Joshua Gardener, a young firefighter, sustained a fatal injury when he was struck in the head as two boats collided during a training exercise.  The crash was investigated by the Marine Accident Investigation Branch (‘MAIB’). Their report, produced in November 2020, not only addressed the immediate circumstances of the accident and the cause of the collision, but also found shortcomings in numerous matters relating to the Mid and West Wales Fire & Rescue Service’s systems and procedures.

At a pre-inquest hearing the coroner indicated that, in line with the approach in Norfolk and Sussex, he would be putting the Report before the jury who would then be directed that they must accept all of its findings and conclusions.[4]  The claimant did not challenge the MAIB findings regarding the cause of the accident, but did seek to challenge several of the conclusions reached regarding the Fire Service’s systems and procedures, which in the claimant’s opinion had not been presented in the correct context or were simply wrong.

The claimant submitted that the coroner’s proposed approach was precluded by the requirement that all coronial proceedings must be conducted fairly and that fairness prevented the MAIB Report being treated as conclusive.    It was argued that the requirement that a coroner must proceed fairly meant that the claimant should be allowed to ask questions challenging the criticisms of it in the MAIB Report and should be permitted to give evidence in response to the MAIB criticisms.

The decision on fairness

The judge’s starting point, taken from Norfolk, was that there was no public interest in having unnecessary duplication of investigations or inquiries. The AIBs fulfil an important function, and each is an independent body investigating matters within their specialist expertise. There is no good reason why Parliament should have intended to enact a legislative scheme which would have the effect of requiring or permitting a ‘non-expert coroner’ to cover the same ground as an AIB investigation.  In addition, the all or nothing effect of the Norfolk approach meant that the Claimant’s contention that some of the conclusions set out in the Report should be retained while others were discarded was misconceived.

   ‘The public interest is in avoiding the duplication

of properly conducted investigations’

On proper analysis it was wrong, said the judge, to characterise the Norfolk approach as being incompatible with the requirements of fairness or in some way displacing those requirements. Having determined that the relevant part of the Norfolk decision was part of its ratio the judge went on to say that it could not credibly be suggested that the members of the court in Norfolk  had in some way overlooked the need for coronial proceedings to be conducted fairly.

The purpose of an inquest is solely the establishment of facts.  Consequently there were differences between the procedure applicable to inquests and the requirements of ‘fairness’ that might apply in contested adversarial proceedings determining criminal or civil liability.   What fairness requires when a person is at risk of a finding of liability may not be required when there is no such risk, and where the proceedings have the different purpose of identifying the cause of a death.


Fairness does not require more than one opportunity to make representations

Furthermore, Eyre J observed, a party at risk of being adversely affected by an AIB report will have alreadyhad an opportunity to make representations to the AIB and for those to have been considered by that independent expert body before the report was finalised.   Fairness did not require that party to have a second opportunity to make representations afresh in a different (inquest) forum. Fairness does not require a second bite of the cherry as a matter of principle. Indeed such duplication is likely to cause unnecessary expense and delay that is itself harmful to others and contrary to the public interest.

The judge endorsed the Norfolk position that, if an AIB has conducted an investigation which cannot be said on the basis of credible evidence to have been incomplete, flawed, or deficient then the coroner is to approach matters on the footing that there has already been an investigation by the body best placed to come to a conclusion on the subject-matter of that investigation.

This being ratio of the Norfolk decision the judge concluded that the fairness or otherwise of the Norfolk approach was not a matter for a coroner to determine and so the coroner could not have proceeded on the basis that fairness required a different approach to be adopted.  , The claimant’s challenge to how the coroner had dealt with the fairness point in his ruling therefore simply fell away.


The other challenges to the coroner’s ruling

Fairness having been dealt with, this still left the other challenges to consider regarding the adequacy of the report and the quality of the coroner’s ruling.   The grounds of challenge to the coroner ruling were, in brief, that:

  • the coroner had not applied the correct test for determining whether there should be a fresh investigation. It was said the coroner imposed too high a threshold and instead of considering the ‘Norfolk test’ of whether there was credible evidence that the investigation leading to the Report was incomplete, flawed, or deficient the coroner had wrongly considered whether the investigation was in fact incomplete, flawed, or deficient;
  • the coroner had made an error of law as he had misunderstood the law as to the applicable regulatory standards when he found that the MAIB investigation and the Report were not flawed;
  • in a number of respects the coroner’s ruling had misunderstood the submissions being made and/or failed adequately to engage with them so the Ruling was irrational through being based on an incorrect analysis.

It will be some succour to any coroners still smarting from being described as holding a ‘lower judicial office’ in the Norfolk decision[5] that the attempts by the MAIB to bolster their own case supporting the coroner’s ruling with authorities regarding the interpretation of decision letters sent by housing officers and planning inspectors were brushed aside by the judge.  He stated that the principles applicable to a coroner’s ruling are far more closely akin to those applicable to the reading of a court’s judgment under appeal than to such lowly decision letters.

The following points were considered by the judge to be of relevance to his finding that this coroner’s ruling had been sufficiently detailed and lawful:

  • a coroner’s ruling should be read realistically and as a whole;
  • the context of a ruling is relevant: here it was being provided to legally represented parties who knew both the factual background and the terms of the submissions which had been made;
  • a coroner must demonstrate they have addressed the substance of the case being advanced and had shown why it was accepted or rejected. But it is not necessary for a ruling to address every minor issue at length, nor necessarily at all;
  • a coroner’s disagreement with a submission cannot be taken as an indication that the submission has not been understood;
  • that a coroner summarises a submission in language different from that used by the IP does not mean that the submission was not properly understood;
  • the coroner was entitled to express his conclusions shortly. Reasons did not need to be elaborate and nor did he have to give ‘reasons for his reasons’;
  • the coroner’s ruling should not be subject to a “narrow textual analysis, nor should be it be picked over or construed as though it was a piece of legislation or a contract”.[6]

One of the arguments raised by the claimant was that the coroner had not had not himself considered the decision but had in effect just copied his homework – as his ruling had lifted some parts from the ruling of another coroner in another case (see the Sandilands coroner’s ruling here).[7]  Not so said the court – indeed there is nothing wrong with one coroner adopting another’s earlier wording if they have found that wording to be in accord with their own view.[8] That a coroner agrees with another’s view does not mean that he has not himself considered that decision.  This coroner had provided sufficient reasoning for the decision he had come to.


Alleged errors in the investigation

Finally, the claimant had also mounted a detailed attack on the conclusions within the MAIB Report.  Much of this related to the specific factual minutiae of the case – so unless you have a particular interest in the meaning of the Merchant Shipping (Small Workboats and Pilot Boats) Regulations 1998 you can skip paras 99-170 of the judgment and just take it from me that a claimant will face a high hurdle if challenging facts.  Minor criticisms of the investigation, quibbles over the report, disagreement as to the wording of a conclusion, the assertion that more ought to have been said to give a fuller picture, conclusions that could have been better expressed or even strong disagreement with the AIB’s conclusions do not, without more amount to credible evidence that an AIB’s investigation has been incomplete, flawed, or deficient.

Indeed that it took five sets of written submissions and extensive court time in the coroner’s court to argue all these points, and then required 71 paragraphs of a High Court  judge’s judgment to deal with the same issues, was perhaps itself an indication of there being no obvious flaw in the MAIB investigation.    As the judge pointed out: a coroner was only to go behind an AIB investigation in the ‘rare case where there might be an obvious deficiency’ in the investigation.  In such a rare case it should be possible for a party to identify the obvious deficiency shortly and concisely, without the need for lengthy arguments based on a close reading of the text, let alone criticism of the language in which the conclusions were expressed.

The application was dismissed on all grounds


Post script

Where then does this all leave a coroner investigating a death when an AIB are already involved?  Knowing that the AIB will conduct a thorough and expert investigation and will make public their report one might question why a coroner would delay any inquest whilst the AIB complete their task.

As the Lord Chief Justice in Norfolk pointed out: a coroner does have a choice as to how they meet their statutory duty.  They can either: (a) adjourn the inquest pending publication of the AIB report or (b) proceed promptly with the inquest on the assumption that the reasons for the crash will be determined by that report and so the issue can treated as outside the scope of the coronial investigation.

In this case the latter approach may have had some merit.  Whilst the judge was clear that the parties were not to be criticised for making their submissions to the coroner, nor for subsequently applying to the High Court. The effect of the consequent delay on the family of Joshua Gardener, as his mother pointed out in an email to the court, was that it was now nearly four years since Joshua’s tragic death and the inquest into that death had still not been held. The judge noted that there had been an understandable impact on his family’s ability to find closure after their loss.

The question remains whether an inquest that will not be empowered to investigate anything afresh can justify the delay whilst an AIB report is produced? The impact of delay  must be a significant consideration in cases where Art 2 procedural obligations are not engaged and the medical cause of a death is abundantly clear,  such that the coroner’s duty could be promptly fulfilled.



[1] R (Secretary of State) v HM Senior Coroner for Norfolk & another [2016] EWHC 2279 (Admin)

[2] Air Accidents Investigation Branch (AAIB), the Marine Accident Investigation Branch (MAIB) and the Rail Accident Investigation Branch (RAIB)

[3] HM Senior Coroner for West Sussex v Chief Constable of Sussex Police & others [2022] EWHC 215 (QB


[4] Save for one where the finding was framed as only a possibility.

[5] at §48

[6] per Lewison LJ in Volpi v Volpi [2022] EWCA Civ 464, §2(vi)

[7] As discussed in our earlier blog – see here

[8] Although your blogger observes that it would avoid such allegations if one referenced where the wording adopted had come from.