R (on the application of Secretary of State for Transport) (Claimant) v HM Senior Coroner for Norfolk (Defendant) & British Airline Pilots Association (Intervener) [2016] EWHC 2279 (Admin)
Readers of the UK Inquest Law Blog need no reminding that prior to the Coroners and Justice Act 2009, coroners had no power to order disclosure of any document so that if disclosure was required, an application had to be made to the High Court. The immediate point for the Divisional Court to decide in this case was the correct interpretation of the powers of coroners to require a person to produce documents (paragraph 2 of Schedule 5 of the 2009 Act).
The involvement of the Lord Chief Justice indicates that there is a point of general importance.
The disclosure issue
The inquest was into the deaths of four men in a helicopter accident in March 2014. In October 2015 a report into the accident was produced by the Air Accidents Investigation Branch (“the AAIB”) which is part of the Department of Transport and inquests were heard in January 2016.
In the weeks running up to the inquest, the coroner issued a number of notices requiring the AAIB and its Chief Inspector to disclose to her the cockpit voice and flight data recorder and/or a transcript of the recording. Disclosure was not made and the coroner twice fined the Chief Inspector £100 for non-compliance with the notices.
The legislative scheme underpinning the AAIB is complicated, will concern Brexiteers in years to come and is not the point of this post. Suffice it to say that it runs gamut of black letter law from treaty obligations under the Convention on International Civil Aviation (the 1944 Chicago Convention), the Civil Aviation Act 1982, the Civil Aviation (Investigation of Air Accident and Incidents) Regulations 1996 (SI 1996 No 2798) and, importantly, Regulation (EU) No. 996/2010 on the investigation and prevention of accidents and incidents in civil aviation.
The Court found that the legal effect of the EU Regulation and the 1996 Regulations was that the coroner had no power to make the disclosure orders she purported to make. That clear legal position was not altered by the 2009 Act because the general words of Schedule 5 do not override the specific legislation governing the investigation of air accidents and incidents. It would be surprising, said Singh J, if Parliament had intended to effect a radical alteration to the law in this area, so as to confer that important jurisdiction on what he described as “a relatively lower judicial office”.
The point of general public importance
Paragraph 49 of Singh J’s decision begins:
“Finally, in my view, it is important to emphasise that there is no public interest in having unnecessary duplication of investigations or inquiries.”
This is the point of general importance giving rise to the Lord Chief Justice’s involvement. His decision runs to four paragraphs the first of which states:
“I consider it important to underline the significance of paragraph 49 of the judgment of Singh J in the light of the submission made to us on behalf of the coroner that she had a duty to conduct a full inquiry into the accident as a death had occurred during the accident. The submission reflected the tendency in recent years for different independent bodies, which have overlapping jurisdictions to investigate accidents or other matters, to investigate, either successively or at the same time, the same matter. On occasions each body considers that it should itself investigate the entirety of the matter rather than rely on the conclusion of the body with the greatest expertise in a particular area within the matter being investigated. The result can be that very significant sums of money and other precious resources are expended unnecessarily.”
He went on to say that the case being decided provided “an illustration of what in many cases will be the better approach”.
Unless there is credible evidence that the independent investigation is “incomplete, flawed or deficient”, the better approach is (paragraphs 56 and 57) for a coroner:
1. Not to investigate the matter de novo.
2. Either to adjourn the inquest pending publication of the independent report or alternatively (and in the case of the AAIB there is a memorandum of understanding between the Coroners Society and the AAIB) to proceed on the assumption that the reasons for the accident or incident will be determined by the report and treated as outside the scope of the inquest.
3. To treat the findings and conclusions of the independent body as “the evidence as to the cause of the accident” supplemented, if necessary by, short additional evidence from the inspector.
It is clear that the Lord Chief did not intend his remarks to limited to inquests into air accident deaths. Rather, his expectation is that they will be heeded and considered in situations where there are “different independent bodies” investigating and where only one of them will be “the body with the greatest expertise”.
The word “independent” is key.
Some deaths will give rise to a formal, institutional investigation by a body that is not independent. One thinks immediately of a Serious Untoward Incident report commissioned by a hospital, CCG or NHS Trust which yields a report. The body seeking the report is unlikely to be either independent or the body with the greatest expertise. And ensuring that the investigation is led by someone external to the institution where the incident took place is unlikely to make the report itself an independent source of evidence. Such a report will not have special, determinative status in regard to the cause of the incident or accident.
On the other hand, police reports into road fatalities and reports produced by the Prisons and Probation Ombudsman, the Rail Accident Investigation Branch and the Independent Police Complaints Commission are all likely to be regarded as independent. Treating the findings and conclusions of such bodies as “evidence as to the cause of the accident” ought to shorten some inquests and reduce the number of issues to be decided.
Ousting the status of the report as the sole or best source of evidence as to cause will depend on showing that it is incomplete, flawed or deficient. An interested party seeking to so persuade a coroner will need to provide credible evidence of or otherwise point convincingly to a defect or lacuna in the investigation process or the report’s reasoning.