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Cite as: [2016] EWHC 2279 (Admin)

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Neutral Citation Number: [2016] EWHC 2279 (Admin)
Case No: CO/181/2016

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
28/09/2016

B e f o r e :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE SINGH

____________________

Between:
The Queen
(on the application of the Secretary of State)
Claimant
- and -

Her Majesty's Senior Coroner for Norfolk
Defendant
-and-
British Airline Pilots Association

Intervener

____________________

Mr Keith Morton QC (instructed by Government Legal Department) for the Claimant
Ms Alison Hewitt (instructed under the direct access scheme) for the Defendant
Mr Martin Chamberlain QC and Mr Nicholas Yeo (instructed by Reynolds Dawson) for the Intervener
Hearing dates: 14 and 15 July 2016

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Singh :

    Introduction

  1. In this claim for judicial review the Secretary of State for Transport challenges various decisions of the Senior Coroner for Norfolk, by which (i) she ordered disclosure to her of a cockpit voice and flight data recorder ("CVFDR") and/or a full transcript of that voice recording; and (ii) she imposed a fine for non-compliance with those orders. The Secretary of State submits that the Coroner has no power to make such orders as a matter of law and that an order of the High Court is required before such disclosure can be made.
  2. The Coroner submits that she had the power to make the relevant orders by virtue of the Coroners and Justice Act 2009 ("the 2009 Act"), whatever the position may have been before that Act came into force.
  3. The submissions of the Secretary of State are supported in substance by the Intervener, the British Airline Pilots Association.
  4. At one time this case also raised the question whether, if an order of the High Court is required before such disclosure can be made, this Court should now require such disclosure. However, at the hearing before us it was made clear by Ms Alison Hewitt, who appeared on behalf of the Coroner, that such an application was no longer pursued: this is because the inquests in this case have already been concluded and there is no question of re-opening them. Accordingly this judgment will not consider that application further.
  5. The facts

  6. On 13 March 2014 a helicopter accident occurred near Gillingham Hall, Norfolk. An Augusta Westland AW139 G-LBAL crashed, resulting in the deaths of four men.
  7. On 8 October 2015 a report into the helicopter accident was produced by the Air Accidents Investigation Branch ("AAIB"), which is part of the Department for Transport.
  8. Inquests into the deaths were heard before the Coroner and a jury between 12 and 15 January 2016. In the period leading up to the inquests the Coroner ordered the AAIB and its Chief Inspector to disclose to her the CVFDR and/or a full transcript of the voice recording. The first notice requiring disclosure was dated 24 December 2015. Further notices were issued on 11, 12 and 13 January 2016.
  9. The AAIB submitted that the Coroner did not have the power to make such orders and invited her to revoke them. The Coroner rejected those submissions in rulings dated 7 January 2016, 11 January 2016 and 12 January 2016. She twice fined the Chief Inspector 100 for non-compliance with the notices.
  10. It is those notices requiring disclosure and the fines imposed on the Chief Inspector which are the subject of challenge in the present claim for judicial review.
  11. Material legislation

  12. The background to the relevant legislative scheme can be found in an international treaty: the Convention on International Civil Aviation, signed at Chicago on 7 December 1944 (Treaty Series No. 8 (1953)) (Cmd 8742). Often referred to as the Chicago Convention, this treaty has been updated from time to time. Of particular importance in the present context is Annex 13 to that Convention, which has the title 'Aircraft Accident and Incident Investigation.' Annex 13 is now in its 10th edition (2010), although at the hearing before this Court we were also shown the 9th edition (2001).
  13. Of particular relevance to this case is para. 5.12 of Annex 13. In the 9th edition, that stated as follows:
  14. "Non-disclosure of records

    5.12 The State conducting the investigation of an accident or incident shall not make the following records available for purposes other than accident or incident investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations:

    a) all statements taken from persons by the investigation authorities in the course of their investigation;
    b) all communications between persons having been involved in the operation of the aircraft;
    c) medical or private information regarding persons involved in the accident or incident;
    d) cockpit voice recordings and transcripts from such recordings; and
    e) opinions expressed in the analysis of information, including flight recorder information.

    5.12.1 These records shall be included in the final report or its appendices only when pertinent to the analysis of the accident or incident. Parts of the records not relevant to the analysis shall not be disclosed.

    Note.- Information contained in the records listed above, which includes information given voluntarily by persons interviewed during the investigation of an accident or incident, could be utilized inappropriately for subsequent disciplinary, civil, administrative and criminal proceedings. If such information is distributed, it may, in the future, no longer be openly disclosed to the investigators. Lack of access to such information would impede the investigation process and seriously affect flight safety." [Emphasis added]

  15. In the 10th edition para. 5.12 takes the following form:
  16. "Non-disclosure of records

    5.12 The State conducting the investigation of an accident or incident shall not make the following records available for purposes other than accident or incident investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations:

    a) all statements taken from persons by the investigation authorities in the course of their investigation;
    b) all communications between persons having been involved in the operation of the aircraft;
    c) medical or private information regarding persons involved in the accident or incident;
    d) cockpit voice recordings and transcripts from such recordings;
    e) recordings and transcriptions of recordings from air traffic control units;
    f) cockpit airborne image recordings and any part or transcripts from such recordings; and
    g) opinions expressed in the analysis of information, including flight recorder information.

    5.12.1 These records shall be included in the final report or its appendices only when pertinent to the analysis of the accident or incident. Parts of the records not relevant to the analysis shall not be disclosed.

    Note 1.- Information contained in the records listed above, which includes information given voluntarily by persons interviewed during the investigation of an accident or incident, could be utilized inappropriately for subsequent disciplinary, civil, administrative and criminal proceedings. If such information is distributed, it may, in the future, no longer be openly disclosed to the investigators. Lack of access to such information would impede the investigation process and seriously affect flight safety.

    Note 2. Attachment E contains legal guidance for the protection of information from safety data collection and processing systems.

    5.12.2 The names of the persons involved in the accident or incident shall not be disclosed to the public by the accident investigation authority." [Emphasis added]

  17. It will be apparent that there is no material difference between the 9th and 10th editions of Annex 13 for present purposes. Both make it clear that material such as that in issue in the present case (cockpit recordings and their transcripts) shall not be disclosed "for purposes other than accident or incident investigation" unless "the appropriate authority for the administration of justice" determines that "disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations."
  18. Part III of the Civil Aviation Act 1982 ("the 1982 Act") provides for the regulation of civil aviation. Section 60 of the 1982 Act confers power to make an Order in Council for carrying out the Chicago Convention, and any Annex thereto, relating to international standards and recommended practice and generally for regulating air navigation.
  19. The Air Navigation Order 2009 (SI 2009 No. 3015) ("the Air Navigation Order") was made under section 60. Part 19 prohibits certain behaviour, including endangering the safety of an aircraft: Article 137. Article 152 of the Air Navigation Order requires the use in certain circumstances of a flight data recorder, a cockpit voice recorder or CVFDR as specified in Schedule 4 to the Order. A public transport helicopter must carry a four channel cockpit voice recorder capable of recording and retaining the data required to determine, by reference to a time scale, matters including the flight path; speed; altitude; engine power; main rotor speed; and the position of the pilot's primary flight controls: Schedule 4, paragraph 4, aircraft (14), Scale SS.
  20. Section 75 of the 1982 Act has the sidenote 'Investigation of Accidents.' Without prejudice to section 60, it confers power to make provision for the investigation of any accident arising out of, or in the course of, air navigation and for carrying out any Annex to the Chicago Convention. Section 75(5) provides that any person who contravenes regulations made under that section shall be guilty of an offence.
  21. The Secretary of State has made regulations under section 75 of the 1982 Act about air accident investigations: the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 (SI 1996 No. 2798) ("the 1996 Regulations").
  22. The 1996 Regulations were originally made to implement the obligations of the United Kingdom under Council Directive 94/56/EC of 21 November 1994 establishing the fundamental principles governing the investigation of civil aviation accidents and incidents (OJ 1994 L319, p.14); and the international obligations of the United Kingdom under Annex 13 to the Chicago Convention.
  23. The 1994 Directive has now been repealed and replaced by Regulation (EU) No. 996/2010 of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation (OJ 2010 L295, p.35) ("the EU Regulation"), which came into force on 2 December 2010.
  24. Under Article 288(2) of the Treaty on the Functioning of the European Union, EU Regulations are directly applicable, in other words they generally become part of the domestic law of Member States even without the need for national implementing measures. But that does not mean that every provision of every EU Regulation is sufficiently precise to have direct effect: see Case C-403/98 Monte Arcosu [2001] ECR I-103. It is therefore not unusual for EU Regulations to be given effect in national law by specific implementing legislation. It is also not unusual for a later EU measure to be given effect in domestic law by earlier legislation: this may well happen where a Member State takes the view that its own domestic law already complies with the requirements of EU law.
  25. It is a fundamental feature of the Chicago Convention, the EU regime and the 1996 Regulations that investigations have a single object: the prevention of accidents and incidents. Their purpose is not to apportion blame or liability: para. 3.1 of Annex 13 to the Chicago Convention; Article 4(3) of the 1994 Directive; Article 5(5) of the EU Regulation; and Regulation 4 of the 1996 Regulations.
  26. In accordance with the 1996 Regulations such investigations are overseen by the Chief Inspector of Air Accidents: Regulation 8(1). The body of inspectors is the AAIB: Regulation 8(2).
  27. Regulation 9 of the 1996 Regulations sets out the powers of investigating inspectors for the purpose of enabling the carrying out of an investigation into an accident or incident. These include provisions for access to the site and to the debris and access to the flight recorders and any other recordings. The inspector has the power to examine witnesses (Regulation 9(1)(f)), for which purpose he has (under Regulation 9(2)) the powers to issue summonses and to require the persons summoned to answer any questions. Failure without reasonable excuse to comply with a summons is a breach of Regulation 17(2). Accordingly, the 1996 Regulations confer on the AAIB a power to interview under compulsion.
  28. The Chief Inspector of the AAIB must cause the report of an investigation into an accident or incident to be made public in the shortest time possible (and, if possible, within 12 months): Regulation 13. The report of an investigation into an incident shall protect the anonymity of the persons involved in the incident; and where appropriate contain safety recommendations. A safety recommendation shall in no case create a presumption of blame or liability for an accident or incident: Regulation 11.
  29. Of particular importance in the present case are two provisions: Article 14 of the EU Regulation and Regulation 18 of the 1996 Regulations.
  30. Article 14 of the EU Regulation

  31. Article 14 of the EU Regulation protects sensitive safety information from being made available or used other than as permitted under its provisions. It provides as follows:
  32. "Protection of sensitive safety information

    1. The following records shall not be made available or used for purposes other than safety investigation:

    (a) all statements taken from persons by the safety investigation authority in the course of the safety investigation;
    (b) records revealing the identity of persons who have given evidence in the context of the safety investigation;

    (c) information collected by the safety investigation authority which is of a particularly sensitive and personal nature, including information concerning the health of individuals;

    (d) material subsequently produced during the course of the investigation such as notes, drafts, opinions written by the investigators, opinions expressed in the analysis of information, including flight recorder information;

    (e) information and evidence provided by investigators from other Member States or third countries in accordance with the international standards and recommended practices, where so requested by their safety investigation authority;

    (f) drafts of preliminary or final reports or interim statements;

    (g) cockpit voice and image recordings and their transcripts, as well as voice recordings inside air traffic control units, ensuring also that information not relevant to the safety investigation, particularly information with a bearing on personal privacy, shall be appropriately protected, without prejudice to paragraph 3.

    2. The following records shall not be made available or used for purposes other than safety investigation, or other purposes aiming at the improvement of aviation safety:

    (a) all communications between persons having been involved in the operation of the aircraft;
    (b) written or electronic recordings and transcriptions of recordings from air traffic control units, including reports and results made for internal purposes;

    (c) covering letters for the transmission of safety recommendations from the safety investigation authority to the addressee, where so requested by the safety investigation authority issuing the recommendation;

    (d) occurrence reports filed under Directive 2003/42/EC.

    Flight data recordings shall not be made available or used for purposes other than those of the safety investigation, airworthiness or maintenance purposes, except when such records are de-identified or disclosed under secure procedures.

    3. Notwithstanding paragraphs 1 and 2, the administration of justice or the authority competent to decide on the disclosure of records according to national law may decide that the benefits of the disclosure of the records referred to in paragraphs 1 and 2 for any other purposes permitted by law outweigh the adverse domestic and international impact that such action may have on that or any future safety investigation. Member States may decide to limit the cases in which such a decision of disclosure may be taken, while respecting the legal acts of the Union.

    The communication of records referred to in paragraphs 1 and 2 to another Member State for purposes other than safety investigation and, in addition as regards paragraph 2, for purposes other than those aiming at the improvement of aviation safety may be granted insofar as the national law of the communicating Member State permits. Processing or disclosure of records received through such communication by the authorities of the receiving Member State shall be permitted solely after prior consultation of the communicating Member State and subject to the national law of the receiving Member State.

    4. Only the data strictly necessary for the purposes referred to in paragraph 3 may be disclosed." [Emphasis added]

  33. "Safety investigation" is defined in Article 1.14 as "a process conducted by a safety investigation authority for the purpose of accident and incident prevention which includes the gathering and analysis of information, the drawing of conclusions, including the determination of cause(s) and/or contributing factors and, when appropriate, the making of safety recommendations".
  34. Regulation 18 of the 1996 Regulations

  35. Regulation 18 of the 1996 Regulations protects "relevant records", which are defined in regulation 18(3) by reference to paragraph 5.12(a)-(e) of Annex 13 of the Chicago Convention. These cover broadly similar (though not identical) categories as are protected under Article 14 of the EU Regulation. Regulation 18 provides as follows:
  36. "Disclosure of relevant records

    18. (1) Subject to paragraphs (2) and (4) to (6) below no relevant record shall be made available by the Secretary of State to any person for purposes other than accident or incident investigation.

    (2) Nothing in paragraph (1) above shall preclude the Secretary of State making a relevant record available to any person where -

    (a) in a case where that person is a party to or otherwise entitled to appear at judicial proceedings, the relevant court has ordered that the relevant record shall be made available to him for the purpose of those proceedings, or
    (b) in any other circumstances, the relevant court has ordered that the relevant record shall be made available to him for the purpose of those circumstances.

    (3) In this regulation
    'judicial proceedings' includes any proceedings before any court, tribunal or person having by law power to hear, receive and examine evidence on oath,
    'relevant court' in the case of judicial proceedings or an application for disclosure made in England and Wales means the High Court, in the case of judicial proceedings or an application for disclosure made in Scotland means the Court of Session and in the case of judicial proceedings or an application for disclosure made in Northern Ireland means the High Court,
    'relevant record' means any item in the possession, custody or power of the Secretary of State which is of a kind referred to in sub-paragraphs (a) to (e) or paragraph 5.12 of the Annex; and
    'Secretary of State' includes any officer of his.
    (4) Subject to paragraph (6) below no order shall be made under paragraph (2) above unless the relevant court is satisfied that the interests of justice in the judicial proceedings or circumstances in question outweigh any adverse domestic and international impact which disclosure may have on the investigation into the accident or incident to which the record relates or any future accident or incident investigation undertaken in the United Kingdom.

    (5) A relevant record or part thereof shall not be treated as having been made available contrary to paragraph (1) above in any case where that record or part is included in the final report (or the appendices to the final report) of the accident or incident.

    (6) The provisions of this regulation shall be without prejudice to any rule of law which authorises or requires the withholding of any relevant record or part thereof on the ground that the disclosure of it would be injurious to the public interest." [Emphasis added]

    Coroners and Justice Act 2009

  37. Para. 2 of Sch. 5 to the 2009 Act provides that:
  38. "(2) A senior coroner who is conducting an investigation under this Part may by notice require a person, within such period as the senior coroner thinks reasonable -
    (a) to provide evidence to the senior coroner, about any matters specified in the notice, in the form of a written statement,
    (b) to produce any documents in the custody or under the control of the person which relate to a matter that is relevant to the investigation, or
    (c) to produce for inspection, examination or testing any other thing in the custody or under the control of the person which relates to a matter that is relevant to the investigation."

  39. This is subject to two exceptions, set out in para. 2(1), which provides:
  40. "A person may not be required to give, produce or provide any evidence or document under paragraph 1 if
    (a) he or she could not be required to do so in civil proceedings in a court in England and Wales, or
    (b) the requirement would be incompatible with an EU obligation."

  41. The Coroners (Inquests) Rules 2013 (SI 2013 No. 1616), rule 13(2)(d), require the coroner to provide to an interested person any document the coroner holds and considers relevant to the inquest. That is subject to rule 15, which empowers the coroner to refuse to provide a document sought under rule 13 in certain circumstances.
  42. The Secretary of State's submissions

  43. On behalf of the Secretary of State Mr Keith Morton QC submits that the Coroner had no power to issue the notices which she purported to in this case and that, consequently, she had no power to impose the fines which she did on the Chief Inspector. He submits that the AAIB is, as a matter of law, prohibited from disclosing the material ordered unless an application is made to the High Court and is granted by this Court. He submits that that is the effect of the carefully crafted code of legislation, which has its origins in international treaty law (namely Annex 13 to the Chicago Convention) and is binding as a matter of European Union Law: see the EU Regulation.
  44. Mr Morton submits that the general provisions of Sch. 5 to the Coroners and Justice Act 2009 do not "trump" the specific provisions of Regulation 18 of the 1996 Regulations nor Article 14 of the EU Regulation. He submits that the question of which person or body is the "authority competent to decide on disclosure of records" for the purposes of Article 14(3) of the EU Regulation is expressly said by that Regulation to be a matter for national law. The relevant national law, he submits, is to be found in Regulation 18 of the 1996 Regulations and clearly makes the relevant court, in England and Wales, the High Court. Similarly, in Scotland, the relevant court is the Court of Session. In Northern Ireland the relevant court is the High Court of Northern Ireland. Nowhere, submits Mr Morton, is there any legislation which confers the relevant power to order disclosure on the Coroner.
  45. Finally, and in any event, Mr Morton submits that, even if the Coroner on the face of it had the power asserted by virtue of para. 1 of Sch. 5 to the 2009 Act, one or both of the exceptions to be found in para. 2 of that Schedule would apply in the present context. He submits that the AAIB "could not be required" to provide the relevant material in civil proceedings in a court in England and Wales: see para. 2(1)(a) of Sch. 5. Alternatively, he submits that "the requirement would be incompatible with an EU obligation": see para. 2 (1)(b) of Sch. 5.
  46. On behalf of the British Airline Pilots Association Mr Martin Chamberlain QC supports those submissions made on behalf of the Secretary of State.
  47. The Coroner's submissions

  48. On behalf of the Coroner Ms Alison Hewitt submits that the starting point is the important duty which falls upon coroners to investigate certain deaths, including those where the Coroner has reason to suspect were "violent or unnatural." She submits that this important duty has been further underlined by the impact of the Human Rights Act 1998, in particular the procedural obligation which can arise under Article 2 of the Convention rights if there is evidence to show that the state may have breached one or more of the substantive duties owed to the deceased: see R (Middleton) v HM Coroner for the Western District of Somerset [2004] 2 AC 182. As is well-known, in that case the House of Lords to some extent extended the scope of the Coroner's functions, beyond what had been said by the Court of Appeal in R v HM Coroner for North Humberside and Scunthorpe, ex p. Jamieson [1995] QB 1, at 26.
  49. Ms Hewitt submits that the provisions of Sch. 5, in particular para. 1, are sufficiently wide to include the material ordered for disclosure in the present context. She submits that any public interest concerns are capable of being addressed in the exercise which the Coroner herself may have to perform, pursuant to para. 1(5) of Sch. 5 to the 2009 Act. Furthermore, she submits that the exceptions in para. 2(1) can, in principle, cater for any interests in non-disclosure which may need to be protected. However, she submits that neither sub-para. (a) nor sub-para. (b) of that paragraph is applicable in the present context. She submits that the argument by the Secretary of State is circular in so far as it relies on sub-para. (b), because, on her submission, the Coroner has been made the relevant court for the purpose Article 14 of the EU Regulation. This is the consequence of national law: she submits that national law is no longer contained for this purpose only in the 1996 Regulations but has been altered by Parliament in enacting the 2009 Act.
  50. On the facts of the present case, Ms Hewitt submits that it can be particularly relevant and important to a Coroner's investigation to have access to the contemporaneous record of what occurred, in particular the CVFDR and/or transcript of that voice recording. She submits, for example, that although the AAIB may have investigated matters with a view to ascertaining the cause or causes of an air accident, the facts of an individual death may in fact be that it was not accidental: it may have been the result of natural causes, such as a heart attack which the pilot suffered in the cockpit, or perhaps even suicide.
  51. Ms Hewitt submits that the Coroner cannot delegate her functions to any other body such as the AAIB. That is axiomatic and is common ground.
  52. Finally Ms Hewitt relies upon the decision of Baker J in Worcestershire County Council and Worcestershire Safeguarding Children Board v HM Coroner for Worcestershire [2013] EWHC 1711, in which it was said that disclosure to a coroner is a two stage process. At the first stage the Coroner alone considers the material for relevance. At the second stage, if the Coroner wishes (on the ground of relevance) to make further disclosure to interested persons or release the material into the public domain, objection to such disclosure can be considered. Ms Hewitt submits that, in those circumstances, the Coroner could properly refuse an application for disclosure to an interested person under rule 15(a) of the Coroners (Inquests) Rules 2013. However, she accepts that this submission necessarily entails that there would be disclosure to the Coroner herself at stage 1 of that process.
  53. Analysis

  54. In my view, there can be no doubt that, leaving aside the 2009 Act, the only court which would have the power to make the sort of orders under challenge in this case is (in England and Wales) the High Court. That is the clear effect of Regulation 18 of the 1996 Regulations.
  55. Ms Hewitt sought to resist that clear conclusion. She submitted that the Coroner is not a "person" for the purposes of Regulation 18(1) of the 1996 Regulations. I do not accept that submission. In my view, the natural meaning of the word "person" includes the Coroner. In an appropriate context, that word can include a judge or other judicial office holder. For example, in the context of divorce proceedings, it was held that the words "any person", in section 10 of the Matrimonial Causes Act 1950, "clearly include the trial judge": see Middlebrook v Middlebrook [1964] P 262, at 264 (Wrangham J). I see no reason to take a different view in the case of a coroner.
  56. In any event, I accept the submission made by Mr Chamberlain that the use of the word "person" has no relevance to the interpretation of the EU Regulation: Article 14(1) makes no reference to any "person" but rather prohibits disclosure for "purposes" other than safety investigation. In my view, there is no conflict between the two pieces of legislation but, even if there were, it is the EU Regulation which would have to prevail.
  57. Accordingly, I start from the premise that the clear legal effect of the EU Regulation and the 1996 Regulations is that the Coroner would have had no power to make the orders she purported to make in the present case. The issue which the case raises is whether that clear legal position has been altered by the 2009 Act. The answer to that issue depends upon the correct interpretation of the powers of coroners, in particular as set out in Sch. 5 to the 2009 Act.
  58. The first point to note in the present context is that the 2009 Act sought to remedy the mischief that, in the past, coroners had lacked the power to order disclosure of any document at all. If disclosure was required for the discharge of a coroner's functions, an application had to be made to the High Court. That mischief was remedied by Parliament in enacting Sch. 5 to the 2009 Act. However, Sch. 5 is expressed in general terms and has nothing specific to say about the particular context with which the present case is concerned. I accept Mr Morton's submission that the general words of Sch. 5 cannot override the specific legislation which governs the present context. This is particularly so when that specific legislation is itself the product of a carefully crafted code which has been enacted so as to give effect in domestic law to obligations imposed on the United Kingdom by international treaty and by EU law.
  59. Furthermore, as Ms Hewitt fairly conceded at the hearing before this Court, there is nothing to be found in the admissible legislative history prior to the enactment of the 2009 Act which would suggest that it was the intention of Parliament in any way to interfere with that code. Certainly no such material was drawn to our attention. This is not surprising because the many reports which led up to the enactment of the 2009 Act were concerned with other problems which the Act then sought to address. As I have said, in the present context, the principal mischief sought to be remedied by Parliament was the absence of any power on the part of the coroner to order disclosure of any documents for the purpose of discharging his or her important functions.
  60. It is also important to recall that the legislation in the present context is one that applies throughout the United Kingdom and not just a constituent part of it. It applies in Scotland and Northern Ireland as it applies to England and Wales. This is important because, as Ms Hewitt concedes, the 2009 Act does not affect the equivalent of the Coronial jurisdiction in Scotland. Accordingly, in Scotland the position remains, on any view, that the relevant court which has power to do the balancing exercise under Article 14 of the EU Regulation is the Court of Session. In Northern Ireland the relevant court would be the High Court. In the context of England and Wales, I can see no sensible reason why Parliament should have intended to enact inadvertently it would seem, on Ms Hewitt's submission a measure which has a radically different effect from that in other parts of the United Kingdom.
  61. Furthermore, the High Court in England and Wales is well used to dealing with international obligations such as those to be found in Annex 13 to the Chicago Convention. It would be surprising, in my view, if Parliament had intended to effect a radical alteration to the law in this area, so as to confer that important jurisdiction on what is, with respect, a relatively lower judicial office.
  62. Finally, in my view, it is important to emphasise that there is no public interest in having unnecessary duplication of investigations or inquiries. The AAIB fulfils an important function in that it is an independent body investigating matters which are within its expertise. I can see no good reason why Parliament should have intended to enact a legislative scheme which would have the effect of requiring or permitting the Coroner to go over the same ground again when she is not an expert in the field. The Coroner's functions are of obvious public importance in this country and have a long pedigree. In recent times they have to some extent been extended, as Ms Hewitt has reminded this Court, in order to ensure compliance with the procedural obligations which may be imposed on the state by Article 2 of the Convention rights. However, none of that, in my view, points to, still less requires, an interpretation of Sch. 5 to the 2009 Act which would have the effect for which Ms Hewitt contends. On the Secretary of State's interpretation, there will still remain the possibility of disclosure being ordered but that disclosure can only be ordered by the High Court, which must weigh the different public interests in the balance, as required by Regulation 18 of the 1996 Regulations.
  63. I turn to the submission made by Mr Morton on behalf of the Secretary of State, and supported by Mr Chamberlain, that both of the exceptions in para. 2 of Sch. 5 to the 2009 Act apply to the present context.
  64. I would not be inclined to accept that the exception in sub-para. (a) is applicable. I do not think that the material whose disclosure was ordered in this case was such that disclosure "could not be required" in civil proceedings. This is because the legislative scheme in this field itself envisages that there may be circumstances in which the High Court can order such disclosure. Mr Morton and Mr Chamberlain submit that "could not be required" should be interpreted to mean "could not be required without an order of the High Court" but, for my part, I am doubtful that is the right construction. I am inclined to think that it means "could not be required at all."
  65. However, it is unnecessary to reach a final view about this because there can be no doubt, in my view, that the exception in sub-para. (b) is applicable: the disclosure ordered would constitute a breach of an obligation imposed by EU law. This is because Article 14 of the EU Regulation, when read with the 1996 Regulations, stipulates that disclosure can only be ordered by (in England and Wales) the High Court.
  66. Conclusion

  67. For the reasons that I have given I would grant this claim for judicial review by the Secretary of State and quash both the notices issued by the Senior Coroner for Norfolk and the fines imposed by her on the Chief Inspector.
  68. Lord Thomas of Cwmgiedd CJ:

  69. I agree.
  70. 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.
  71. The circumstances of the present case provide an illustration of what in many cases will be the better approach. There can be little doubt but that the AAIB, as an independent state entity, has the greatest expertise in determining the cause of an aircraft crash. In the absence of credible evidence that the investigation into an accident is incomplete, flawed or deficient, a Coroner conducting an inquest into a death which occurred in an aircraft accident, should not consider it necessary to investigate again the matters covered or to be covered by the independent investigation of the AAIB. The Inquest can either be adjourned pending the publication of the AAIB report (as the Memorandum of Understanding between the Coroners Society and the AAIB and others dated May 2013 (MoU) suggests) or proceed on the assumption that the reasons for the crash will be determined by that report and the issue treated as outside the scope of the Inquest.
  72. It should not, in such circumstances, be necessary for a coroner to investigate the matter de novo. The coroner would comply sufficiently with the duties of the coroner by treating the findings and conclusions of the report of the independent body as the evidence as to the cause of the accident. There may be occasions where the AAIB inspector will be asked to give some short supplementary evidence: see, for example, Roger v Hoyle [2015] QB 265 at paragraph 94. However, where there is no credible evidence that the investigation is incomplete, flawed or deficient, the findings and conclusions should not be reopened. It is clear that the terms of the Coroners (Inquests) Rules 2013 require some further elucidation to set out clearer provisions to deal with these issues; no doubt the Chief Coroner can in conjunction with the Coroners' Society and other interested parties consider what is necessary. It would also be desirable for the Chief Coroner to reconsider the terms of the MoU with the AAIB in the light of the judgments in this case and for the future be responsible for the guidance and arrangements contained within the MoU.


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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/2279.html