Duplication in inquests
7 October 2016
The Divisional Court in R(Secretary of State) v Her Majesty’s Chief Coroner for Norfolk (British Airline Pilots intervening) – read judgment here – made some potentially noteworthy comments regarding the coronial role and the need to avoid duplicating previous investigations.
The case was largely about whether a Coroner could order disclosure of the transcript and/or recording from a cockpit flight recorder by virtue of her powers under the Coroners and Justice Act 2009. HM Senior Coroner for Norfolk was investigating the deaths of four men in a helicopter crash that had previously been investigated by the Air Accidents Investigation Branch (the AAIB).
The Divisional Court was obliged to consider the prohibition of such disclosure by the AAIB under the Chicago Convention (Convention on International Civil Aviation 1944), the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 (SI 1996 No. 2798) and the Council Directive 94/56/EC of 21 November 1994 establishing the fundamental principles governing the investigation of civil aviation accidents and incidents.
The Secretary of State argued that the powers of a Coroner under schedule 5 of the 2009 Coroners and Justice Act to order disclosure did not trump the prohibition originating in the Chicago Convention and binding as a result of EU law. Such disclosure could only be ordered by the High Court.
The Coroner argued that the starting point was the important duty which fell upon coroners to investigate certain deaths, including those where the Coroner has reason to suspect were “violent or unnatural.” This duty had 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. Accordingly the prohibition under English law of disclosure of the recording in the 1994 Regulations had been implicitly repealed by the 2009 Act. It could 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. Although the AAIB may have investigated matters with a view to ascertaining the cause or causes of an air accident, the circumstances of an individual death may in fact suggest that it was not accidental: it could have been the result of natural causes, such as a heart attack which the pilot suffered in the cockpit, or perhaps even suicide.
Singh J held that the only court that could order such disclosure was the High Court, unless the 2009 Act had altered the legal position that would otherwise apply as a result of EU law and the 1994 Regulations. He went onto hold as a matter of statutory interpretation that there was no suggestion that the 2009 Act had been intended to have such an effect. He held at §49 that:
“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.”
The Lord Chief Justice agreed with Singh J, and also added some significant comments regarding the scope of inquests at §§55-7:
“55. 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.
56…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.
57. 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  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.”
This case is likely to be very relevant to inquests where there is an argument about how wide and/or deep an investigation is required, particularly where there has been a previous independent external investigation into the same incident.