The protection of ‘just culture’ is given a very high priority by the law. So said Mr Justice Edis when delivering judgment earlier this week in a High Court application by the BBC and the Press Association to access cockpit footage of the Shoreham Airshow accident of 2015.
In 2016, BALPA successfully intervened in High Court proceedings to oppose an attempt by the police to force the AAIB to give them witness statements and expert reports from its accident investigation. BALPA’s reason for doing this was not specific to the facts of that accident but arose from a wider concern that, if things said to the AAIB as part of a ‘just culture’ accident investigation process were to find their way into the hands of the police, the chilling effect on future cooperation with AAIB investigations would be very damaging to flight safety. In 2016, the judges agreed with BALPA and refused to let the police see the statements and expert reports held by the AAIB. The only evidence which was disclosed to the police was footage from a GoPro camera installed in the cockpit – even this was to be treated on a strictly controlled and confidential basis by the police.
Subsequently, the decision was made to prosecute the pilot and this prosecution has received wide coverage in the media. He denies 11 counts of manslaughter and his trial, before an Old Bailey judge and jury, is due to conclude in mid-March. The jury have been shown the cockpit footage and it will be relied on by both the prosecution and defence.
On the first day of the criminal trial, a joint application was made to the trial judge by the BBC and the Press Association who want to broadcast the cockpit footage as part of their coverage of the trial. They cited a long-established legal principle of open justice and the desirability of their being able to broadcast material seen by a jury as part of responsible and well-informed reporting of an important criminal trial. BALPA became aware of this application the day before it was due to be heard and immediately assembled a legal team to respond. An urgent application was made by BALPA to intervene in the proceedings in order to oppose disclosure. The judge agreed to allow BALPA to take part and gave all parties seven days to submit evidence. This culminated in a day-long hearing at the Old Bailey in front of the trial judge on 23rd January involving a hard-fought legal argument between barristers for the press and BALPA. Although the AAIB were represented, they adopted a neutral stance.
The judge agreed with BALPA’s arguments and refused disclosure of the cockpit footage to the press. The full judgment can be read here. In summary, the judge recognised that AAIB material, such as the cockpit footage, enjoys stringent legal protections under international, EU and UK law. This material cannot be disclosed to anyone outside the AAIB unless the High Court so orders and, even then, an order can only be made where the High Court considers that the benefits of disclosure outweigh the adverse domestic and international consequences disclosure would have on future accident investigations. BALPA argued that allowing cockpit footage of an aircraft accident to be released to the media, thereby putting is permanently and indelibly on the internet, would undermine confidence in the AAIB and discourage pilots from creating such footage, which is of obvious potential value to accident investigators. The judge said:
‘It is important to the maintenance Approved Judgment BBC & Press Association v. Secretary of State of Transport & others of effective air safety investigation that pilots understand that material they supply to the AAIB will remain with the AAIB, and that there is likely to be a strong reaction among pilots to this material being played on television and newspaper websites and thereafter available forever on the internet. This is an adverse impact which needs to be weighed against the benefit of open justice.
‘I am not satisfied that the benefit of disclosure to the media outweighs the adverse impact on future safety investigations it will have. It is a matter of real importance that the international air investigation world accepts that the UK complies with its obligations under Annex 13, and treats those obligations seriously.’
This is an important test case which further enshrines the protection of AAIB investigations and ‘just culture’ in English law. It will be highly influential in jurisdictions throughout the world as the vast majority of nations are signatories to the Chicago Convention, on which this ruling is based. The English courts are leading the development of this area of international law, due largely to the activities of BALPA. Colleagues throughout the world have been watching this case closely.
This experience demonstrates that BALPA has the capability to mount effective interventions in important legal cases to protect flight safety. No other trade union or aviation body was arguing against disclosure. BALPA’s voice carries real weight on issues of flight safety and we have shown that we have the inclination and ability to use it. BALPA’s mission is ‘To make every flight a safe flight’. Those aren’t just words to BALPA. We act on them.
Posted on 01 February 2019