A Coroner’s power to order disclosure of documents: what happens when independent bodies have overlapping investigatory jurisdictions?

Articles | Wed 12th Oct, 2016

Helen Pooley looks at the High Court decision in 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).

The Air Accident Investigation Branch (“AAIB”) had investigated and reported on a helicopter crash in which four people had died. During the inquests for the four deaths, the coroner ordered disclosure of the recording and/or a transcript of the cockpit voice and flight data recorder. When no such disclosure was made, the Coroner fined the AAIB for non-compliance.

The Secretary of State applied for judicial review of a decision of the Defendant Coroner to order disclosure of the material, and her subsequent decision to impose a fine for failing to make such disclosure.

The Arguments

The Secretary of State argued that the coroner had no power to order disclosure of the recording as the regulations governing investigation of air accidents and incidents prohibited such disclosure of sensitive safety information. The relevant regulations were The Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 (“the 1996 Regulations”).  He argued that the Coroners and Justice Act 2009 (“CJA 2009”) ,the legislation under which the coroner had purported to make the disclosure order, did not alter that position.

The Coroner argued that she had power to make such an order for disclosure by virtue of the CJA 2009. The power under Schedule 5 of the CJA 2009 was sufficiently wide to include the material ordered for disclosure in the present context. Furthermore, on the facts of the present case, it was submitted on behalf of the Coroner 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.

The relevant law

Para. 2 of Sch. 5 to the CJA 2009 provides that:

“(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.”

This is subject to two exceptions, set out in para. 2(1), which provides:

“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.”

The issues

The two questions answered in the judgment are these:

1. What was the default position as to who was able to order disclosure under the 1996 Regulations?
2. Did the CJA 2009 alter this default position?

The first question is clearly specific to this particular case. The answer to the second question is likely to have a broad applicability to coroner’s powers in general and the way in which inquests are conducted.

Who had the power to order disclosure of the material?

In relation to issue one, the High Court held that the only court with power to make the relevant orders for disclosure under the 1996 Regulations was the High Court. The Coroner was merely a ‘person’ to whom disclosure of the relevant records was restricted under the 1996 regulations. This had to be the default position.

Did the CJA 2009 alter this default position? – a wider analysis of the powers of Coroners

The second issue was whether the 2009 Coroners Act altered this default position. The answer to that issue depended upon the correct interpretation of the powers of Coroners, in particular as set out in Sch. 5 to the 2009 Act.

In exploring this, the High Court commented that the 2009 Coroners Act had sought to remedy the mischief that coroners had previously lacked power to order disclosure of any document at all. That mischief had been remedied by Schedule 5 of the 2009 Act.

The High Court found that Schedule 5 was expressed in general terms and was not capable of overriding the specific legislation (the 1996 Regulations) in the instant case.  The court stated that there was nothing to suggestion it had been Parliament’s intention to interfere with the 1996 Regulations, which were the product of a carefully crafted code which give effect to obligation impose by an international treaty and EU law.

Implications of this decision – a change in the way in which investigations are carried out by independent bodies?

The wider point made in this judgment was that there was no public interest in unnecessary duplication of investigations. There was no reason why Parliament would have intended the Coroner to go over the same ground as the AAIB. When independent bodies have overlapping investigatory jurisdictions, it would not generally be necessary for each body to investigate the entirety of the matter – instead, they would rely on the conclusion of the body with the greatest expertise in a particular area.

Coroners will comply sufficiently with their duties by treating the conclusions of the independent body as the evidence as to the cause of the accident:

“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.” – judgment of Lord Thomas of Cwmgiedd CJ

The other important reasoning behind this decision, of course, is that two independent bodies carrying out the same investigation , either successively or at the same time, results in resources being expended unnecessarily. The High Court was keen to emphasise a change was required in terms of the way in which accident investigations are carried out by different independent bodies:

“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.” – judgment of Lord Thomas of Cwmgiedd CJ.