“there was no new and significant evidence of cognitive impairment” and that “the findings of the (2017) AAIB investigation remain valid”
“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. … 4. Only the data strictly necessary for the purposes referred to in paragraph 3 may be disclosed.”
“3.1.4 In addition, and in agreement with Standard 5.12.5 of Annex 13, the public disclosure of highly sensitive accident and incident investigation records, such as audio content of cockpit voice recordings and image and audio content of airborne image recordings, must be prevented. The objective of preventing the public disclosure of those records is not only for safety enhancement but also to prevent privacy violation of persons involved and ensuring moral dignity (see section 3.5 for more details)”. “3.3.21 Standard 5.12 of Annex 13 does not protect every record associated with an accident or incident investigation. So, there is a need to confirm the status of the record to determine its level of protection. For instance, CVRs and AIRs recordings as well as their transcripts, contemplated in Standard 5.12, a), are protected no matter who has possession of the recording or transcript. The protection afforded to CVRs and AIRs is based on the fact that these records are extremely sensitive and critical for the investigation. In fact, these types of recordings were installed onboard originally for accident and incident investigation purposes. The recordings usually contain some of the most critical information which help investigators understand how an accident or incident occurred. Any action that jeopardizes the future availability of this information jeopardizes aviation safety.” “3.3.22 The records in Standard 5.12, b) are treated differently and the protections only apply when these records are in the custody or control of the accident investigation authority.”
“States shall take measures to ensure that audio content of cockpit voice recordings as well as image and audio content of airborne image recordings are not disclosed to the public.”
“that the benefits of the disclosure of the record concerned outweigh the adverse domestic and international impact which the disclosure might have on the safety investigation to which the record relates or any future safety investigation.”
“49. 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 byArticle 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.”
“80. First, the Report is, as I would hold, admissible evidence. It is also of particular potential value on account of (i) the independence of the AAIB; (ii) the fact that its reports will be the product of an impartial investigation into the causes of the accident by experts who are not concerned to attribute blame and in whose investigations injured passengers and the families of deceased passengers do not actively participate; and (iii) the fact that it has a much greater ability than anyone else to obtain and analyse data relating to an accident which is likely not otherwise to be available or only with considerable difficulty and at considerable cost. The circumstances in which it is appropriate to exclude evidence that is admissible and likely to be helpful must be limited. For the judge to be denied sight of a report of this character – authoritative, independent, prompt and detailed – and for any experts called to be unable to refer to it in court, when it is freely available to the public, is difficult to justify. Some measure of the value of AAIB reports is to be found in the fact that, according to the evidence of Mr Healy-Pratt, AAIB reports have been routinely referred to and used as evidence in English litigation; their use considerably assists the efficient and speedy resolution of claims; and the majority of potential civil claims arising from civil aviation accidents settle on the basis of AAIB reports.”
“There was no evidence of any g-related impairment of the pilot during the aerobatic sequence flown. If the pilot was unwell before the accident, it was not established in what way he was unwell or when the onset of any condition was first experienced”
“The g experienced by the pilot during the manoeuvre was probably not a factor in the accident.”
“7. The cause of the Hunter crashing including: • the extent to which, if any, the pilot’s conscious and deliberate conduct caused or contributed to the crash; • the extent to which, if any, the pilot suffered a cognitive impairment which affected his flying abilities; • the extent to which any cognitive impairment found to have arisen caused or contributed to the crash.”
“24. Dr Mitchell postulates three key contributory factors in relation to the Shoreham crash: “(i) The (almost uniquely) poor visibility from the Hunter T7 cockpit due to the canopy structure; and (as a consequence) the requirement, unlike other aircraft types, for significant head movement in order to maintain the visual reference in specific situations. (ii) The layout of the Shoreham display area, including unusual ‘avoidance’ areas, requiring adaptation of a typical display sequence, and necessitating atypical head movements to ensure compliance. (iii) Research conducted into the effects of +Gz on pilots being predominantly in centrifuges under academic conditions, specifically where the subject sits head upright and facing forward.” 25. However, he asserts that the non-G force related factors effecting [sic] the Shoreham pilot cannot be fully explored since the evidential material is protected by the AAI Regulations. Dr Mitchell’s substantive conclusions are, he states, restricted by the evidence that can be referenced by him. 26. The AAIB’s submissions to me in June 2019 stated that “in respect of any issue of cognitive impairment suffered by the pilot, in the event that the Senior Coroner is in possession of relevant evidence that was not before the AAIB, the Coroner will need to decide whether the test set out by Lord Thomas is met”
“There has as yet been no determination in any investigation as to what, on the balance of probabilities, led to the plane being flown as it was. Mr Hill’s defence at the criminal trial was that he had suffered a cognitive impairment, but his acquittal by the jury did not depend on the proof of an affirmative proposition to any standard. The AAIB Report reached no conclusion as to what probably occurred. As the AAIB later summarised the position “the AAIB investigation considered possible reasons why the pilot entered and continued the accident manoeuvre, but could not determine which of these was the case. It found no evidence for cognitive impairment but did not rule it out.”
“First, the report is, as I would hold, admissible evidence. It is also of particular potential value on account of (1) the independence of the AAIB; (2) the fact that its reports will be the product of an impartial investigation into the causes of the accident by experts who are not concerned to attribute blame and in whose investigations injured passengers and the families of deceased passengers do not actively participate; and (3) the fact that it has a much greater ability than anyone else to obtain and analyse data relating to an accident which is likely not otherwise to be available or only with considerable difficulty and at considerable cost.”
“55. If it were possible to establish that the mechanism for cognitive impairment proposed by Dr Mitchell were plausible, it would simply become another possible mechanism for an impairment of which there was no evidence. By analogy, as revealed in the Supplement, it was in theory possible, at the margins of current aeromedical understanding, for an individual human to be affected by the levels of Gz likely to have been experienced by the pilot during the accident display. However, as an outlier, it was considered unlikely in this case. Dr Mitchell’s theory, if plausible, would have the same character – it might be possible but would not change the balance of expert opinion on the available evidence. 56. Dr Mitchell has said that he requires the protected material to complete his analysis. However, completing his analysis would not resolve the matter of whether on the balance of probabilities the pilot was cognitively impaired – it would simply add a possibility of something for which there is no evidence. Consequently, access to the protected material sought cannot resolve the matter any more finely than has already been achieved in an 18-month specialist investigation by the State Authority, dedicated to that purpose.” (3). Third, on the evidence before us the protected material would not in fact enable Dr Mitchell to reach a conclusion that was more complete. We note that the Mitchell Paper states: “This paper is incomplete and is significantly impeded in being unable to provide substantive conclusions supported by clear evidence”
“The evidence available to the AAIB could not provide direct evidence of impairment.”