Judge grants order for disclosure of flight data recorder from Super Puma helicopter involved in North Sea crash

A judge in the Court of Session ruled that the CVFDR should be made available to the Crown Office and Procurator Fiscal Service and Police Scotland – subject to certain conditions – for the purposes of investigating the circumstances of the accident and whether to launch a prosecution.

Lord Jones granted the order for disclosure in terms of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 after being satisfied that the investigation by the Lord Advocate Frank Mulholland QC was “both in the public interest and in the interests of justice”.

The court heard that on 23 August 2013, an AS332 Super Puma helicopter took off from the Borgsten Dolphin semi-submersible drilling platform with two flight crew and 16 passengers on board, but crashed an hour and five minutes later while on its approach to Sumburgh Airport in the Shetland Islands.

The Air Accidents Investigation Branch of the Department for Transport (AAIB) immediately began an investigation into the accident and in October 2013 it reported that the wreckage examination and analysis of recorded data had not revealed any evidence of a technical fault “that could have been causal to the accident”, but the investigation has not been concluded.

The Procurator Fiscal formally requested that the AAIB make available the CVFDR for use in his investigation, but the AAIB has refused to do so in the absence of an order from the court, under reference to the provisions of article 14 of Regulation EU 996/2010 on the Investigation and Prevention of Accidents and Incidents in Civil Aviation.

The Lord Advocate thereafter petitioned the court to pronounce an order to ordain the Secretary of State for Transport to make the CVFDR available to him and Police Scotland.

It was averred on behalf of the Lord Advocate that in the apparent absence of any technical fault, Police Scotland asked the Safety and Regulation Group (SARG) of the Civil Aviation Authority (CAA) to provide an expert opinion on the performance of the flight crew of G-WNSB during the accident flight and that the CVFDR would provide an understanding of events in the minutes leading up to the crash, including any observations made by the flight crew.

Neither the Advocate General as the representative of the Secretary of State, nor the aircraft operator CHC Scotia Limited (CHC) – on whom the petition was served – entered an appearance, but the British Airline Pilots Association (BALPA), the aircraft commander and the co-pilot joined the process as interested parties to oppose the application.

The interested parties said that the international civil aviation safety system provided for in the Chicago Convention and the international legislation flowing from it “derives its efficacy from the investigation and analysis of feedback and lessons learned from accidents and incidents.”

It was argued that it was essential that the crew of aircraft involved in incidents and accidents “have the confidence to provide information during and after accidents and incidents without having concerns that information they provide will be used against them in a criminal investigation.”

BALPA argued that “if air accident investigators are routinely required to disclose relevant records such as the cockpit voice recorder, this will have a serious and adverse impact on our ability to effectively investigate future accidents and incidents”.

But the judge said accident investigators “cannot be required routinely to disclose cockpit voice recordings” and can only be ordered to do so in a particular case if the tests laid down by the 1996 Regulations and the EU regulation are met. He added that his decision in this case would set “no precedent”.

The central issue for the court was whether the public interest in the disclosure of the CVFDR outweighed any adverse domestic and international impact that such action may have on this or any future safety investigation.

In a written opinion, Lord Jones said: “In my judgment, there is no doubt that the Lord Advocate’s investigation into the circumstances of the death of each of those who perished in this case is both in the public interest and in the interests of justice.

“The cockpit voice recording and the flight data recording which the Lord Advocate seeks to recover will provide relevant, accurate and reliable evidence which will enable SARG to provide an expert opinion of value to assist him in his investigation of the circumstances of the death of the four passengers whose lives were lost, and his decision whether and, if so, against whom to launch a prosecution.

“For that reason, the disclosure of the CVFDR will bring benefits for the purpose of the Lord Advocate’s investigation.”

The judge granted the order in terms of regulation 18(3) of the 1996 Regulations, subject to the certain conditions, in order to address concerns expressed by the interested parties, and to comply with the terms of the EU Regulation.