Scottish Court Orders Release of Sumburgh Helicopter CVFDR
A Scottish Court has ordered that the UK Air Accidents Investigation Branch (AAIB) release the combined Cockpit Voice and Flight Data Recorder (CVFDR) from a fatal 2013 AS332L2 Super Puma offshore helicopter accident at Sumburgh to prosecutors, who will use the Civil Aviation Authority (CAA) to “provide an expert opinion on the performance of the flight crew…during the accident flight”. In his judgement in the Court of Sessions in Edinburgh, Lord Jones stated that this would not form a precedent but that:
…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.
On 23 August 2013 AS332L2 Super Puma G-WNSB impacted the sea on approach to Sumburgh Airport in the Shetland Islands. The CHC helicopter, chartered by Total, was making a 2 sector flight to Aberdeen from the Borgsten Dolphin drilling rig. The helicopter capsized and four passengers died, the first fatalities in a survivable water impact of a helicopter on the UK Continental Shelf since the Cormorant Alpha accident in 1992.
This accident was at least partially responsible for triggered a number of initiatives and reports including:
- The Joint Operators Review (JOR) review and the formation of HeliOffshore.
- A CAA Review, which resulted in the CAP1145 report (‘Safety review of offshore public transport helicopter operations in support of the exploitation of oil and gas’).
- A House of Commons Transport Committee report on offshore helicopter safety.
The AAIB have yet to issue their final report but they have issued three Special Bulletins:
- S6/2013 dated 5 Sept 2013 (basic initial information)
- S7/2013 dated 18 Oct 2013 (covered an overview of the evidence gathered, including an FDR trace, plus a recommendation on airport sea rescue capability)
- S1/2014 dated 23 Jan 2014 (contained a recommendation related to passenger briefing on emergency breathing systems)
Although part of the United Kingdom, Scotland has its own legal system, with distinct legal and organisational differences to the other UK jurisdictions. The Crown Office and Procurator Fiscal Service (COPFS), headed by the Lord Advocate, are the Scottish prosecution service. In Scotland, the local Procurator Fiscal can direct police investigations, though normally this only occurs in large and complex cases. They are also “responsible for the investigation of the circumstances of a death in Scotland which is sudden, suspicious or unexplained, has occurred in circumstances such as to give rise to serious public concern, or has resulted from an accident while the person who has died was in the course of his or her employment” (in accordance with the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976).
In April 2013 all the regional Scottish police services were merged into one national service, Police Scotland, second only to London’s Metropolitan Police in size in the UK. A fatal accident involving a helicopter operated on charter to Police Scotland is currently under investigation by the AAIB. That aircraft was not fitted with either a CVR or FDR, nor was it required to be by regulation or contract. Both COPFS and Police Scotland report to the Scottish Government.
The AAIB investigate aviation accidents to improve aviation and not to apportion blame or liability. A Memorandum of Understanding exists between the AAIB, the Marine Accidents Investigation Branch (MAIB), the COPFS and the Association of Chief Police Officers in Scotland (which ceased to exist on the formation of Police Scotland) on how they work together.
Remarkably the Police request was initially not for the CVFDR. On 22 January 2014 Police Scotland requested that helicopter operator, CHC, provide Flight Data Monitoring (FDM) data from the crew members’ previous two approaches to Sumburgh. The request was coincidentally made half-way through the Fatal Accident Inquiry into another North Sea helicopter accident (G-REDL). It appears that CHC choose to abide by their FDM agreement with the pilots union BALPA that restricts the distribution and use of FDM data. The Police choose not to pursue the FDM data but seek the CVFDR.
Consequently the Lord Advocate petitioned the Court of Sessions (the supreme civil court of Scotland) for an order, in terms of The Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 to make the CVFDR available. Regulation 18 of that act deals with such disclosures. BALPA and the crew joined the process as interested parties, to oppose the application.
The case was heard by the Honourable Lord Jones, a former RAF Phantom pilot. Lord Jones explains that:
In the apparent absence of any technical fault, Police Scotland has asked SARG [i.e. the Safety and Airspace Regulation Group of the CAA] to provide an expert opinion on the performance of the flight crew of G-WNSB during the accident flight.
Lord Advocate produced a letter, dated 19 February 2014 (coincidentally the day before the issue of CAP1145), from the CAA’s Group Director of SARG, Mark Swan, that according to Lord Jones, states that for the CAA to provide such an opinion they would need access to CVFDR and other data. Lord Jones goes on to explain that the Procurator Fiscal had requested that the AAIB make available the CVFDR but:
The AAIB has refused to do so in the absence of an order from the court, under reference to the provisions of paragraphs 1 and 2 of article 14 of Regulation EU 996/2010 on the Investigation and Prevention of Accidents and Incidents in Civil Aviation (“the EU Regulation”).
Article 14(1) and (2) protects a number of categories of specific records which “shall not be made available or used for purposes other than safety investigation”. However Article 14(3) does state that a court:
…may decide that the benefits of… disclosure… 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.
Article 14(4) limits this to only the data “strictly necessary” for the purposes referred to in Article 14(3) should be disclosed. The hearing therefore had to determine if it was in the public interest to release the CVFDR. Lord Jones also reveals that:
On 18 and 19 September 2013, the aircraft operator sent data, which had been recovered from the flight data recorder, to Police Scotland. The AAIB has subsequently advised the operator and Police Scotland that, in its view, such disclosure was contrary to the EU Regulation.
That release occurred coincidentally less than a week before CAA announced the review that resulted in CAP1145 and three weeks after they released a statement on 30 August 2013:
We have reviewed and assessed the evidence available, including the information already published by the Air Accident Investigation Branch and detailed information provided to us by the operators. Our team of specialists includes pilots who are experienced in flying the Super Puma AS332 L2 in the North Sea environment. Based on all the information currently available, we do not believe that the accident was caused by an airworthiness or technical problem, and consider that the decision by the operators to resume Super Puma flights is appropriate.
At that time, a week after the accident, there was considerable concern in the offshore workforce and there had been a temporary suspension of operating the aircraft type.
The Secretary of State for Transport and the AAIB choose not to participate in the hearing in Edinburgh but a letter was submitted by their legal representative which discussed the role of the AAIB, ICAO Annex 13 of the Chicago Convention, the relevant legislation and the possible effects on AAIB investigations of data release. Lord Jones states:
The letter concludes with the proposition that, if disclosure of voice records is regularly ordered, that would undermine the aviation community’s faith in the confidentiality and purpose of the voice recording. It is noted that the assured independence of the AAIB encourages full and frank cooperation on the part of all those able to assist ongoing investigations and that the information obtained is kept confidential for the same reasons. The view is expressed that, undermining either of these aspects, “is likely to adversely impact on AAIB’s ability to investigate future incidents”.
Four affidavits were also received. Affidavits were requested from the CAA and AAIB and one was submitted at the request of BALPA and the crew by a well respected expert on helicopter FDM. The fourth affidavit was a correction of a technical error by the CAA.
After consideration Lord Jones states:
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 [CAA] 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. It is important to stress that the analysis of the recordings in the CVFDR for the purposes of its opinion will be carried out by personnel within SARG who have the expertise and experience necessary for the performance of these tasks.
He made the following conditions:
(i) The CVFDR is to be made available to the Crown Office and Procurator Fiscal Service acting under the direction of the Lord Advocate (“COPFS”) and Police Scotland for the purposes of downloading and analysis by avionics and flight operations specialists.
(ii) Following the granting of the order by the court, Police Scotland will take possession of the CVFDR and will retain overall control and responsibility for it until its return to AAIB.
(iii) Downloading of the CVFDR data will be undertaken by suitably-qualified parties selected by COPFS. Analysis of the data will be undertaken by the Safety and Airspace Regulation Group (“SARG”) of the Civil Aviation Authority and suitably qualified experts appointed by the Lord Advocate on the advice of SARG.
(iv) The CVFDR is to be returned to Police Scotland once downloading and SARG’s analysis is complete. It is to be returned to AAIB at the conclusion of any legal proceedings to follow.
(v) The results of the analysis and any subsequent expert opinion are to be treated by SARG and any other parties involved in the downloading and analysis as confidential and not disclosed to any third party other than COPFS and Police Scotland.
(vi) Once transmitted to COPFS and Police Scotland, the results of the analysis and the opinion are to be accorded the same level of confidentiality as a precognition, other than in compliance with the provisions of Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010.
(vii) In the event that it is decided that the cockpit voice recording or a transcript of the cockpit voice recording is to be produced in any criminal prosecution or in a fatal accident inquiry, it is to be redacted so as to ensure that information not relevant to the prosecution or inquiry, particularly information with a bearing on personal privacy, is not disclosed.
Pilots are concerned about the use of flight data for anything other than accident investigation but we are pleased that the court has imposed sensible conditions.
Pilots remain concerned about the increasing tendency towards the criminalisation of accidents… we are reviewing the court order to assess whether to appeal.
Lord Jones explains that:
Accident investigators cannot be required “routinely” to disclose cockpit voice recordings. They 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. Each case will turn on its own facts and circumstances. If these tests are met, it is the duty of the court to order disclosure. My decision in this case will create no precedent.
He notes that:
…over the past 20 years, four fatal accidents had occurred in Scotland, involving aircraft fitted with cockpit voice recorders and flight data recorders. No attempt was made by the Lord Advocate to recover voice or data recordings from any of the aircraft involved.
This begs the question: why this time? He states that this request was made:
….in the circumstance of this case, where the AAIB has reported that it had found no evidence that the accident had been caused by any technical fault. Although some work remained to be completed, 20 months have passed with no further bulletin having been issued suggesting that a technical fault may have been causally connected with the accident. As is pleaded in the petition, Police Scotland’s investigation is being undertaken “in the apparent absence of any technical fault.”
This section of the judgement, and the COPFS approach to the AS332L G-REDL accident (where the decision not to prosecute was made before key witnesses had been interviewed), have the odd effect of suggesting that ‘technical faults’ don’t involve possible blame / criminal liability but ‘non-technical’ faults may well do. Equally the attention on the CVFDR, of all the various records protected by Article 14 of Regulation EU 996/2010 (and earlier on the FDM data), suggests narrow attention on front line personnel.
This narrow and outdated approach to accident analysis could mark a considerable backward step for aviation safety.
In 2006 the Flight Safety Foundation (FSF), the Royal Aeronautical Society (RAeS), the Academie Nationale de L’Air et de L’Espace (ANAE) and the Civil Air Navigation Services Organisation (CANSO), issued a joint resolution “decrying the increasing tendency of law enforcement and judicial authorities to attempt to criminalize aviation accidents, to the detriment of aviation safety”.
Alexander ter Kuile, of CANSO said:
The aviation industry is the most labour-intensive safety operation in the world, and human error is a rare but inevitable factor in the safety chain. Prosecuting basic human error is a grave mistake, as punishment should be reserved for those who are breaking the law.
Keith Mans of the RAeS said:
Authorities should be focusing on gathering all the facts and evidence from those involved and encouraging pilots, air traffic controllers, mechanics, design engineers, managerial officers, and safety regulatory officials to come forward and admit any mistakes without fear of retribution.
Since 2006 the signatories have expanded to include the International Society of Air Safety Investigators (ISASI), European Regions Airline Association (ERA), the Professional Aviation Maintenance Association, and the International Federation of Air Traffic Controllers Associations.
The joint resolution makes five main points:
1) Declares that the paramount consideration in an investigation should be to determine the probable cause of the accident and contributing factors, not to criminally punish individuals.
2) Declares that, absent acts of sabotage and willful or particularly egregious reckless conduct, criminalization of an accident is not an effective deterrent or in the public’s best interest.
3) Urges States to exercise far greater restraint and adopt stricter guidelines before officials initiate investigations or bring criminal prosecutions in the wake of aviation disasters.
4) Urges States to safeguard the safety investigation report and probable cause/contributing factors conclusions from premature disclosure and direct use in civil and criminal proceedings. It also criticized prosecutorial use of relatively untrained and inexperienced “experts,” which can lead to “technically flawed analyses, a miscarriage of justice, and interference with official accident inquiries.”
5) Urges accident investigating authorities to assert strong control over the investigation, free from undue interference from law enforcement, invite international cooperation in the investigation, conduct investigations deliberately and avoid a “rush to judgment,” ensure the free flow of essential safety information, and address swiftly any acts or omissions in violation of aviation standards.
There are occasionally cases were clear examples of wrongdoing, such as falsification of safety critical data for financial gain (e.g. the recent trial of a US helicopter company executive after an overloaded helicopter crashed during fire fighting mission killing 9 people), do deserve prosecution. But these are rare.
It would be unfortunate if an understandable desire to confirm, based on the data available, the continued airworthiness of an aircraft type (for example), creates an environment where front line personnel feel they need to concentrate on defending themselves from potential criminal charges rather then systemically improve aviation safety and helping prevent future accidents.
However we must stress that at this time that COPFS, who organise Fatal Accident Inquiries as well as being a prosecutor, is simply investigating the circumstances of the accident. A positive at least is they have recognised that amateur assessment of aviation accidents data is inappropriate.
The CAA Board discussed the case in January 2015 making the following comment about supporting COPFS:
…assistance had been agreed by Mr Haines [Chief Executive] with Mrs Staples [General Counsel and Secretary] and Mr Swan [Director SARG] and reflected what was considered by them to be an appropriate response to the request, in terms of assisting a police investigation rather than seeking to influence a particular outcome.
Once the CVFDR is released the CAA will be in an interesting position. They need to be scrupulous in ensuring any knowledge gained from the AAIB investigation is not used in their analysis as that data remains protected by Article 14 of Regulation EU 996/2010 for safety purposes only (a real challenge with only a small pool of suitable specialists). They will then have to demonstrate that their analysis of flight crew performance is fair and unbiased (including being uninfluenced by hindsight bias, potentially heighted by intense re-examination of offshore helicopter safety since this accident).
UPDATE 7 July 2015: BALPA have announced they intend to appeal (an “application to reclaim” to the Inner House), with Jim McAuslan, BALPA General Secretary saying:
There is a broader issue of public interest at stake here. Pilots are concerned the open safety culture it has taken decades to create, would be threatened if safety data is used to assign blame without air accident investigation specialists being given the time, space and resources to carry out their work fully. While the judge recognised he had a balancing act to perform, and that flight safety was important, we are not convinced he got the balance right in this case.
UPDATE 20 July 2015: This important appeal is due to be heard on 1 December 2015, nearly 2 years after access to the data was first requested.
UPDATE 20 August 2015: The Coroner’s Inquest for a British Army Air Corp AgustaWestland Lynx AH9A helicopter (ZF540) Controlled Flight Into Terrain (CFIT) accident in Afghanistan on 26 April 2014 is due in November 2015. At a preparatory hearing the families had their request to hear the CVR refused by the MOD, who cited the need to retain such recordings for the exclusive use of accident investigators.
UPDATE 27 October 2015: The BBC report that BALPA have dropped their appeal. In the Aberdeen Evening Express BALPA are quoted as saying:
Given that in this case the AAIB has now completed the substantive part of its investigation and issued its draft report to interested parties for comment, BALPA will no longer contest the court’s ruling that limited Cockpit Voice Recorder and Flight Data Recorder data may be released early to the Lord Advocate.
UPDATE 1 November 2015: In an article that went to press just before BALPA dropped the appeal, Greg Marshall of teh Flight safety Foundation (FSF) discussed: Just Culture in Accident Investigation
[It is not] to say that flight crew are, or should be, held to be above the law. After all, the philosophy of a just culture, which recognizes a few exceptions in which deterrent punishments may be warranted, is no longer new and is becoming increasingly accepted.
But the practice of using FDR/CVR recordings for purposes other than those for which they were intended is anathema to the principles embodied in current air safety investigations conducted in a just manner.
UPDATE 15 March 2016: AAIB Report on 2013 Sumburgh G-WNSB AS332L2 Helicopter Accident (Hawker Hunter T7 G-BXFI)
UPDATE 22 March 2016: A new court case is commencing in connection with data from the Shoreham air display accident.
UPDATE 28 September 2016: The High Court has only agreed to the release of Go-Pro type film footage from within the aircraft (subject to a number of conditions). Sussex Police had applied for the disclosure of:
- Statements made by the pilot to the Air Accidents Investigation Branch in response to discussions or interviews;
- Film footage of the flight which was made by cameras which had been installed on the aeroplane in question on a voluntary basis; and
- Material which has been produced by various other people subsequently, such as experiments conducted and tests done on various aspects of the accident.
A spokesperson for the Air Accidents Investigation Branch said:
The AAIB is not able to release protected air accident investigation records of its own accord. Only the High Court can allow for their release. We note today’s judgement and will now release the film footage to the Chief Constable of Sussex Police.
See full court judgement here.
UPDATE 29 September 2016: Voice and flight data recordings from the accident to AW139 G-LBAL (which we have previously discussed) will remain confidential, the High Court has ruled:
During an inquest earlier this year, the coroner demanded disclosure of the helicopter’s cockpit voice and data recorder.
The AAIB refused to comply and the coroner issued two £100 fines against the body’s chief inspector.
But Mr Justice Singh has said there would be no “public interest” in disclosing the information.
The judicial review challenge was upheld and the disclosure orders and fines were overturned.
UPDATE 20 October 2016: See this legal analysis: Stephen Spence dissects two recent High Court cases relating to the disclosure of ‘protected material’ held by the AAIB. Note it does incorrectly refer to the ‘Glasgow helicopter’ when it should say ‘Sumburgh’.
UPDATE 27 January 2017: A court application is made for access to the CVR from a Canadian HEMS accident by a federal health and safety agency: ORNGE chopper crash investigators want access to cockpit recording