Disclosure of Aircraft Flight and Cockpit Voice Data Recorder Information to the Procurator Fiscal in Scotland

Following an accident of a Super Puma helicopter off Sumburgh in the Shetland Islands and prior to the publication of the final AAIB report into this accident, 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, for the purposes of investigating the circumstances of the accident and whether to launch a prosecution. This ruling was sought by the Lord Advocate in Scotland who petitioned the Court of Sessions in Edinburgh to order the disclosure of flight data and cockpit voice recordings, as recorded on the CVFDR, both in the public interest and in the interests of justice; a copy of the petition can be read here

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 granting of the petition is at odds with International Civilian Aviation Organisation (ICAO) Annex 13 "Aircraft Accident and Incident Investigation" which states:

"Non-disclosure of records

5.12 The State conducting the investigation of an accident or incident shall not make the following records available for purposes other than accident or incident investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations:

a) All statements taken from persons by the investigation authorities in the course of their investigation;
b) All communications between persons having been involved in the operation of the aircraft;
c) Medical or private information regarding persons involved in the accident or incident;
d) Cockpit voice recordings and transcripts from such recordings;
e) Recordings and transcriptions of recordings from air traffic control units;
f) Cockpit airborne image recordings and any part or transcripts from such recordings; and
g) Opinions expressed in the analysis of information, including flight recorder information.

5.12.1 These records shall be included in the final report or its appendices only when pertinent to the analysis of the accident or incident. Parts of the records not relevant to the analysis shall not be disclosed."

The Air Safety Group believes that bypassing long standing accident investigation protocols and practices can only undermine and severely damage the 'just' safety culture - of which aviation is rightly proud. This culture is the jewel in our industry's crown of safety and it is perhaps the main reason why aviation, as a form of transport, remains so statistically safe.

Unless this legal decision is reversed, 'open reporting' and honesty in investigations, which form the bedrock upon which our 'just culture' is based, will be set back many decades and the long-term flight safety of 'the many' will be compromised for the marginal short-term benefit of 'the few'.

Air Safety Group
1 Aug 2015