It is now six years since Singh J and the Lord Chief Justice considered the relationship between Accident Investigation Branch investigations (Rail, Air & Marine) and coroners’ inquests in ‘the Norfolk case’.[1] In that instance the issue was whether a coroner had the power to order the Air Accidents Investigation Branch (“AAIB”) to disclose a cockpit voice and flight data recorder. The Divisional Court said ‘no’. But that’s not important right now…

What was more interesting was what Singh J[2] said about a coroner – who was not an expert in the field – not being required or permitted to “go over the same ground” as an AIB. Lord Thomas agreed and bemoaned the tendency “for different independent bodies … to investigate, either successively or at the same time, the same matter.” He concluded that, if coroners did not defer to AIBs which had the greatest expertise, then public money would be wasted. In the absence of “credible evidence that the investigation into an accident is incomplete, flawed or deficient” then a coroner had no business re-investigating matters covered by the independent investigation of the AAIB.

What then should a coroner do in these circumstances? According to Lord Thomas either: (a) adjourn pending publication of the AIB report or (b) proceed on the assumption that the reasons for the crash will be determined by that report and the issue treated as outside the scope of the Inquest.

The Sandilands Tram Disaster

The Norfolk principles were tested in last year’s inquests into the deaths of seven people who died in the Sandilands tram disaster in Croydon in 2016. The tram derailed and overturned at a sharp bend in the track. It was the worst accident to occur on a British tramway for more than 90 years. The Rail Accident Investigation Branch (“RAIB”) investigation took 13 months to complete. The report ran to 180 pages, and that was only a summary of more detailed investigations and analysis.

The Senior Coroner for South London identified the Norfolk issue early in the pre-inquest review hearings and, with the agreement of all parties, called evidence before the jury to establish whether there was “credible evidence” that the RAIB investigation was “incomplete, flawed or deficient”. The court heard lengthy and detailed evidence from six inspectors from RAIB for more than two weeks. The Coroner permitted “uncompromising questions” by leading counsel instructed by the families and placed no significant restrictions on them.

The Coroner concluded that there was no credible evidence that the investigation into the accident was “incomplete, flawed or deficient” and therefore considered herself bound by the Norfolk case (or, if the comments were obiter, felt guided by an august court which she decided to follow).

The families of the deceased were not happy with this decision. It is not difficult to see why. Aren’t families supposed to be at the centre of the State’s investigation into the death of their loved ones? Families have no input or opportunity to participate in, or influence, AIB investigations. Is it right to hand over full responsibility to rail, air or maritime nerds – who do not have to reveal what interviewees told them – and exclude families in this way?

However, on a close reading of the Senior Coroner’s decision (here), it is difficult to find fault. In the final analysis, it is a brave decision because it represents an intellectually honest application of the law by a coroner who, one suspects, may not have been particularly enthusiastic about the guidance in the Norfolk case. Perhaps rightly, she felt that it was for the higher courts to decide that it should not be followed.

Shoreham Air Crash

A different tack was taken earlier this year when the Senior Coroner conducting the Shoreham Air Crash Inquests took a case to the High Court asking to be given access to the cockpit footage from the air crash that had already been shown in public at the pilot’s criminal trial. Rather that testing the AAIB’s evidence at the inquest itself, as the South London Coroner had done, the West Sussex Coroner considered that without the video and other material explored at the criminal trial she could not answer the question of whether the AAIB report was or was not flawed or incomplete. Yet again, she was told by the President of the Queen’s Bench Division: “At the level of principle, there should not be duplicative investigations whether or not there has been a criminal prosecution preceding an inquest”.[3]

The Sala inquest

Most recently at the inquest into the death of the Argentinian footballer, Emiliano Sala in March this year the Coroner did not question the ‘Norfolk’ principle but called an AAIB investigator to give oral evidence regarding the AAIB report’s conclusion of the cause of the crash. No further investigation was undertaken by the Coroner herself of what led to the crash. Nevertheless the inquest covered a lot of ground, investigating the market in the illegal provision of flights for reward on private aircraft or flown by pilots without an Air Operators Certificate. Evidence was given that this market particularly exists in the world of sport and music, with many flights not meeting the minimum safety standards for commercial operations. The Coroner was concerned that the CAA were restricted in their ability to access information to help identify the illegal flights that are taking place.[4]

The thin end of the wedge? 

Will coroners now face arguments that NHS Serious Incident Reports or Prisons and Probation Ombudsman Investigations are analogous to AIB reports and so coroners may not reinvestigate unless the Norfolk test is satisfied? We do not think so. AIBs are highly specialised organisations consisting of nationally and internationally recognised leaders in their field. Their investigations take months and involve meticulous analysis of the available evidence. The guidance in the Norfolk case is specifically directed only at Accident Investigation Branch reports: Rail, Air and Marine. Unless and until the higher courts decide to widen the ambit, the Norfolk principles will remain restricted to those organisations alone.

Scott Matthewson of Serjeants’ Inn Chambers was Counsel to the Inquest in the Sandilands Inquests. George Thomas of Serjeants’ Inn Chambers represented the British Transport Police.  In the Shoreham Aircrash High Court case Bridget Dolan KC and Alex dos Santos represented the Senior Coroner for West Sussex

[1] R (Secretary of State for Transport) v HM Senior Coroner for Norfolk [2016] EWHC 2279 (Admin) (see our earlier blog here).

[2][2] As he then was.

[3] Senior Coroner for West Sussex v (1) Chief Constable Sussex Police (2) Secretary of State for Transport (3) Mr Hill [2022] EWHC 215 (QB) (blog here)

[4] See the Dorset Senior Coroner’s report to prevent future deaths here.