Guidance

CPS MoU - Annex B AIB limitations on disclosure

Published 15 April 2019

1. Annex B - Accident Investigation Branches (AIBs) limitations on disclosure

This Annex summarises some of the key provisions of the AIBs’ individual legal regimes in respect of their relevance to the Crown Prosecution Service (CPS) and thus highlights where there are differences between them. It focuses on some key items of “protected material”; that is material which cannot be disclosed without an order of the relevant court (High Court for the Air Accidents Investigation Branches (AAIB) and Marine Accident Investigation Branch (MAIB), Crown Court or High Court for the Rail Accident Investigation Branch (RAIB)). It also identifies some areas of AIB discretionary disclosure. The relevant legislation is listed at the end of the Annex.

The Annex does not set out the full detail of legal requirements or exemptions, and endeavours to summarise a complex set of provisions. Reference should always be made to the relevant regulations if a more comprehensive understanding of their provisions is required.

1.1 General Data/Factual Material/Electronic Data

All AIBs – Protected material

• Statements
• Identities of witnesses to the event
• Medical records
• Draft reports

AAIB only – Protected material

• Records revealing the identity of persons who have given evidence in the context of the safety investigation including third party experts
• Cockpit video and image recordings and transcripts, air traffic control recordings, flight data recorders
• All communications between persons having been involved in the operation of the aircraft
• Information collected by the AAIB which is of a particularly sensitive or personal nature

(Article 14(1) and (2) of EU 996/2010; regulation 25 SI 2018/321)

AAIB only - Discretionary disclosure

Factual material which does not fall under Article 14 and proceedings of the investigation may be disclosed provided that their disclosure does not compromise the objectives of the investigation

(Article 15(4) EU 996/2010; regulation 26 SI 2018/321)

MAIB only – Protected material

• The names, addresses or other details of anyone who has given evidence to an inspector
• Correspondence between Chief Inspector and parties involved in investigation
• Communications between those involved in operation of ship
• Photographs and recordings made by inspectors

(Regulations 13(1) and 13(2) SI 2012/1743)

1.2 MAIB only - Discretionary disclosure

Chief Inspector may disclose information obtained from a voyage recorder or other recording system to the police or other authorities

(Regulation 13(7) SI 2012/1743)

RAIB only – Protected material

• The name, address or other information of anyone who has provided to the Branch a statement or declaration or other note or record relating to the statement or declaration (or who has indicated that he will do so), unless the person consents to disclosure. (RAIB are not under any obligation to seek that consent.)
• Working documents of the Branch

(Regulation 10(2)(b) and 10(3)(e) SI 2005 No.92)

RAIB only - Discretionary disclosure

May publish or make available for inspection any evidence or information it may acquire during the course of an investigation where such disclosure would not obstruct it in its general aims and provided it is not protected material which is covered by regulation 10(2) and (3)

(Regulation 10(1)(a) SI 2005/1992)

1.3 Expert reports/inspector opinions and notes

All AIBs – Protected material

In some cases, expert reports are specifically protected, but where that is not the case, there may be limitations on disclosure where they contain protected material

AAIB only – Protected material

Material subsequently produced during the course of the investigation, including:

• notes, drafts and opinions written by investigators
• opinions expressed in the analysis of information, including flight recorder information

(Article 14(1)(d) EU 996/2010)

MAIB only – Protected material

• Inspectors’ opinions expressed in the analysis of information
• Notes made by an inspector, whether written or held electronically

(Regulation 13(2) SI 2012/1743)

MAIB only – Discretionary disclosure

Chief Inspector may disclose independent technical analysis including opinions expressed in such analysis.

(Regulation 13(4) SI 2012/1743)

RAIB only – Protected material

Opinions of and notes made by inspectors or persons appointed to conduct investigation which are unsubstantiated by evidence.

(Regulation 10(3) SI 2005/1992)

RAIB only – Discretionary disclosure

Chief Inspector may disclose third party expert reports where doing so would not obstruct the general aims of the Branch.

(Regulation 10(1)(a) SI 2005/1992)

1.4 Information provided by individuals/bodies from other countries

AAIB only – Protected material

Information and evidence provided by investigators from other Member States or third countries in accordance with the international standards and recommended practices, where so requested by their safety investigation authority.

(Article 14(1)(e) EU 996/2010)

MAIB only – Protected material

All correspondence between Chief Inspector and parties involved in investigation.

(Regulation 13(2)(e) SI 2012/1743)

RAIB only – Protected material

No express protection relating to point of origin, but all other protections apply.

(SI 2005/1992)

1.5 Legislation

EU 996/2010 Regulation (EU) 996/2010 of the European Parliament and of the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation, as amended.

SI 2018/321 The Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2018(https://www.legislation.gov.uk/uksi/2018/321/made?view=plain)

SI 2012/1743 The Merchant Shipping (Accident Reporting and Investigation) Regulations 2012, as amended.

SI 2005/1992 The Railways (Accident Investigation and Reporting) Regulations 2005, as amended.