Top legal officer can access crash copter’s black box data, judge rules

A judge has granted a bid by Scotland’s senior law officer to get access to black box data from the helicopter which crashed off Sumburgh, claiming the lives of four people.

The Lord Advocate, Frank Mulholland QC, had sought court authority to make the combined voice and flight data recorder (CVFDR) available to him in a move opposed by the pilots’ union, Balpa.

In a judgment issued today, Lord Jones said he would grant the order and would make it available to the Crown Office and police with conditions attached.

The judge 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 the Safety and Regulation Group (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,” he said.

Lord Jones said he accepted that SARG could not provide expert opinion to aid the police and Crown Office which was “of value” without carrying out a flight specialist analysis of the data from the Super Puma involved in the crash.

He added: “Accordingly, I hold that those data are strictly necessary for the purposes of the police investigation.”

The judge said he was satisfied that disclosure in this case will have no adverse domestic or international impact on the current investigation or on any future safety investigation.

He said that although he would make an order for the Transport Secretary to make the black box, which was recovered by the Air Accidents Investigation Branch (AAIB), available conditions would be attached.

They include that Police Scotland will take possession of the CVFDR and retain overall control and responsibility for it until it is returned to the AAIB.

He said the results of analysis and any expert opinion following on were to be treated as confidential and only disclosed to the Crown Office and police.

The helicopter, with two crew and 16 passengers on board, crashed on 23rd August in 2013 about two miles west of Sumburgh as it was coming in from the Borgsten Dolphin drilling platform which lay about 240 miles east of Aberdeen.

Sarah Darnley, 45, from Elgin, Gary McCrossan, 59, from Inverness, Duncan Munro, 46, from Bishop Auckland and George Allison, 57, from Winchester, all died in the crash.

The AAIB began an immediate investigation, but this is not yet concluded, the Court of Session in Edinburgh heard.

Lord Jones was told that 78 hours of flight data and two hours of audio recording was subsequently downloaded. The audio material included communications between the commander and co-pilot, radio transmissions and passenger announcements.

But the judge said such recordings also capture “ambient sounds” which may be important to an investigation, such as a change in engine note.

The AAIB has issued three bulletins over the accident, one of which reported that wreckage examination and recorded data analysis had not shown any evidence of a technical fault that could have caused the accident, although some work remained to be completed.

The Lord Advocate said that in the apparent absence of any technical fault the police had asked SARG to provide an expert opinion on the performance of the flight crew.

A formal request was made to the AAIB to make the CVFDR available for the investigation, but it said a court order would be required.

Aidan O’Neill QC, for the pilots’ union, told the court at an earlier hearing that “a culture of openness” was fostered so that when an incident or accident occurred in the aviation industry complete information could be obtained. He said there was a culture of sharing information without fear of reprisals.

Lord Jones said accident investigators cannot be required routinely to disclose cockpit voice recordings and such a move can only be ordered in a particular case if the tests laid down in regulations were met.

The judge said his decision in the present case would not create a precedent.

The development comes in the same week that crash survivors lodged claims seeking millions of pounds in damages from helicopter operator CHC.