26th September 2018
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Pilots’ union opposes Lord Advocate’s challenge over black box

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A pilots’ union has warned a bid by Scotland’s senior law officer to gain access to black box data from the Sumburgh helicopter crash would have “an adverse impact on future investigations into civil aviation accidents, incidents and occurrences in general”.

The Lord Advocate, Frank Mulholland QC, has gone to the Court of Session in Edinburgh seeking disclosure of the information from the Super Puma flight that crashed in the North Sea two years ago claiming the lives of four offshore workers.

But the move is opposed by the British Airline Pilots’ Association (Balpa) in a unique hearing in the Scottish courts.

The helicopter, which had 18 people on board, crashed about two miles west of Sumburgh airport as it flew into Shetland from the Borgsten Dolphin platform.

The Air Accidents Investigation Branch (AAIB) of the Department of Transport recovered the cockpit voice recorder and flight data recorder information but has refused to make the material available without a court order.

Police have been attempting to get an expert opinion on the manner of flying of the helicopter but the procurator fiscal has been told that for it to be of value the expert must have access to information, including the cockpit voice recorder and flight data recorder, it is said.

Balpa claims that any benefit arising from granting such an order is outweighed by the adverse domestic and international impact such action may have on the investigation into the crash or any future safety investigation.

Andrew Brown QC, for the Lord Advocate, said the court was required to carry out a balancing of the competing interests.

Mr Brown told Lord Jones that the Crown was keen to discover, if possible, the most accurate evidence available in relation to the circumstances of the crash of the helicopter.

The Lord Advocate maintains that given the serious consequences of the crash a thorough and effective investigation by the procurator fiscal and police is in the public interest.

Balpa claims that the high importance of the public interest in maintaining confidence of all those involved in the aviation industry requires full and accurate reporting to and cooperation with the relevant regimes.

“It is essential that the crew of aircraft involved in accidents and incidents have the confidence to provide information during and after accidents and incidents without having concerns that information they provide will be used against them in a criminal investigation.

“The disclosure of the cockpit voice recordings and flight data sought … would have an adverse impact on future investigations into civil aviation accidents, incidents and occurrences in general.”

Aidan O’Neill QC, for the union and helicopter pilots, said: “The investigation of the fatal accident is not being impeded by waiting for AAIB reports.”

Mr O’Neill said there was “no suggestion or hint that a crime has been committed here”.

The senior counsel said “a culture of openness” was fostered so that when an incident or accident in the aviation industry occurred complete information can be obtained.

Mr O’Neill characterised it as “a culture of sharing information without fear of reprisals”.

“There is a presumption against this evidence, the best evidence, being made available to bodies and institutions other than the air accident investigation bodies,” he said.

Mr Brown maintained that granting the court move would mean that the parallel investigation by the Scottish authorities would not be delayed.

Lord Jones reserved his ruling in the case and said he would give a decision as soon as he could.