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Lord Advocate wins black box ruling

Published 19/06/2015

The Super Puma was carrying 16 passengers and two crew from the Borgsten Dolphin platform when it crashed into the sea on its approach to Sumburgh Airport
The Super Puma was carrying 16 passengers and two crew from the Borgsten Dolphin platform when it crashed into the sea on its approach to Sumburgh Airport

A court bid by Scotland's top prosecutor to obtain the black box from a helicopter which crashed off Shetland with the loss of four lives has been granted by a judge.

The Super Puma was carrying 16 passengers and two crew from the Borgsten Dolphin platform when it crashed into the sea on its approach to Sumburgh Airport.

Three men and one woman were killed in the accident on August 23 2013.

The Air Accidents Investigation Branch (AAIB) began an immediate investigation into the crash which has not been concluded.

The Lord Advocate, Frank Mulholland QC, went to the Court of Session in Edinburgh to ask for the black box - a combined voice and flight data recorder known as a CVFDR - to be made available to him and Police Scotland.

Prosecutors had formally asked the AAIB to make the recorder available to them for use in their investigations but the AAIB refused to do so in the absence of an order from the court.

The Lord Advocate's move was opposed by the British Airline Pilots Association (Balpa).

Judge Lord Jones today ruled that the black box should be made available.

He said: "I do not understand it to be suggested by the interested parties that, as a matter of generality ... it would be other than in the interests of justice that disclosure take place or that disclosure would not benefit the police enquiry."

He went on: "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 SARG (the Safety and Regulation Group) 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.

"For that reason, the disclosure of the CVFDR will bring benefits for the purpose of the Lord Advocate's investigation."

The judge attached seven conditions to the release of the information sought by the Lord Advocate, surrounding its use and return.

A Crown Office spokesman said: "We note the decision of the court."

The AAIB's role in the hearing was to assist the judge on the implications of releasing the data. As such, it is not in a position to appeal against the decision.

An AAIB spokesman said: "AAIB is prohibited by regulation from disclosing cockpit voice recorder data unless directed by a court. We will follow the judge's ruling."

Following the decision, Balpa said in a statement: "Pilots are concerned about the use of flight data for anything other than accident investigation but we are pleased that the court has imposed sensible conditions. The analysis of the data may be undertaken only under strict confidentiality as well as observing important non-disclosure and redaction caveats.

"Pilots remain concerned about the increasing tendency towards the criminalisation of accidents, and the potentially negative effect this could have on flight safety. Finding out exactly what caused an accident and improving safety to stop it happening again should be prioritised over criminal and other types of proceedings.

"Therefore we are reviewing the court order to assess whether to appeal."

Those who died in the crash were Duncan Munro, from Bishop Auckland, Co Durham; George Allison, from Winchester, Hampshire; Sarah Darnley, from Elgin, Moray; and Gary McCrossan, from Inverness.

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