Policy paper

Memorandum of Understanding between AIBs and Chief Coroner

Published 26 October 2017

Applies to England and Wales

1. Introduction

This Memorandum of Understanding (MoU) has been agreed between the Air Accidents Investigation Branch (AAIB), the Marine Accident Investigation Branch (MAIB), the Rail Accident Investigation Branch (RAIB), (the AIBs) and the Chief Coroner of England and Wales [the parties]. It sets out the principles for co-operation between these parties so that deaths resulting from air, railway and marine accidents can be investigated thoroughly and independently by each party. This MoU takes into account relevant legislation, and the parties’ respective roles and responsibilities. The parties realise that each has different roles and responsibilities in relation to an accident that has resulted in the death of a person or persons. The parties agree to review the MoU every five years, or more frequently if the need arises.

The MoU recognises that coroners are independent judicial officers, that the AAIB, MAIB and RAIB are independent safety investigation authorities; all parties have duties in relation to investigating how a person lost their life in an air, rail or marine accident; and that each party in fulfilling these duties should take into account the respective roles and responsibilities of the other party.

The MoU provides a framework within which the AIBs and coroners can carry out their roles and discharge their responsibilities in co-operation with one another, to minimise duplication and promote the wider public interest of holding effective inquests into deaths arising from accidents without prejudicing ongoing parallel investigations.

2. Accident Investigation Branch (AIB) safety Investigations

Following notification of a fatal accident the AIB will obtain sufficient information from the organisations and individuals involved to take a decision on what level of response is required. Where appropriate, the AIB will deploy to the accident site inspectors who are trained and experienced in both the industry and in the investigation of industry specific accidents, to gather evidence and conduct witness interviews.

An investigation may involve interviewing witnesses, gathering and analysing both documentary and physical evidence, and conducting detailed examination, testing and analysis. Where relevant, computer modelling or reconstructions will be undertaken to gain the fullest possible understanding of events.

Once sufficient information has been gathered to identify the circumstances of an accident, and the key facts of an accident have been established, the AIB’s Chief Inspector will decide whether the potential safety benefits warrant a full investigation and publication of an investigation report.

Frequently it is necessary, as part of an AIB investigation, to determine: the state of health of any deceased persons immediately prior to the accident; any injuries caused during the accident; and the cause of death. It may also be necessary to identify and, in particular, determine whether or not they were impaired in any way at the time of the accident. In such cases, the AIB will seek the earliest possible release of post mortem examination results and toxicology reports. In certain circumstances, it is also beneficial for the AIB’s inspectors to liaise directly with the pathologist, as this can often shed light on injury mechanisms and the forces involved.

3. Basis for co-operation

The parties recognise that each has its own statutory powers and that neither is entitled to direct, interfere with or hinder the others’ investigations.

There should be an early discussion between the AIBs and the coroner after the respective AIB commences an investigation as to:

• the likely progress of the investigation
• the evidence held by each party and how access to it can be facilitated within the limits of the applicable regulations
• the need/desirability of the AIB having ‘interested person’ status under the Coroners and Justice Act 2009
• the arrangements for briefing the bereaved
• the timing of any pre-inquest hearing and the inquest itself
• the chronology of any legal proceedings
• how and when future updates will be provided.

This should enable the coroner to pursue any separate lines of enquiry.

The AIBs will co-operate with the coroner to share factual evidence, where this is permitted by the applicable regulations.

Coroners may request assistance from the respective AIB. This agreement recognises that such assistance is incidental to, and not a part of, the AIBs’ function.

In the event of a mass fatalities incident requiring a meeting of the Mass Fatalities Coordination Group, the coroner will invite a representative from the AIB and a representative will attend that meeting.

In almost every case it will be desirable for the coroner’s inquest to take place after the relevant AIB has published its investigation report. This will enable the AIB to support the inquest fully with the confirmed findings of its investigation and avoid a situation where the investigation and the inquest separately cover the same ground. Where the coroner feels it to be essential to hold the inquest before the AIB’s report has been published, the AIB will be constrained in the extent to which they will be able to provide the inquest with any analysis of the evidence. In these circumstances, the coroner may wish to consider limiting the scope of the inquest by excluding detailed consideration of the causes of the accident.

4. AIB witnesses

Obtaining the trust and confidence of witnesses is fundamental to the AIBs’ ability to function effectively, and the AIBs are obliged under their enabling regulations to keep confidential the details of any AIB witnesses interviewed and any statements or declarations taken from them in the course of the AIB investigation.

If requested to do so, the AIB will contact specified witnesses to advise them that the coroner wishes to speak to them. Witnesses may then decide if they wish to contact the coroner as a result of this approach. The coroner may at any stage contact and arrange to interview any witness whose identity is already known to the coroner.

5. Disclosure

The regulations applicable to the AIBs require that they shall not disclose statements taken from persons by AIB inspectors in the course of the safety investigation, or records revealing the identity of persons who have given this and other evidence to the AIB. They shall not provide notes, and opinions written or expressed in the analysis of information. In addition, the Air Accidents Investigation Branch shall not make available cockpit voice and image recordings and their transcripts.

The AAIB and RAIB are prohibited by the applicable regulations from disclosing the draft report to the coroner. It may be possible for the MAIB to share a copy of the draft report with the coroner ‘in confidence’, if requested to do so.

If the coroner and the AIB cannot identify a means by which information can be disclosed without causing prejudice to an ongoing or future safety investigation, it is open to the coroner to make the relevant application to the High Court. To avoid protracted legal proceedings that might hamper the progress of an inquest, coroners should make requests at the earliest opportunity for any material collected by AIBs during the course of an accident investigation. This will enable the AIBs to tell the coroner whether or not they can release any such material.

Prior to finalising and publishing their reports, the AIBs are required, by the respective regulations, to circulate draft copies for consultation to any person or organisation that could be adversely affected by the report. The purpose is to give those involved, and those whose reputations may be adversely affected, the opportunity to submit representations on the relevant parts of the report to correct any factual discrepancies or to point out any relevant considerations that they believe have not been taken into account in the draft report. Where a person whose reputation could be affected is deceased, the AIB will circulate the draft report to the person it considers best to represent the interests and reputation of the deceased.

6. AIB attendance at an inquest

The normal function of an AIB inspector at a coroner’s inquest is to substantiate only the factual findings of the AIB’s safety investigation. To facilitate understanding, they may also provide technical explanation of the material included in the AIB report. They will also answer questions on factual matters contained in the AIB’s report. Noting that an AIB report may be the cumulative product of several inspectors’ inputs, coroners should specify any areas they intend to explore so that the AIB can ensure the appropriate inspector is available to the inquest.

AIB inspectors are prohibited by regulation from attributing blame or liability and so do not act as expert witnesses as this may draw them into speculation. Coroners, therefore, should not invite AIB inspectors to provide any opinions, as this could give the impression that they were apportioning blame or liability.

7. Agreement

The parties have agreed to co-operate according to the principles outlined in this Memorandum.