Navigating aviation inquests in the UK
Market Insight 05 February 2024 05 February 2024
UK & Europe
Aviation & Aerospace
Safety can never be taken for granted in aviation, and although 2023 was one of the safest years on record with no major fatal accidents involving large turbofan powered commercial aircraft, 2024 had barely begun when a Japan Airlines A350 aircraft was engulfed in flames at Haneda airport due to a collision with a smaller aircraft , closely followed by the Alaskan Airways Boeing 737 Max incident relating to a fuselage door coming away at altitude.
As all parties seek to understand these incidents and their implications on aviation safety, in this article we look at other recent commercial aviation losses and review the Inquest process which often follows in the UK, drawing on our experience of representing airlines at these Inquests.
What is an Inquest?
The history of Inquests is long. We often hear of them reported in the media – from the Inquest into the Hillsborough stadium disaster, to the more recent Inquest into the fire at Grenfell Tower in 2017. Despite the publicity surrounding Inquests, their formal role and requirements are not particularly well known.
Where a Coroner is informed that the body of a person is lying within their district, the Coroner is statutorily bound to conduct an Inquest if the death was unnatural, violent, or sudden and of unknown cause. As such, where an aviation accident occurs abroad but the bodies of deceased passengers of that crash are repatriated back to the UK, the Coroner in whose district the bodies arrive (often the Coroner of West Sussex, Brighton & Hove, given their district covers Gatwick Airport) must conduct an Inquest.
The primary purpose of an Inquest is to find out who the deceased person was and how, when and where they died, to enable their death to be registered. Inquests dispel uncertainties around a person’s death. It is about finding out what happened, not who was responsible for what happened, for which the civil and criminal courts have jurisdiction. Throughout the process, formal Coroner-led investigations uncover the cause of death. These investigations probe into circumstances surrounding unexpected or suspicious deaths, whilst identifying any contributing factors. The Coroner’s findings are critical in ensuring transparency, public confidence and the prevention of similar accidents.
Every inquest sets in motion a four-stage process as the Inquest unfolds, focusing on key evidence at each stage:
- Opening the Inquest;
- Examining the evidence;
- Pre-inquest review; and
- Inquest Hearing.
Opening the Inquest with a public investigation
Formal opening of an Inquest is very short, with the Coroner simply formally announcing that they will be investigating the death/s. The Inquest is then usually adjourned for further investigations and evidence examination.
One of the initial activities undertaken by the Coroner is to review the evidence and identify who needs to be involved in the Inquest – the ‘Interested Persons’. The Coroners and Justice Act 2009 (“CJA 2009”) defines ‘Interested Persons’, and includes the deceased’s family, the medical examiner, insurer, or any other persons who the Coroner decides has sufficient interest – the list is broad, demonstrating the public impact that the findings may have on us all. In commercial aviation accidents, the airline and aircraft manufacturer are also often included as interested persons, given the clear interest they may have in the outcome of the inquest. The UK Air Accidents Investigation Branch is also often included, even if they were not involved in investigating the crash, as they can assist the Coroner with understanding overseas investigation reports.
Interested Persons are given wider powers than one might at first think. Being held as an Interested Person entitles that person to examine individual witnesses at the Inquest and they may themselves be called by the Coroner to give evidence, as well as to be informed of the details of the Inquest and disclosure of documents from the Coroner. To ensure the smooth running of the Inquest and to prevent any delays, the Coroner supplies the Interested Persons with any post-mortem examination report and any other documents provided to the Coroner or any other relevant documents.
Time is of the essence in Inquests to uphold the integrity of the investigation – as soon as it is reasonably practicable, an Inquest should open after the date that the Coroner considers there to be a duty to hold an Inquest. The Coroner must complete the inquest within six months from the date they became aware of the death, or otherwise as soon as is reasonably practicable.
For aviation accidents, the Coroner is heavily reliant on the findings of the formal accident investigation report, and legally obliged to not conduct their own investigations on any matters examined by the formal accident investigators, unless that investigation is likely flawed or deficient. We believe it would be a very rare case where an official final accident investigation report would be considered flawed or deficient. With formal accident investigation reports often taking years to finalise, aviation accident Inquests are often similarly delayed whilst waiting for these reports.
At some stage after the Inquest is formally opened and the evidence has been examined, the Coroner will schedule a Pre-Inquest review hearing. For those familiar with the progress of civil claims, in some ways a Pre-Inquest hearing is similar to a costs and case management conference, with both involving the management and discussion of a case before the ultimate hearing to ensure preparations progress as efficiently as possible.
The Pre-Inquest review hearing is convened to address important issues to be finalised prior to the Inquest hearing itself, such as the scope of the Inquest, confirming the identity and inclusion of all ‘Interested Persons’, identifying any witnesses to be called at the inquest, and discussing evidence. These hearing are often held in an open court, where any member of the public can attend.
Any Interested Person involved in the Inquest can be, and often is, represented by lawyers. Whilst the aims of an Inquest are quite simple – ascertaining how someone died – answering that question can be anything but simple, hence the lawyers can assist the parties to navigate these difficulties. For example, as noted above, although it is settled law that Coroners are legally obliged to not conduct their own investigations on any matters examined by the formal accident investigators, we have seen the scope of this challenged at recent Inquests, with it argued that additional material was required to help ‘contextualise’ the findings of the formal investigation report.
For Inquests involving foreign aircraft accidents, we have experience with the Coroner also seeking documentary or witness evidence and other assistance from the foreign airline. Whilst the Coroner may not necessarily have jurisdiction over the foreign airline to demand compliance with their requests, it may be in the airline’s best interests in any event to comply to avoid unfavourable inferences and adverse findings at the final hearing.
When discussing matters like these, and the scope of the Inquest and other evidential issues, where there is any dispute between the parties, the Coroner will often allow the parties time beyond the Pre-Inquest hearing for their lawyers to make submissions before issuing a final ruling. Multiple Pre-Inquest hearings can also take place, to hear further submissions, or to discuss other outstanding issues and/or ensure the progression of certain activities (including evidence gathering and witness identification).
At the heart of an Inquest lies the Inquest hearing. Usually held in open court, any member of the public can attend. As such, the Inquest hearing is typically attended by the parties and their legal representatives, witnesses, family and friends of the deceased, members of the public, and the media.
Each Inquest hearing will follow the format set by the Coroner for that individual Inquest, having regard to the scope of the inquest and the witnesses to be heard. In an aviation Inquest in which we were involved, the Inquest hearing started with statements from the families of the deceased, giving details about the life of the deceased and the impact of their loss. The families also played videos of the deceased. Quite unusually, a video was also played by the family of a deceased person from the flight whose body was not repatriated to the UK (and thus did not fall within the Coroner’s jurisdiction), but who was normally resident in the UK.
The Coroner then went on to hear evidence about the identification of the bodies, and the causes of the crash as identified in the official accident investigation report. During the Inquest, examination and cross-examination of the witnesses can take place, usually by the parties’ legal representatives. With the aim of any Inquest being to identify how the deceased died, the witness evidence and cross-examination activities are all conducted with the ultimate view of clarifying any circumstances related to the deceased’s death and to prevent future deaths.
Most Inquests take place without a jury but there are certain circumstances in which a jury is required. Juries are often called to Inquest hearings if the death occurred in suspicious or potentially contentious circumstances, and where there are wider ramifications for the public. A jury will appear if the death was caused by a ‘notifiable’ accident, which is defined as an accident that is to be reported to a government department. In our experience, most aviation accident related Inquests take place without a jury.
Findings and Determinations of an Inquest
After hearing the evidence, and submissions from the parties’ legal representatives as to what findings the Coroner can make on the basis of the available evidence, the Inquest concludes with the Coroner (or a jury when there is one) determining the cause and manner of death. The only available determinations are either: (1) accident, (2) misadventure, (3) unlawful killing, (4) suicide, or (5) an open verdict. Inquests establish the factual circumstances of the death only (“how they died”), and do not make findings as to liability or criminal responsibility (“why they died”). The determination can be accompanied by short form or long form reasons for the verdict, which can provide justification for the factual findings and how the cause of death determination was made. In some cases, a prevention of future deaths report is also produced.
Whilst no findings of liability or criminal responsibility are made, the findings can result in further various formal inquiries. For example, unlawful killing verdicts usually mean the matter is automatically referred to the Crown Prosecution Service. For any Interested Person aggrieved by the verdict, an appeal can be lodged to the High Court seeking a fresh Inquest, or a judicial review can be sought on the grounds of procedural fairness and unfair exercising of power by the Coroner.
Despite the formality of Inquests and high publicity of the verdicts, the outcomes are largely symbolic, particularly for cases involving foreign commercial aircraft crashes. In a recent Inquest in which we were involved, a finding of unlawful killing was made, and whilst this would ordinarily trigger an automatic referral to the Crown Prosecution Service, that did not happen as the relevant offending entity (aircraft manufacturer) was based outside the UK for criminal prosecution purposes. The families of the deceased nevertheless welcomed the finding, telling reporters outside the courtroom that this verdict could be influential in the minds of juries in ongoing USA civil proceedings. The verdicts can also provide closure to the families.
Given the largely symbolic nature of Inquests, and media attention, we find that airlines (when appearing as Interested Persons) need to consider PR considerations as much as legal considerations. The media in particular, but also the Coroner to some extent, are usually very sympathetic towards the families of the deceased, and will seize upon any perceived egregious behaviour by “big corporates” such as airlines and aircraft manufacturers. Therefore, and whilst the circumstances of each Inquest will be different, it is often in an airline’s best interests to participate openly and cooperatively in the Inquest even where no such participation is strictly required by law.