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Legal wrangle over Super Puma voice recorder

• 19 May 2015
 
• From the sectionNE Scotland, Orkney & Shetland

Media captionScotland's top prosecutor goes to court to try to force the release of the cockpit voice recorder from a helicopter which crashed off Sheltand two years ago killing four people

Scotland's top law officer has gone to court to try to get air accident investigators to hand over the black box from a North Sea helicopter crash.

The cockpit voice recorder from the accident off Shetland in 2013, in which four people died, was recovered by the Air Accidents Investigation Branch.

Prosecutors have not been able to access vital data to examine whether anyone was criminally responsible.

A hearing was held at the Court of Session in Edinburgh.

The Air Accidents Investigation Branch (AAIB) has the right to initial access to the cockpit voice recorder but it routinely chooses not to hand over the material to other bodies - in this case the Crown prosecutors.

The BBC Scotland news website revealed last year an order was being sought at the Court of Session to access the data. It is a rare legal move.

At the Court of Session, BBC Scotland reporter Huw Williams

Lawyers for the Air Accidents Investigation Branch have argued that effective investigation of accidents, and the prevention of future incidents, depends on a "no blame" culture in which personnel know they can cooperate with investigators without fear of facing legal or disciplinary action.

The Lord Advocate is applying to force the AAIB to release the cockpit voice recordings and data from the Super Puma helicopter.

He says that is necessary for the effective administration of justice, and so prosecutors can have access to the best possible evidence.

But lawyers for the British Airline Pilots' Association (Balpa) cited a near miss at Schipol which resulted in the prosecution of a number of air traffic controllers. They said that meant a 50% reduction in the number of incidents voluntarily reported at the airport in following years.

Balpa said the Crown Office had failed to show why the release of information was strictly necessary, and had failed to take into account any adverse impact on future accident investigations.

Aidan O'Neill QC, representing the union, said the presumption against disclosure should apply in the case.

The judge, Lord Jones, said he would try to make his determination as quickly as possible but warned it could take a while.

Lord Advocate Frank Mulholland QC, Scotland's top prosecutor, is seeking the order for disclosure of the voice recorder data recorder under the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996.

Section 18 covers disclosure of relevant records, and the Crown can act if it believes it to be in the public interest.

Lawyers for the Crown Office argued on Tuesday that any possible negative effects of releasing the information were outweighed by the demands of justice in the case.

Andrew Brown QC, for the lord advocate, said the court was required to carry out a balancing into the competing interests.

Four people died when the Super Puma crashed off Shetland

Martin Tosh, who survived the helicopter crash, told BBC Scotland he wanted answers

The AAIB's legal team argued that the lord advocate had not made a sufficient case to overcome the high hurdle which mitigated against disclosure of the information.

The British Airline Pilots' Association (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.

Aidan O'Neill QC, for the union and helicopter pilots, said there was "no suggestion or hint that a crime has been committed here".

A total of 18 people were on board when the Super Puma crashed on its approach to Sumburgh.

Helicopter passengers Sarah Darnley, from Elgin, Gary McCrossan, from Inverness, Duncan Munro, from Bishop Auckland, and George Allison, from Winchester, lost their lives.

Martin Tosh, who survived the crash, told BBC Scotland: "We just need answers. This is the reason why, every day, I look and try to find out, because we do not get told very much."

The judge will rule at a later date whether the evidence should be handed over.