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Romana Canneti, media law specialist, writes…

In a blow to open justice, a significant judgment this week considers the conflict between the role of court reporters and international aviation regulations.

Mr Justice Edis, trial judge in the ongoing Shoreham Air Disaster criminal proceedings, sat as a High Court judge to consider a hasty Part 8 application by the BBC and the Press Association for access to cockpit footage from the crashed aircraft (which had been played to the jury in open court). Clearly sympathetic to court reporters acting as the eyes and ears of the public, the judge cited the “high imperative of open justice and accurate reporting of important criminal trials”, including its deterrent value.

The media’s role, nonetheless, had to be balanced against EU regulations “designed to enable people involved in air accidents to co-operate [so that]…investigations…reach accurate conclusions about the causes of air accidents…[and] air safety in the future is achieved.” The regulations, as incorporated into domestic law, dictate that cockpit recordings not be publicly released unless such disclosure outweighs the “likely adverse international and domestic impact …on…investigations.”

The judge rejected evidence from pilots that they’d be deterred from filming cockpit footage if there was a possibility that it might become publicly available. He was, however, persuaded that the international “standing” of British air accident investigators stood to suffer if the confidentiality attached to cockpit footage were diminished. A knock-on effect, he accepted, could be the reluctance of pilots worldwide to share their material for investigative and safety purposes.

Notably, the prospect of the footage being permanently accessible online was a significant factor in the judge’s disappointing, though finely balanced, decision to refuse the media’s application.

His judgment is available here:

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