Where a fatal accident or serious incident has been investigated by one of the UK’s Accident Investigation Branches (“AIBs”) - the Air Accidents Investigation Branch (AAIB), Rail Accident Investigation Branch (RAIB), or Marine Accident Investigation Branch (MAIB) – and a report produced, questions frequently arise as to the status of that report in, and its impact on the scope of any subsequent Coroner’s Inquest in England and Wales or Fatal Accident Inquiry (“FAI”) in Scotland.
In England and Wales, the courts have developed what is now commonly referred to as the “Norfolk principle”, significantly limiting the extent to which a coroner can revisit matters already investigated by an AIB and addressed in its report. In Scotland, however, the position is materially different.
The role of Accident Investigation Branch Reports
All three AIBs have a statutory remit to investigate accidents for the purpose of improving safety, not to apportion blame or establish civil or criminal liability. Their reports are often extensive, highly technical, and produced by specialist inspectors.
In both jurisdictions, AIB reports are routinely available to courts and statutory and public inquiries. The key question is how far those bodies can go beyond the AIB’s findings and, in particular, whether it is open to them to ignore or disagree with the AIB’s conclusions.
The Norfolk principle in England and Wales
The Norfolk principle derives from the Divisional Court decision in R (Secretary of State for Transport) v HM Senior Coroner for Norfolk [2016] EWHC 2279 (Admin), concerning the treatment in a coroner’s inquest of an air accident investigation report prepared by the AAIB. The court held that, as a matter of public interest, there should be no unnecessary duplication of investigations already carried out by an AIB.
The court emphasised that, (i) a coroner should ordinarily accept the findings and conclusions of an AIB report, (ii) there will generally be no need to call additional evidence on matters already investigated by the AIB, and (iii) only where there is credible evidence that the AIB investigation was incomplete, flawed or deficient should a coroner go behind the report.
This is a high threshold, and the courts have repeatedly stressed that coroners should be “very slow” to conclude that a specialist AIB investigation falls short of the required standard.
Subsequent cases have confirmed that the principle first discussed in Norfolk is now firmly embedded in coronial law in England and Wales.
Practical effect in Coroner’s Inquests in England and Wales
In practice, the Norfolk principle means that coroner’s inquests into deaths which have been investigated by an AIB are often narrower in scope than might otherwise be expected.
A coroner’s inquest will typically focus on:
- The identity of the deceased;
- When and where the death occurred; and
- How the death occurred, and where there has already been an AIB investigation this will be dealt with by the adoption of the AIB’s conclusions, unless the high threshold for challenge is met.
This approach is designed to avoid inconsistent findings, reduce cost, and prevent courts from reaching potentially contradictory conclusions on complex technical matters already addressed by specialist investigators.
The Position in Scotland: Fatal Accident Inquiries
Scotland does not have coroners’ inquests. Instead, deaths in custody, at work, or of public concern may be investigated at a Fatal Accident Inquiry held under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016.
Critically, there is no direct equivalent of the Norfolk principle in Scottish case law. While, in the context of an FAI, the presiding Sheriff will often place significant weight on AIB reports, they are not bound to adopt their findings wholesale or to refrain from hearing evidence which conflicts with or challenges the AIB’s findings.
Scottish FAIs are expressly inquisitorial and have both backward and forward‑looking aspects, with statutory questions to be addressed by the Sheriff that include:
- Any reasonable precautions by which the death might have been avoided;
- Any defects in systems of working that contributed to the death; and
- Any reasonable precautions which, if implemented, might prevent similar deaths in the future.
This statutory framework can encourage a broader examination of systemic and organisational issues and result in recommendations for further industry-wide improvements, even where similar issues have already been addressed by an AIB investigation.
Use of AIB reports in Scottish FAIs
In practice, AIB reports are frequently lodged as productions and relied upon heavily in FAIs.
However:
- Additional evidence may be led to explore management systems, decision‑making, and implementation of safety recommendations.
- Interested parties may seek to test how AIB findings translate into “reasonable precautions” under the 2016 Act.
- There is greater scope for the court to hear evidence that goes beyond the technical or operational causal factors addressed by the AIB.
This approach can be seen in recent Scottish FAIs where the court has been asked to consider how far the Inquiry should extend beyond an AIB report, particularly in relation to wider industry or systemic issues.
Recent judicial consideration of the Norfolk principle in Scotland
The recent FAI into the train derailment at Carmont in August 2020 provides a clear and helpful illustration of the Scottish approach in practice. During that FAI, the Sheriff reaffirmed the Scottish inquisitorial framework for FAIs and declined to apply the Norfolk principle in the way it is applied in coronial inquests in England and Wales.
In this FAI the court was considering a report from the RAIB. While the RAIB report was treated as an authoritative and important source of evidence, the court did not regard itself as constrained by its conclusions. Instead, the FAI proceeded on the basis that the existence of a detailed AIB investigation did not preclude further examination of issues relevant to the statutory questions under the 2016 Act, including organisational decision making, systems of work, and the implementation of safety measures.
The Carmont FAI therefore demonstrates that, in Scotland, AIB reports inform but do not restrict the scope of an inquiry — a position that stands in marked contrast to the approach taken in England and Wales under the Norfolk principle.
Practical Implications for Organisations
For organisations operating across the UK, these differences matter:
- An incident that concludes with a tightly focused coroner’s inquest in England may have a different outcome in Scotland, with a similar incident being subject to more expansive FAI, despite the availability of a detailed AIB report.
- Preparation strategies must reflect the likelihood of wider evidence‑gathering and potential scrutiny of the conclusions in an AIB report in proceedings north of the border.
- Early engagement with AIB processes remains critical in both jurisdictions, as their reports will heavily influence subsequent proceedings.
Conclusion
The Norfolk principle reshaped the landscape of English coroner’s inquests following AIB investigations, prioritising efficiency and deference to specialist expertise. Scotland has taken a different path, preserving a broader inquisitorial role for FAIs even where an AIB report exists.
Understanding these distinctions is essential for organisations, insurers, and legal teams navigating serious incidents and investigations in both jurisdictions.
If you require advice on any health and safety issues please contact Brodies Health and Safety team or your usual Brodies contact.
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