RPC represented Geoffrey Counsell in criminal proceedings which followed the tragic multiple vehicle collision in thick fog on the M5 on 4 November 2011. The accident led to the deaths of  seven people and injuries to 51. Within hours of the incident, the police stated that the focus of  the investigation had moved to a firework display which had taken place close to the incident  location. This display was conducted by Mr Counsell.

The Crown Prosecution Service (CPS) originally charged Mr Counsell with seven counts of Gross  Negligence Manslaughter. However, following a further review of the evidence, the decision was  taken to withdraw those charges and replace them with a single charge under section 3(2) of the  Health and Safety at Work etc Act 1974. A plea of Not Guilty was entered and the matter proceeded  to trial before a jury at Bristol Crown Court in November 2013.

During the course of the trial it emerged that the police’s method of taking witness statements  from the spectators at the display had been selective, so that statements taken were focused on  those witnesses who supported the police theory that smoke from the display drifted towards the  motorway. In fact, the totality of the information obtained from all witnesses at the display  demonstrated that of those who saw any drift of smoke, two-thirds reported a drift away from the  motorway. When faced with this evidence, the prosecution’s meteorological expert revised his  original conclusion of a moderately strong probability that firework smoke had drifted towards the  motorway, and he accepted there was no more than a weak to moderate possibility that smoke had  contributed to the area of reduced visibility.

The defence case also highlighted the absence of any guidance or training within the firework  industry or from the HSE concerning any potential risk created by firework smoke. Taking these  factors into account, Justice Simon ruled that the prosecution had been heavily weighted by  hindsight and consequence rather than foresight and risk, and the defence submission of no case to  answer succeeded. This case illustrates the importance of foreseeability of the specific risk in question in order for a prosecution to succeed.