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.