Lessons to be learned after an inexcusable muddle

Posted: 04/04/2014

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No one can fail to have been horrified by the accident in fog on the M5 on 4 November 2011, in which seven people died. The aftermath has, however, raised disturbing legal issues of a type which are all too common. Whilst this was an extreme case, we have encountered all the failures which occurred here several times in other contexts.

Within 24 hours of the accident, the police, in the shape of the assistant chief constable, made a public statement on television indicating that they suspected that the accident had been caused by loss of visibility due to smoke from an earlier fireworks display which took place at Taunton Rugby Club, some 200 metres away from the motorway, rather than as a result of naturally occurring fog rising from the river immediately below the scene of the accident. The firework display had been put on by a properly trained, independent contractor.

It is not clear why the police thought that this line of enquiry was worth pursuing, but having drawn conclusions before their investigation was properly underway, they were committed, and the case immediately went from bad to worse. Despite the fact that the firework contractor was a sole trader and was cooperating completely, the police obtained a search warrant to raid his home on the grounds that this was a case of suspected corporate manslaughter. Once it was realised that there could not be a corporate charge, they charged the contractor with seven counts of manslaughter. These charges were inappropriate and were dropped after intervention by the DPP, but determined to stick to their theory, the prosecution pursued  lesser, but still serious,  charges under the Health and Safety at Work Act on grounds that the contractor should have foreseen the risk that smoke would cause serious problems on the motorway and stopped the firework display.

There was nothing in previous experience anywhere in Europe or indeed other parts of the world, including China, where fireworks have an ancient history, to suggest that the white out phenomenon which occurred on the M5 could be caused by fireworks, or indeed that smoke from fireworks could cause fog at all. There was no mention of a risk of this type in any professional guidelines in the relevant industry, nor was there any relevant material in the HSE publications about firework safety.

The prosecution was thrown out at half time at the trial in December 2013. The decision was made on grounds that the contractor was being charged, in effect for failing to anticipate circumstances which had never been experienced before. There was insufficient evidence on which a jury could conclude that a reasonable operator would have identified a foreseeable risk in starting, or not stopping, a firework display in the weather conditions. Commonsense prevailed in the end, but rather late in the day.

However, the fact that the overwhelming evidence of factual witnesses did not support the prosecution case had been ignored by the prosecution when deciding to go ahead; the contrary evidence was not initially disclosed to the defence team, or indeed the prosecution’s own fog expert. In fact there never had been any cogent evidence that the accident had been caused by smoke from fireworks and the whole prosecution, which had cost a fortune and enormous stress to the contractor had been based on a completely false premise.

The argument about who should pay is as yet unresolved.

It is fairly clear that once the police had made a statement on television, they were committed to a particular theory of the case and instead of carrying out an impartial investigation, were merely engaged in proving their theory, ignoring any evidence which did not support it. It would, of course, have been difficult to make a public climb down.

Although this was an extreme case, it illustrates a phenomenon we have encountered on a number of occasions, which is that an error in the working hypothesis at the start of a regulatory investigation can result in the whole exercise being knocked off course and being difficult to recover. Potentially it was also an example of bad PR practice actually affecting legal outcomes.

The lesson in this is that if you are ever involved in any sort of enquiry even if only on the fringes, you should react firmly and quickly to ensure that your position is clearly stated. The principle that a defendant is innocent until proved guilty does not automatically protect someone from being investigated and prosecuted on the wrong premise, even if conviction can be avoided. This alone can cost a fortune and do immense PR damage which is difficult to put right. Even now, members of the public, when asked about the M5 accident, say that it was caused by smoke from a firework display. It is also difficult to recover costs even when things go this wrong.

There are countermeasures available - particularly involving PR and lawyers working together - which can restore the balance at an early stage and may be helpful later on. If therefore you learn that your business is under investigation for any regulatory breach - not just health and safety - take advice well in advance of a decision being made to prosecute.

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