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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Winter & Anor v R.  EWCA Crim 1474 (06 July 2010)
Cite as:  1 Cr App Rep (S) 78,  EWCA Crim 1474,  1 Cr App R (S) 78
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEWES
MR. JUSTICE COOKE
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GROSS
H.H.J. MOSS Q.C.
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
| MARTIN WINTER
|- and -
MR. J. WAINWRIGHT appeared for Nathan Winter.
MR. R. MATTHEWS Q.C. and MRS. G. HENTY appeared for the Crown.
Hearing date: 11th June 2010
Crown Copyright ©
Lord Justice Hooper :
Martin Winter 7 years' imprisonment concurrent on Counts 1 and 3
Nathan Winter 5 years' imprisonment concurrent on Counts 2 and 4
STATEMENT OF OFFENCE
Manslaughter, contrary to common law.
PARTICULARS OF OFFENCE
Martin Paul Winter, on 3rd day of December 2006, unlawfully killed Geoffrey Wicker by gross negligence in that:
i) He owed Geoffrey Wicker a duty to take reasonable care in the storage and handling of fireworks at Marlie Farm, Ringmer, including fireworks that posed a mass explosion hazard.
ii) In breach of that duty of care he failed to take reasonable care to store and handle explosives:
a) in accordance with the terms of the explosives licence for Marlie Farm;
b) with appropriate measures to prevent fire or explosion, to prevent the spreading of fires and the communication of explosions from one location to another and to protect persons from the effects of fire or explosion;
iii) That breach of a duty amounted to gross negligence
iv) That negligence was a substantial cause of the death of Geoffrey Wicker.
The effect of the evidence of 7 different fire fighters was that he had been asked to move back from the location where he was filming at the particular point in time that each came across him. These were in different locations and the tone of what was said varied in accordance with the seniority of the officer in question and the degree of familiarity that individual had with Mr Wembridge who was a well known figure as a result of his lengthy fire fighting service. Thus Fire Fighter Ross did not give him an order because "you didn't give orders to Mr Wembridge and didn't need to". It was therefore a request but in the context of telling him that the fire fighters had been instructed to withdraw. Another referred to advising him to move and tapping him on the shoulder and to a fire fighter physically encouraging him to move back. Watch Commander Wells said he made sure that Mr Wembridge was aware that the fire fighters had been ordered to withdraw off the site and to rendezvous – to evacuate the site whilst Station Commander Meik said he told him that they were withdrawing and that he should withdraw with them. He told him to get back to where everyone else was, namely at the roadway. Station Commander Upton (the Incident Commander) said he gave him a specific instruction to get back and withdraw and expected him to obey that, whilst Station Commander White said that, as an ex-fire fighter, Mr Wembridge knew the procedures as well as anybody and he wouldn't have expected him to go back in with fire fighters who had been sent back in to save lives, though it would depend upon the incident itself and a dynamic risk assessment at the time.
On the evidence, Mr Wembridge appears to have withdrawn to the area of the gateway but, realising that firemen had been sent back into the site to set up ground monitors in the area of the swimming pool, followed them and was filming them at the time when the explosion occurred.
The defendants' submission is that Mr Wembridge does not fall into the category of a fire fighter and that it would be an unjustified extension of the imposition of a duty of care to find that such a duty was owed to him by the Winters. He was not involved in any aspect of fire fighting but was a civilian working as a Media Awareness Officer for the East Sussex Fire and Rescue Services, having been a fire fighter for some 33 years before taking up this responsibility a few years ago. He arrived separately at the scene wearing non-protective clothing, played no part in fire fighting and made a video recording of the activities of the fire fighters there. There is no evidence that he had reported as required to the Incident Command Unit and there is evidence that he did not report to the Incident Commander. Furthermore, it is submitted that there is the clearest evidence that Mr Wembridge ignored and/or disobeyed the instructions/orders of fire fighters to withdraw or evacuate. Such orders were given him in the belief that they would be followed.
In the words of Lord Atkin: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have had them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." It is submitted that Mr Wembridge falls outside that category of persons because he had no proper business in being on the site, having deliberately and, in defiance of all instructions, put himself in harms way. It is said that it is the existence of the requests/orders/instructions which makes all the difference in the case of Mr Wembridge, as compared with any fire fighter who was carrying out his fire fighting duties or any other person who happened to be on the site. It was accepted that, if injury had taken place to any of the employees or members of Mr Winter's family who had ignored the fire fighters' instructions to get back, away from the scene of the fire, no duty of care would have been owed by the Winters to them.
The essence of the duty which is alleged is a duty to take proper care in the storage and handling of explosives and, on the out break of fire and the arrival of the emergency services, fully to inform the fire fighters of the locations in which fireworks were stored and the type and approximate quantity of them. Those duties must be owed to all persons who were on the site or in the surrounding vicinity and could be injured by an explosion, of the possibility of which, the Winters were well aware.
... it is plainly foreseeable that not only will fire fighters come onto the site and run the risk of injury as a result of the negligent handling of explosives and failure to inform the fire service of the serious HT1 explosives and their location on site but also any emergency service personnel or other people associated with them. Although Mr Wembridge was not a fire fighter he was intimately connected with the fire fighting services, being the Media Awareness Officer who was on site with his camera as part of his job. It is also foreseeable that a video cameraman in his position, on seeing fire fighters going back into the site to carry out their duties, might follow them, even if instructed at an earlier stage to withdraw to a rendezvous point. Whilst it is true to say that there is no evidence that he ever booked into the Incident Command or took instructions as to whether or not he should go back into the site following retreat to the rendezvous point, I do not consider that this can of itself put him into a category where injury to him was unforeseeable. As a video cameraman, his instinct would be to go where fire fighters were, to run the risks that they ran and to record what was going on for the purpose of Fire Service training, recruitment and the advancement of the interests of the Fire Service as a whole.
a duty to take reasonable care in the storage and handling of fireworks at Marlie Farm, Ringmer, including fireworks that posed a mass explosion hazard
As to the question of fairness, justice and reasonableness, I cannot see why, from the Winters' point of view, there should be any difference in imposing a duty to a fireman, sent back in to set up a ground monitor, and a video cameraman who goes in to record what is going on, even if he does so in breach of advice, orders or instructions.
What I think I might do is have the jury in, just the same, and tell them to try harder, so to speak. It seems to me a little early to simply accept an intimation on paper that they are having difficulty. My inclination would be to send them back out for the rest of the day, and a bit into tomorrow, before I was prepared to accept any clear intimation that they were really completely deadlocked.
…all I can do is encourage you to go back and continue with your deliberations, and your discussions, with a view to seeing if you can reach agreement. I appreciate, from what you are saying, you are finding it difficult to do so, but I would encourage you, nonetheless, to keep trying, keep talking, keep discussing, keep thinking, reviewing the evidence, and see if you can come to a decision on which at least ten of you are agreed. Will you please continue to do that.
We can see no way forward to obtaining a 10 to 2 verdict. All jurors are confident that they are not going to change their minds on their decisions.
The question I have to ask you is whether there is anything that I can remind you of, or help you with, that might assist you in coming to a decision, or whether any more time would assist you in relation to that?"
In addition, both of you knew -- both you of well knew -- by reason of your experience of working with fireworks and your attendance at the 9th International Fireworks Symposium and the videos you saw there of the CHAF experiments, that HT1 fireworks carried a risk of mass explosion, an explosion which effects fireworks in bulk instantaneously setting off other fireworks of lesser energy in the same explosion, a phenomenon referred to as "aggregation" or "boostering". You were well aware of the risks involved in dealing with fireworks of all kinds and in particular of this risk of mass explosion from HT1 fireworks which Festival was not authorised to store.
HT1 fireworks were, on the evidence, at that time, in the container which gave rise to the mass explosion which killed Mr. Wicker and Mr. Wembridge. They were also to be found in Magazine E, in a white container, in a red container, and in the Hatchery, as well as in a curtain-sided lorry which had returned to the site over a day before from one of the company's displays. They were also found in the office and shop at Marlie Farm, and in Upper Lodge Farm, both of which were licensed separately to Sussex Fireworks, another company owned by you Martin Winter.
You had been warned about the storage of HT1 and HT2 fireworks by your Dangerous Goods Safety Advisor in the context of seeking insurance at the end of 2005, and you subsequently told your insurers that you had removed all such unauthorised Hazard Types from your site, which you had not done. You had deliberately purchased and stored fireworks for the purpose of your business, over an extended period of time, in the full knowledge that you had no authority to store HT1 fireworks and of the dangers posed. And you did so in order to create larger and more fearsome explosions at the beginning and end of displays that you put on, and to sell to others involved in similar displays, including local bonfire societies, so that they could put on more impressive displays, notwithstanding the dangers involved. You deliberately flouted the Explosives Regulations for reasons of profit. No doubt familiarity bred a certain contempt for the dangers thus run.
To the contrary, Martin Winter, you appeared to have been about as obstructive and objectionable as it was possible to be and to have misled more than one fire officer by referring to the contents of the container in which the mass explosion later occurred, or Tube Store 1, or both, as "wood", when both contained fireworks and the container contained HT1 fireworks. You wanted them to fight the fire, when you knew that the risk of mass explosion meant that everyone should have evacuated the site and moved to a considerable distance away.
It is right to say that the fire fighters' ignorance of their own procedures of Explosive Regulations and Codes of Practice for fire fighting and their lack of training in dealing with fireworks contributed to what happened. The vast majority of the fire fighters did not regard fireworks as explosives capable of causing a large explosion. They thought only of individual fireworks detonating and causing the sort of explosions that fireworks ordinarily cause when fired. They were, generally, unaware of Hazard Types. It may be they should have asked more expressly and clearly what Hazard Types they were contending with and if in doubt withdrawn to a safe distance of 600 metres,
5. Prior to the explosion Nathan Winter spoke to a number of emergency services personnel and warned them of the dangers of the fire reaching the container. The following evidence was given by fire fighters in respect of warnings given by Nathan Winter:
a) Mr Wells (first officer in command) was told by Nathan Winter "If the fire gets anywhere near this container I would advise you to run like fuck". Mr Wells also said "Nathan Winter pointed out the biggest risk on site".
b) Mr Ross recalled Nathan Winter saying "If that goes up, we'll have to be miles away".
c) Mr Lazenby heard "If that one goes up you don't want to be anywhere round here".
d) Mr Pratt heard "If that container goes up, you don't want to be anywhere near it".
e) Mr Watson said "Nathan was agreeable, not getting in the way; he was trying to communicate the fact that there were large fireworks in the container". Mr Watson went on to say "Nathan drew my attention to the container". He also heard Nathan Winter say "If it goes bang you'll know about it".
f) Mr Austin heard "If that container goes bang there will be the biggest bang you'll ever see".
g) Mr Upton (second officer to take command) accepted that he was told there were "larger fireworks in there" and he was told "You don't want to be anywhere near here".
h) Julie Skeffington was told by Geoff Wicker "There are big fireworks in the container".
i) Mr Wood said that Mr Wicker had said "Fucking big fireworks in the container".
j) Senior Officer Mr Cox, when he attended, said he was given information "The gist of it was 'we are all in trouble if the fire reached the container'."
k) Additionally, PC Coleman recalled Nathan Winter saying "You don't know what's in there, everyone has to go, we've got to tell them what's in there". PC Coleman told him to go, however Nathan went on to say "We've all got to go". He also heard Nathan Winter say "Someone will get hurt" and "You don't know what's in there, it's going to go up".
6. Nathan Winter informed the police officer that a 300m cordon should be set up and he was so emphatic in telling the emergency services to evacuate that he was arrested for breach of the peace and removed from the site. The container exploded subsequent to this. Prior to the explosion there were various orders given by and to members of the fire service to withdraw from and evacuate the fireworks site.
Whilst you, Nathan, told many officers that they did not want to be anywhere near the container should fire reach it because of the risk of explosion, and told them of larger fireworks in it, even then you never told them what the real issue was. Whereas they were thinking of detonation of larger fireworks and hazards posed by individual fireworks igniting, the very thing they could see happening already all over the site, they were not thinking in terms of a mass explosion with the fatal consequences that such an explosion presented. When asked what was in the container, you did not do the honest and straightforward thing of telling the fire officers that you had HT1 fireworks in it and that you knew there was a propensity for mass explosion and not merely the risk of continued sequential detonation of individual large or larger fireworks of the kind that was taking place in the buildings on the site. You were not prepared to admit that you had been acting in breach of the licence and you ran the risk that there would be no adverse consequences from not telling them the full position, however hard they made it for you to speak to them. It was because you sought to cover up your breaches of the Explosives Regulations and site licence that the firemen were not clearly put only notice of the location or true nature of some of the fireworks you had on the site.