Winter & Anor v R. [2010] EWCA Crim 1474

[2010] EWCA Crim 1474Case No 201000327D3IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEWES
MR. JUSTICE COOKE
T20087345
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/07/2010
Before
LORD JUSTICE HOOPERMR JUSTICE GROSSH.H.J. MOSS Q.C.(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between
MARTIN WINTERAppellantsNATHAN WINTERAppellantTHE CROWNRespondent
MR.J. SUGARMAN appeared for Martin Winter.MR. J. WAINWRIGHT appeared for Nathan Winter.MR. R. MATTHEWS Q.C.and MRS. G. HENTY appeared for Crown.Hearing Hearing date: 11 th June 2010
Judgment
[1]On 14th December 2009 at the Crown Court at Lewes before Cooke J. and a jury the applicant Martin Winter was convicted of Counts 1 and 3: manslaughter. On 16th December 2009 the applicant Nathan Winter was convicted of Counts 2 and 4: manslaughter by a majority (10:2).[2]On 16th December 2009 they were sentenced as follows: Martin Winter 7 years’ imprisonment concurrent on Counts 1 and 3 Nathan Winter 5 years’ imprisonment concurrent on Counts 2 and 4[3]A company Alpha Fireworks Ltd(formerly known as Festival Fireworks Ltd) was convicted of Counts 5 and 6: contravention of a health and safety regulation contrary to Section 33(1)(c) of the Health and Safety at Work Act 1974.[4]Both applicants apply for leave to appeal on one ground against their convictions on counts 3 and 4 only. At the conclusion of the hearing we reserved judgment on this ground.[5]Nathan Winter applies for leave to appeal conviction on counts 2 and 4 on another ground. We announced that we rejected this ground and that we would give our reasons when handing down our reserved judgment.[6]Both applicants seek leave to appeal the sentences passed. We heard submissions and reserved our decision.[7]Count 1 read as follows: 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. STATEMENT OF OFFENCE PARTICULARS OF OFFENCE 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;

PARTICULARS OF OFFENCE

[8]Count 2 was in similar terms, the applicant Nathan Winter being the defendant named in the charge. Count 3 was in similar terms to count 1 but concerned the death of Brian Wembridge. Count 4 was in similar terms to count 2 but concerned the death of Brian Wembridge.[9]We turn briefly to the facts. On 3rd December 2006 there was a fire at Marlie Farm, Ringmer which set off an explosion of fireworks which were stored in a metal shipping container there. The metal container blew up and shrapnel from the container was thrown over a wide area and over a long distance. The container in effect was a bomb and exploded with tragic consequences.[10]Two employees of East Sussex Fire and Rescue Services were killed in the explosion. They were Geoffrey Wicker, a watch commander, and Brian Wembridge, a civilian media awareness officer, both of whom were very close to the container. Other persons were injured. Brian Wembridge was there to film the fire and the handling of the fire both for the purpose of training fire officers and for the purpose of gathering material which would be released to the media to demonstrate the achievements of the fire service.[11]The applicant, Martin Winter, was a director of Festival Fireworks (UK) Ltd which operated from Marlie Farm. His son, the applicant Nathan Winter, worked for the company.[12]Under the terms of the Explosives Licence granted to Festival Fireworks the company was only licensed to store and handle fireworks of hazard type 3 and 4 only (HT3 and HT4). The prosecution sought to prove and the jury must have accepted that the container contained hazard type 1 (HT1) fireworks also. HT1 fireworks are far more dangerous and, once alight, can cause spontaneous combustion in other fireworks nearby.[13]At the time of the explosion, the deceased, Geoffrey Wicker, was setting up a ground monitor under instructions from his superior officers so that the fire could be fought from a distance whilst the majority of the Fire Service had withdrawn from the site. The deceased, Brian Wembridge, whose job it was to video events for the Fire Service, had been told a number of times to withdraw from the site by officers and fire fighters.[14]It is submitted on behalf of both applicants that the judge was wrong to rule as he did that as a matter of law the applicants owed a duty of care to Brian Wembridge and that they had no case to answer on count 3 (Martin Winter) and count 4 (Nathan Winter). Brian Wembridge was not, so it was submitted, “a neighbour”. It could not reasonably be foreseen that a media awareness person such as Mr Wembridge would be injured if the container exploded as a result of the negligence of the applicants. Alternatively, so it was submitted, if a duty of care was owed to such a person, it ceased to be owed to him when he disobeyed instructions to leave the area. It could not reasonably be foreseen, so it is submitted, that a person who disobeyed instructions to leave the area around the container would be injured if the container exploded as a result of the negligence of the applicants.

The judge summarised the evidence in this way:

[15]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 judge summarised the applicants’ arguments:

[16]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.

The judge continued: 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.[18]Mr Matthews QC told us that he did not make the concession to which the judge referred in the last sentence.

The judge continued:

[19]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.[20]A little later he said: ... 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.[21]The duty alleged in the indictment as being owed to Brian Wembridge was, as we have seen: 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[22]In our view it is reasonable foreseeable that civilian employees of the fire service in the position of Mr Wembridge may come on to and close to the site of a fire in order to film or photograph it. (Ogwo v Taylor [1988] AC 431, to which we were referred is concerned not with foreseeability but with whether emergency personnel are in some special position).[23]Does that duty cease to be owed because Mr Wembridge may have disobeyed instructions? Counsel for the applicants conceded that they could show us no authority to suggest that a failure to comply with instructions resulted in there being no duty owed. Such a failure may be relevant on the issue of causation and, in civil cases, to the issue of causation, volenti and contributory negligence. It is not arguable, in our view, that any failure to comply with instructions in this case had the consequence that no duty of care was owed to Mr Wembridge.[24]To whom such a duty extends must depend upon all of the facts of the individual case. Suffice it to say that we are satisfied that it is not arguable that a duty was not owed to Mr Wembridge.[25]The judge went on to consider the third stage test in Caparo Industries plc v Dickman & Ors [1990] 2 AC 605 and concluded 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.[26]It is not arguable that the judge was wrong to reach this conclusion.[27]We turn to the second ground of appeal submitted on behalf of Nathan Winter by Mr Wainwright. He contends that the jury were subjected to undue pressure to reach verdicts, despite indications of deadlock.[28]The jury retired to consider their verdicts on Thursday the 10th December 2009. At the end of the court day, the judge, before permitting the jury to separate, asked them whether they had reached verdicts on all counts on which they were all agreed. Counsel in the case submitted that there was no need to ask the question at all, but the judge indicated that this was his invariable practice and, accordingly, the question was asked, to which the reply was in the negative. The jury was sent home until the following Monday, the 14th December (the court did not sit on Friday the 11th).[29]At the end of the afternoon on the Monday, the jury returned its verdicts in respect of Martin Winter and the company, Alpha Fireworks. The jury were sent home for the night and reconvened the following morning, Tuesday the 15th December, the judge indicating that he intended to give the jury further directions on that morning. First thing on the morning of Wednesday the 16th December, the jury were given the conventional majority direction in respect of the remaining defendant, Nathan Winter.[30]Later that day, the judge, having received a note from the jury, informed counsel that the jury were indicating deadlock. He invited submissions upon whether the “Watson” direction should be given, saying that it was not his usual practice to do so. Mr Matthews for the Crown and Mr Wainwright for the defence agreed that he should not give such a direction. The judge then said: 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.[31]Neither counsel objected to that course. The jury were brought into court at 2.19 pm. The judge acknowledged their note and addressed them as follows: …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.[32]At some time before 3.46 pm (when the jury next returned to court) the judge informed counsel that he had had another note from the jury which read as follows: 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.[33]The judge told counsel that he intended to ask whether that was the final position, or whether there was anything he and counsel could do to help, and whether time would make any difference. He said that he anticipated that the answer would be “no”. If that was the case, he intended to discharge the jury. Neither counsel dissented from that proposed course. The jury returned to court and the judge asked the following question: 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?”[34]The response of the foreman of the jury was to say that they had a few questions that they would like to ask concerning the counts. The judge accordingly sent the jury back to their room, asking them to write down the questions they wanted to raise. The jury retired and returned into court an hour later, having submitted a number of questions. The judge told them that he would deal with them in the morning (it was by now 4.46 pm) and sent the jury away for the night. He began to discuss the questions with counsel.[35]The following morning, the 16th December, the judge having, it appears, sent to counsel his proposed answers to the questions for their consideration, the court reconvened and counsel and the judge discussed the questions before the jury were brought into court. There is no need to refer here to that discussion. Thereafter the jury were brought into court and the judge dealt with their questions, giving detailed guidance to them, about which no complaint is made. The jury were sent out to continue their deliberations at 10.47 am. They returned to court at 12.55 pm and returned their majority verdicts.[36]Mr Wainwright submits that what had occurred (as we have set out in some detail above) in some way put the jury under undue pressure to reach verdicts in respect of the second Appellant. He complains that no indication was given to the jury that they could say that they were finally deadlocked. That lack of indication, submits Mr Wainwright, contrasts with the constant indication given by the judge that there were no time pressures.[37]We see no merit in those submissions. Indeed, we are entirely satisfied that the contrary is true. The judge’s question to the jury on the afternoon of the 15th December could well have been answered by the foreman of the jury to the effect that there was nothing else upon which the court could assist them, and that, accordingly, there was nothing else to be done. The judge would then, no doubt, have discharged the jury. But that is not what occurred. The foreman of the jury immediately answered the judge’s enquiry with the information that there were questions upon which the jury required the court’s assistance. Those questions were posed, answered, and, in due course the jury returned their verdicts.[38]In consequence we refuse leave to appeal conviction to both applicants.[39]We turn to the sentence applications. Both applicants were or for these purposes were to be treated as having no convictions. Martin Winter was born on 27th August 1957 and Nathan Winter was born on 10th September 1984.[40]In passing sentence the judge devoted considerable time and care to setting out the facts and background of the offence including the impact on the families of the deceased. We shall quote only some portions. The judge said: 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.[41]As to the HT1 fireworks present on site, the judge said: 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.[42]The judge continued; 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.[43]The judge found that the applicants had been reckless, indeed he had directed the jury (with the consent of the prosecution) to convict only if they found recklessness.[44]Dealing with how Martin Winter had conducted himself after the arrival of the fires service, the judge said: 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.[45]Mr Sugarman did not dispute that the judge was entitled to make these findings about the behaviour of Martin Winter at the scene but did point out that Martin Winter was faced with (and has now suffered) the destruction of his business and of all that he had worked for so hard over many years. Mr Sugarman pointed to the applicant’s remorse and prayed in aid the judge’s description of the failures of the fire service: 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,[46]In our view on a finding of recklessness and in the light of the fact that Martin Winter’s behaviour at the scene constituted a seriously aggravating feature, it is not arguable that a sentence of seven years’ imprisonment after a trial is manifestly excessive and his application to appeal his sentence is refused.[47]We turn to Nathan Winter. His sentence was rightly reduced from the sentence passed on his father because of his age and position. As to the conduct of Nathan Winter at the scene the evidence showed (see applicant’s skeleton argument): 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.

The judge said of his evidence:

[48]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.[49]In this passage the judge accepts that, as the evidence had shown, Nathan Winter did a great deal to persuade the firemen to leave the site but criticises him for not saying even more, attributing that to a desire to cover up the breaches. Whilst mindful of the fact that the judge heard the trial, we have looked at all the evidence with the help of both Mr Matthews and Mr Wainwright (including the interviews) and have concluded that the judge could not properly be sure that Nathan Winter in the circumstances of the emergency in which he found himself was consciously covering up the breaches.[50]In these circumstances, we grant the application to appeal the sentence of five years and reduce it to four years.

Cited in 2 later judgments