UK: Atherstone Warehouse Prosecution Rumbles On

Last Updated: 18 January 2013
Article by Clyde & Co LLP

Following the high profile and controversial trial of three Warwickshire firefighters earlier this year, the case is set to pick up momentum once again as Warwickshire County Council faces a Trial of Issue (also known as a Newton Hearing) in December in connection with its failure to ensure the safety of employees whilst at work contrary to section 2(1) of the Health and Safety at Work Act 1974.

Tragic background

John Averis, Ashley Stephens, Darren Yates-Badley and Ian Reid died tackling a warehouse blaze at Atherstone Industrial Estate on 2 November 2007.

Prosecution of Warwickshire Fire Service Personnel

In a landmark case, the first prosecution of its type in the history of the Fire Service, Incident Commanders Adrian Ashley and Timothy Woodward, together with Watch Manager Paul Simmons, were all charged with four separate offences of Gross Negligence Manslaughter. The prosecution had alleged Mr Ashley and Mr Woodward, who were in charge of the operation, had breached their duty of care by risking the men's lives and failing to stop their deployment. As a front-line firefighter, Mr Simmons was also alleged to have played an active role in the "needless" deaths of the men. It was submitted by the prosecution that the breach by all three fire officers was so serious that they should be held criminally responsible for their actions.

However, following a six week trial before Stafford Crown Court, Mr Ashley and Mr Woodward were found not guilty by the Jury and acquitted of all charges. Mr Simmons was acquitted five weeks into the trial on the Judge's direction that there was no case to answer against him.

Widespread Criticism

The collapse of the case against Warwickshire Fire Service attracted widespread public interest and criticism from a number of sources. Warwickshire's Chief Fire Officer condemned the prosecution, accusing the Police of wasting nearly £5million of taxpayers money and claiming the case should never have been brought to Court. The Fire Brigades Union has also expressed concern, suggesting firemen may now hesitate before trying to save lives for fear they could be arrested.

Ongoing Prosecution of Warwickshire County Council

Whilst the Council has previously entered a Guilty plea in respect of its breach of s.2(1) of the Health and Safety at Work Act 1974, this is on the basis of a different version of facts to that put forward by the Prosecution. As the factual differences are likely to have a material impact on the sentence imposed, a Newton Hearing is required. The Council's case is listed at Stafford Crown Court from 3 December 2012 and the hearing is expected to last up to two weeks.

However, criticism of the decision to bring the prosecution in the first place rumbles on! Indeed, at a recent directional hearing associated with the Council's case, Mr Justice MacDuff, who sat on the trial of the three fire officers, said he was concerned the case had already cost taxpayers "a huge sum of money". Mr MacDuff highlighted that the only penalty available in cases of this nature is a financial one, saying: "There is no person to imprison or to send to do community service ... so there is a financial penalty imposed on the corporation for corporate failings ... and people who were not responsible will suffer." Mr MacDuff added that he wanted all parties involved to reflect upon the costs and length of time already spent on the case when considering what directions they wished him to make for the forthcoming hearing.

Enforcement Principles and Adverse PR

What is clear from this case is that Regulators themselves are not immune from criticism and adverse PR. With the HSE, Local and Fire Service Authorities all having dedicated enforcement policies governing prosecution decisions, and with the Code for Crown Prosecutors containing a requirement to consider the public interest in every case before proceedings are commenced, this may provide a happy shift for businesses and individuals alike.

The Future?

Meanwhile, the arsonists who started the blaze in which the four men died, are yet to be captured by Police. Unfortunately, for the friends and families of those who lost their lives nearly five years ago, it seems this case will therefore rumble on for a while longer yet and that tragically, answers to important questions may never be found. However, we will of course continue to monitor this case and provide a further update in the New Year.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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