Winter & Anor v R.

A person responsible for storing and handling dangerous explosives may owe a duty of care to a civilian employee of the fire service who comes close to a fire as part of that employee’s work. Foreseeability depends on all the circumstances, including the employee’s connection with the emergency response and the likelihood that they will follow firefighters to record events.

A failure to obey instructions to withdraw does not, without more, extinguish that duty. It may instead bear on causation and, in civil proceedings, voluntary assumption of risk or contributory negligence. A jury is not subjected to improper pressure merely because a judge encourages continued deliberation after apparent deadlock and properly answers questions which the jury then raises.

Martin Winter and Nathan Winter were convicted at the Crown Court at Lewes, before Cooke J, of gross-negligence manslaughter arising from a fire and mass explosion of fireworks at Marlie Farm. Two members of the fire service, Geoffrey Wicker and Brian Wembridge, were killed.

The applicants challenged their convictions for the death of Mr Wembridge. They contended that he was not a foreseeable victim because he was a civilian media awareness officer rather than a firefighter, and because he had disobeyed instructions to withdraw. Nathan Winter also alleged that the jury had been unduly pressured into reaching majority verdicts after indicating deadlock. Both applicants challenged sentence.

The central issues were whether a duty of care was owed to Mr Wembridge, whether that duty could cease through his conduct, and whether the trial process or the sentences rendered the convictions or sentences unsafe or excessive.

1. Conviction applications refused. It was reasonably foreseeable that a civilian employee of the fire service, whose work was to film or photograph a fire, might come on to or close to the site. The duty alleged was to take reasonable care in storing and handling fireworks, including those posing a mass-explosion hazard. On the facts, it was not arguable that no such duty was owed to Mr Wembridge.

2. The fact that Mr Wembridge may have disobeyed instructions to withdraw did not terminate the duty. Such conduct could be relevant to causation and, in civil cases, to voluntary assumption of risk and contributory negligence. It could not make it arguable that the applicants owed him no duty of care.

3. The court accepted that the judge’s conclusion on fairness, justice and reasonableness under the third-stage inquiry in Caparo Industries plc v Dickman & Ors [1990] 2 AC 605 was unassailable. Ogwo v Taylor [1988] AC 431 concerned the special position of emergency personnel, rather than foreseeability.

4. Nathan Winter’s complaint of undue pressure on the jury had no merit. After the apparent deadlock, the judge invited the jury to continue deliberating and asked whether further assistance or time would help. The jury identified questions, received unchallenged guidance, and then returned majority verdicts. The process did not pressure the jury improperly.

5. Martin Winter’s application for leave to appeal his seven-year sentence was refused. Given the jury’s finding of recklessness and his seriously aggravating conduct at the scene, the sentence was not manifestly excessive. Nathan Winter’s application was granted. Although he had warned emergency personnel of danger, the sentencing judge could not properly be sure that his failure to give fuller information consciously concealed breaches. His five-year sentence was reduced to four years.

• Court of Appeal (Criminal Division) Refused leave to appeal conviction for both applicants and refused Martin Winter’s sentence application. It granted Nathan Winter leave to appeal sentence and reduced his sentence from five years to four years: [2010] EWCA Crim 1474.
• Crown Court at Lewes Before Cooke J, Martin Winter was convicted of two counts of manslaughter and sentenced to seven years’ imprisonment concurrent. Nathan Winter was convicted of two counts of manslaughter and sentenced to five years’ imprisonment concurrent.