Wednesday, December 11, 2013

Fireworks Display Operator Cleared

A very important fireworks case has been winding its way through the Courts in England.  A fireworks display operator was accused of 7 counts of reckless or negligent homicide resulting from a fireworks display which were reduced to "failure to insure the safety of others".    The accident on M5 in Somerset, England resulted in seven people being killed and 51 were injured.  The fireworks display operator was cleared of breaching health and safety laws by a jury at Bristol Crown Court on the direction of a judge.  In the United States this is called a "directed verdict".

A "directed verdict" is rather rare and only occurs when the Judge is convinced as a finder of fact that there is no possible way that a conviction should occur.  In those cases where a "directed verdict" is granted, the Judge takes the guesswork out of the jury system and decides the case or orders the jury to decide the case in favor of the Defendant.  The Government is not entitled to a directed verdict.

This case resulted from a massive multi car accident on a major highway in Great Britain.  The fireworks operator, Geoffrey Counsell, was charged because the fireworks show that he was conducting caused some smoke to waft its way over the highway.  Mr. Counsell was accused by the Government of not insuring the safety of others when he was conducting a fireworks display well off the highway at a rugby club, at least 200 meters.   The night was foggy anyway and the smoke did not clear right away.  Drivers encountered a complete "whiteout" of conditions.  Mr. Counsell has been accused of causing these deaths and injuries from the fireworks display.  Nothing was ever said about the motorists failing to recognize the danger and slowing their vehicles down.  Witnesses testified that the fireworks smoke was actually drifting away from the highway.

The Judge in the case decided that there was no violation of the fireworks law or the Health and Safety Code because there was no recognized danger from fireworks smoke.  Mr. Counsell provided a statement which indicated that the prosecution was motivated by "finding someone to blame" for the accident.

This is an important decision for fireworks companies not only in Great Britain, but in the United States as well.   Had the government prevailed, then it is conceivable that future fireworks operations could have been subject to criminal prosecution when something would happen, even if tangentially involved.

The prosecution of fireworks display operators is not unknown in the United States, but generally those prosecutions have been for blatant violations of the law.  {Remember the tour manager in The Station fire in West Warwick Rhode Island plead guilty to 27 counts of manslaughter for his role in that fireworks tragedy}.   However there was one prosecution in Wisconsin (Michael Rose) where the pyrotechnic operator was charged with several felony and misdemeanor counts after 11 people were injured as a result of a malfunction of a fireworks device in a tube.  It was determined that in Mr. Rose's case, the fireworks display set up was in direct contravention of accepted industry practices for being too close to the crowd, but a permit was granted by the local AHJ which approved the set up.  However the AHJ was never charged.

The permit should have been the document that prevent prosecution, but an overzealous prosecutor wanted to blame somebody for the 11 people being hurt, focused her attention on Mr. Rose.  After all of the posturing and quibbling, Mr. Rose plead "no contest" to 3 misdemeanor counts of "negligent use of burning materials" and had to pay a fine.  This prosecution of Mr. Rose was similar to the witch hunt of Mr. Counsell in Great Britain.

Fireworks display operators are charged with the safe operation of fireworks displays and when an accident occurs, they are generally found to be responsible.  That responsibility should not rise to the level of criminal activity except when the display operator consciously ignores the rules and safety standards to create a situation that will harm and potentially kill people. 

Anyone remember the tragedy in Charlevoix, MI?  That operator created a situation and convinced the local AHJ to allow a "killing field" near the docks in Charlevoix.  He was not charged nor did he face any charges.  To the best of my knowledge, no AHJ has ever had to face a criminal or even a civil jury when their "approval" allows a violation of the NFPA Codes and there is death or destruction.

The clearing of Mr. Counsell is a significant victory for fireworks operators all over the world.  However the message is very clear that government prosecutors and the media will try and blame fireworks and those people that conduct the shows whenever they can stretch the truth to fit their own anti-fireworks agenda.

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