The BBC is reporting that three UK incident controllers, who were charged with manslaughter following the deaths of four fire fighters in a warehouse fire in 2007, have all be acquitted (see “Fire officers cleared over Atherstone warehouse deaths”).

The controllers were charged with manslaughter by criminal negligence; this is a common law offence rather than an offence set out in an Act of Parliament.  Negligent manslaughter is established where the defendant owes a duty of care to the victim, there is a breach of duty in circumstances that can be described as gross negligence and the breach causes or substantially contributes to the death of the deceased.      In describing gross negligence Lord Aitken said:

For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied ‘reckless’ most nearly covers the case. (Andrews v DPP [1937] 2 All ER 552, 556 (Lord Atkin)).

In a case such as this the issue of duty is unquestionable.  A person appointed as an incident controller by a fire authority owes a duty, imposed by both common law and by statute law (see for example any modern work health and safety laws) to the fire fighters under their command.  The only question could have been whether there had been ‘a breach of duty in circumstances that can be described as gross negligence’.    We are told in this report that the Prosecution case was that one officer breached ‘his duty of care by risking the men’s lives when “no other lives were at risk” in the blaze’ and the other ‘was alleged to have breached his duty of care by not stopping the deployment of the men.’  (The third officer charged, had been acquitted earlier in the trial when the judge had directed the jury that even if they accepted the Crown evidence it did not go far enough to establish criminal liability, the jury were therefore ‘directed’ to acquit that officer – see “Fire officer Paul Simmons cleared over Atherstone deaths”).

As regular readers of this blog will know, it is usually possible to refer to a written judgement that explains the allegation before the court and the reasoning that led to the final decision.  Where the case is heard by a jury, that is not possible.  Juries do not give their reasons; they only report that the accused is ‘guilty’ or ‘not guilty’.  In this case, then, the only practical source for information on what happened and how the case was run is the media.   I cannot comment therefore on what the controllers did or did not do.  What I can comment on is comments made by the Chief Fire Officer.  The report says:

Graeme Smith, chief fire officer for Warwickshire, led criticism of the decision to prosecute and said Mr Ashley, Mr Simmons and Mr Woodward were “treated like common criminals”.

He called for the Home Office and Ministry of Justice to investigate how and why the prosecution was allowed to proceed.

Mr Smith said: “It is crystal clear that these cases should never have been brought to court in the first place.”

There’s a video of Mr Smith making his comments here, or you can read a transcript at ‘Atherstone fire police probe ‘took wrong turn‘).

As a lawyer, and in a past life a criminal lawyer (and one of the authors of Hayes and Eburn, Criminal Law and Procedure in NSW, (Lexis/Nexis, 3rd ed,  2009) it is important, in my view, to put those comments in context.

Fire agencies make the point that fire officers have to make decisions in a dynamic environment with incomplete information and that should not be compounded by detailed, adversarial post event inquiries, whether a coroners inquest or in very rare cases, like this, a criminal prosecution. Police have to face that reality every day they go to work.  Whether they issue a traffic ticket or use lethal force they can expect that their every action will be scrutinised in minute detail, and it’s often the traffic ticket that gets the most attention – “No your Honour, I did not issue the ticket because I’m racist, or sexist, I did not offer to let him or her off in return for sexual favours, no I did not beat the accused, or lie” etc, etc, etc.  Of course sometimes these things do happen so there has to be a process to test those allegations but the reality is that every decision a police officer makes in the course of his or her duties can be subject to judicial review and is so much more often than any other profession or business.

A police officer does not determine whether or not someone is guilty of an offence.  The police and the prosecution service (the Crown Prosecution Service in the UK, the Directors of Public Prosecutions in Australia) will bring a prosecution where there is evidence that could support a finding of guilt and where, all things considered, it’s in the public interest to do so (you can read the NSW DPP Prosecution Guidelines to see the sort of matters they take into account).

Many people complain about being treated as ‘common criminals’ as if there is a difference between ‘common’ and ‘uncommon’ criminals.  A famous dictum from English law is ‘Be you ever so high, the law is above you’ (see “The Rule of Law, By Tom Bingham”).  That traditionally refers to people in high office (consider former judge Marcus Einfield whose reputation and career was brought down by the application of the rule of law) but it’s equally relevant here.  It would be wrong for the police to treat the fire officers differently from ‘common’ criminals, either because they value the work of fire officers or, more problematically, because the police and fire services work very closely together.    The community would be rightly outraged if the police didn’t prosecute people or organisations they work closely with, so they have to appear to be very thorough when dealing with allegations against organisations like the fire service and, more problematically for them, the police itself.   Ideally, from the police point of view, everyone they prosecute is presumed innocent but there is, in their mind, sufficient evidence to raise at least a ‘reasonable suspicion’ that they have committed an offence.  And negligent manslaughter is a criminal offence just as arson and murder and driving in excess of the speed limit are criminal offences.    So if the police had evidence to suggest a crime had been committed they were duty bound to put the matter before the court and not take into account the fact that the accused in this case were firefighters doing their duty and perhaps even fire fighters they knew.  Those are simply not a relevant consideration once the threshold of ‘reasonable suspicion’ had been established (and that’s not established just because someone died, but due to an investigation of all the circumstances).

That then allows us to ask ‘what does reasonable suspicion’ mean?  It does not mean that the police are satisfied beyond reasonable doubt, that is the test for the jury, for the police to have reasonable suspicion they must have evidence which gives rise to a belief that the accused may have committed the offence (see George v Rockett (1990) 170 CLR 104).  Once that threshold has been met then it is the duty of the Crown to put the matter before the court; the alternatives are that people are simply locked up (or worse) by the State without trial, or that people are allowed to go without others, the community, knowing why.

To return to this case if the Crown had evidence that suggested there had been gross negligence, and we can see from the BBC report that there were experts that supported the Crown case, then it is not for the police to judge the competing experts but the put the matter before the Court to let the Court, in this case the jury, decide whether the conduct of the accused met the necessary legal test of ‘recklessness’.    The alternative, if the Chief Officer was correct that the charges not be brought even though there was evidence to support them, would have been that the allegations would not be tested.  In this case the families of the deceased may well have had no problem with that, but other families, in other cases, would quite rightly wonder why a person was not tried if there was evidence in support of a prosecution and would suggest there was corruption of the police were perceived to be ‘looking after their mates’.

By writing this I do not mean to suggest, for a minute, that the verdict was wrong or that it is not a tragedy for everyone involved that this matter went to court, took so long, and cost so much to resolve.  What I do suggest is that the concept of the ‘rule of law’ requires that the law, including the law of negligent manslaughter, has to be applied and the place to determine guilt, or innocence, is the court room.  Clearly there was evidence of a problem here (see “Safety criticism over fire deaths”) whether that was an example of institutional, or personal failing, was something to be tested, as it was, and the accused were acquitted.

I can understand the Chief Officer’s obvious outrage and anger, and he of course represents both the officers who were charged and the fire fighters who died, but I’m not sure what an inquiry would reveal.    In the fire service, an incident controller has to make fine decisions in difficult circumstances and the mere fact that there are bad outcomes should not be considered evidence of a bad decision; a police officer also has to make decisions, sometimes in the heat of the moment and sometimes with cool deliberation, but equally a bad outcome, or an acquittal does not mean the decision was wrong.   In one sense the decision of the police and the CPS has been ventilated in court and the officers acquitted.  There could, and should be an inquiry if there is evidence of ‘bad faith’ by the police or CPS but that will face the same issues as this trial – evidence does not prove the case; so there may be an inquiry that costs more money but leads to no significant result.

This case is and was tragic for everyone, for the firefighters who died and their families, and for the officers charged.  Fire agencies and fire officers rightly demand that the dynamics of their job are taken into account when judging their decisions, including what is reasonable and whether there was negligence or gross negligence, but they are not above the law.  If there is evidence of gross negligence (and you may want to argue there was no such evidence, but we don’t know that from these reports, the Judge agreed there was not enough evidence against one accused, but the case went to the jury for the other two so there must have been sufficient evidence to raise a case that warranted their deliberation), then the appropriate place to resolve that is the court.  What is not ‘crystal clear’, at least from this distance, is “… that these cases should never have been brought to court in the first place” and a further inquiry into the conduct of the police will put the police in the same position as the fire chiefs – having to explain every action and decision when, at least in the case of the police, that has probably been canvassed in court.

I understand that these sorts of issues place great demands on fire services, and in particular Australian fire services that rely so heavily on volunteers, and there is a fear that if volunteers can be held to account in similar circumstances we simply won’t have volunteers to turn out; but could we really have a system where we say ‘the law does not apply to volunteers’?   Although in a different context, the South Australian Coroner looking into the 2005 Wangarry Fires said:

“While recognising that without voluntary workers the CFS would cease to function …it also has to be recognised that volunteerism is not the same thing as amateurism. Given the onerous statutory responsibilities that the CFS carries out, although carried out as it is by voluntary workers for the most part, it is difficult to support any conclusion other than that volunteer individuals who aspire to positions of seniority within the volunteer ranks, and who aspire to perform tasks of significant responsibility during the course of incidents, should be anything other than trained and competent and act as part of a team.”

“… while there may be difficulties in terms of the accountability of volunteers, in as much as they might simply walk away if any sanction is to be visited on them, it does not mean that in the context of an inquiry such as this, their actions are immune from scrutiny and analysis. … Thus, while it is regrettable that on occasions the actions and failings of certain individuals have to be spelt out, especially in a setting where those actions and failings have occurred in a context of voluntary work, it is in the interests of justice and in the public interest that such a process has to occur.”

What I hope is that having been acquitted the fire service and the community accept that these officers did not commit the offence charged and they are allowed to, and chose to, return to their careers knowing that they have been publically vindicated.

What I also hope is that we all remember, next time the media tell us that someone has been arrested, whether for a minor offence or a heinous crime, that just because they’ve been arrested it doesn’t mean they did ‘it’.  Further, next time you’re tempted to ask a lawyer ‘how can you act for someone you know is guilty’ remember that it was lawyers who were willing to stand up for these officers and defend them and everyone who denies the allegations against them, or alleges that the police were racist/sexist/corrupt or violent is entitled to put that no-matter how offensive to the police involved.  From the outside we don’t know the truth, we hope courts will go some way (and there are no doubt limitations on their ability) to discover it.  The alternative to bringing charges such as this, distasteful, unpleasant and traumatic as they are, is to have detention without trial or a system of secret decision making, neither of which can survive for long.

The criminal justice system is slow, expensive, traumatic and imperfect and people who we think are unquestionably innocent will get caught up in it; but the acquittal of these officers and the need to convince 12 people, selected at random, that guilt is established beyond reasonable doubt, should actually give us hope; not that fire officers will not be wrongly charged for making decisions, but that they will, in extreme cases, be judged fairly for the decisions they do make.

Michael Eburn

31 May 2012.