"Another row here" Why? I was very pleased to see this decision, the HSE are generally very guilty of hindisght bias. If the risk is that forseeable then there should be a ban on fireworks displays in the vicinity of major roads.

But the point of H&S law is that it is not prescriptive- it does not go about banning activities such as setting off fireworks near a motorway. Instead it is the responsibility of the person doing the activity to make sure that they do not expose anybody to unnecessary risk. I’d say setting off fireworks near a motorway might pose a risk- I said might, as no mention was made of risk assessment in the report so we don’t know what the firework operator’s risk assessment said. My concern is that this case might move the goal posts again and mean that the only risks that we need to worry about are those that are bleeding obvious- which rather defeats the point of H&S as it is the not so obvious risks that usually cause the trouble. ‘Hindsight’ can be one of those weasel words like ‘common sense’ which can mean what ever you want them to mean “ I did not fit the guard, as I did not expect the operator to put his hand there- with hindsight I know I should have but I could not predict his behaviour; I am not a psychic!”

The HSE produce guidance on running a fire work display - I have used it and recommended it to others on a number of occasions. Funny thing I don't remember smog being mentioned anywhere in the guide. Is this the correct decision? Unless you have sat through all the evidence how will we ever know?

Wrong button, doh! Also meant to mention that it was claimed by the defendant, and accepted by the Rugby Club, that a risk assessment had been given to them but the Rugby Club could not find it when asked to produce it. I think the judgement shows that the Court accepted it had existed and the judgement therefore implies it was s&s.

Have to agree with the Judge and in the absence of any solid evidence it appears to have been another own goal by the CPS. With regards to the concept of 'reasonably foreseeable', I also agree that given the circumstances a layman would not reasonably foresee that smoke from a firework display could cause a serious visual problem on a motorway 200 yards away. The question is would a h&s practitioner have been able to predict such an outcome? Perhaps, but some would not. The acid test of course is to find out whether other high profile firework events identify poor visibility - for example, at New Year's Eve on the Thames, which would include both roads and waterways. I suspect not. Perhaps something good can come out of this tragic case by the HSE doing something proactive like issuing guidance on firework displays near public roads and rivers.

AK, I think the point of the judgement is that an assessment was made by reasonable and competent (in the context of the specifics) people and that it was not reasonable to expect them to have foreseen. Not that any layperson taking a casual glance is the basis of anything. With the benefit of hindsight and to prevent a recurrence the formal guidance may well be changed but that is 'hindsight' which for me was the gist of the judges comments. I hope this helps to allay your concerns about the judgement. p48

http://www.legislation.gov.uk/ukpga/1986/13 ¨161A Danger or annoyance caused by fires lit otherwise than on highways. (1)If a person— (a)lights a fire on any land not forming part of a highway which consists of or comprises a carriageway; or (b)directs or permits a fire to be lit on any such land, and in consequence a user of any highway which consists of or comprises a carriageway is injured, interrupted or endangered by, or by smoke from, that fire or any other fire caused by that fire, that person is guilty of an offence and liable to a fine not exceeding level 5 on the standard scale. (2)In any proceedings for an offence under this section it shall be a defence for the accused to prove— (a)that at the time the fire was lit he was satisfied on reasonable grounds that it was unlikely that users of any highway consisting of or comprising a carriageway would be injured, interrupted or endangered by, or by smoke from, that fire or any other fire caused by that fire; and (b)either— (i)that both before and after the fire was lit he did all he reasonably could to prevent users of any such highway from being so injured, interrupted or endangered, or (ii)that he had a reasonable excuse for not doing so.”.

#14 You forgot the bit about within '50ft of the centre of the highway' Selective quote? If not within 50ft, then no offence?

So, where to now - the case ended in a spectacular failure, cost shed loads of money (will the defendant recover his costs in view of the recent changes in recovery) and the most disturbing element of all is that 7 persons lost their lives. I was not in the court to hear evidence so I shall desist from commenting or speculating on what was or may have been advanced by prosecutors and defence. Jon

For all you barrack room lawyers:- Section 161A of the Highways Act 1980 Provides Danger or annoyance caused by fires lit otherwise than on highways (1) If a person - (a) lights a fire on any land not forming part of a Highway which consists of or comprises a Carriageway; or (b) directs or permits a fire to be lit on any such land, and in consequence a user of any Highway which consists of or comprises a Carriageway is injured, interrupted or endangered by, or by smoke from, that fire or any other fire caused by that fire, that person is guilty of an offence and liable to a fine not exceeding level 5 on the standard scale. (2) In any proceedings for an offence under this section it shall be a defence for the accused to prove - (a) that at the time the fire was lit he was satisfied on reasonable grounds that it was unlikely that users of any Highway consisting of or comprising a Carriageway would be injured, interrupted or endangered by, or by smoke from, that fire or any other fire caused by that fire; and (b) either - (i) that both before and after the fire was lit he did all he reasonably could to prevent users of any such Highway from being so injured, interrupted or endangered, or (ii) that he had a reasonable excuse for not doing so. Jon

It may not have been. Much would depend on how it would be argued and indeed, defended and with what amount of vigour. It would most unlikely that the HSE would have jurisdiction in RTAs. Jon

Given Grumpyman's comments about this section of the motorway, I doubt that the prosecution would have proved beyond reasonable doubt that the smoke from the fireworks caused the lack of visibility on the motorway, let alone that this was a reasonably foreseeable outcome of the display. Agree with earlier comment about HSE hindsight bias. I've sat in court listening to the evidence of an HSE expert witness who considered that the risk of a fatal or serious injury accident involving workplace transport at a factory was "almost certain". Under cross-examination that translated into if the factory was run ETERNALLY eventually such an accident would occur. Hardly an interpretation of "reasonably practicable".

Being a 'barrack room' lawyer I note that the referenced legislation (Section 161A of the Highways Act 1980) essentially applies to fires and not fire works per se. Could not say whether there was a bonfire or whether the smoke emanated from the bonfire, fire works or both, but it may account why the prosecution was pursuant to HSWA.

I personally think the old in the public interest quote does not get factored into any CPS prosecutions. As mentioned before, the HSE cannot accept so many fatalities was an accident, therefore someone must take the blame. Especially in the current climate when finances are being reduced. I really do feel for the individual when he was originally being charged with manslaughter. Outrageous. Don't get me wrong, I think the HSE do a good job and do act in the public interest and without them, our jobs wouldn't exist. But sometimes the unexplainable events that lead to catastrophic incidents cannot be viewed from a risk assessment point of view.

As Pete has correctly identified the case was brought by the LA (Taunton Deane Borough Council) and not by the HSE. Local Councils do not always have the expertise in prosecution proceedings and in this case they got it so spectacularly wrong. It has been mentioned in some circles that that the HSE refused jurisdiction Costs have not yet been decided - I'm sure the aquitted will be well compensated. Now the essential questions must be - who was responsible for the seven fatalities ? Refresh your memory with the old saying: "Accidents don't just happen- they are caused! Discuss! Jon

Jon, I think you need to separate the theory from the practice. Most accidents for a reason and could have been avoided with better controls. That said, there are some accidents which happen for no good reason other than bad luck, sod's law, call it what you like. The problem is that foreseeability is enhanced with hindsight.

Ray In this instance (as indeed in all others) the court dealt with facts - not theories. Jon

And the fact is that there was no case to answer based on the facts that the court heard. There will always be a strong desire to blame someone especially in such tragic cases and yes accidents don't just happen. The point for me, however, is whether it was in the wit of any reasonable person or organisation to control and/or prevent it. I don't speculate on whether the judgement was correct or not; it is what it is. p48

I thought from the original report that the case was dismissed as the judge felt the it was not possible to foresee that any smoke produced by the display could cause an accident. The question as to whether there WAS any smoke on the road is not relevant. Neither is the fact that that part of the M5 is prone to fog. The question is; are we expected to use risk assessments to make predictions as to what might happen and to take the necessary precautions or do we use it to check what is happening and not worry about predicting possible events? If that is so I am confused since I have always been told that a risk assessment is a predictive tool. I have done some digging and this piece of case law- R v Tangerine Confectionery Ltd and Veolia ES (UK) LTD- Court of Appeal 2011 seems to be the relevant one. I shall quote “Foreseeability of risk (strictly foreseeability of danger) is indeed relevant to the question whether a risk to safety exists. That accords with the ordinary meaning of risk, as is demonstrated by the concept of a risk assessment, which is itself an exercise in foresight. Whether a material risk exists or does not is, in these cases, a jury question and the foreseeability (or lack of it) of some danger or injury is a part of the enquiry. None of this, however, means that in a prosecution under either section[ 2 and 3 of the Health and Safety at Work Act 1974] it is incumbent on the Crown to prove that the accident which occurred was foreseeable [Not what the judge in this case said- my comment]. That would convert the sections into ones creating offences of failing to take reasonable care to avoid a specific incident. It means no more than that the sections are concerned with exposure to risk of injury, and that the extent to which injury is foreseeable is part of the enquiry into the level of risk. The sections do not command an enquiry into the likelihood (or foreseeability) of the events which have in fact occurred. They command an enquiry into the possibility of injury. They are not limited, in the risks to which they apply, to risks which are obvious. “ Some I am right to be confused by this judgement.

I am a bit confused as well...with the words of the Judge and your own narrative. Many judgments are on the extreme edge of risk management - we are aware of its existance but rarely visit it. Therefore we need to ask what relevance these judgments have to h&s practitioners in the real world? We may look for guidance and clarity but in reality there is little. Largely because of hindsight bias. As practitioners we do not posses hindsight, we make a risk assessment, judgement, or give advice, based on the best information we have to hand. Notwithstanding this, minor incidents can have major consequences and vice versa. The M5 pile up is arguably just another example. Furthermore, the legal profession tend get embroiled in definitions (obsessed would be a more accurate description) which is often no more than semantics to lay persons. What practitioners would describe as 'suitable and sufficient' would be argued to death in court. Fortunately we rarely have to suffer the indignation of a court appearance and have our professional integrity questioned by a sagacious lawyer.