Judgments - Regina v. Bristol Magistrates Court and Others (Appellants) ex parte Junttan Oy (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)

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    39.  The Lord Chief Justice (with all of whose judgment Mr Justice Wright agreed) concluded that:

    "it is inappropriate and wrong for the Health and Safety Executive to prosecute for an offence under section 6 of the 1974 Act when there is a specific statutory offence under the Regulations covering exactly the same ground as section 6 but in different language so that different issues can arise as to the standard of safety which is required, and imposing a different penalty".

He so concluded "partly as a matter of interpretation, and partly because it appears to me that it would be a form of misuse of the powers of the 1974 Act to rely on section 6". He accepted, however, that if the offence prosecuted under section 6 was not "one covering exactly the same ground as the offence in the Regulations, I would take a different view". He also accepted that a prosecution could be brought under section 3 of the 1974 Act alleging a failure to "ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety".

    40.  The first question has been treated as turning on the relationship both in domestic law and Community law of the Act to the Directive and the implementing regulations. It is necessary to set out the relevant provisions for this purpose.

The 1974 Act

    41.  The 1974 Act, adopted initially of course without reference to a Directive, provides in section 1 that the provisions of part I shall have effect "with a view to (a) securing the health, safety and welfare of persons at work". Section 6 which is in part I has the sub-heading "General duties of manufacturers etc as regards articles and substances for use at work" and provides in particular in sub-section (1) that:

    "it shall be the duty of any person who designs, manufactures, imports or supplies any article for use at work or any article of fairground equipment

    (a)  to ensure, so far as is reasonably practicable, that the article is so designed and constructed that it will be safe and without risks to health at all times when it is being set, used, cleaned or maintained by a person at work;"

    42.  On the face of it the facts alleged here fall within that section and the HSE is empowered to bring proceedings under section 33 of the Act where a breach of that section is alleged.

The Regulations

    43.  The Supply of Machinery (Safety) Regulations 1992 (SI 1992/3073) were made to give effect to Council Directive 89/392/EEC on the approximation of the laws of Member States relating to machinery, as subsequently amended, and as replaced ("consolidated") by Council Directive 98/37/EC which came into force 20 days from 23 July 1998 the date of publication in the Official Journal. They provide in regulation 11 that:

    "Subject to paragraph 4 below, no person who is a responsible person for the purposes of these Regulations shall supply relevant machinery … unless the requirements of regulation 12 below are complied with in relation thereto".

The manufacturer of the machinery is a "responsible person" (Regulation 2(2)). The "essential health and safety requirements relating to the design and construction of machinery and safety components" are set out in schedule 3.

    44.  By Regulation 12(1): the requirements of this regulation are that

    "(a)  the relevant machinery or relevant safety component satisfies the relevant essential health and safety requirements; …

    (e)  the relevant machinery or relevant safety component is in fact safe".

    45.  By Regulation 29 any person who contravenes or fails to comply with Regulation 11 above shall be guilty of an offence and liable for the penalties to which I have already referred set out in Regulation 30.

    46.  Regulation 31, subject to the detailed provisions of that Regulation, provides: "in proceedings against any person for an offence under Regulation 29 above it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid committing the offence".

    47.  Schedule 6 pursuant to Regulation 28 deals with Enforcement.

    48.  In particular by paragraph 1 certain sections of the 1974 Act are to apply for the purposes of providing for the enforcement of these Regulations and in respect of proceedings for contravention thereof subject to modifications, and by paragraph 3 certain sections of the 1974 Act, including sections 28 to 35, "shall apply for the purposes of providing for the enforcement of these Regulations and in respect of proceedings for contravention thereof as if - " certain amendments were incorporated. By paragraph 7 of Schedule 6 "nothing in these Regulations shall be construed as preventing the taking of any action in respect of any relevant machinery … under the provisions of the 1974 Act, the Order or the 1987 Act."

The Directive

    49.  Directive 98/37/EC applies the essential health and safety requirements defined in Annex I to machinery as defined in Article 1(2). Machinery and safety components covered by the Directive "shall satisfy [those] requirements":

    Article 2:

    "1.  Member States shall take all appropriate measures to ensure that machinery or safety components covered by this Directive may be placed on the market and put into service only if they do not endanger the health or safety of persons and, where appropriate, domestic animals or property, when properly installed and maintained and used for their intended purpose.

    2.  This Directive shall not affect Member States' entitlement to lay down, in due observance of the Treaty, such requirements as they may deem necessary to ensure that persons and in particular workers are protected when using the machinery or safety components in question, provided that this does mean that the machinery or safety components are modified in a way not specified in the Directive."

    50.  By Article 4 "1. Member States shall not prohibit, restrict or impede the placing on the market and putting into service in their territory of machinery and safety components which comply with this Directive." Article 5 provides that machinery bearing a CE marking and a certificate of conformity shall be regarded as conforming to all the provisions of the Directive subject to special procedures laid down in Article 7 where a Member State ascertains that machinery used in accordance with its intended purposes is liable to endanger the safety of persons when it may withdraw such machinery or prohibit the placing of the machinery on the market or its use and restrict the free movement thereof.

    51.  The recitals to Directive 98/37/EC stress the importance of reducing the number of accidents by having inherently safe design and construction of machinery. It is however Member States who "are responsible for ensuring the health and safety on their territory of persons … and, in particular, of workers, notably in relation to the risks arising out of the use of machinery" (recitals 4 and 5). Adequate safety standards must therefore be laid down and achieved. It is however recognised that this can be done in different legislative ways supplemented by mandatory technical specifications and voluntary standards which may not necessarily lead to different standards of health and safety. These disparities may, however, constitute barriers to trade within the Community, ie between Member States.

    52.  Accordingly recital 7 provides that "existing national health and safety provisions providing protection against the risks caused by machinery must be approximated to ensure free movement on the market of machinery", but this is to be "without lowering existing justified levels of protection in the Member States".

    53.  The tension between safety, harmonisation and free movement is recognised. Thus in recital 8 "whereas Community law, in its present form, provides by way of derogation from one of the fundamental rules of the Community, namely the free movement of goods that obstacles to movement within the Community resulting from disparities in national legislation relating to the marketing of products must be accepted in so far as the provisions concerned can be recognised as being necessary to satisfy imperative requirements". Harmonisation must be limited to those requirements "necessary to satisfy the imperative and essential health and safety requirements relating to machinery; whereas these requirements must replace the relevant national provisions because they are essential" (recital 9) and "the maintenance or improvement of the level of safety attained by the Member States constitutes one of the essential aims of this Directive and of the principle of safety as defined by the essential requirements" (recital 10).

The question

    54.  It is plain that the Directive is seeking to impose on Member States an obligation to achieve the essential health and safety requirements set out in Annex I (Article 3) and that by Article 4 the Directive provides that Member States shall not prohibit or restrict or impede the placing on the market or use of machinery which does comply with this Directive. To facilitate free movement it provides for the marking of goods with the CE mark. At the same time the Directive squarely puts on Member States an obligation to take appropriate measures to ensure that machinery is only placed on the market and put into service if it does not endanger the safety of persons when properly installed and used for its intended purpose (Article 2(1)). In other words, consistently with recital 5 Member States must, certainly may, take steps to ensure that the machinery is safe. The Directive recognises that some Member States may have higher standards of protection. It is clearly provided in recital 7 that it is not the intention that the implementation of the Directive shall lower the standards of protection in Member States and Article 7 of the Directive requires Member States to take steps to withdraw machinery from the market or to prevent its use if it is not safe even if it bears the CE marking and the declaration of conformity. The latter thus gives a rebuttal of presumption of conformity with the essential safety requirements but not more.

    55.  There seems thus a tension between the three requirements—free movement, achieving harmonised essential requirements and ensuring safety—but it does not seem to me that the aim of free movement, where there is a compliance with the essential requirements, cuts down or impinges on the obligation and power of the Member State to act where safety is not assured. Accordingly it does not seem right to proceed on the basis that nothing can be done beyond enforcing essential requirements without violating the rules against prohibiting restrictions on the free movement of machinery.

    56.  It has, however, been accepted by both members of the Divisional Court that the prosecution here under the Act covered the same ground as a prosecution under the Regulations implementing the Directive would have done. If that is right does it follow that to proceed under the Act, where the penalties are higher, is not permissible as a matter of interpretation of paragraph 7 of Schedule 6 to the Regulations, or because it constitutes an abuse or misuse of power?

    57.  As to the first point paragraph 7 provides that nothing in the Regulations is to be construed as preventing the taking of "any action" in respect of any relevant machinery under the 1974 Act. The Divisional Court construed this as meaning that only "administrative enforcement" proceedings such as a prohibition notice fell within "any action". I do not for my part think that the words "any action" in themselves have necessarily to be interpreted in this way. Nor does the context compel it. Schedule 6 itself under the heading "Enforcement" is dealing with both administrative enforcement and prosecution. Paragraph 1(b) provides that certain sections of the 1974 Act, including section 33, though with amendments, shall apply "for the purposes of providing for the enforcement of these Regulations" and "in respect of proceedings for contravention thereof". The result of this is that the provisions of the Act, subject to modifications, are incorporated in the Regulations for the purpose of enforcing the Regulations but that the powers in the Act for the enforcement of the Act continue. This result follows also from the Interpretation Act 1978. Section 18 of the latter provides that where an act constitutes an offence under two or more Acts or under an Act and at common law then the offender shall be liable to be prosecuted either under any of those Acts or at common law.

    58.  Section 23 makes it clear that in the absence of a contrary intention section 18 applies to subordinate legislation to the extent specified as it does to Acts. In my opinion paragraph 7 of Schedule 6 to the Regulations is entirely consistent with that. It adopts the same approach and no contrary intention is shown. Even if any action were to be read as meaning any administrative action there is nothing in the Regulations which specifically excludes the bringing of prosecutions under the Act even if such a provision were possible.

    59.  Moreover I do not consider that in this legislation there is a presumption of law against interpreting the provision of paragraph 7 of Schedule 6 as continuing in the Act even greater penal powers than those provided for in the Regulations. The protection of the public, in particular workers, is itself an important objective but since if both the 1974 Act and the Regulations achieve the same result is it an abuse of power to proceed under the Act with the greater penalties?

    60.  Moreover, it seems to me that it would have been perfectly possible to include both the greater and the lesser penalties in the statute. The fact that the Regulations could not provide for the trial on indictment with the higher penalties does not in my view mean that they could not be left to stand in the Act. It is not an abuse or otherwise unlawful by subordinate legislation to give the HSE an option whether to go for the lesser penalties for the less serious offence or for the higher penalties in respect of the more serious offence. If the facts are established this seems on the face of it a case where it was justified to bring proceedings enabling the greater penalties to be imposed.

    61.  I do not consider that there is any principle of Community law that the obligations imposed by a Directive cannot be provided for in more than one legislative enactment or order. It is in addition well established that a Member State can show that its obligations under Directives are already fulfilled under existing legislation. The case of Sagulo 8/77 [1977] ECR 1495 expressed this clearly and the Court has not infrequently followed it since. The issue in subsequent cases has not been whether such a defence is available but whether the existing legislation, whether found in one Act or in several different provisions, has with sufficient clarity and certainty already provided for the conditions or obligations required to be fulfilled by the Directive.

    62.  The Divisional Court proceeded on the basis that the charge under the Act covered the same ground as the Regulations and that if it were not so the decision on jurisdiction would have been different. I accept that the words used in the Act and in the Directive (as carried into the Regulations) are not identical. It does not seem to me, however, that there is a real divergence between the two.

    63.  In this regard it is to be noticed that the HSE recognises in its argument that the test of liability must be interpreted consistently with the requirement of Community law or be displaced by provisions of Community law having direct effect, and further that it will be open to Junttan to argue that it can only be convicted under the Act if it has breached the requirements contained in the Directive. Moreover, "one of the submissions to be made by the HSE at the trial will be that the standard of safety required by the 1974 Act was breached precisely because Junttan did not comply with the requirements of the Directive, in particular those relating to the design of the controls of the rig". These are all matters for the trial when it may or may not be that a question referable under Article 234 of the EC Treaty will arise. It does not seem to me that within the terms of Article 234 of the Treaty it is necessary to decide them in order to give judgment on this appeal.

    64.  I would accordingly allow the Health and Safety Executive's appeal and hold that the District Judge has jurisdiction to hear the prosecution under the 1974 Act.

    As to the second question referred—

    "Has the Health and Safety Executive failed to follow a procedure which was mandatory in the present case (namely that set out in Article 7 of Directive 98/37/EC) and, if so, what are the effects of that failure on the prosecution being brought by the Health and Safety Executive under section 6 of the Health and Safety at Work etc Act 1974?"

    it seems to me that the Divisional Court came to the right decision for the reasons given by my noble and learned friend Lord Steyn and like him I would dismiss Junttan's appeal.

LORD STEYN

My Lords,

    65.  On 9 February 1999, at Bristol, Mr Andrew Bourner, an employee of Simplex Piling Limited, was killed. His head was crushed when the piling hammer of a rig was accidentally released while he was working under it. Junttan Oy, a company incorporated in Finland, designed and manufactured the rig in Finland and supplied it to an English company. On 30 November 1998 the rig was delivered to the site where the fatal accident occurred. The rig was described as a Junttan PM20 piling rig, with serial number 1189. It bore a CE mark following an EC declaration of conformity of the rig for machinery made by Junttan Oy as the manufacturer dated 4 September 1998.

    66.  The Health and Safety Executive ("the HSE") contends that it has evidence, fit to be placed before a criminal court, which shows that:

a)  The machine was not designed and manufactured in accordance with appropriate safety standards in that, in particular, there was insufficient protection against the accidental release of the piling hammer; and

b)  Employees of Junttan were aware of the risk of the piling hammer being accidentally released, because the hammer was accidentally released whilst they were training employees of Simplex to use the machine, but they took no action.

The correctness of these allegations cannot be tested on the present appeal. For present purposes it must be assumed that the HSE may be able to prove these allegations.

    67.  The HSE took the view that it was competent to bring charges either under sections 3 and 6 of the Health and Safety at Work etc Act 1974 or under regulation 11(1) of the Supply of Machinery (Safety) Regulations 1992. The regulations were made to comply with Council Directive 89/392/EEC which was subsequently superseded by consolidating Council Directive 98/37/EC. (This explains why the regulations predate the 1998 Directive.)

    68.  Charges under the regulations must be tried summarily and are punishable only by a moderate fine i.e. on level 5. On the other hand, charges under section 6 of the 1974 Act may be tried on indictment and, if appropriate, punished by a much higher fine. The HSE considered that the death of Mr Bourner is a matter of great seriousness and that the fatality is to be regarded as an aggravating feature of the industrial accident. Accordingly, the HSE decided to bring charges under sections of the 1974 Act.

    69.  On 19 November 1999 an information in relation to a charge under section 6 of the 1974 Act was laid against Junttan at the Bristol Magistrates' Court. Section 6(1) provides:

    "(1) It shall be the duty of any person who designs, manufacturers, imports or supplies any article for use at work or any article of fairground equipment -

      "(a) to ensure, so far as is reasonably practicable, that the article is so designed and constructed that it will be safe and without risks to health at all times when it is being set, used, cleaned or maintained by a person at work; . . ."

Section 33(1) makes it an offence for a person to fail to discharge a duty under section 6. Section 33(1A) render a person who is guilty of such an offence liable on summary conviction to a fine not exceeding £20,000, and on conviction on indictment to an unlimited fine.

    70.  On 27 February 2000 a second information in relation to a charge under section 3 of the 1974 Act was laid at the Bristol Magistrates' Court. This charge is not material to the present appeal.

    71.  It is, however, necessary to set out further action initiated by the HSE. On 16 February 1999, the HSE issued a prohibition notice against the use by Simplex of any Junttan PM20 piling machines. No further enforcement action was taken by HSE against Simplex in respect of the accident. Following discussions involving the HSE, Junttan, Junttan's UK representative, the Federation of Piling Specialists, Simplex, and a Consulting Mechanical and Structural Engineer instructed by Simplex, Junttan made certain modifications to its piling rigs located in the UK in order to satisfy the concerns of the HSE as to the possibility of inadvertent release of the hammer. The modifications were made to all Junttan's piling rigs in use in the UK, and to all new piling rigs built by Junttan since March 1999. On 22 February 1999 HSE issued an improvement notice pursuant to section 21 of the 1974 Act requiring the remedy of the contravention of section 6 by 30 March 1999. The improvement notice was served on the UK sales agent of Junttan Oy. On 9 March 1999 the HSE withdrew the improvement notice.

    72.  On 4 May 2001, at the Bristol Magistrates' Court, District Judge Thomas heard, inter alia, submissions on behalf of Junttan that the court had no jurisdiction to hear and determine a prosecution based on an offence under section 6 of the 1974 Act. On 22 June 2001 the District Judge ruled that the court had jurisdiction to hear and determine the prosecution. The intention had been that the matter would be transferred to the Crown Court but in view of judicial review proceedings then launched by Junttan that did not happen.

    73.  On 5 September 2001 the claim for judicial review was lodged. In March 2002 the matter came before Lord Woolf of Barnes, CJ, and Wright J, sitting as a Divisional Court. The Divisional Court had to consider two grounds of challenge to the decision of the District Judge, namely -

    (a)  that Junttan could be prosecuted only under the Regulations and not under section 6 of the 1974 Act;

      (b) that the HSE had failed to follow a mandatory procedure set out in article 7 of Directive 98/37/EC.

The Divisional Court upheld the first objection but rejected the second: R (on the application of Junttan Oy) v Bristol Magistrates' Court [2002] EWHC 566. The Divisional Court dealt with the issues in reverse order.

    74.  The HSE now appeals to the House against the first decision of the Divisional Court, and Junttan appeals to the House against the second decision. It will be convenient to deal first with the decision that Junttan may only be prosecuted under the regulations.

    75.  The core of the reasoning of the Divisional Court on this point was stated by the Lord Chief Justice (para 53):

    "I have found this issue one of considerable difficulty and finely balanced. However, I have come to the conclusion that it is inappropriate and wrong for the Health and Safety Executive to prosecute for an offence under section 6 of the 1974 Act when there is a specific statutory offence under the Regulations covering exactly the same ground as section 6 but in different language so that different issues can arise as to the standard of safety which is required, and imposing a different penalty. The offence under the Regulations is the offence which gives effect to the Directive. In addition, the 1974 Act was there in the background. If there was an intention to prosecute for a different offence (not one covering exactly the same ground as the offence in the Regulations), I would take a different view. Partly as a matter of interpretation, and partly because it appears to me that it would be a form of misuse of the powers of the 1974 Act to rely on section 6, I have come to the conclusion that it was not open to the Executive to bring proceedings under section 6. They should have brought proceedings under the Regulations. It may be that the penalty under the Regulations is lower than it should be. If so, the Regulations should be amended. Indeed, I consider that attention should be given to the question of whether the penalties under the Regulations are sufficient. However, the person manufacturing the machinery to which the regime established by the Directive applies is entitled to have his conduct judged by the standards set in the Directive. Those standards are reflected in the Regulations, but not precisely reproduced by section 6 of the 1974 Act. Accordingly, I conclude that the decision of the District judge was wrong in that regard."

In a separate judgement Wright J expressed agreement with the judgment of the Lord Chief Justice.

    76.  The Divisional Court certified a point of law of general public importance on this aspect. It read as follows:

    "Was the Health and Safety Executive entitled as a matter of United Kingdom and European Community law to prosecute the Defendant under section 6 of the Health and Safety at Work etc Act 1974 in respect of the supply of machinery and questions of the safety of its design and construction, or was it only permissible for the Health and Safety Executive to bring proceedings against the Defendant under regulation 29(a) of the Supply of Machinery (Safety) Regulations 1992 (SI 1992/3073), which Regulations deal with the supply of machinery and safety of its design and construction and were notified to the EC Commission as being intended to implement the EC Machinery Directive 98/37/EC?"

This is the question to be examined on the appeal of the HSE to the House.

    77.  The second point (addressed first by the Divisional Court) relates to article 7 of the Directive. In order to explore the issue it is necessary to set out article 7 in extenso. It provides:

    "1. Where a Member State ascertains that:

    - machinery bearing the CE marking, or

    - safety components accompanied by the EC declaration of conformity, used in accordance with their intended purpose are liable to endanger the safety of persons, and, where appropriate, domestic animals or property, it shall take all appropriate measures to withdraw such machinery or safety components from the market, to prohibit the placing on the market, putting into service or use thereof, or to restrict free movement thereof.

    Member States shall immediately inform the Commission of any such measure, indicating the reason for its decision and, in particular, whether non-conformity is due to:

      (a) failure to satisfy the essential requirements referred to in article 3;

      (b) incorrect application of the standards referred to in article 5(2);

      (c) shortcomings in the standards themselves referred to in article 5(2).

      2. The Commission shall enter into consultation with the parties concerned without delay. Where the Commission considers, after this consultation, that the measure is justified, it shall immediately so inform the Member State which took the initiative and the other Member States. Where the Commission considers, after this consultation, that the action is unjustified, it shall immediately so inform the Member State which took the initiative and the manufacturer or his authorised representative established within the Community. Where the decision referred to in paragraph 1 is based on a shortcoming in the standards, and where the Member State at the origin of the decision maintains its position, the Commission shall immediately inform the committee in order to initiate the procedures referred to in article 6(1).

      3. Where:

      - machinery which does not comply bears the CE marking,

      - a safety component which does not comply is accompanied by an EC declaration of conformity,

      the competent Member State shall take appropriate action against whom so ever has affixed the marking or drawn up the declaration and shall so inform the Commission and other Member States.

      4. The Commission shall ensure that Member States are kept informed of the progress and outcome of this procedure."

It was common ground before the Divisional Court that the HSE did not in fact follow the procedure set out in article 7 of the Directive. Two questions arose: (1) was there a failure to comply with article 7? (2) If so, what are the consequences? The Lord Chief Justice (with whom Wright J agreed) concluded (at para 48):

    "With respect to Miss Lee, I regard this argument as one without any merit whatever. Article 7 provides that a Member State is required to take steps if it forms the view that machinery may endanger the safety of persons. In this case, before the prosecution was commenced, the machinery had been modified. It was no longer liable to endanger the safety of persons, though it had been responsible for an unfortunate death. In those circumstances it would be purposeless to withdraw such machinery from the market or to take any of the other action referred to in article 7. The position would be the same if, after the machinery had been used but before it was appreciated that it was not satisfactory from the point of view of safety, it was removed from this country. If it was appropriate to regard the manufacturer of the machinery as having committed a criminal offence, it could not be the intention that article 7 should prevent a prosecution. In my judgment, article 7 has no relevance to enforcement action which consists of taking criminal proceedings. Its relevance is confined to taking the measures referred to in Article 7, paragraph 1."

Junttan contends that the Divisional Court erred on this point. The Divisional Court certified the following question as a question of law of general public importance:

    "Has the Health and Safety Executive failed to follow a procedure which was mandatory in the present case (namely that set out in article 7 of Directive 98/37/EC) and, if so, what are the effects of that failure on the prosecution being brought by the Health and Safety Executive under section 6 of the Health and Safety at Work etc Act 1974?"

This is the question which arises on the appeal of Junttan. It is a live issue only if the appeal of the HSE succeeds.

The First Certified Question.

 
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