|Judgments - Regina v. Bristol Magistrates Court and Others (Appellants) ex parte Junttan Oy (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)
105. The substantive provisions of the Directive follow the scheme of the recitals. Chapter I is entitled "Scope, Placing on the Market and Freedom of Movement". It incorporates an Annex which sets out the "essential health and safety requirements". These are expressed in considerable detail and clearly include the matters of complaint relevant to the present case. Articles 2 and 3 define the duty of each Member State in terms of the "essential requirements". Article 4 provides: "Member States shall not prohibit, restrict or impede the placing on the market or putting into service in their territory of machinery and safety components which comply with this Directive." Article 5 provides: "Member States shall regard ... as conforming to all the provisions of this Directive, including the procedures for checking the conformity provided for in Chapter II: machinery bearing the CE marking and accompanied by the EC declaration of conformity referred to in Annex II, point A." Article 7 makes separate provision for where a Member State ascertains that machinery bearing a CE marking is liable to endanger the safety of persons. This enables that State to take various appropriate steps, under the supervision of the Commission. It also authorises the "competent Member State to take appropriate action against whom so ever has affixed the marking" to the non-compliant machinery "or drawn up the declaration" but with a concurrent duty to inform the Commission and other Member States.
106. The relevant rig had at the time of its manufacture in Finland been marked by Junttan Oy with the CE marking and an "EC Declaration of conformity for machinery" had been issued in Finland by their area sales manager certifying that the rig, which it identified, was "in conformity with the provisions of the Machinery Directive (Directive 89/392/EEC), as amended, and with national implementing legislation"; it further declared that harmonised standard EN 996 had been applied. No allegation has been made that this Declaration was invalid or unlawful. The evidence of Junttan Oy is that this design of rig has been accepted as safe in other member states and the certification has not been questioned.
107. To return to the English law, the regulations which the UK government introduced to comply with the Machinery Directive of 1989 as amended were the Supply of Machinery (Safety) Regulations 1992 (1992 No 3073). Fresh regulations were not introduced after the 1998 Directive. The Regulations specifically apply to the supply of machinery and safety components and not to any other transactions (Reg.2(1)). The article supplied must satisfy the "essential health and safety requirements", be properly certified and marked and be in fact safe (Reg.12(1)). The offence, if any, that Junttan Oy committed was an offence contrary to Reg.11. This is made a criminal offence by Reg.29(a) and under Reg.30(1) it is to be prosecuted summarily; and on conviction the offender, unless sentenced to imprisonment (3 months maximum), is to be liable only to a 'level 5' fine. The Divisional Court commented that this is clearly an inadequate limit but the regulation has never been amended. Reg.31 provides for the person prosecuted to have a due diligence defence. The Regulations do not give any effect to the provision of the Directive that the CE marking and the certifying Declaration shall give rise to a presumption of compliance with the essential safety requirements; indeed, they implicitly deny any such presumption or, even, the giving of any evidential value of the marking or declaration (eg Regs 12 and 25). The regulations expressly disapply s.33(2A) of the 1974 Act (Schedule 6, para 1(b)(vi)). (It is agreed that there is a printing error in the Regulations and that s.33 is what is being referred to.) Paragraph 7 of Schedule 6 provides that "Nothing in these Regulations shall be construed as preventing the taking of any action in respect of any relevant machinery or a relevant safety component under the provisions of the 1974 Act, the Order or the 1987 Act". This provision was central to much of the argument in your Lordships' House.
108. It is on this material that Junttan Oy submit that the specific provisions in the Regulations and in the Directive have superseded, pro tanto, those of the 1974 Act and that any prosecution in respect of their supply of this rig must be brought under the Regulations and not be inconsistent with the Directive. Their motive in so doing is to take advantage of the presumption, of the due diligence defence and of the requirement of a summary trial with a limited fine. The Health and Safety Executive say that they can still prosecute for this alleged offence under the 1974 Act. They rely upon paragraph 7 and upon s.18 of the Interpretation Act 1978 which preserves the power to prosecute under an earlier Act or under the common law notwithstanding that the power to prosecute in respect of the same conduct has been given by later legislation, unless a contrary intention appears . The Divisional Court, which was not referred to s.18, upheld the submission of Junttan Oy. This raises a question of English law and the construction of the Regulations, and particularly of paragraph 7.
Discussion: English Law.
109. The first thing to do is to place the question of construction in its context. The 1974 Act had a different purpose from the Directive (which did not then exist) and the 1992 Regulations. The scope of the former was directed to health and safety in the work-place. It covered many sources of hazard, any "article" not just machinery; for example, it covered explosive and inflammable substances and fairground equipment. The persons subject to the specified duties included not just, or even primarily, the designers, manufacturers, importers and suppliers of any such article but also employers and "persons concerned with premises"; they owed duties not only to their employees but also to any other person exposed to the hazard. The Act conferred extensive powers upon the newly formed Health and Safety Executive and its inspectors. They could enter and investigate premises, require evidence to be preserved, take samples, remove evidence, call for and inspect documents and records and so on (s.20). They could serve mandatory "Improvement notices" (s.21) and "Prohibition notices" (s.22). It gave powers to obtain information (s.27). It gave the customs a power to detain articles and substances (s.25A). The criminal offences which could be prosecuted under the Act (s.33) covered the whole range of these duties and powers and included collateral matters such as attempting to deceive the inspectors. There is (understandably) nothing in the Act about marking or certification nor about the free movement of goods within the EEC nor any reference to any European legislation.
110. By contrast the Regulations relate specifically to the supply of machinery. There are cross-references to the European legislation. The marking and certification systems are acknowledged. The relevant sentencing power in the 1974 Act is expressly disapplied and a different power specified. Paragraph 7 is not as wide as might first appear: it covers "any action in respect of any relevant machinery .... under the provisions of the 1974 Act ...". Does this include prosecuting for conduct which is expressly made an offence under the Regulations, negativing the due diligence defence granted by the Regulations, reapplying the disapplied s.33(2A) and seeking a greater penalty than that allowed by s.30(1) of the Regulations? Or does it refer to the preservation of the extensive powers granted by sections 20 and following and the prosecution for the many other offences created by the 1974 Act not, as such, involving the import and supply of machinery? Either construction would in my opinion be consistent with the actual wording of paragraph 7. One must then add to that the fact that a prosecution on the terms of the 1974 Act for import into the United Kingdom from another Member State of marked and certified machinery would involve the United Kingdom in a breach of its obligations under the Machinery Directive; it would also involve a collateral attack on the presumption requirement in the Directive and its scheme for dealing with improper certification. Where does all this leave the question of the correct construction of the Regulations?
111. I have no doubt that as a matter of English law the correct construction to place upon the Regulations is that they pro tanto supersede the corresponding provisions of the 1974 Act. Viewed overall a contrary intention does appear. The consistent (and sensible) of the two alternative constructions to be placed on the ambiguous paragraph 7 is to be preferred. I therefore agree with the conclusion of the Divisional Court on this point and am reinforced in my conclusion by that contained in the Opinion of my noble and learned friend Lord Nicholls of Birkenhead and the reasons he has given and the authorities he has cited.
112. There is a final argument which I should shortly cover. It has been argued by the Executive that, if there is any question whether the 1974 Act is fully compatible with the Directive, your Lordships should hold that the prosecution of Junttan Oy under the 1974 Act should be allowed to go ahead and, it is said, Junttan Oy can raise in those proceedings any defences which they believe they are entitled to under the Directive. This argument of the Executive seems to me to amount to a reductio ad absurdum of the point in issue on this appeal. It ignores the necessity to construe the Regulations as a matter of English law. It gratuitously courts uncertainty. If the correct decision on this appeal turns upon the compatibility of the 1974 Act with the Directive, this is a point upon which there is no unanimity of opinion in your Lordships' House and is contrary to the decision of the Divisional Court: it is, to put it at the lowest, an arguable point. If it would be incompatible with the Directive for Junttan Oy to be prosecuted under the 1974 Act, it follows that it is a question of compatibility which should be the subject of a reference to the European Court of Justice. I do not accept this argument of the Executive.
113. It is true that even a prosecution under the Regulations would still leave unresolved questions of compatibility with the Directive in respect of the relevance of marking and certification. The fact that the drafting of the Regulations does not seem to take into account marking and certification which has occurred in another Member State and in accordance with its laws makes this inevitable. What Junttan Oy ask for at present is that they should not be prosecuted under the 1974 Act for this import and supply. If this is acceded to, any other questions, if they arise, would have to be dealt with in the course of a prosecution under the Regulations if it is still permissible to bring one: see s.34 of the Act and Sched 6, para 1(b)(vii)(bb). Further, it may be that, if Junttan Oy are able to raise the due diligence defence (as they would be on a prosecution under the Regulations), the question of the evidential value of the marking and certification would become academic. (Indeed, trying to look into the mind of the draftsman of the Regulations, it is not impossible that he, rightly or wrongly, felt that providing this defence was a good way to respond to the presumption in the Directive.)Conclusions
114. The appeal of the Health and Safety Executive should be dismissed and the order of the Divisional Court on this point affirmed.
115. There was also an appeal by Junttan Oy against another part of the decision of the Divisional Court. It has already been fully discussed in the Opinions of your Lordships. The appeal of the Executive having failed, it is hard to see that this point has any longer any relevance. It can, further, be commented that, on any view, Junttan Oy is not being prosecuted for an offence under Regs 28 and 29 and, if it were, the defence under Reg.28(2) would appear to be available to it. I agree that this appeal should be dismissed.
116. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Steyn and Lord Nicholls of Birkenhead, who have the misfortune to differ on the answer to the first certified question. I have come to the conclusion that in this respect Lord Steyn's answer is to be preferred, and I shall shortly explain my reasons for doing so.
117. I am satisfied that as a matter of domestic law it is not an objection to a prosecution under the Health and Safety at Work etc Act 1974 that the conduct complained of also constitutes an offence under the Supply of Machinery (Safety) Regulations 1992. This is the effect of Sections 18 and 23 of the Interpretation Act 1978 unless "a contrary intention appears". For the reasons given by Lord Steyn I do not think it does. Indeed, as Lord Nicholls has observed, paragraph 7 of Schedule 6 to the 1992 Regulations presupposes the continued existence of relevant obligations under the 1974 Act.
118. The question is whether the same conclusion is open when regard is paid to the obligations of the United Kingdom under the Directive. The object of the Directive is to harmonise Member States' varying standards of health and safety in order to prevent them from impeding the free movement of machinery within the single market without compromising workers' health and safety. These twin objectives made it necessary for the Directive to set not only minimum standards to be achieved, without which the health and safety of workers could be at risk, but also maximum standards, without which Member States would be free to introduce anti-competitive measures under the guise of protecting workers' health and safety. The natural way to ensure the introduction of new maximum and minimum standards is to replace the existing legislation altogether; and recital (9) of the preamble to the Directive seems to envisage that this is the method that Member States would choose to adopt. But the Directive does not commit them to adopt any particular method of transposing the requirements of the Directive into national law, provided that the objects of the Directive are achieved.
119. Articles 2 and 3 of the Directive impose minimum standards. Article 2 does so in general terms. It requires Member States to take "all appropriate measures" to ensure that machinery and safety components covered by the Directive are not placed on the market if they "endanger the health or safety of persons." It does not require Member States to create new criminal offences or to prosecute offenders; nor does it forbid it. It leaves it to Member States to decide for themselves on the measures which they consider to be appropriate to achieve the desired result. These may include criminal sanctions, but they need not do so.
120. Article 3 condescends to more detail. It provides that such machinery and safety components must satisfy the health and safety requirements contained in Annex I. In fact these requirements are necessarily still in relatively general terms and are couched by reference to the object to be achieved rather than the means of achieving it. Thus the provision which is engaged in the present case is that control devices must be designed or protected so that, where there is a risk to health or safety, the desired effect cannot occur without an intentional operation.
121. Articles 4 and 5 are concerned to ensure the free movement of machinery and safety components which do satisfy the health and safety requirements of the Directive. Article 4 provides that Member States must 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 the Directive. Strictly speaking this does not preclude Member States from leaving on the statute book standards of health and safety which are more rigorous than those of the Directive, but it does preclude them from enforcing them.
122. Article 5 provides that machinery which bears the CE marking, accompanied by the EC declaration of conformity, must be regarded as conforming to all the requirements of the Directive. But Article 5 is largely circumscribed by Article 7 which provides that, where a Member State discovers that machinery or safety components marked with a CE marking is in fact nevertheless "liable to endanger the safety of persons", it must take all appropriate measures to withdraw it from the market, prohibit it from being placed on the market or put into service, and restrict its free movement. So, despite everything which might indicate the contrary, when it comes to the crunch the Directive puts safety first. Even if the machinery bears a CE marking, a Member State may restrict its free movement once it is found to be "liable to endanger the safety of persons"; and there is nothing to prevent it from prosecuting the persons responsible. The question whether something is "liable to endanger the safety of persons" is a question of fact which cannot be reduced to compliance with a legal text.
123. One question which has been debated before us is whether the mere co-existence of statutory obligations under the 1974 Act and the 1992 Regulations constitutes a breach of the United Kingdom's obligations to give effect to the Directive. It may or may not be satisfactory; that is a matter for domestic law. But I do not see how in itself it can be said to be a breach of our duties under Community law. Community law requires us to give effect to the Directive. It requires us to enforce the standards of safety set out in the Directive; and subject thereto to allow the free movement of machinery which does satisfy those standards. Provided that we do this, Community law is not concerned with the legislative techniques which we adopt for the purpose. We were obliged to transpose the Directive into national law and we have done so by making the 1992 Regulations. We were not obliged to repeal or disapply the 1974 Act. It would obviously have been sufficient to provide that machinery which complied with the 1992 Regulations should be regarded as complying with the requirements of the 1974 Act.
124. But even this is not strictly necessary. It is the particular case which matters. The question for Community law in the present case is not whether the United Kingdom has properly implemented the Directive, but whether the prosecution or threat of prosecution of Junttan Oy impedes or restricts the free movement of machinery which complies with the Directive, that is to say which satisfies the requirements in Annex I and has not been found to be liable to endanger the safety of persons.
125. To obtain a conviction under the 1974 Act the prosecution must prove that that Juntann Oy have failed
contrary to Section 6(1) of the 1974 Act. If it proves this, it will have proved that the machinery is "liable to endanger the safety of persons" within the meaning of the Directive; in other words that the machinery is of a kind which the United Kingdom is obliged to withdraw from the market and the free movement of which it is bound to restrict.
126. But that is not the end of the story. Under the 1992 Regulations the prosecution would have had to prove that Juntann Oy had failed to ensure that the machinery satisfied the relevant requirements in Annex I to the Directive contrary to Regulation 12 of the 1992 Regulations. Even where the prosecution is brought under the 1974 Act, however, it is not sufficient for the prosecution to allege that the machinery is unsafe within the meaning of Section 6(1). It must give particulars of the offence to explain the grounds on which the machinery is alleged to be unsafe. The prosecution's case against Junttan Oy is that it is unsafe because it contravenes the provisions of Section 3.3.3 of Annex I to the Directive. Whether the present prosecution be brought under the 1974 Act or the 1992 Regulations, the particulars of the offence charged are the same.
127. I do not overlook the fact that the 1974 Act creates an offence of strict liability, whereas the 1992 Regulations allow a defence of due diligence. This does not appear to be required by the Directive, and it may be that in this regard the United Kingdom may have gone beyond a mere transposition. Moreover, conviction of an offence under the 1974 Act attracts a significantly heavier penalty than does a conviction under the 1992 Regulations.
128. These are real differences; but I cannot see that they constitute a breach of the United Kingdom's obligations to give effect to the Directive. They arise only once the machinery has been found to be unsafe, in the present case because it does not comply with the requirements of Annex I. The Directive is concerned to prevent such machinery being placed on the market. It is not concerned with the sanctions which Member States may impose for contravention. It does not require them to impose criminal sanctions at all; and if they choose to do so the scope of the offence and the nature of the defences which they may allow in relation to machinery which has been found to be unsafe are matters for national law.
129. So I would answer the first certified question by saying that there is nothing in the Directive which prevents a prosecution under Section 6 of the 1974 Act, at least where it is alleged that the machinery is unsafe because it does not comply with a requirement in Annex I to the Directive. On the second certified question I agree with the conclusion of my noble and learned friend Lord Steyn. I also agree with him that there is no question to be referred to the Court of Justice.
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