|Judgments - Regina v. Bristol Magistrates Court and Others (Appellants) ex parte Junttan Oy (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)
78. It will be recalled that the Divisional Court based its conclusion on a two-fold basis, viz because as a matter of interpretation the HSE could not bring a prosecution under the section 6 of the 1974 Act but only under the Regulations, and because "it would be a form of misuse of the powers of the 1974 Act to rely on section 6." On appeal to the House the second ground was not supported by Junttan. If the first ground is sound, the second does not arise. On the other hand, if the first ground fails, because it was open to the HSE to prosecute under section 6 of the 1974 Act or under the Regulations, no question of a misuse of power could arise. To this extent therefore the reasoning of the Divisional Court cannot be accepted.
79. It may well be that the Divisional Court would not have fallen into this error if section 18 of the Interpretation Act had been cited to it. Section 18 provides:
Section 23 of the Interpretation Act 1978 makes it clear that section 18 applies where two offences are contained in a statute, on the one hand, and a statutory instrument, on the other hand. It is therefore necessary in the first place to examine the Regulations with a view to ascertaining whether they reveal a contrary intent, viz an intent that a prosecution may not be brought at the discretion of the HSE under either the 1974 Act or the Regulations.
80. The Regulations were made by the United Kingdom under section 2(2) of the European Communities Act 1972 and were notified to the Commission as implementing the Directive. It is now necessary to refer to some of the provisions of the Regulations. Regulation 11 provides:
Regulation 12 provides:
Regulation 2(2) provides a relevant definition:
Subject to a defence of due diligence provided by Regulation 31, it is an offence under Regulation 29 to fail to comply with Regulation 11. Regulation 30 provides for penalties as already explained.
81. Regulation 28 and Schedule 6 make provision for enforcement action (e.g. by prohibition notice) and places the duty to take such action on the HSE. Parts of the 1974 Act are incorporated by reference into the Regulations.
82. Paragraph 7 of Schedule 6 contains a general saving provision:
On the face of it this provision rules out the argument that by reason of the provisions of the Regulations it is impossible to bring a prosecution under section 6 of the 1974 Act. The Divisional Court confronted this argument. The Lord Chief Justice observed (para 54):
It is now necessary to examine this part of the judgment of the Divisional Court.
83. There are formidable difficulties inherent in this reasoning. Even if paragraph 7 of schedule 6 is read as the Divisional Court read it, i.e. restricted to administrative action, such as a prohibition notice, there is still no provision of the Regulations which prevents a prosecution under section 6 of the 1974 Act or which is capable of displacing the operation of section 18 of the Interpretation Act 1978. The narrow construction adopted by the Divisional Court does not support the conclusion that as a matter of interpretation of the Regulations a prosecution under section 6 of the 1974 Act is no longer possible.
84. In any event, the restrictive construction adopted by the Divisional Court in effect interprets the words "any action" in paragraph 7 as "some actions but not others". It cuts down the ordinary meaning of the language. The obvious meaning of the operative words is wide enough to include the power of prosecution. It is, therefore, necessary to consider whether the restriction imported into the language serves any sensible contextual purpose. The Divisional Court considered that its interpretation was justified because a penal provision is at stake. That may sometimes be a relevant consideration. But our courts nowadays rarely apply the rule of strict construction. If it has a role to play it is as a rule of last resort: it is only to be applied if all other grounds of determining legislative intent have failed: Cross on Statutory Interpretation 3rd ed., 172-175. In the present context there is at stake a cogent countervailing legal policy: the protection of health and safety at work is of overriding importance. On the Divisional Court's interpretation even the worst conceivable failure to ensure safety of machinery resulting in many deaths could only be prosecuted summarily, with penalties which would be derisory, rather than on indictment under the 1974 Act. That could hardly have been the purpose of the regulations.
85. In any event, counsel for the HSE has persuaded me that there is no logical basis for the distinction inherent in the interpretation of the Divisional Court. In his printed case he succinctly and correctly summarised the position as follows:
For all these reasons I conclude that the regulations are not capable of bearing the restricted meaning favoured by the Divisional Court.
86. Dealing at this stage only with the interpretation of the regulations, I conclude that there is nothing in them which prevents a prosecution under section 6 of the 1974 Act.
87. It is now necessary to examine whether the Directive requires a different approach to be adopted. The Directive was adopted under article 100a of the EC Treaty (now renumbered article 95). The aim was to harmonise technical standards so as to improve free trade within the EC. The primary focus of the Directive was therefore the promotion of free trade. On the other hand, the recitals, detailed provisions, and structure of the Directive made clear that the protection of health and safety is of overriding importance. Thus recital (7) expressly stated that existing levels of health and safety in Member States are not to be lowered as a result of the Directive. Recital (10) stated that one of the essential aims of the Directive is the maintenance and improvement of the level of safety attained by the Member States. The relevance of these recitals to the provisions of the pre-existing section 6 of the 1974 Act is obvious.
88. Article 1 provides that the Directive applies to machinery and lays down essential health and safety requirements as defined in Annex I: see also article 3. Article 4 provides that 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 the Directive. Article 5 provides:
The Commission has correctly observed in Comments on Directive 98/37/EC, para 166, that "Compliance with harmonized standards implies 'presumption of conformity' to the regulations." Plainly the CE marking creates no more than a rebuttable presumption. This is clear from article 2. It provides:
This is an absolute obligation and is not dependent on whether or not the machinery or components comply with the requirements of the Directive. Safety is a matter of fact and the Directive requires that machinery and components must not in fact endanger health or safety. This is hardly surprising.
89. It is therefore clear from the provisions and structure of the Directive that the basic safety requirement in article 2(1) prevails over the free trade obligation in article 4. Thus under article 7(1), Member States are obliged to take appropriate measures to withdraw machinery from the market, prohibit its placing on the market, putting into service or use or restrict its free movement where they ascertain that the machinery is dangerous even if the machinery (properly) bears the CE marking. The purpose of the Directive is to set minimum rather than maximum health and safety standards. It creates a floor of protection. Member states are free to introduce safety measures which go further than the Directive, and to rely on pre-existing measures which impose additional or higher standards than the Directive.
90. The Divisional Court observed that (i) "the offence under the Regulations is the offence which gives effect to the Directive"; (ii) "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"; and (iii) "those standards are reflected in the Regulations, but not precisely reproduced by section 6 of the 1974 Act": para 53. The first proposition is not entirely accurate. The Directive does not prescribe any form of criminal sanction for failure by a manufacturer of machinery to comply with the requirements set out in Annex I of the Directive or the general duty to ensure that machinery is safe. Community law does not therefore prescribe what the criminal sanctions must be under domestic law. The second and third propositions appear to suggest that there is a disharmony between section 6(1)(a) of the 1974 Act and the Directive. That is, however, not correct. Section 6(1)(a) of the 1974 Act imposes an obligation on persons who design, manufacture, import or supply any article for use at work "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." Article 2(1) of Directive 98/37/EC provides: "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 . . ." There is also no dissonance between the requirement that an article must be "safe and without risks to health" and the requirement that machinery "[does] not endanger the health and safety of persons."
91. Nothing in the Directive affects the pre-existing right of Member States to take action against machinery that is believed to be unsafe. The 1974 Act and the Regulations function perfectly sensibly in parallel inasmuch as they operate at different levels of seriousness. The Directive and its purposes are not in any way undermined by the co-existence of the 1974 Act and the Regulations. Whether such a regime is appropriate is a matter for domestic law.
92. I would therefore hold that the HSE was entitled to prosecute Junttan under section 6 of the 1974 Act and I would rule that the Divisional Court erred in ruling to the contrary. It was agreed at the hearing that it is not necessary to refer a question to the European Court of Justice under article 234 of the EC Treaty. That remains the position.
The Second Certified Question.
93. It is now necessary to deal with the second certified question. Article 7 of the Directive has already been set out. The facts have also been described. After the accident the HSE issued a prohibition notice. Following multi-party discussions the machinery was modified. That took place before the prosecution was commenced. As a result of the modifications the machinery no longer posed a danger to the safety of persons.
94. The Lord Chief Justice made clear that in the circumstances the argument of Junttan on the failure to operate the article 7 procedure was without merit. I am in complete agreement with him on this point. The procedure under the Directive ceased to be relevant once the rig had been modified. There was no sense in requiring the mechanism to be triggered where the manufacturer had already agreed to make the modifications and had done so. In its Guide to the Implementation of Directives Based on the New Approach and the Global Approach of September 1999 the European Commission explains the conditions for invoking the safeguard clause as follows:
While these statements are not authoritative, they are in keeping with the purposive approach of European law and in my view is the only sensible and businesslike approach.
95. Junttan's only answer is that its actions were not voluntary but motivated by commercial pressures. That is, however, a hopeless contention in European and domestic law. Junttan could have challenged the lawfulness of the prohibition notice. It did not do so. The motives of Junttan in agreeing to modifications are irrelevant.
96. On this narrow ground I would answer the certified question by holding that on the facts there was no failure to follow the safeguard procedure. The answer is obvious. In these circumstances it is unnecessary to consider other questions debated on the appeal of Junttan. And there is no relevant question to be referred to the European Court of Justice under article 234 of the EC Treaty.
97. I would allow the appeal of the HSE and dismiss the appeal of Junttan.
LORD HOBHOUSE OF WOODBOROUGH
98. This case arises out of a tragic accident at the Avonmouth sewage plant on 9th February 1999 which caused the death of Mr Bourner. He was fatally injured when the hammer of a piling rig fell on him. For present purposes, it is to be assumed that the descent of the hammer was caused by two relevant factors. The first was the act of the rig-operator in causing the rig to drop the hammer onto Mr Bourner who was standing below it. The second was the fact that the rig had not been designed by its manufacturers in a way which made it impossible for the operator to make such a mistake. The two men were employees of an English company Simplex Piling Ltd (earlier known as DEL Piling Contractors). Simplex (DEL) had bought the rig the previous year from a Finnish company, Junttan Oy, which carried on business in Finland as the manufacturers of piling rigs. The rig in question had been manufactured in Finland by Junttan Oy in accordance with one of their designs. It had been delivered to Simplex in England. Hence there had been a supply of the rig in England by Junttan Oy.
99. The questions argued on this appeal relate to the power of the United Kingdom Health and Safety Executive to prosecute Junttan Oy under s.6(1) and s.33(1) of the Health and Safety at Work etc Act 1974. The summons commencing the prosecution before the Bristol Magistrates' Court was served on Junttan Oy in Finland. The summons charged Junttan Oy with having failed to discharge their duty to ensure that the rig was so designed and manufactured that it would be safe and without risks to health at all times when it was being used by persons at work.
100. It must be pointed out at once that this summons is most unhappily worded. The criminal acts it charges are the design and manufacture of the rig. Both these acts took place outside the United Kingdom and the English courts have no jurisdiction over Junttan Oy in respect of those acts. They cannot be the subject of criminal proceedings in the English courts. Besides, the 1974 Act is purely municipal and does not have extra-territorial effect. The jurisdiction of the English courts in respect of this transaction first arose at the time of the import of the rig into the United Kingdom and its supply to Simplex (DEL). The act which should have been charged was the supply of the rig, not anything that happened in Finland.
101. The preamble to the 1974 Act states that its purpose is, among other things, "to make further provision for securing the health, safety and welfare of persons at work". The same purpose is reiterated in the heading to Part I of the Act and in s.1(1). Sections 3 to 5 deal with the duties of employers and those responsible for the work-place. S.6, as amended by the Consumer Protection Act 1987, provides -
S.33 of the Act provides that following a conviction on indictment the offender shall be liable to an unlimited fine.
102. The Health and Safety Executive submit that the situation is straightforward. There was an offence committed within the jurisdiction - the supply of the rig. It was dangerous as is demonstrated by the occurrence of the accident. In any event, the question whether it was dangerous will be a question of fact for the jury to decide at the trial. No question whether it was reasonably practical to design and construct a safe rig can arise since after the accident Junttan Oy modified the rig in compliance with a notice served upon them by the Executive so as to eliminate the possibility of any repetition of the same accident. Accordingly, no defence under s.6 and s.40 (the reversal of the burden of proof provision) can arise; but, if it did, it would again be a question of fact for the jury. The accident had fatal consequences and a trial on indictment is justified together with a power to impose an unlimited fine. There can be no valid objection to the prosecution of Junttan Oy under the 1974 Act proceeding.
103. Junttan Oy object at the outset, in my opinion rightly, that to describe questions of safety as simple questions of fact, just as if one was asking whether a given bird is a sparrow or a sparrowhawk, is to make a fundamental and elementary mistake. Safety is a question of opinion. There is no such thing as absolute safety. All safety is relative. Two men can legitimately hold different opinions whether a machine is safe or unsafe. Different assessments can be and are made of the safety of a particular machine by the authorities in different countries. They differ on the margin of safety to be required. Or, one may consider that another's safety device in fact increases the risks inherent in the machine rather than reducing them. Junttan Oy then go on to submit that this is the present case. The piling rig was considered safe in Finland and, they say, in a number of other European countries, though not in England by the Executive. They submit that this conflict and its impact on the working of the single market is the subject of the European Directive to which I now turn.
104. Junttan Oy argue that the field covered by this prosecution is now governed by the regime required by the European Directive 98/37/EC "on the approximation of the laws of the Member States relating to machinery", a consolidating directive which replaced the earlier like Directive, 89/392/EEC, which since 1989 had been frequently amended. There are 25 recitals. They are too lengthy to quote in full. The basic principle is stated in recital (2): "Whereas the internal market consists of an area without internal frontiers within which the free movement of goods ... is guaranteed." Succeeding recitals stress the disparity between the existing accident prevention laws of Member Countries and the fact that they "constitute barriers to trade within the Community" (6), and "obstacles" to the free movement of goods (8). Recital (7) is to the same effect. Recitals (7) to (9) stress the requirement that the various national laws be "approximated" or "harmonised". This reflects the "New Approach" and "Global Approach" as explained in the Commission's Guide of 1999. As is also made clear in the recitals, and in the Guide, there are two further basic features of the new legislation. These are the CE marking system and the "safeguard clause procedure". Recital (16) states that "it is necessary ... to ensure the free movement and putting into service of machinery bearing the 'CE' marking". Similarly Recital (17) includes the words "whereas, in order to help manufacturers to prove conformity to these essential requirements and in order to allow inspection for compliance to the essential requirement, it is desirable to have standards harmonised at European level for the prevention of risks arising out of the construction and design of machinery". It is recognised in Recital (5) that "Member States are responsible for ensuring the health and safety on their territory of persons ... in particular, of workers, notably in relation to the risks arising out of the use of machinery"; and Recital (19) states that this responsibility is addressed in the "safeguard clause providing for adequate Community protection procedures". Recitals (24) and (23) deal further with the 'CE' marking scheme, the standard required, its essential place in the 'global' approach and the presumption of design and construction compliance which it creates.