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|Judgments - Regina v. Bristol Magistrates Court and Others (Appellants) ex parte Junttan Oy (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. Bristol Magistrates Court and others (Appellants)
ex parte Junttan Oy (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)
Regina v. Bristol Magistrates Court and others (Respondents)
ex parte Junttan Oy (Appellants) (Criminal Appeal from Her Majesty's High Court of Justice)
THURSDAY 23 OCTOBER 2003
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Slynn of Hadley
Lord Hobhouse of Woodborough
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Bristol Magistrates Court and others (Appellants) ex parte Junttan Oy (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)
Regina v. Bristol Magistrates Court and others (Respondents) ex parte Junttan Oy (Appellants) (Criminal Appeal from Her Majesty's High Court of Justice)
 UKHL 55LORD NICHOLLS OF BIRKENHEAD My Lords,
1. This case arises out of a tragic accident at Avonmouth sewage plant in February 1999. Junttan Oy, a Finnish company, manufactures piling rigs. It manufactured the Junttan PM20 LC piling rig, serial number 1189. The rig bore a CE mark following an EC declaration of conformity. Junttan UK, on behalf of Junttan Oy, agreed to supply this piling rig to an English company at a cost of £305,000. The rig was delivered to the docks at Felixstowe in September 1998, and transported to a site in Bristol on 30 November 1998.
2. On 9 February 1999 Steven Thompson was operating the rig and Andrew Bourner was working on the ground attaching the chains to the piles and lining them up ready to be driven into the ground. The accident then occurred. The hammer of the rig descended upon Mr Bourner, causing fatal injuries.
3. Subsequently the Health and Safety Executive issued a prohibition notice against the use of any Junttan PM20 piling machines. The Health and Safety Executive expressed concern about the risk of the hammer being released accidentally. On 22 February 1999 the Health and Safety Executive issued an improvement notice pursuant to section 21 of the Health and Safety at Work etc Act 1974 requiring the contravention of section 6 of the Act to be remedied by 15 April 1999. Following discussions between all concerned, Junttan Oy made modifications to all its piling rigs in use in the United Kingdom, and to all new piling rigs built by it after March 1999. The Health and Safety Executive withdrew the improvement notice. But in November 1999 the Health and Safety Executive laid an information against Junttan Oy at Bristol Magistrates' Court, alleging contravention of section 6 of the 1974 Act.
4. On 22 June 2001 District Judge Thomas, sitting in the Bristol Magistrates' Court, rejected arguments that the prosecution was unlawful. Junttan Oy commenced judicial review proceedings in respect of that decision. The application was heard by the Divisional Court, comprising Lord Woolf CJ and Wright J. On 19 March 2002 the court upheld one of the grounds relied upon by Junttan Oy and declared the prosecution was unlawful. The court certified two questions as points of law of general public importance.
5. The first question is whether the Health and Safety Executive was entitled, as a matter of United Kingdom and European Community law, to prosecute Junttan Oy for contravention of section 6 of the 1974 Act, as distinct from bringing proceedings under regulation 29(a) of the Supply of Machinery (Safety) Regulations 1992. An important practical difference between a prosecution under the 1974 Act and a prosecution under the 1992 regulations is that an offence under the Act carries a significantly heavier maximum penalty than an offence under the regulations. The Divisional Court held the Health and Safety Executive was not so entitled.
6. This first question calls for examination of the inter-relationship of the 1974 Act, the machinery directive, by which I mean Directive 98/37/EC of 22 June 1998, and the 1992 regulations.
The 1974 Act
7. Part I of the Health and Safety at Work etc Act 1974 imposes general duties on employers, employees, manufacturers and others. The primary object of these duties is to secure the health, safety and welfare of people at work. Section 6, in its amended form, prescribes general duties of manufacturers:
8. Under section 33(1)(a) of the Act it is an offence for a person to fail to discharge a duty to which he is subject by virtue of section 6. The offence is punishable on summary conviction to a fine not exceeding £20,000 or, on conviction on indictment, to a fine of unlimited amount.
The machinery directive
9. The machinery directive (Directive 98/37/EC) is a consolidating directive, concerned with the approximation of the laws of member states relating to machinery. This directive has its origins in Council Directive 89/392/EEC. It has the twofold objective of promoting safety standards of machinery and the free movement of machinery within the Community. The directive is intended to be in the nature of a code, with which the laws of member states must accord. One reason for this is that, as noted in the preamble to the directive, the legislative systems of member states regarding accident prevention are very different. Although these differences do not necessarily lead to different levels of health and safety, these disparities nonetheless constitute barriers to trade within the Community: recital (6). Accordingly, existing national health and safety provisions regarding protection against the risks caused by machinery must be approximated to ensure free movement of machinery on the market without lowering existing justified levels of protection in member states: recital (7).
10. Regarding safety standards, the preamble notes that harmonisation must be confined to the requirements necessary to satisfy 'essential health and safety requirements' relating to machinery. These requirements 'must replace the relevant national provisions because they are essential': recital (9). The maintenance or improvement of the level of safety attained by member states is one of the essential aims of the directive and of 'the principle of safety as defined by the essential requirements': recital (10). The essential health and safety requirements must be observed in order to ensure machinery is safe: recital (14).
11. I turn to the substantive articles of the directive. Articles 2 and 3 are concerned to ensure the safety of machinery. Article 2 requires member states to take all appropriate measures to ensure that machinery may be placed on the market only if it does not 'endanger the health or safety of persons'. Article 3 provides that machinery must satisfy the essential health and safety requirements set out in annex 1. Annex 1 contains a detailed list of requirements. These requirements set out general principles including, for instance, the principles to be applied by manufacturers, in order of priority, when selecting the most appropriate method of manufacture. One of the detailed requirements is that control devices must be designed or protected so that the desired effect, where a risk is involved, cannot occur without an intentional operation.
12. Articles 4 and 5 of the directive are concerned with the free movement of machinery which satisfies the safety requirements. It is not open to a member state to prescribe different standards. Member states must not 'prohibit, restrict or impede' the marketing or use in their territory of machinery which complies with the directive: article 4. Member states must regard machinery bearing the CE marking, accompanied by the EC declaration of conformity, as conforming to all the provisions of the directive: article 5.
13. Article 13 requires member states to communicate to the Commission the text of the provisions of national law they adopt in the field governed by the directive. The United Kingdom communicated the text of the 1992 regulations.The 1992 regulations
14. The purpose of the Supply of Machinery (Safety) Regulations 1992 (S I 1992 no 3073) was to implement this country's obligations under Council directives which were consolidated subsequently in the machinery directive. The regulations were made by the Secretary of State for Trade and Industry pursuant to powers conferred by section 2(2) of the European Communities Act 1972. In short, the 1992 regulations prohibit manufacturers supplying machinery unless the machinery satisfies the relevant essential health and safety requirements and 'is in fact safe': regulations 11 and 12. The 'essential health and safety requirements' are those set out in annex 1 to the machinery directive. They are reproduced in full as schedule 3 to the 1992 regulations. 'Safe' means that when the machinery is 'properly installed and maintained and used for the purposes for which it is intended, there is no risk (apart from one reduced to a minimum) of its endangering the health of or of its being the cause or occasion of death or injury to persons'. When considering whether a risk has been reduced to a minimum, regard is to be had to the practicability of so reducing that risk when the machinery was constructed: regulation 2.
15. Under regulation 29 it is an offence to contravene or fail to comply with regulation 11. The punishment, on summary conviction, is imprisonment for up to three months and, alternatively or additionally, a fine up to level 5 on the standard scale. Currently that is £5,000. Puzzlingly, there is no provision for trial on indictment. This level of maximum fine is to be contrasted with the unlimited fine prescribed by the 1974 Act for failure to discharge a section 6 duty. It is a defence for the person charged to show he took all reasonable steps and exercised all due diligence to avoid committing the offence: regulation 31.The first question: co-existence of manufacturers' duties under the 1974 Act and under the 1992 regulations
16. As already seen, one effect of the 1974 Act and the 1992 regulations is that on the face of these legislative provisions there exist side by side two sets of duties imposed on machinery manufacturers: duties imposed by the 1974 Act and duties imposed by the 1992 regulations. Contraventions of these duties attract their own criminal sanctions. At the heart of the first certified question is the issue whether, so far as the 1974 Act is concerned, the co-existence of these two sets of duties is compatible with the United Kingdom's obligations under the machinery directive.
17. In considering this issue the appropriate starting place is to note the Community law setting in which the 1992 regulations were made. The 1974 Act was not enacted so as to give effect to any directive relating to machinery. It was not until 1989 that the first directive relating to machinery, directive 89/392/EC, was adopted by the Council of the European Communities. That was long after the enactment of the 1974 Act. The 1992 regulations, however, were made expressly for the purpose of implementing the 1989 directive. In their present, amended form the 1992 regulations are intended to implement the machinery directive of 1998.
18. It is common ground that the 1992 regulations are effective for this purpose. They are framed in terms which effectively transpose into national law the obligations imposed by the machinery directive. In particular, the obligations imposed on manufacturers by the 1992 regulations duly reflect the obligations imposed on member states by articles 2 and 3 of the machinery directive. In other words, the 1992 regulations faithfully reproduce the safety code prescribed by the machinery directive. Standing by themselves the 1992 regulations achieve that object.
19. As I see it, as a matter of general approach, this comprehensive transposition by the 1992 regulations leaves little room for pre-existing legislation, such as the 1974 Act, to continue to operate on ground covered by the 1992 regulations. Were the 1974 Act to continue to apply to the same matters as the 1992 regulations discrepancies between the two sets of legislation, to greater or lesser extent, would almost inevitably emerge. Discrepancies or, at the very least, ambiguities would be likely to arise because the 1974 Act was not framed with the machinery directive, or its predecessor directives, in mind.
20. These discrepancies would represent a failure by the United Kingdom properly to implement the machinery directive. This would be so even if they were no more than ambiguities. Implementation of a directive calls for clarity and precision of transposition. Those who are intended to be benefited by a directive need to know, and are entitled to know, where they stand. Obscure and uncertain legal provisions will not suffice. This is particularly important where, as in the present case, nationals of other member states are intended to be accorded rights: Commission v Netherlands  ECR I-3541, paras 17, 18, and Advocate General Tizzano, paras 35 and 36.
21. The need for clarity and certainty is also particularly important where member states attach criminal sanctions to non-compliance with national law obligations whose lawfulness depends upon their conforming to the terms of a directive. Those intended to benefit from a directive are not to be inhibited from doing so by the ambiguous scope of national criminal sanctions. Moreover, criminal proceedings may not be brought in respect of conduct not clearly defined as culpable: see Criminal Proceedings against X  ECR I-6609, para 25.
22. With these principles in mind I turn to the legislation. Section 6(1)(a) of the 1974 Act imposes a duty to ensure, so far as is reasonably practicable, that machinery is so designed and constructed that it will be safe. The effect of regulations 11 and 12(1)(e) of the 1992 regulations is to prohibit the supply of machinery which is not 'in fact safe'. So far there is no difficulty. But 'safe' is not an absolute standard. There may be differences of view on whether the degree of safety of a particular piece of machinery is acceptable. Unlike the 1974 Act, the 1992 regulations define what is meant by safe. At once there may be room for argument that the standards set by the Act and the regulations are not necessarily the same. This in itself is not satisfactory. As already noted, the inhibiting effect of differently-worded provisions having much the same result was one of the matters the machinery directive was specifically intended to eradicate: see recital (6) in the preamble.
23. A more acute problem arises over the scope of the respective criminal sanctions. Contravention of regulation 11 is not always an offence under the regulations. Regulation 31(1) provides a 'due diligence' defence. A person who has contravened regulation 11 will not commit an offence, even though he has contravened regulation 11, if he can show he took all reasonable steps and exercised all due diligence to avoid committing the offence. This is to be contrasted with the position under the 1974 Act. Under the 1974 Act failure to discharge the section 6 duty is an absolute offence. Reasonable practicability is built into section 6 itself, but the Act makes no provision for a 'due diligence' defence.
24. A further problem should be noted. It is important that criminal provisions take effect according to their tenor. The Health and Safety Executive submitted there is no divergence between the standards set by the machinery directive and those set by the 1974 Act. Both require machinery to be 'safe'. But the Health and Safety Executive accepted, and rightly so, that it would be open to Junttan Oy to contend at the trial that it may be convicted under the 1974 Act only if it has breached the requirements of the machinery directive. The effect of article 5(1) of the machinery directive is to raise a rebuttable presumption that machinery bearing a CE mark and accompanied by the requisite declaration conforms to all the provisions of the directive. Thus in such a case, and the prosecution of Junttan Oy is such a case, on any prosecution under the 1974 Act the prosecutor would have to establish in what respect the machinery directive and the essential health and safety requirements were breached.
25. This intermingling is far from satisfactory. Indeed, placing this burden on the prosecution illustrates how unsatisfactory is the use of the pre-existing 1974 Act in aid of the safety obligations prescribed by the machinery directive. The prosecution would effectively be a prosecution under a combination of the Act and the 1992 regulations which transpose the directive into national law and reproduce its requirements almost verbatim.
26. I turn, then, to the crucial question: overall, is the continuing co-existence of manufacturers' duties under the 1974 Act alongside their duties under the 1992 regulations productive in practice of such inconvenience and ambiguity that this constitutes an impediment to the free movement of machinery and, to that extent, a failure properly to give effect to the machinery directive?
27. I have found this a difficult question, but I have come to the conclusion that the answer must be 'yes'. As already noted, the existence of two parallel codes is inherently unsatisfactory. In the present case the two codes are substantially the same but not entirely so. I do not feel able to dismiss the differences as of no consequence, especially when criminal sanctions are involved. Moreover, it is inherently unattractive that, in respect of an alleged breach of the safety standards set by the machinery directive, a manufacturer should be prosecuted, not for breach of the national legal provision expressly adopted to transpose these standards into national law, but by recourse to a pre-existing national legal provision attracting a more severe punishment. That manner of proceeding accords ill with the avowed object of the 1992 regulations and, indeed, of the machinery directive.The consequence of this incompatibility
28. With this conclusion in mind I turn to the interpretation of the 1992 regulations. Given the purposes of the machinery directive, one would expect that the 1992 regulations were intended to set out exhaustively the extent of the duties of manufacturers of machinery to which the regulations apply. This is what one would expect because the machinery directive is now the overriding instrument, and the regulations were intended to implement that directive.
29. However, on a careful reading of the 1992 regulations it is clear that the 1974 Act in general, and the duties imposed on manufacturers by that Act, were intended to continue to co-exist with the new regulations. The 1992 regulations were not intended to supersede and replace the relevant provisions in the 1974 Act. One pointer in this direction is that regulation 33 makes express provision for what is described as consequential 'disapplication' of United Kingdom law. Regulation 33 disapplies machinery safety requirements in numerous statutory provisions. The 1974 Act is not one of the listed enactments.
30. More significantly, and to my mind conclusively, is the savings provision in paragraph 7 in schedule 6 to the regulations:
31. That is not the end of the matter. The effect of section 2(1) of the European Communities Act 1972 is to require the courts to give effect to the United Kingdom's obligations under the machinery directive. Given the transposition of the health and safety requirements into this country's law by the 1992 regulations, and given that the continuing existence of the manufacturers' duties under the 1974 Act is incompatible with this country's obligations under the machinery directive, the result which must follow is that the requirements in the 1974 Act imposing these duties have to be disapplied so far as they relate to activities falling within the scope of the machinery directive. By this means United Kingdom law is brought into line with this country's obligations under the machinery directive.
32. For these reasons I agree with the decision of the Divisional Court on the first certified question. The Health and Safety Executive was not entitled to prosecute Junttan Oy for contravention of section 6(1)(a) of the 1974 Act. I would dismiss this appeal. If the maximum penalties prescribed for offences under regulation 29(a) of the 1992 regulations are thought to be too light, the remedy lies in amendment of the regulations.The second question
33. Article 7 of the machinery directive provides that where a member state finds that machinery bearing the CE marking is 'liable to endanger the safety of persons' the member state must take all appropriate measures to withdraw the machinery from the market, or to prohibit its being placed on the market or put into use. In such cases member states 'shall immediately inform the Commission of any such measure, indicating the reason for its decision'. In the present case that was not done by the Health and Safety Executive, either with regard to the prohibition notice served on Junttan Oy, or the improvement notice, or the commencement of the prosecution under the 1974 Act. The second certified question concerns the effect of this failure on the prosecution of Junttan Oy under the 1974 Act.
34. The conclusion I have reached on the first question means that the second question does not arise. The consequence of my conclusion, if accepted by your Lordships, would be that the existing prosecution under the 1974 Act will not continue. Nor can Junttan Oy be prosecuted now for contravention of regulation 11 of the 1992 regulations. It is too late to commence such a prosecution. However, since a majority of your Lordships are of a different opinion on the first question the second question also needs to be answered. On this second question I agree with the views expressed by my noble and learned friend Lord Steyn.
LORD SLYNN OF HADLEY
35. The relevant facts on this appeal are set out in the opinions of my noble and learned friends Lord Nicholls of Birkenhead and Lord Steyn which I have had the advantage of reading in draft and to which I refer without repeating.
36. As a result of the tragic incident on 9 February 1999 causing Mr Bourner's death the Health and Safety Executive ("HSE") brought proceedings under section 6 of the Health and Safety at Work etc Act 1974 against Junttan Oy, the manufacturer of the rig. They contend that the controls of the piling hammer on the rig did not protect against an accidental release of the hammer so that the necessary safety standards were not satisfied in the design and manufacture of the rig. Objection was taken by Junttan before District Judge Thomas in the magistrates' court that proceedings could not be brought under section 6 of the 1974 Act but could only be brought under the Supply of Machinery (Safety) Regulations 1992 (SI 1992 3073) as amended which were adopted to give effect to Council Directive 98/37/EC.
37. The basic reason for this objection was that under the 1974 Act the events could be triable either summarily (when the maximum fine was £20,000) or on indictment, in the latter case the fine being unlimited (section 33(1A)), whereas under the Regulations the offence could only be tried summarily and the maximum penalty was three months' imprisonment or a fine not exceeding level 5 on the standard scale. This of course is not only the reason for the objection to jurisdiction; it is the very reason why HSE brought proceedings under the Act because of the serious consequences of the incident.
38. The District Judge held that he had jurisdiction to hear a case under the Act. On an application for judicial review the Divisional Court (Lord Woolf of Barnes, Lord Chief Justice) and Mr Justice Wright) ordered and declared that the "prosecution under section 6 of the Health and Safety at Work Act is unlawful" and they quashed that part of the District Judge's decision to the contrary. The Divisional Court certified two questions as raising points of law of general public importance. The first which deals with the point to which I have referred was in the following terms: