R (Junttan Oy) v Bristol Magistrates Court
| Jurisdiction | England & Wales |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD SLYNN OF HADLEY,LORD MILLETT,LORD STEYN,LORD HOBHOUSE OF WOODBOROUGH |
| Judgment Date | 23 October 2003 |
| Neutral Citation | [2003] UKHL 55 |
| Date | 23 October 2003 |
| Court | House of Lords |
[2003] UKHL 55
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Slynn of Hadley
Lord Steyn
Lord Hobhouse of Woodborough
Lord Millett
and others
and others
My Lords,
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.
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.
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.
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.
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.
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
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:
'(1) It shall be the duty of any person who designs, manufactures, imports or supplies any article for use at work …-
(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;'
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
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).
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).
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.
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.
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 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.
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:...
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