R (Junttan Oy) v Bristol Magistrates Court
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WRIGHT |
| Judgment Date | 27 March 2002 |
| Neutral Citation | [2002] EWHC 566 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 March 2002 |
| Docket Number | CO/3549/2001 |
[2002] EWHC 566 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
The Lord Chief Justice of England and Wales
(The Lord Woolf of Barnes) and
Mr Justice Wright
CO/3549/2001
MISS SARAH LEE (instructed by Messrs Cameron McKenna, London EC1A 4DD) appeared on behalf of THE CLAIMANT
THE DEFENDANTS were unrepresented and did not appear
MR PAUL LASOK QC and MR JASON COPPELL (instructed by Messrs Bond Pearce, Plymouth PL1 3AE) appeared on behalf of THE INTERESTED PARTY
Tuesday 19 March 2002
: This is an application for judicial review of a decision of District Judge (Magistrates' Court) Thomas of 22 June 2001 when sitting at the Bristol Magistrates' Court. The District Judge rejected the arguments of the applicants that the magistrates had no jurisdiction to hear and determine a prosecution based on offences under sections 3 and 6 of the Health and Safety at Work Act 1974 ("the 1974 Act"). Very sensibly the parties assisted that court, and have assisted this court, by preparing agreed statements of facts and by identifying specific issues to be decided.
The prosecution turned, and this application turns, on the relationship between three legislative instruments: first, the Health and Safety at Work Act 1974 ("the 1974 Act"); secondly, the Directive 98/37/EC ("the Directive"); and thirdly, the Supply of Machinery (Safety) Regulations 1992 (SI 1992 No 3073) ("the Regulations").
The applicants are Junttan OY, a company incorporated in Finland, who manufactured the Junttan PM20 Piling rig, serial number 1189. That piling rig bore a CE mark following an EC declaration of conformity in respect of the rig for machinery made by the applicants. Junttan UK, on behalf of Junttan OY, agreed by a letter dated 9 March 1998 to supply an English company with the piling rig at a cost of £305,000. It was originally delivered to Chesterfield in the first week of September 1998. Part of the arrangement was that the applicants' service engineer would return and check that everything was in order with the rig within three to six months.
The rig was delivered to Felixstowe Docks on 10 September 1998. It was subsequently delivered to a contract site in Huddersfield and then removed to a further site in Bristol on 30 November 1998 for the purpose of being used in connection with a contract at the Avonmouth Sewage Plant.
Tragically, on Tuesday 9 February 1999, when Mr Thompson was operating the piling rig and Mr Bourner was working on the ground attaching chains to the piles and lining them up to enable them to be driven into the ground, there was a fatal accident. The hammer of the piling rig descended upon Mr Bourner, causing fatal injuries.
Subsequently a prohibition notice against the use of the piling machine was issued by the Health and Safety Executive. There were then discussions with regard to the question of modifying the piling rigs in order to satisfy concerns of the Health and Safety Executive as to the possible inadvertent release of the hammer. Modifications were made to all the applicants' piling rigs in the United Kingdom and to all new piling rigs built by the applicants after March 1999. On 22 February 1999, the Health and Safety Executive issued an improvement notice pursuant to section 6 of the Health and Safety at Works Act 1974, requiring the contravention by 30 March 1999 to be remedied. That improvement notice was subsequently withdrawn.
Subsequently, charges were brought against the applicants. The first was laid under section 6 of the 1974 Act on 19 November 1999; the second under section 3 of that Act on 27 February 2000. The issues which are agreed to arise on this application are as follows:
1. 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 the Directive?
2. If so, what are the effects of that failure on the current prosecutions being brought under sections 3 and 6 of the 1974 Act?
3. Was the Health and Safety Executive entitled as a matter of European Union and United Kingdom law to commence these prosecutions under the 1974 Act or could it only have brought prosecutions under the regulations because (a) the standard of safety required under the 1974 Act is contrary to the requirements of the Directive; (b) the Directive is implemented by United Kingdom regulations and the 1974 Act is not an additional implementation of the Directive; and (c) there would be a breach of the requirement for legal certainty if the Health and Safety Executive could prosecute under the 1974 Act, notwithstanding the steps taken to implement the Directive in the Regulations.
4. If the Health and Safety Executive was entitled to proceed under the 1974 Act, was it entitled to bring a prosecution under section 3 of that Act in addition to section 6?
In order to consider the issues it is necessary to turn, first, to the 1974 Act, which applies generally to secure the health, safety and welfare of persons at work in this jurisdiction. Section 2 of the Act provides:
"It shall be the duty of every employer to ensure, so far as is reasonably practicable, [my emphasis] the health, safety and welfare at work of all his employees."
Section 3 provides the general duty of employers to persons other than their employees. Subsection (1) provides:
"It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable [my emphasis], that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety."
Section 6 of the Act in respect of which an offence was laid sets out the general duties of manufacturers as regards articles and substances for use at work. It provides (as amended):
"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 [my emphasis], that the article is so designed and constructed that it will be safe and without risk to health at all times when it is being set, used, cleaned or maintained by a person at work;"
Section 18 sets out the duties of the Health and Safety Executive as to making arrangements for the enforcement of the relevant statutory provisions.
Section 33 deals with offences. Subsection (1) provides:
"It is an offence for a person—
(a) to fail to discharge a duty to which he is subject by virtue of sections 2 to 7."
Subsections (b), (c) and (d) also specify offences to which subsection (1) applies. They refer respectively to the contravention of sections 8 or 9, to the contravention of any health and safety requirements, and to the contravention of any requirements imposed by or under the regulations under section 14.
There are other provisions of subsection (1), to which it is not necessary to refer, but subsection (1)(e) indicates the nature of those provisions when it provides that it is an offence for a person
"to contravene any requirement imposed by an inspector under section 20 or section 25."
The provisions dealt with in the following parts of section 33(1) could be said to be offences in relation to acts taken to enforce the provisions of the 1974 Act rather than creating offences in relation to machinery to which the 1974 Act applies.
Subsection (1A) provides:
"Subject to any provision made by virtue of section 15(6)(d), a person guilty of an offence under subsection (1)(a) above consisting of failing to discharge a duty to which he is subject by virtue of sections 2 to 6 shall be liable—
(a) on summary conviction, to a fine not exceeding £20,000;
(b) on conviction on indictment, to a fine."
Following conviction on indictment, there is no limit as to amount of the fine. The appropriate penalties if the applicants were to be properly convicted of offences under sections 3 and 6 of the 1974 Act would be those referred to in section 33(1A).
It is next necessary to refer to the Directive. It is a consolidating directive. That explains why, although it is dated 1998, it is implemented by the regulations which are of an earlier date. As is the practice with Directives passed by the Council, there are a series of recitals which are intended to indicate the general purpose of the Directive. It can be seen clearly from those recitals that the Directive has two primary purposes. The first is to ensure standards of health and safety in member states, while at the same time ensuring that free movement of goods within the internal market of the European Union is not adversely affected. Indeed, it is a purpose of the Directive to enhance the free movement of goods within the European Union by harmonising health and safety standards. However, the recitals also indicate that it is not intended that the provisions shall be exhaustive with regard to levels of health and safety. For example, recital 9 refers to
"the harmonisation of laws in this case 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."
In recital 7 there is a reference in these terms:
"Whereas existing national health and safety provisions providing protection against the risks caused by machinery must be approximated to ensure free movement on the...
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