Ipsofactoj.com: International Cases [2004] Part 6 Case 1 [HL]


HOUSE OF LORDS

Coram

Bristol Magistrates Court

- vs -

Junttan Oy

LORD NICHOLLS OF BIRKENHEAD

LORD SLYNN OF HADLEY

LORD STEYN

LORD HOBHOUSE OF WOODBOROUGH

LORD MILLETT

23 OCTOBER 2003


Judgment

Lord 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:

    (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;'

  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 [2001] 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 [1996] 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:

    Nothing in these Regulations shall be construed as preventing the taking of any action in respect of any relevant machinery .... under the provisions of the 1974 Act ....

    In some respects the scope of this savings provision is less than crystal clear. But this savings provision is clearly apt to apply to improvement notices or prohibition notices served under the 1974 Act. Service of such notices falls easily within the phrase 'the taking of any action in respect of any relevant machinery'. But contravention of duties under the Act is a pre-requisite to service of these notices. Thus, inescapably, this savings clause in the regulations presupposes these duties under the 1974 Act will continue to exist notwithstanding the coming into force of the regulations. This leaves no scope for interpreting the 1992 regulations as having impliedly repealed the duties imposed on manufacturers by the 1974 Act.

  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

    My Lords,

  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:

    Was the Health and Safety Executive entitled as a matter of United Kingdom and European Community law to prosecute the Defendant under section 6 of the Health and Safety at Work etc Act 1974 in respect of the supply of machinery and questions of the safety of its design and construction, or was it only permissible for the Health and Safety Executive to bring proceedings against the Defendant under reg.29(a) of the Supply of Machinery (Safety) Regulations 1992 (SI 1992/3073) which Regulations deal with the supply of machinery and safety of its design and construction and were notified to the EC Commission as being intended to implement the EC Machinery Directive 98/37/EC ?

  39. The Lord Chief Justice (with all of whose judgment Mr. Justice Wright agreed) concluded that:

    it is inappropriate and wrong for the Health and Safety Executive to prosecute for an offence under section 6 of the 1974 Act when there is a specific statutory offence under the Regulations covering exactly the same ground as section 6 but in different language so that different issues can arise as to the standard of safety which is required, and imposing a different penalty.

    He so concluded "partly as a matter of interpretation, and partly because it appears to me that it would be a form of misuse of the powers of the 1974 Act to rely on section 6". He accepted, however, that if the offence prosecuted under section 6 was not "one covering exactly the same ground as the offence in the Regulations, I would take a different view". He also accepted that a prosecution could be brought under section 3 of the 1974 Act alleging a failure to "ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety".

  40. The first question has been treated as turning on the relationship both in domestic law and Community law of the Act to the Directive and the implementing regulations. It is necessary to set out the relevant provisions for this purpose.

    THE 1974 ACT

  41. The 1974 Act, adopted initially of course without reference to a Directive, provides in section 1 that the provisions of part I shall have effect "with a view to (a) securing the health, safety and welfare of persons at work". Section 6 which is in part I has the sub-heading "General duties of manufacturers etc as regards articles and substances for use at work" and provides in particular in sub-section (1) that:

    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, 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;

  42. On the face of it the facts alleged here fall within that section and the HSE is empowered to bring proceedings under section 33 of the Act where a breach of that section is alleged.

    THE REGULATIONS

  43. The Supply of Machinery (Safety) Regulations 1992 (SI 1992/3073) were made to give effect to Council Directive 89/392/EEC on the approximation of the laws of Member States relating to machinery, as subsequently amended, and as replaced ("consolidated") by Council Directive 98/37/EC which came into force 20 days from 23 July 1998 the date of publication in the Official Journal. They provide in regulation 11 that:

    Subject to paragraph 4 below, no person who is a responsible person for the purposes of these Regulations shall supply relevant machinery .... unless the requirements of regulation 12 below are complied with in relation thereto.

    The manufacturer of the machinery is a "responsible person" (Regulation 2(2)). The "essential health and safety requirements relating to the design and construction of machinery and safety components" are set out in schedule 3.

  44. By Regulation 12(1): the requirements of this regulation are that

    (a)

    the relevant machinery or relevant safety component satisfies the relevant essential health and safety requirements;

    ....

    (e)

     

    the relevant machinery or relevant safety component is in fact safe.

  45. By Regulation 29 any person who contravenes or fails to comply with Regulation 11 above shall be guilty of an offence and liable for the penalties to which I have already referred set out in Regulation 30.

  46. Regulation 31, subject to the detailed provisions of that Regulation, provides: "in proceedings against any person for an offence under Regulation 29 above it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid committing the offence".

  47. Schedule 6 pursuant to Regulation 28 deals with Enforcement.

  48. In particular by paragraph 1 certain sections of the 1974 Act are to apply for the purposes of providing for the enforcement of these Regulations and in respect of proceedings for contravention thereof subject to modifications, and by paragraph 3 certain sections of the 1974 Act, including sections 28 to 35, "shall apply for the purposes of providing for the enforcement of these Regulations and in respect of proceedings for contravention thereof as if- " certain amendments were incorporated. By paragraph 7 of Schedule 6 "nothing in these Regulations shall be construed as preventing the taking of any action in respect of any relevant machinery .... under the provisions of the 1974 Act, the Order or the 1987 Act."

    THE DIRECTIVE

  49. Directive 98/37/EC applies the essential health and safety requirements defined in Annex I to machinery as defined in Article 1(2). Machinery and safety components covered by the Directive "shall satisfy [those] requirements":

    Article 2:

    1.

    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 and, where appropriate, domestic animals or property, when properly installed and maintained and used for their intended purpose.

    2.

    This Directive shall not affect Member States' entitlement to lay down, in due observance of the Treaty, such requirements as they may deem necessary to ensure that persons and in particular workers are protected when using the machinery or safety components in question, provided that this does mean that the machinery or safety components are modified in a way not specified in the Directive.

  50. By Article 4 "1. 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 this Directive." Article 5 provides that machinery bearing a CE marking and a certificate of conformity shall be regarded as conforming to all the provisions of the Directive subject to special procedures laid down in Article 7 where a Member State ascertains that machinery used in accordance with its intended purposes is liable to endanger the safety of persons when it may withdraw such machinery or prohibit the placing of the machinery on the market or its use and restrict the free movement thereof.

  51. The recitals to Directive 98/37/EC stress the importance of reducing the number of accidents by having inherently safe design and construction of machinery. It is however Member States who "are responsible for ensuring the health and safety on their territory of persons .... and, in particular, of workers, notably in relation to the risks arising out of the use of machinery" (recitals 4 and 5). Adequate safety standards must therefore be laid down and achieved. It is however recognised that this can be done in different legislative ways supplemented by mandatory technical specifications and voluntary standards which may not necessarily lead to different standards of health and safety. These disparities may, however, constitute barriers to trade within the Community, i.e. between Member States.

  52. Accordingly recital 7 provides that "existing national health and safety provisions providing protection against the risks caused by machinery must be approximated to ensure free movement on the market of machinery", but this is to be "without lowering existing justified levels of protection in the Member States".

  53. The tension between safety, harmonisation and free movement is recognised. Thus in recital 8 "whereas Community law, in its present form, provides by way of derogation from one of the fundamental rules of the Community, namely the free movement of goods that obstacles to movement within the Community resulting from disparities in national legislation relating to the marketing of products must be accepted in so far as the provisions concerned can be recognised as being necessary to satisfy imperative requirements". Harmonisation 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" (recital 9) and "the maintenance or improvement of the level of safety attained by the Member States constitutes one of the essential aims of this Directive and of the principle of safety as defined by the essential requirements" (recital 10).

    THE QUESTION

  54. It is plain that the Directive is seeking to impose on Member States an obligation to achieve the essential health and safety requirements set out in Annex I (Article 3) and that by Article 4 the Directive provides that Member States shall not prohibit or restrict or impede the placing on the market or use of machinery which does comply with this Directive. To facilitate free movement it provides for the marking of goods with the CE mark. At the same time the Directive squarely puts on Member States an obligation to take appropriate measures to ensure that machinery is only placed on the market and put into service if it does not endanger the safety of persons when properly installed and used for its intended purpose (Article 2(1)). In other words, consistently with recital 5 Member States must, certainly may, take steps to ensure that the machinery is safe. The Directive recognises that some Member States may have higher standards of protection. It is clearly provided in recital 7 that it is not the intention that the implementation of the Directive shall lower the standards of protection in Member States and Article 7 of the Directive requires Member States to take steps to withdraw machinery from the market or to prevent its use if it is not safe even if it bears the CE marking and the declaration of conformity. The latter thus gives a rebuttal of presumption of conformity with the essential safety requirements but not more.

  55. There seems thus a tension between the three requirements — free movement, achieving harmonised essential requirements and ensuring safety — but it does not seem to me that the aim of free movement, where there is a compliance with the essential requirements, cuts down or impinges on the obligation and power of the Member State to act where safety is not assured. Accordingly it does not seem right to proceed on the basis that nothing can be done beyond enforcing essential requirements without violating the rules against prohibiting restrictions on the free movement of machinery.

  56. It has, however, been accepted by both members of the Divisional Court that the prosecution here under the Act covered the same ground as a prosecution under the Regulations implementing the Directive would have done. If that is right does it follow that to proceed under the Act, where the penalties are higher, is not permissible as a matter of interpretation of paragraph 7 of Schedule 6 to the Regulations, or because it constitutes an abuse or misuse of power?

  57. As to the first point paragraph 7 provides that nothing in the Regulations is to be construed as preventing the taking of "any action" in respect of any relevant machinery under the 1974 Act. The Divisional Court construed this as meaning that only "administrative enforcement" proceedings such as a prohibition notice fell within "any action". I do not for my part think that the words "any action" in themselves have necessarily to be interpreted in this way. Nor does the context compel it. Schedule 6 itself under the heading "Enforcement" is dealing with both administrative enforcement and prosecution. Paragraph 1(b) provides that certain sections of the 1974 Act, including section 33, though with amendments, shall apply "for the purposes of providing for the enforcement of these Regulations" and "in respect of proceedings for contravention thereof". The result of this is that the provisions of the Act, subject to modifications, are incorporated in the Regulations for the purpose of enforcing the Regulations but that the powers in the Act for the enforcement of the Act continue. This result follows also from the Interpretation Act 1978. Section 18 of the latter provides that where an act constitutes an offence under two or more Acts or under an Act and at common law then the offender shall be liable to be prosecuted either under any of those Acts or at common law.

  58. Section 23 makes it clear that in the absence of a contrary intention section 18 applies to subordinate legislation to the extent specified as it does to Acts. In my opinion paragraph 7 of Schedule 6 to the Regulations is entirely consistent with that. It adopts the same approach and no contrary intention is shown. Even if any action were to be read as meaning any administrative action there is nothing in the Regulations which specifically excludes the bringing of prosecutions under the Act even if such a provision were possible.

  59. Moreover I do not consider that in this legislation there is a presumption of law against interpreting the provision of paragraph 7 of Schedule 6 as continuing in the Act even greater penal powers than those provided for in the Regulations. The protection of the public, in particular workers, is itself an important objective but since if both the 1974 Act and the Regulations achieve the same result is it an abuse of power to proceed under the Act with the greater penalties?

  60. Moreover, it seems to me that it would have been perfectly possible to include both the greater and the lesser penalties in the statute. The fact that the Regulations could not provide for the trial on indictment with the higher penalties does not in my view mean that they could not be left to stand in the Act. It is not an abuse or otherwise unlawful by subordinate legislation to give the HSE an option whether to go for the lesser penalties for the less serious offence or for the higher penalties in respect of the more serious offence. If the facts are established this seems on the face of it a case where it was justified to bring proceedings enabling the greater penalties to be imposed.

  61. I do not consider that there is any principle of Community law that the obligations imposed by a Directive cannot be provided for in more than one legislative enactment or order. It is in addition well established that a Member State can show that its obligations under Directives are already fulfilled under existing legislation. The case of Sagulo 8/77 [1977] ECR 1495 expressed this clearly and the Court has not infrequently followed it since. The issue in subsequent cases has not been whether such a defence is available but whether the existing legislation, whether found in one Act or in several different provisions, has with sufficient clarity and certainty already provided for the conditions or obligations required to be fulfilled by the Directive.

  62. The Divisional Court proceeded on the basis that the charge under the Act covered the same ground as the Regulations and that if it were not so the decision on jurisdiction would have been different. I accept that the words used in the Act and in the Directive (as carried into the Regulations) are not identical. It does not seem to me, however, that there is a real divergence between the two.

  63. In this regard it is to be noticed that the HSE recognises in its argument that the test of liability must be interpreted consistently with the requirement of Community law or be displaced by provisions of Community law having direct effect, and further that it will be open to Junttan to argue that it can only be convicted under the Act if it has breached the requirements contained in the Directive. Moreover, "one of the submissions to be made by the HSE at the trial will be that the standard of safety required by the 1974 Act was breached precisely because Junttan did not comply with the requirements of the Directive, in particular those relating to the design of the controls of the rig". These are all matters for the trial when it may or may not be that a question referable under Article 234 of the EC Treaty will arise. It does not seem to me that within the terms of Article 234 of the Treaty it is necessary to decide them in order to give judgment on this appeal.

  64. I would accordingly allow the Health and Safety Executive's appeal and hold that the District Judge has jurisdiction to hear the prosecution under the 1974 Act.

    As to the second question referred—

    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 Directive 98/37/EC) and, if so, what are the effects of that failure on the prosecution being brought by the Health and Safety Executive under section 6 of the Health and Safety at Work etc Act 1974?

    it seems to me that the Divisional Court came to the right decision for the reasons given by my noble and learned friend Lord Steyn and like him I would dismiss Junttan's appeal.

    Lord Steyn

    My Lords,

  65. On 9 February 1999, at Bristol, Mr. Andrew Bourner, an employee of Simplex Piling Limited, was killed. His head was crushed when the piling hammer of a rig was accidentally released while he was working under it. Junttan Oy, a company incorporated in Finland, designed and manufactured the rig in Finland and supplied it to an English company. On 30 November 1998 the rig was delivered to the site where the fatal accident occurred. The rig was described as a Junttan PM20 piling rig, with serial number 1189. It bore a CE mark following an EC declaration of conformity of the rig for machinery made by Junttan Oy as the manufacturer dated 4 September 1998.

  66. The Health and Safety Executive ("the HSE") contends that it has evidence, fit to be placed before a criminal court, which shows that:

    1. The machine was not designed and manufactured in accordance with appropriate safety standards in that, in particular, there was insufficient protection against the accidental release of the piling hammer; and

    2. Employees of Junttan were aware of the risk of the piling hammer being accidentally released, because the hammer was accidentally released whilst they were training employees of Simplex to use the machine, but they took no action.

    The correctness of these allegations cannot be tested on the present appeal. For present purposes it must be assumed that the HSE may be able to prove these allegations.

  67. The HSE took the view that it was competent to bring charges either under sections 3 and 6 of the Health and Safety at Work etc Act 1974 or under regulation 11(1) of the Supply of Machinery (Safety) Regulations 1992. The regulations were made to comply with Council Directive 89/392/EEC which was subsequently superseded by consolidating Council Directive 98/37/EC. (This explains why the regulations predate the 1998 Directive.)

  68. Charges under the regulations must be tried summarily and are punishable only by a moderate fine i.e. on level 5. On the other hand, charges under section 6 of the 1974 Act may be tried on indictment and, if appropriate, punished by a much higher fine. The HSE considered that the death of Mr. Bourner is a matter of great seriousness and that the fatality is to be regarded as an aggravating feature of the industrial accident. Accordingly, the HSE decided to bring charges under sections of the 1974 Act.

  69. On 19 November 1999 an information in relation to a charge under section 6 of the 1974 Act was laid against Junttan at the Bristol Magistrates' Court. Section 6(1) provides:

    (1)

    It shall be the duty of any person who designs, manufacturers, imports or supplies any article for use at work or any article of fairground equipment -

    (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; ....

    Section 33(1) makes it an offence for a person to fail to discharge a duty under section 6. Section 33(1A) render a person who is guilty of such an offence liable on summary conviction to a fine not exceeding £20,000, and on conviction on indictment to an unlimited fine.

  70. On 27 February 2000 a second information in relation to a charge under section 3 of the 1974 Act was laid at the Bristol Magistrates' Court. This charge is not material to the present appeal.

  71. It is, however, necessary to set out further action initiated by the HSE. On 16 February 1999, the HSE issued a prohibition notice against the use by Simplex of any Junttan PM20 piling machines. No further enforcement action was taken by HSE against Simplex in respect of the accident. Following discussions involving the HSE, Junttan, Junttan's UK representative, the Federation of Piling Specialists, Simplex, and a Consulting Mechanical and Structural Engineer instructed by Simplex, Junttan made certain modifications to its piling rigs located in the UK in order to satisfy the concerns of the HSE as to the possibility of inadvertent release of the hammer. The modifications were made to all Junttan's piling rigs in use in the UK, and to all new piling rigs built by Junttan since March 1999. On 22 February 1999 HSE issued an improvement notice pursuant to section 21 of the 1974 Act requiring the remedy of the contravention of section 6 by 30 March 1999. The improvement notice was served on the UK sales agent of Junttan Oy. On 9 March 1999 the HSE withdrew the improvement notice.

  72. On 4 May 2001, at the Bristol Magistrates' Court, District Judge Thomas heard, inter alia, submissions on behalf of Junttan that the court had no jurisdiction to hear and determine a prosecution based on an offence under section 6 of the 1974 Act. On 22 June 2001 the District Judge ruled that the court had jurisdiction to hear and determine the prosecution. The intention had been that the matter would be transferred to the Crown Court but in view of judicial review proceedings then launched by Junttan that did not happen.

  73. On 5 September 2001 the claim for judicial review was lodged. In March 2002 the matter came before Lord Woolf of Barnes, CJ, and Wright J, sitting as a Divisional Court. The Divisional Court had to consider two grounds of challenge to the decision of the District Judge, namely -

    1. that Junttan could be prosecuted only under the Regulations and not under section 6 of the 1974 Act;

    2. that the HSE had failed to follow a mandatory procedure set out in article 7 of Directive 98/37/EC.

    The Divisional Court upheld the first objection but rejected the second: R (on the application of Junttan Oy) v Bristol Magistrates' Court [2002] EWHC 566. The Divisional Court dealt with the issues in reverse order.

  74. The HSE now appeals to the House against the first decision of the Divisional Court, and Junttan appeals to the House against the second decision. It will be convenient to deal first with the decision that Junttan may only be prosecuted under the regulations.

  75. The core of the reasoning of the Divisional Court on this point was stated by the Lord Chief Justice (para 53):

    I have found this issue one of considerable difficulty and finely balanced. However, I have come to the conclusion that it is inappropriate and wrong for the Health and Safety Executive to prosecute for an offence under section 6 of the 1974 Act when there is a specific statutory offence under the Regulations covering exactly the same ground as section 6 but in different language so that different issues can arise as to the standard of safety which is required, and imposing a different penalty. The offence under the Regulations is the offence which gives effect to the Directive. In addition, the 1974 Act was there in the background. If there was an intention to prosecute for a different offence (not one covering exactly the same ground as the offence in the Regulations), I would take a different view. Partly as a matter of interpretation, and partly because it appears to me that it would be a form of misuse of the powers of the 1974 Act to rely on section 6, I have come to the conclusion that it was not open to the Executive to bring proceedings under section 6. They should have brought proceedings under the Regulations. It may be that the penalty under the Regulations is lower than it should be. If so, the Regulations should be amended. Indeed, I consider that attention should be given to the question of whether the penalties under the Regulations are sufficient. However, 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. Those standards are reflected in the Regulations, but not precisely reproduced by section 6 of the 1974 Act. Accordingly, I conclude that the decision of the District judge was wrong in that regard.

    In a separate judgment Wright J expressed agreement with the judgment of the Lord Chief Justice.

  76. The Divisional Court certified a point of law of general public importance on this aspect. It read as follows:

    Was the Health and Safety Executive entitled as a matter of United Kingdom and European Community law to prosecute the Defendant under section 6 of the Health and Safety at Work etc Act 1974 in respect of the supply of machinery and questions of the safety of its design and construction, or was it only permissible for the Health and Safety Executive to bring proceedings against the Defendant under regulation 29(a) of the Supply of Machinery (Safety) Regulations 1992 (SI 1992/3073), which Regulations deal with the supply of machinery and safety of its design and construction and were notified to the EC Commission as being intended to implement the EC Machinery Directive 98/37/EC?

    This is the question to be examined on the appeal of the HSE to the House.

  77. The second point (addressed first by the Divisional Court) relates to article 7 of the Directive. In order to explore the issue it is necessary to set out article 7 in extenso. It provides:

    1.

    Where a Member State ascertains that:

    - machinery bearing the CE marking, or

    - safety components accompanied by the EC declaration of conformity, used in accordance with their intended purpose are liable to endanger the safety of persons, and, where appropriate, domestic animals or property, it shall take all appropriate measures to withdraw such machinery or safety components from the market, to prohibit the placing on the market, putting into service or use thereof, or to restrict free movement thereof.

    Member States shall immediately inform the Commission of any such measure, indicating the reason for its decision and, in particular, whether non-conformity is due to:

    (a)

    failure to satisfy the essential requirements referred to in article 3;

    (b)

    incorrect application of the standards referred to in article 5(2);

    (c)

    shortcomings in the standards themselves referred to in article 5(2).

    2.

    The Commission shall enter into consultation with the parties concerned without delay. Where the Commission considers, after this consultation, that the measure is justified, it shall immediately so inform the Member State which took the initiative and the other Member States. Where the Commission considers, after this consultation, that the action is unjustified, it shall immediately so inform the Member State which took the initiative and the manufacturer or his authorised representative established within the Community. Where the decision referred to in paragraph 1 is based on a shortcoming in the standards, and where the Member State at the origin of the decision maintains its position, the Commission shall immediately inform the committee in order to initiate the procedures referred to in article 6(1).

    3.

    Where:

    - machinery which does not comply bears the CE marking,

    - a safety component which does not comply is accompanied by an EC declaration of conformity,

    the competent Member State shall take appropriate action against whom so ever has affixed the marking or drawn up the declaration and shall so inform the Commission and other Member States.

    4.

    The Commission shall ensure that Member States are kept informed of the progress and outcome of this procedure.

    It was common ground before the Divisional Court that the HSE did not in fact follow the procedure set out in article 7 of the Directive. Two questions arose:

    1. Was there a failure to comply with article 7?

    2. If so, what are the consequences?

    The Lord Chief Justice (with whom Wright J agreed) concluded (at para 48):

    With respect to Miss Lee, I regard this argument as one without any merit whatever. Article 7 provides that a Member State is required to take steps if it forms the view that machinery may endanger the safety of persons. In this case, before the prosecution was commenced, the machinery had been modified. It was no longer liable to endanger the safety of persons, though it had been responsible for an unfortunate death. In those circumstances it would be purposeless to withdraw such machinery from the market or to take any of the other action referred to in article 7. The position would be the same if, after the machinery had been used but before it was appreciated that it was not satisfactory from the point of view of safety, it was removed from this country. If it was appropriate to regard the manufacturer of the machinery as having committed a criminal offence, it could not be the intention that article 7 should prevent a prosecution. In my judgment, article 7 has no relevance to enforcement action which consists of taking criminal proceedings. Its relevance is confined to taking the measures referred to in Article 7, paragraph 1.

    Junttan contends that the Divisional Court erred on this point. The Divisional Court certified the following question as a question of law of general public importance:

    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 Directive 98/37/EC) and, if so, what are the effects of that failure on the prosecution being brought by the Health and Safety Executive under section 6 of the Health and Safety at Work etc Act 1974?

    This is the question which arises on the appeal of Junttan. It is a live issue only if the appeal of the HSE succeeds.

    THE FIRST CERTIFIED QUESTION

  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:

    Where an act or omission constitutes an offence under two or more Acts, or both under an Act and at common law, the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those Acts or at common law, but shall not be liable to be punished more than once for the same offence.

    [emphasis added]

    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:

    (1)

    Subject to paragraph (4) below, no person who is a responsible person for the purposes of these Regulations shall supply relevant machinery or a relevant safety component unless the requirements of regulation 12 below are complied with in relation thereto.

    (2)

    Subject to paragraph (4) below, it shall be the duty of any person who supplies relevant machinery or a relevant safety component, but who is not a person to whom paragraph (1) above applies, to ensure that that relevant machinery or relevant safety component is safe.

    (3)

    Where a person -

    (a)

    being the manufacturer of relevant machinery or a relevant safety component, himself puts that relevant machinery or relevant safety component into service in the course of a business; or

    (b)

    having imported relevant machinery or a relevant safety component from a country or territory outside the European Economic Area, himself puts that relevant machinery or relevant safety component into service in the course of a business,

    for the purposes of these Regulations that person shall be deemed to have supplied that relevant machinery or relevant safety component to himself.

    Regulation 12 provides:

    (1)

    The requirements of this regulation are that -

    (a)

    the relevant machinery or relevant safety component satisfies the relevant essential health and safety requirements;

    ....

    (e)

     

    the relevant machinery or relevant safety component is in fact safe.

    Regulation 2(2) provides a relevant definition:

    'safe' in relation to relevant machinery or a relevant safety component means that, when the machinery or the safety component 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 endangered the health of or of its being the cause or occasion of death or injury to persons or, where appropriate, to domestic animals or damage to property, and cognate expressions shall be construed accordingly.

    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:

    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.

    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):

    In order to come to that conclusion it is necessary to give full weight to paragraph 7 of Schedule 6 of the Regulations. That paragraph, as it seems to me, is capable of a broad interpretation or a narrow interpretation. It can be interpreted so that it is confined to taking action in respect of any relevant machinery - that is taking action such as making a prohibition order in relation to relevant machinery directly against the machinery; or it can be construed broadly so that it can be taken to have the effect of enabling a prosecution to be brought under the 1974 Act. Particularly in relation to a penal provision, such as those contained in section 6 of the 1974 Act, it seems to me to be right to adopt the interpretation which is more favourable to the subject, I would therefore adopt the narrower interpretation to paragraph 7 of Schedule 6. If that narrower interpretation is adopted it can be seen that the effect of the Regulations as a whole, and in particular the provisions contained in paragraph 1 of Schedule 6, is to incorporate into the Regulations the recognition of what I will describe as the administrative enforcement provisions of the 1974 Act, but not the prosecution provisions.

    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:

    41.

    .... the scheme of the Regulations is to incorporate, with modifications, certain enforcement provisions of the [1974 Act] for the purposes of enforcing the Regulations. For example, the power of the HSE under section 22 [of the 1974 Act] to issue a prohibition notice is expressly incorporated into the Regulations by paragraph 1(b) of schedule 6. That power is then a power under the Regulations for the purposes of enforcing the Regulations and its exercise does not involve any exercise of the similar power under the [1974 Act]. Therefore, it cannot be said that paragraph 7 of schedule 6 is intended only to leave open the possibility of administrative enforcement action under the [1974 Act] in order to enforce the provisions of the Regulations: the structure of the material parts of the Regulations shows that the intention was to replicate in the Regulations the relevant powers in the [1974 Act] without excluding the continued operation of the latter (in the absence of an express provision to the contrary.)

    42.

    The matter can be tested in this way. Adopting (for the sake of argument) the narrower construction, the draftsman was content to preserve the operation of two parallel powers to issue prohibition notices: one under the [1974 Act] and the other under the Regulations (the latter using the provisions of the former to that end). That being so, what is the logic that leads to the inference that the draftsman did not intend to preserve the existence of two parallel prosecution powers? After all, logically, if the draftsman was content to maintain parallel powers in one case, why should he have not entertained the same intention in relation to the other: is that not the significance of the phrase 'any action'?

    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 re-numbered 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:

    1.

    Member States shall regard the following 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,

    - safety components accompanied by the EC declaration of conformity referred to in Annex II, point C.

    In the absence of harmonised standards, Member States shall take any steps they deem necessary to bring to the attention of the parties concerned the existing national technical standards and specifications which are regarded as important or relevant to the proper implementation of the essential safety and health requirements in Annex I.

    2.

    Where a national standard transposing a harmonised standard, the reference for which has been published in the Official Journal of the European Communities, covers one or more of the essential safety requirements, machinery or safety components constructed in accordance with this standard shall be presumed to comply with the relevant essential requirements.

    Member States shall publish the references of national standards transposing harmonised standards.

    3.

    Member states shall ensure that appropriate measures are taken to enable the social partners to have an influence at national level on the process of preparing and monitoring the harmonised standards.

    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:

    1.

    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 and, where appropriate, domestic animals or property, when properly installed and maintained and used for their intended purpose.

    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

    1. "the offence under the Regulations is the offence which gives effect to the Directive";

    2. "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

    3. "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:

    Conformity can be enforced if the national authority requests the manufacturer of the authorised representative to take the necessary measures, or if the product is modified or voluntarily withdrawn from the market. Unless a formal decision is taken in these cases, to prohibit or restrict the placing on the market of the product or to have it withdrawn from the market, the safeguard clause procedure is not invoked. Thus, a direct exchange of information between market surveillance authorities may be necessary.

    ....

    Where the manufacturer, the authorised representative, or other responsible person, agrees to modify the product in such a way that it complies with the applicable provisions, the Member State should withdraw the safeguard clause notification.

    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.

    CONCLUSION

  97. I would allow the appeal of the HSE and dismiss the appeal of Junttan.

    Lord Hobhouse of Woodborough

    My Lords,

  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. Section 6, as amended by the Consumer Protection Act 1987, provides -

    It shall be the duty of any person who designs, manufactures, imports or supplies any article for use at work .... to ensure, so far as is reasonably practical, 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 .... used .... by a person at work; ....

    Section 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.

  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 (e.g. 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.

    Lord Millett

    My Lords,

  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 Junttan Oy have failed

    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 ....

    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 Junttan 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.


Cases

Commission v Netherlands [2001] ECR I-3541; Criminal Proceedings against X [1996] ECR I-6609; Sagulo 8/77 [1977] ECR 1495; R (on the application of Junttan Oy) v Bristol Magistrates' Court [2002] EWHC 566

Legislations

Health and Safety at Work etc Act 1974: s.3, s.6, s.20, s.21, s.22, s.25A, s.27, s.33, s.34

Directive 98/37/EC: recital 6, recital 7, recital 8, recital 9, recital 10, recital 14, art.2, art.3, art.4, art.5, art.7

Supply of Machinery (Safety) Regulations 1992 (S I 1992 no 3073): reg.2, reg.11, reg.12, reg.28, reg.29, reg.31, sch.3, sch.6 para 7, 

EC Treaty: art.100a (now 95), art.234

Interpretation Act 1978: s.18, s.23

Authors and other references

Cross on Statutory Interpretation 3rd ed.

Comments on Directive 98/37/EC

Guide to the Implementation of Directives Based on the New Approach and the Global Approach of September 1999


all rights reserved