England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 April 2005

Mr Justice Stanley Burnton:

Introduction

1. The open spaces of London are one of its glories. They are "the lungs of London": they provide the city and its citizens with breathing space. Their number and extent distinguish London from other major capital cities. And of all of London's open spaces, Hampstead Heath is the greatest. Unlike the parks of London, it is in general preserved in its "natural aspect and state": see section 16 of the Hampstead Heath Act 1871.
2. There are numerous ponds on the Heath. Most were originally dug out, probably in the seventeenth century, to serve as reservoirs for London's water supply. They are replenished by natural springs. Those on the north-eastern side of the Heath are known as the Highgate Ponds; those on the south side of the Heath are known as the Hampstead Ponds. Ponds on the Heath have for many years been used for swimming and bathing. There is a painting by Constable, newly displayed in Kenwood House, once the home of the great Lord Mansfield, showing bathers in one of the ponds at Branch Hill in about 1829.
3. These days, only three of the ponds are used for swimming or bathing. The Kenwood Ladies' Pond, near Kenwood House, has been used by women swimmers since 1925. The Highgate Men's Pond has been used by men swimmers since at least 1890.
4. This case is concerned with the Mixed Pond, which, as its name suggests, is available to both men and women swimmers. There is a jetty that has been constructed at some time to assist swimmers to get in and out of the water, and the side on one side has been concreted and fenced, but otherwise it has the appearance of a natural pond. It is not suggested that there are any unusual or hidden dangers in the Mixed Pond. Some swimmers wish to swim in the Mixed Pond early in the morning in winter when it is unattended and not open to the public, and before the other Ponds open to the public. They include the Second Claimant, and the First Claimant represents other potential early morning swimmers.
5. The swimmers accept that swimming in an unattended pond exposes them to some risks. They say that they know the risks, which they consider to be small, and are willing to incur them. They are willing to do so because they enjoy swimming in the Pond, and appreciate the benefits of swimming. The Corporation has decided, by the resolution of 26 July 2004 referred to in paragraph 15 below, to refuse to permit them to swim in the Mixed Pond because it considers that if it were to do so it would be liable to prosecution under section 3 of the Health and Safety at Work etc Act 1974 ("the 1974 Act"). The swimmers contend that the Corporation's decision is based on an erroneous view of the law; that if the Corporation permits them to swim in the Pond it will not be exposed to a risk of prosecution under the 1974 Act; and they seek judicial review of the Corporation's decision on that basis.
6. Ultimately, this case turns on the interpretation and effect of section 3 of the 1974 Act, and raises an important point of principle. The Health and Safety Executive is the authority generally responsible for enforcing the provisions of the Act, and was therefore joined in the proceedings as an Interested Party to enable it to make such submissions to the Court as it thought fit. It has chosen not to appear or to make any representations to the Court. I comment on its position below.

The facts

7. Hampstead Heath has been in public ownership since the 1871 Act, although its area has been supplemented subsequently. The Corporation of London came to manage Hampstead Heath as a result of the abolition of the General London Council. The Heath and the functions previously exercised by the GLC in relation to it were transferred to the Corporation by the London Government Reorganisation (Hampstead Heath) Order 1989. The Order required the Corporation to appoint the Hampstead Heath Management Committee "for the purposes of giving advice on, and implementing, the City's policies and programmes in relation to the Heath lands". The Committee must have at least 18 members, of whom at least 6 must be neither Council members nor employees of the Corporation. The Order also required the appointment of a Consultative Committee.
8. The functions transferred to the Corporation included those set out in the Ministry of Housing and Local Government (Greater London Parks and Open Spaces) Provisional Order 1967. They included the provision and maintenance of outdoor bathing places, the enclosing of such places and the preclusion of entry by unauthorised persons and in the interests of the safety of the public. That Order was subsequently confirmed by a similarly entitled 1967 Act.
9. The Corporation also has power to provide recreational facilities, and in particular swimming pools, under section 19 of the Local Government (Miscellaneous Provisions) Act 1976. The provision of recreational facilities involves their management, and decisions as to who is to use them, when and under what conditions.
10. The recreational facilities on the Heath include the three ponds used for swimming, and an artificial swimming pool, the Lido, on Parliament Hill. The Ladies' Pond and the Men's Pond have long been open for swimming in winter; the Mixed Pond has not. All of these facilities are managed by the Corporation.
11. The swimming ponds are open only when attended by lifeguards. Changes in opening hours have meant that neither the Ladies' Pond nor the Men's Pond is open early in the morning in winter, i.e. before 7.15 a.m.; and the Mixed Pond is not open to the public in winter at all. While in absolute terms the reduction in opening times is not great, it has a substantial effect on those who wish to swim before work, and effectively precludes their doing so.
12. The First Claimant ("The Club") is an unincorporated association formed specifically to seek to enable its prospective members to swim in the Mixed Pond on a self-regulated basis at defined times before the other Ponds are open to the public during the winter season. The Second Claimant is the Club's secretary, and is one of those who wish to swim in the Pond on a self-regulated basis when it is otherwise closed. The Club is affiliated to another unincorporated association, the United Swimmers' Association of Hampstead Heath, misleadingly referred to in the evidence as "the USA", which campaigns for the maintenance of the traditional hours of opening of the Ponds. The USA is not a party to these proceedings, but supports the claim, and its chairman, Robert Sutherland Smith, made a witness statement in support of the Club's claim.
13. As a result of reductions in opening hours at the swimming ponds, in 2003 a number of swimmers, including the USA, approached the Corporation and suggested that it permit unsupervised use of one or more Ponds outside opening hours for a controlled group of swimmers willing to absolve the Corporation from civil liability. Such swimming is referred to in the evidence as "self-regulated swimming", and I shall use the same expression.
14. Negotiations ensued between the Club and the Corporation as to whether, and if so on what terms, the Corporation might permit self-regulated swimming. The negotiations involved consideration of the terms of a proposed written licence which, if approved, would be granted by the Corporation to the Club. The terms of the licence were never agreed, but it is informative to refer to the draft of May 2004 as giving some indication of what was envisaged. It relates to swimming by members of the Club during "permitted hours", namely the hours between 6 a.m. and 9 a.m., and between 2 p.m. and 8 p.m., during the licence period, which runs from 1^st October in each year to 30^th April in the following year. The Club undertakes that membership will be restricted to persons of 18 or more years of age who are strong swimmers, of sound mind, and who sign a document in agreed form confirming his or her awareness of the risks of self-regulated swimming, and a declaration that he or she is habituated to cold-water swimming. Members of the Club would be prohibited from entering or remaining in the Pond if no other club member was present or if "conditions of natural light visibility at the time are (not) such that a person at any position in the designated swimming area of the Mixed Pond can be seen from the jetty". The draft contains an indemnity given to the Corporation by each member of the Club against loss, and an undertaking by the Club to maintain insurance to indemnify the Corporation against public liability and any claims in respect of personal injury.
15. The negotiations foundered as a result of advice received by the Corporation from Mr Straker QC. It led to the Hampstead Heath Management Committee passing, on 26 July 2004, a resolution that the request for self-regulated swimming in the Pond be refused. The Committee had before it a report of the Comptroller and City Solicitor and a letter from the solicitors for the USA commenting on Mr Straker's advice. The relevant part of the minute is as follows:

"The Comptroller & City Solicitor introduced the report and drew attention, in particular, to Counsel's advice that while the question of potential civil liability had been largely resolved by case law and the insurance arrangements which the swimmers would be able to put in place, Section 3 of the Health and Safety at Work Act 1974 presently stands in the way of the Corporation permitting unsupervised early morning swimming in the ponds. Counsel further advised that the Corporation's Members and officers could be criminally prosecuted by the Health and Safety Executive should an accident occur, or the HSE feel that the Corporation had not complied with its statutory obligations.

After discussion,

MOTION: That in the light of the advice received from Counsel the Committee approve the recommendation of the Comptroller & City Solicitor that the request of the United Swimmers Association for self-regulated swimming in the Mixed Pond be refused.

RESOLVED: That the Motion as set out above be agreed."

16. It is evident from the terms of the Motion and the Resolution, and is common ground, that the only basis for the decision was the advice that there was a risk of prosecution under section 3 of the 1974 Act, and I have not considered whether the Corporation could lawfully have made the same decision on different grounds. It is the lawfulness of this resolution that is the subject of these proceedings.
17. In his advice referred to in the Minute, Mr Straker stated:

"19. I find it a very difficult to see how … one can deny the proposition that the provision of recreational facilities unsupervised by lifeguards and subject only to self regulation through the licence the Corporation of London would be conducting its undertaking in a way whereby those who could be affected were exposed to risks to health or safety.

20. If one then considers whether the undertaking can reasonably practicably be conducted in a way to ensure that there is not exposure to those risks the answer must be that the undertaking can be so conducted by the expedient of managing the opening hours so that the enhanced risk occasioned by the absence of lifeguards is not present."

The position of the HSE

18. During the negotiations with the Corporation, the Club sensibly approached the HSE, which is the authority responsible for prosecutions under the 1974 Act, in order to ascertain its position on the proposed unsupervised swimming. In its important letter of 13 November 2003 to the Club's solicitors, the HSE stated:

"It is our view that the control and management of the ponds forms part of the undertaking of the CoL and therefore Section 3 HSWA applies. The proposal from the United Swimmers Association for swimming in the ponds would seem to be the basis for a private use/hire agreement between the CoL and the swimming groups. Such private use/hire would continue to come within the scope of Section 3 HSWA because there would be an expectation that the ponds would be maintained by the CoL in a condition suitable to allow swimming, and CoL would need to take action if the ponds became unsafe for public use. However, the risks to members of the swimming group could be controlled by agreement as discussed below.

I would distinguish private use/hire from so-called "self-regulated" swimming in which participants choose to swim in unregulated open tracts of water or the sea, and to fully accept the risks of doing so. In the case of the ponds on the Heath swimming would still take place subject to the control of the CoL through the terms of an agreement.

A checklist of the points for inclusion in any agreement/contract is given at Appendix 5 of our guidance Managing health and safety in swimming pools. Agreement will need to be reached over lifeguarding. Paragraphs 186 to 189 suggest that lifeguards may not be needed when the pool is hired by a club whose members are all strong swimmers. This would allow use of a pond without the need for the CoL to provide lifeguards, but there are other matters that would need to be taken into account when deciding if poolside supervision is necessary as recommended in paragraph 186 and figure 3 on page 66 of the guidance. I would point out that our guidance recognises that constant poolside supervision provides the best assurance of swimmers' safety but that it is not a specific requirement under Section 3 HSWA.

…

What HSE cannot do is provide any kind of indemnity to the CoL in terms of the conduct of this undertaking. The duty on CoL is non-delegable and is only subject to the defence of reasonable practicability. It is impossible to predict all of the circumstances which might arise, and in the event of an incident leading to an investigation by HSE it might have to be left to a court to determine if there had been a breach of the law. In determining whether or not there had been a breach an important consideration is likely to be the existence and operation of an agreement in terms such as those indicated above."

19. Because this case turns on the effect of section 3 of the Act, the HSE was joined as Interested Party. Having been served with the proceedings, it wrote to the Corporation on 13 December 2004 stating that it did not wish to be an interested party, and accordingly would not be filing an acknowledgement of service. Its position did not change following the amendment by the Claimants of their Grounds. In a letter dated 20 February 2005, the Corporation sought elucidation of the HSE's position. In its letter dated 2 March 2005, the HSE stated:

(a) It did not formally accept the Claimants' position that if the Corporation were to commit them to swim unsupervised in the mixed bathing pond, the Corporation would have, as a matter of law, no exposure to any risk of prosecution for breach of section 3 of the Act.

(b) "If the Claimants were successful …, whether the HSE would be barred from prosecuting … would depend upon the precise terms of the judgement, or declaration if any, made by the Court."

(c) The HSE did not formally accept that if the Corporation were to permit unsupervised swimming, it would not constitute an "employer conducting an undertaking" within the meaning of section 3."

20. Finally, in a letter dated 24 March 2005, the HSE stated:

"HSE has made its position clear regarding the application and scope of HSWA, and is content for the Court to interpret the legislation, as it deems appropriate. Other than re-stating the law and guidance, as set out in correspondence … HSE does not consider that it would have any material contribution to make to the proceedings, and as such, is mindful of the need to avoid the unnecessary public expense involved in being represented at the hearing. No disrespect is intended to the Court."

Should the Court interpret section 3?

21. The question I have to consider under this head is whether the Court should give a ruling on the meaning and effect of a criminal statute in the absence of the prosecuting authority and where it is not alleged that an offence has been committed. The conduct of the Corporation that might be the subject of a prosecution is therefore in a sense hypothetical. It was partly because the facts of any accident cannot be anticipated that the HSE refused to give any commitment as to a future prosecution.
22. I have considered the helpful discussion and summary of the effect of the authorities on this question in Zamir & Woolf, The Declaratory Judgment, 3^rd edition, at paragraphs 4.172 to 4.204. In contrast to a case such as R (Pretty) v DPP [[2001] UKHL 61, 2002] 1 AC 800, this is not a case in which a party seeks an order of the Court precluding his prosecution for an offence he may commit in the future. Nor is this a case in which such a party seeks an order of the Court the effect of which is to establish whether his action or failure to take action (such as not complying with an enforcement notice, as in Francis v Yiewsley and West Drayton UDC [1958] 1 QB 478) has constituted or will constitute a crime. In the present case, the party seeking the assistance of the Court is not the party fearing prosecution, but a third party who is affected by the Corporation's concern that it may commit a crime.
23. The issue here is not whether a party has acted in contravention of section 3, but whether on a certain hypothesis section 3 applies to its conduct. The Court must exercise caution whenever it is asked to decide whether hypothetical acts may infringe the criminal law. Even greater caution is appropriate where the decision is to be made without the benefit of the representation of the body responsible for enforcing that law, in the present case the HSE. The Court must be particularly astute where there is concern as to collusive litigation, but caution will be appropriate whenever there is a real possibility that not all relevant points have been argued or that relevant material is not before it.
24. The issue in this case as to the effect of section 3 of the 1974 Act is a genuine issue arising in civil litigation. This is not collusive litigation. On the Claimants' case, the Corporation has made a decision on the basis of a misapprehension as to the law. There is no other means of testing the correctness or otherwise of the legal advice on the basis of which the Corporation made its decision. While I regret the absence of the HSE, it has had the opportunity to make submissions, and has chosen not to do so on the basis that it has no further material contribution to make to my decision. Moreover, it has stated that it is content that the Court should interpret the Act. As will be seen, every point available to the HSE, if it were to contend that section 3 is engaged, has been argued by Mr Straker on behalf of the Corporation.
25. In these circumstances it is in my judgment appropriate for the Court to determine the legal issues in these proceedings.

Section 3 of the 1974 Act

26. Section 3 is as follows:

"3.—(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

(2) (Imposes a similar duty on self-employed persons.)

(3) In such cases as may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety."

27. By virtue of section 33(1)(a), it is a criminal offence for a person to fail to discharge the duty imposed by section 3. In the case of a body corporate, section 37 provides that if it commits an offence under the Act, and it "is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence". One therefore understands the personal concerns of the members and officers of the Corporation. The offence created by section 3 is an absolute offence, although that is qualified because it is subject to the reasonably practicable defence, which is for a defendant to prove on a balance of probabilities "that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty …, or that there was no better practicable means than was in fact used to satisfy the duty or requirement": section 40; and see R v British Steel Plc [1995] ICR 586.

The parties' contentions

28. It is of course common ground that the Corporation is an employer to whom section 3(1) applies. It is equally common ground that unsupervised swimming in the Mixed Pond near dawn in winter involves risk. There were over 40 incidents at the Ponds between 1994 and 2004, nearly all of which required the intervention of a lifeguard. Since 1933 there have been 6 fatal drownings when lifeguards were not present, 2 of which were suicides.
29. For the Claimants, Mr Beloff QC submitted:

(a) Section 3 is a penal provision, and as such is to be restrictively construed; it is to be given a "contextual and purposive construction", and construed so as to respect "the individualist values of the common law".

(b) Section 3 applies only to a risk created by the employer's conduct of his undertaking. It follows that, on its proper interpretation, it applies to activities carried out by an employer, and so does not apply to a risk created by the employer's premises as such. The grant of access to the Mixed Pond to self-regulated swimmers would not constitute "the conduct of (the Corporation's) undertaking".

(c) Any risk created by members of the Club swimming in the Pond would be the result of their deciding to do so with full knowledge of the risks involved. Their exposure to such risks would not have been caused by the conduct of the Corporation's undertaking, but by their own action. The requirement in section 3 that the exposure to risk must be "thereby", i.e. by the conduct of its undertaking, cannot be satisfied.

(d) In determining whether an employer has established the reasonably practicable defence, the value of the activity it has permitted must be taken into account, and not solely the cost or physical difficulty of eliminating the risk inherent in that activity. In the instant case, in relying on paragraph 20 of Mr Straker's advice, the Corporation had taken into account only the available means of eliminating the risk, and had not weighed against that the value of permitting unregulated swimming.

30. Mr Beloff also submitted that members of the public are not persons not in the employment of an employer within the meaning of section 3, so that their exposure to risk is outside its scope. He recognised, however, that this to my mind unattractive submission was not open to him in this Court by reason of the decision of the Court of Appeal in R v Board of Trustees of the Science Museum [1993] 1 WLR 1171, and he reserved the point for argument if necessary before a higher court.
31. On behalf of the Corporation, Mr Straker QC submitted:

(a) A restrictive interpretation of section 3 is inappropriate. A purposive interpretation is appropriate.

(b) Section 3 is not limited to activities, but applies equally to risks created by an employer's premises.

(c) The risks inherent in unsupervised swimming would be created by the Corporation's grant of access. The Corporation would therefore be liable for the creation of those risks under section 3.

(d) The only matters to be taken into account in determining whether an employer has established the reasonably practicable test are the costs and physical difficulty of a relevant precaution.

Principles applicable to the interpretation of the 1974 Act

32. The proposition that in general a penal statute should receive a strict or restrictive interpretation requires no authority. Mr Beloff cited Dickenson v Fletcher (1873) LR 9 CP 1. The Health and Safety at Work Act 1974 is a penal Act to the extent that it creates criminal offences. But, as Mr Beloff himself accepts, there are other principles of interpretation that also apply, including the principle that a statute should be given a purposive construction. Here, the purpose of the statute is (among other things) to secure and to protect the safety of employees and others. It is for that purpose that functions beyond the prosecution of offences created by the Act were conferred on the Health and Safety Commission and the HSE: see sections 10 and 11. That purpose requires the court to avoid an over-restrictive interpretation if it would be inconsistent with that purpose. The requirement that section 3 should be interpreted in its context also points against an automatic narrow interpretation.
33. The principle contended for by Mr Beloff that the Act should receive a construction that respects "the individualist values of the common law", expressed in those terms, would be new. The quotation is from the speech of Lord Hoffmann in Tomlinson v Congleton Borough Council [2003] UKHL 47, [2004] 1 AC 46, at [47], and there is no reported case in which the phrase has been used since. I shall have to refer to the speeches in that case at length below. However, while the formulation is new, I think that the principle itself is well-established. It has always been a principle of the interpretation of statutes that the courts should seek to construe them so as to produce a just and fair law. The courts presume that Parliament intended to legislate justly, fairly and reasonably: see the discussion at paragraph 1442 of volume 44(1) of Halsbury's Laws of England 4^th edition, and in Part XVI of Bennion, Statutory Interpretation 4^th edition, especially section 265. The values of the common law are components of the concepts of justice, fairness and reasonableness. Or to put it more accurately: the values of the common law are dictated by current concepts of justice and fairness and reasonableness. What is considered to be just, fair and reasonable varies from time to time, as do the values of the common law. (See, for example, in the context of the law of tort, but not otherwise far removed from the present context, Lord Pearson in Herrington v British Railways Board [1972] AC 877 at 929F-930B, and Lord Reid's reference to "current conceptions of social duty" at 899F.) The speeches in Tomlinson must be regarded as an authoritative exposition of legal policy at the present time.
34. Before turning to consider the application of section 3 in the present context, it is convenient to address the decision of the House of Lords in Tomlinson.

Tomlinson v Congleton Borough Council

35. In Tomlinson, the defendants appealed against the decision of the Court of Appeal holding them liable in damages to the claimant, who had injured himself when he had gone swimming in a lake in a disused quarry in a country park owned, occupied and managed by the defendant local authorities. (There were two local authority defendants, who had sensibly decided to settle their differences, so that it was unnecessary to distinguish between them.) Swimming in the lake was prohibited, and there were prominent notices stating "Dangerous water: no swimming". The defendants were aware that the notices were frequently ignored and had little effect in preventing visitors to the park from entering the water, and several accidents had resulted from swimming in the lake. On a hot day, Mr Tomlinson went into the lake, and from a standing position in shallow water dived and struck his head on the sandy bottom, breaking his neck. He alleged that the accident had been caused by the defendants' breach of their duty of care, owed to him as a trespasser under section 1 of the Occupiers' Liability Act 1984. The judge had found as a fact that there was nothing about the lake that had made it any more dangerous than any other stretch of open water, and that the danger and the risk of injury from diving in it where it was shallow had been obvious.
36. So far as is relevant, section 1 of the Occupiers' Liability Act 1984 is as follows:

"(1) The rules enacted by this section shall have effect, in place of the rules of the common law, to determine—

(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and

(b) if so, what that duty is.

(2) …

(3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if—

(a) he is aware of the danger or has reasonable grounds to believe that it exists;

(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and

(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.

(4) Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.

(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.

(6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).

37. The House of Lords also referred to the "common duty of care" owed under the Occupiers' Liability Act 1957 by an occupier of premises to his lawful visitors, that is, persons who are permitted by him to be on his premises. Section 2(2) of that Act provides that:

"The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."

38. The principal speech was given by Lord Hoffmann, with whom Lord Nicholls of Birkenhead agreed, as generally did the other Law Lords, as will be seen. Lord Hoffmann held that Mr Tomlinson's accident was not caused by the state of the defendants' premises, which had no hidden danger, but by his decision to do something that had inherent risk. He said, at [27]:

"Mr Tomlinson was a person of full capacity who voluntarily and without any pressure or inducement engaged in an activity which had inherent risk. The risk was that he might not execute his dive properly and so sustain injury. Likewise, a person who goes mountaineering incurs the risk that he might stumble or misjudge where to put his weight. In neither case can the risk be attributed to the state of the premises. Otherwise any premises can be said to be dangerous to someone who chooses to use them for some dangerous activity. In the present case, Mr Tomlinson knew the lake well and even if he had not, the judge's finding was that it contained no dangers which one would not have expected. So the only risk arose out of what he chose to do and not out of the state of the premises."

In addition, he held that, if there had been a risk arising from the state of the premises, it was not one that required the defendants to do anything about it. What was suggested was that they should have made it physically impossible to swim in the lake. To impose a duty to do this was to ignore the social value of the activity that gave rise to the risk. Even when the question of the duty owed by the defendants to lawful visitors was considered, they owed no duty to prevent swimming in the lake, because of the social value of swimming and because:

"45 … it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so."

"46 … there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious.

47 It is of course understandable that organisations like the Royal Society for the Prevention of Accidents should favour policies which require people to be prevented from taking risks. Their function is to prevent accidents and that is one way of doing so. But they do not have to consider the cost, not only in money but also in deprivation of liberty, which such restrictions entail. The courts will naturally respect the technical expertise of such organisations in drawing attention to what can be done to prevent accidents. But the balance between risk on the one hand and individual autonomy on the other is not a matter of expert opinion. It is a judgment which the courts must make and which in England reflects the individualist values of the common law.

…

50 My Lords, for these reasons I consider that even if swimming had not been prohibited and the council had owed a duty under section 2(2) of the 1957 Act, that duty would not have required them to take any steps to prevent Mr Tomlinson from diving or warning him against dangers which were perfectly obvious. If that is the case, then plainly there can have been no duty under the 1984 Act. The risk was not one against which he was entitled under section 1(3)(c) to protection."

39. Lord Hutton agreed that the defendants would not have been in breach of their occupiers' duty of care to lawful visitors. Lord Hobhouse of Woodborough agreed with Lord Hoffmann and added this:

"81 The fourth point, one to which I know that your Lordships attach importance, is the fact that it is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. Does the law require that all trees be cut down because some youths may climb them and fall? Does the law require the coastline and other beauty spots to be lined with warning notices? Does the law require that attractive waterside picnic spots be destroyed because of a few foolhardy individuals who choose to ignore warning notices and indulge in activities dangerous only to themselves? The answer to all these questions is, of course, no. But this is the road down which your Lordships, like other courts before, have been invited to travel and which the councils in the present case found so inviting. In truth, the arguments for the claimant have involved an attack upon the liberties of the citizen which should not be countenanced. They attack the liberty of the individual to engage in dangerous, but otherwise harmless, pastimes at his own risk and the liberty of citizens as a whole fully to enjoy the variety and quality of the landscape of this country. The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen. "

40. Lord Scott of Foscote agreed with Lord Hoffmann, subject to one reservation that is irrelevant for present purposes. He said:

"92. The council's duty under the 1957 Act to its visitors was a duty "to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted ... to be there": section 2(2). The purpose for which visitors were invited or permitted to be in the park was general recreation. This included paddling and playing about in the water. The proposition that in order to discharge their 1957 Act duty to visitors the council had to discourage them from any entry into the water and, in effect, to prevent the paddling and playing about that so many had for so long enjoyed is, in my opinion, for the reasons so cogently expressed by Lord Hoffmann, wholly unacceptable. There was no breach by the council of its 1957 Act duty. The question whether it owed any 1984 Act duty did not, in my opinion, arise. If, wrongly in my opinion, the 1984 Act were to be regarded as applicable, the case would be a fortiori."

And he concluded his speech, at [94]:

"… And why should the council be discouraged by the law of tort from providing facilities for young men and young women to enjoy themselves in this way? Of course there is some risk of accidents arising out of the joie-de-vivre of the young. But that is no reason for imposing a grey and dull safety regime on everyone."

41. These forthright speeches, and the decision itself in Tomlinson, require serious consideration in the present context. In fact, the decision of the House of Lords was not revolutionary. It was to the same effect as earlier, if less eloquent, judgments of the Court of Appeal: Ratcliff v McConnell [1999] 1 WLR 670, Darby v National Trust [2001] EWCA Civ 189, [2001] PIQR P372, CA, and Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231, [2003] QB 1008. Those decisions related to trespassers. However, the House of Lords in Tomlinson said that its decision did not depend on the issue whether Mr Tomlinson was a trespasser in the lake or a lawful visitor: whether he was a trespasser in the lake or a lawful visitor when he swam in the lake, the defendant had no liability to him. And so the question arises as to the relevance of these decisions, and in particular that of the House of Lords, to the issues I have to decide.
42. The facts of Tomlinson are indistinguishable from the facts envisaged by the Corporation when it decided to refuse the Claimants' request. If the members of the Club were to be allowed to swim in the Mixed Pond on the terms set out in the draft licence, and one of them were to be injured or even were to drown as a result, the Corporation as occupier would have no civil liability under the Occupiers' Liability Act 1957. It was presumably the decision in Tomlinson that led to the advice, referred to in the resolution of 26 July 2004, that "the question of potential civil liability had been largely resolved by case law".
43. However, as Mr Straker pointed out, Tomlinson (and equally Ratcliff, Darby and Donoghue v Folkestone Properties Ltd) concerned the law of tort, not criminal law. The House of Lords did not have to consider whether Congleton Borough Council was, on the facts of the case before it, guilty of an offence under section 3 of the 1974 Act. The decision of the House of Lords is not authority for the proposition that the defendants in that case were free of any criminal responsibility resulting from Mr Tomlinson's accident. Furthermore, quite apart form their different contexts, the wording of section 3 differs markedly from that of section 2 of the Occupiers' Liability Act 1957, and one cannot necessarily transfer the interpretation of the latter provision to the 1974 Act.
44. Furthermore, the functions of the civil law and the criminal law are different. The essential function of the civil law is, in the present context, to compensate those whose injuries are the responsibility or fault of another. The function of the criminal law is normative, to provide rules to be observed, the infringement of which leads to punishment (or to some other form of sentence). There is no simple relationship between the law of crime and the law of tort. Some statutory crimes give rise to a private cause of action for compensation on the part of anyone injured by its commission, others do not. Section 47 of the 1974 Act expressly provides that a contravention of section 3 does not of itself confer a right of action in civil proceedings. The criminal courts always have power to order a person convicted of a crime to pay compensation to someone injured by that crime, but that power is ancillary to the primary purpose of sentencing.
45. One can nonetheless say that one expects the scope of tort to be wider than that of crime. The relationship is summarised in Winfield and Jolowicz on Tort, 15^th edition, at page 14:

"Crime and tort of course overlap. Many torts are also crimes, sometimes with the same names and with similar elements (for example, assault and battery) and sometimes a civil action in tort is deduced from the existence of a statute creating a criminal offence. The more serious, "traditional" criminal offences are likely to amount to torts provided there is a victim who has suffered damage but the scope of tort is broader: it is broadly true to say that causing physical damage by negligence is always tortuous, but it is criminal only in certain circumstances or conditions."

46. I bear in mind the qualifications and reservations that must result from differences between tort and crime and between different enactments having different purposes. However, both Section 2 of the Occupiers' Liability Act and section 3 of the 1974 Act are concerned with responsibility for fault. The former imposes liability on the basis of fault: a failure to take "such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe …" An employer is absolved from liability under section 3 of the 1974 Act if he can show that he was without fault, in the sense that he did all that was reasonably practicable to do to remove or to minimise the relevant risk. I consider that it would be anomalous if Congleton Borough Council, so emphatically relieved by the House of Lords of liability in tort to Mr Tomlinson, were to be held to have infringed section 3 of the 1974 Act by failing to prevent his swimming in the lake. It would mean that the individual liberty that the House of Lords thought it was upholding was illusory: the criminal law would take away what the House of Lords thought it was establishing. And so I think it right to derive from the judgments in Tomlinson an approach to the interpretation and application of the 1974 Act in the present factual context.
47. I can now turn to the issues as to the interpretation and effect of section 3 of the 1974 Act. As indicated above, both Mr Beloff and Mr Straker made submissions on the individual ingredients of an offence under the section, no doubt having in mind the summary of those components in the judgment of the Court of Appeal in R v Associated Octel Ltd [1994] 4 All ER 1051 at 1063j. However, I think that one also has to consider the interpretation of the section as a whole, and its effect as so interpreted.

The conduct of the employer's undertaking

48. "Undertaking" is more normally used in the context of a business, but it is common ground, and in any event clear, that the 1974 Act applies equally to local authorities as well as to employers carrying on a commercial business. The Corporation owns the Heath and the Ponds, and manages them. The Ponds are part of its undertaking for the purposes of section 3.
49. The real point made by Mr Beloff under this head is that the risk apprehended by the Corporation does not arise from any activity on its part, but from the mere existence of the Mixed Pond. He submitted that Parliament intended section 3 to be limited to activities of employers, as shown by the preamble to the Act and section 1(1)(b), and by the separate provision for the liabilities of employers in relation to premises in section 4.
50. The preamble to the Act is as follows:

"An Act to make further provision for securing the health, safety and welfare of persons at work, for protecting others against risks to health or safety in connection with the activities of persons at work, for controlling the keeping and use and preventing the unlawful acquisition, possession and use of dangerous substances, ..."

51. The words italicised by me support Mr Beloff's submission. Section 1(1)(a) and (b) provide:

"1.—(1) The provisions of this Part shall have effect with a view to—

(a) securing the health, safety and welfare of persons at work;

(b) protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work;

…"

Again, the italicised words support the Claimants' submission. However, as Mr Straker pointed out, section 1(1) must be construed with subsection (3):

"(3) For the purposes of this Part risks arising out of or in connection with the activities of persons at work shall be treated as including risks attributable to the manner of conducting an undertaking, the plant or substances used for the purposes of an undertaking and the condition of premises so used or any part of them."

52. These italicised words do not permit me to accept Mr Beloff's submission, in so far as it is based on the terms of section 1(1)(b), in its generality. I must treat section 1, an operative provision of the Act, and in particular subsection (3), as elucidating, and in effect enlarging upon, the preamble, which is no more than a guide to Parliament's intention: c.f. Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436. In addition, the distinction between dangers arising from the static condition of premises and activities carried out on them is of dubious validity: see Herrington v British Railways Board per Lord Pearson at 929E and Lord Diplock at 942G. Whether in the circumstances envisaged by the grant of a licence there would be any risk attributable to the condition of the Mixed Pond is another question, to which I shall return below.
53. Section 4 of the Act so far as relevant provides:

"4.—(1) This section has effect for imposing on persons duties in relation to those who—

(a) are not their employees; but

(b) use non-domestic premises made available to them as a place of work or as a place where they may use plant or substances provided for their use there,

and applies to premises so made available and other non-domestic premises used in connection with them.

(2) It shall be the duty of each person who has, to any extent, control of premises to which this section applies or of the means of access thereto or egress therefrom … to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access thereto or egress therefrom available for use by persons using the premises, and any plant or substance in the premises or, as the case may be, provided for use there, is or are safe and without risks to health."

54. The Mixed Pond is undoubtedly non-domestic premises: see the definitions of premises (which "includes any place") and domestic premises in section 53. But the swimmers do not use it as a place of work, and I do not think that the jetty is "plant" which they use. I therefore do not think that section 4 applies to the swimmers at the Pond. In any event, no one suggests that the Mixed Pond is unsafe or constitutes a risk to health. Presumably, it is because the Corporation do not fear prosecution under section 4 that they do not rely on it. But even if section 4 does apply, and Mr Beloff limited himself to submitting that on the Corporation's construction of section 3, section 4 is "substantially redundant", it does not follow that section 3 does not apply: see R v Mara [1987] 1 WLR 87, in which the contention that sections 3, 4, 5 and 6 were mutually exclusive was castigated by the Court of Appeal as untenable. The Court said that the overlap between section 3 and later sections of the Act "is the inevitable result of the wide wording of section 3".
55. The Corporation were correct to consider that their regulation of admission to the Ponds constitutes the conduct of an undertaking within the meaning of section 3 of the 1974 Act.

Would the swimmers be exposed to risks to their health and safety by the conduct of the Corporation's undertaking?

56. Mr Beloff conceded that his submission under this head was his strongest point, and I agree.
57. The Claimants rightly concede that if the Corporation were to permit the swimmers to swim in the Mixed Pond unsupervised in the winter season, and they were to do so, they would be exposed to risk. The Corporation submits that this establishes that the swimmers would be exposed to risk by the permission. But the swimmers would also be exposed to risk as they drive or walk or run to the Pond, and as they travel from the Pond to their work or homes. No one would suggest that the Corporation should be responsible for an accident resulting from the risks of a traffic accident, or a heart attack while walking or running to or from the Pond. Risk is inherent in life, and some risk is unavoidable.
58. In the law, the ascription of a cause to a consequence may involve a value judgment. The decision of the House of Lords in Tomlinson demonstrates this. The existence of the lake, the ease with which someone could swim in the lake, the hot weather and Mr Tomlinson's decision to swim were all, in a sense, causes of his accident. The risks that Mr Tomlinson incurred when he chose to swim could be said to result from the existence of the lake and the ease with which he could swim in it. But the House of Lords held that the risks were not caused by the condition of the premises, which had no hidden dangers, but by his decision to swim: see Lord Hoffmann at [27]:

"So the only risk arose out of what he chose to do and not out of the state of the premises."

59. Similarly, in his judgment in Donoghue, which was approved by the House of Lords in Tomlinson, Lord Phillips MR said, at [36]:

"An expanse of water, be it a lake, pond, river or the sea, does not normally pose any danger to a person on land. If a trespasser deliberately enters the water to swim, then the trespasser chooses to indulge in an activity which carries a degree of inherent risk. If the trespasser gets cramped or becomes exhausted and drowns, it cannot properly be said that this tragedy is attributable to the 'state of the premises'."

Referring to the decision of the Court of Appeal in Tomlinson, Lord Phillips said:

"It seems to me that Mr Tomlinson suffered his injury because he chose to indulge in an activity which had inherent dangers, not because the premises were in a dangerous condition."

60. The above statement of Lord Hoffmann in Tomlinson at [27] illustrates that the law sometimes decides that a physical cause is irrelevant as a matter of law: see Weld-Blundell v Stephens [1920] AC 956, 986; and Lord Reid in Stapley v Gypsum Mines [1953] AC 663, 681. This is because the law is concerned not with causation, but with responsibility. In M'Lean v Bell (1932) TLR 467, a road accident case concerning liability for the tort of negligence, Lord Wright said at 469:

"In one sense, but for the negligence of the pursuer (if she was negligent) in attempting to cross the road, she would not have been struck, and as a matter simply of causation, the facts formed a necessary element in the final result, since without them no accident could have occurred. The decision, however, of the case must turn not simply on causation, but on responsibility; the plaintiff's negligence may be what is often called causa sine qua non, yet as regards responsibility it becomes merely evidential or matter of narrative, if the defendant acting reasonably could and ought to have avoided the collision."

61. In the context of legislation concerning safety at work, but still a case on liability in tort, in Norris v W Moss & Sons Ltd [1954] 1 WLR 346, the employer who had erected scaffolding in a manner that infringed the Building (Safety, Health and Welfare) Regulations 1948 was held not to be liable to his employee who had noticed the defect and set about remedying it negligently and was injured as a result. The Court of Appeal held that the breach of the Regulations was not the cause of the accident.
62. The same principle applies in criminal law. Hart and Honoré, in Causation in the Law, 2^nd edition, say, at 326:

"The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility."

While the situations envisaged by the authors differ from the present, the citation confirms the applicability of the principle in criminal law. In criminal law, as in other areas of the law, normally the "but for" test is a necessary test for responsibility, but it is not a sufficient test.

63. In my judgment, the requirement in section 3 that the exposure to risk should be by the conduct of the employer's undertaking is subject to the same considerations as those referred to by the House of Lords in Tomlinson. If an adult swimmer is given permission to swim unsupervised in a pond that has no hidden dangers, and the swimmer decides to swim in it, the risks he incurs in doing so are in a sense the result of both the permission and his decision. But if the law is to protect individual freedom of action, and to avoid imposing "a grey and dull safety regime on everyone", it must discriminate between these causes. In my judgment, for the purposes of section 3 of the 1974 Act, if an adult swimmer with knowledge of the risks of swimming chooses to swim unsupervised, the risks he incurs are the result of his decision and not of the permission given to him to swim. And it follows that those risks are not the result of the conduct by the employer of his undertaking, and the employer is not liable to be convicted of an offence under that provision.
64. This conclusion is consonant with the application of the Act to risks arising both from an employer's activities and the "risks attributable to … the condition of premises" used for the purposes of his undertaking: section 1(3). As the decision of the House of Lords in Tomlinson and the judgment of Lord Phillips MR in Donoghoe show, the risks incurred by adult swimmers who choose to swim in the Mixed Pond, if it has no hidden dangers (and it is not suggested that it has) are not attributable to the condition of the Pond, but to the decision of the swimmers to swim in it.

Is the social value of swimming a relevant factor in determining what is reasonably practicable?

65. The meaning of the words "so far as is reasonably practicable" was authoritatively considered by the House of Lords in Austin Rover Group Ltd v H.M. Inspector of Factories [1990] 1 AC 619. It held that the relevant factors are the foreseeable risk of injury and the cost of the preventive measures. The decision of the House of Lords in Tomlinson cannot be held to have affected that decision.
66. The preventive measures that must be taken must relate to a relevant risk. In the case of section 4 of the 1974 Act, that risk arises from the lack of safety of the premises. In the case of section 3, the relevant risk arises from the conduct by the employer of his undertaking. If the conduct of the undertaking does not create a relevant risk, the question of reasonably practicable precautions does not arise.
67. Since a permission by the Corporation to adult able swimmers to swim in the Mixed Pond does not, as I have held, create a relevant risk, it follows that the question of reasonable precautions does not arise.

Conclusion

68. I stated above that I should consider not only the individual components of section 3 but also the interpretation of the section as a whole. The result of the above analysis is, in my judgment, just and sensible. The swimmers will be under no compulsion or pressure to incur the risks involved in self-regulated swimming. They will do so of their own free will. The criminal law respects the individual freedom upheld by the House of Lords in Tomlinson.
69. The resolution of 26 July 2004 was based on a legal error. The Corporation's grant to the Club of permission to swim unsupervised in the Mixed Pond will not of itself render it liable to prosecution under section 3 of the 1974 Act.
70. As requested by the parties, the order to be made by the Court in consequence of my judgment will be considered after the parties had had an opportunity to consider this judgment.
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MR JUSTICE STANLEY BURNTON: My judgment has been distributed in draft. I am very grateful to counsel for the many corrections of numerous inaccuracies. The conclusions I have reached are set out in the judgment, copies of which are now available to the parties, the public and the press. I understand that the parties would prefer to have some time before an order is determined.

MR COPPEL: My Lord, it seems to the parties that there are three matters that can be dealt with very briefly today: first of all the terms of the declaration. Quite obviously they are of critical importance to the Corporation, but possibly of even greater importance to the HSE -- although it has chosen not to attend -- of wider importance to the HSE. The Corporation has prepared a form of words which I can read out to the court now. But we would propose to circulate it to my learned friend and the HSE to see whether agreement can be reached, and then put it to your Lordship to see if your Lordship is happy that it reflects what is in the judgment itself. So, in relation to that, what we would propose, if it is convenient to your Lordship, is to return in about a fortnight's time on whatever date is convenient to your Lordship so that that finalised form of words of the declaration can be agreed.

Secondly, my Lord, the issue of permission to appeal, and again the Corporation asks here that this be deferred until we return to you on the terms of the declaration. Again, my Lord, it is of critical importance that the HSE be given a proper opportunity to indicate whether they take issue with the judgment, and if so on what basis.

MR JUSTICE STANLEY BURNTON: I see the point.

MR COPPEL: It is the role of the HSE, which is important here, rather than the Corporation and any suggestion that it might otherwise be colluding with the claimants in this matter.

Thirdly, my Lord, the balance of the hearing, which might have got a little bit forgotten in all the excitement over the issue of criminality. Your Lordship will remember that the gist of the claim against the Corporation as such was that the decision to refuse the swimmers permission was an irrational or flawed decision, and they said that it was irrational and flawed on the Corporation's misunderstanding of the criminal law. Of course, it was that preliminary issue which had to be resolved, as it happens without the benefit of the HSE.

It is not clear to the Corporation at any rate whether the swimmers intend now to persist with that element of the claim because, as was indicated by Mr Beloff during the course of the hearing, it may be that now the issue of criminality has been resolved, that the dispute -- in fact the only real dispute against the Corporation as such need not proceed. But again, my Lord, it may be that that issue can be finally resolved when we come back before you in a fortnight or so.

MR JUSTICE STANLEY BURNTON: Thank you. Mr Herberg?

MR HERBERG: My Lord, I am very grateful to your Lordship, as I suspect are the residents of Hampstead. My Lord, I do not think there is anything between the parties on the three matters to which my learned friend has referred. It is obviously sensible for a declaration to await a future occasion. The HSE will of course want to see that, although we do not concede -- if they are to have second thoughts about the stance they have taken in these proceedings, there is now time to reopen the issue. That, of course, is a hypothetical position.

In relation to the balance of the proceedings, can I merely say that the preliminary issue was proposed in the first place because it was hoped that it would provide a route to shorten the proceedings, and given the result we very much hope that that will be the case. But that will be resolved, we hope, on the resumed hearing. A period of two weeks we would also hope should be sufficient to resolve all those outstanding matters.

MR JUSTICE STANLEY BURNTON: Do you want me to fix a date now or through the usual channels, which I think I would prefer because I would like to know what my own commitments are before I fix a date.

MR COPPEL: My Lord, the latter may be more convenient because I did not bring my diary with me.

MR HERBERG: We are content with that.

MR JUSTICE STANLEY BURNTON: The other matter is that, until the HSE has seen the judgment, and they have not yet, you are not in a position to know and I am not in a position to know how long the next hearing will take. So it seems to me better to adjourn this matter to the first suitable date convenient to the parties after two weeks.

MR COPPEL: I am grateful, my Lord.

MR JUSTICE STANLEY BURNTON: Thank you both, very much.