|Judgments - Regina v. Bristol Magistrates Court and Others (Appellants) ex parte Junttan Oy (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. Bristol Magistrates Court and others (Appellants)
ex parte Junttan Oy (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)
Regina v. Bristol Magistrates Court and others (Respondents)
ex parte Junttan Oy (Appellants) (Criminal Appeal from Her Majesty's High Court of Justice)
THURSDAY 23 OCTOBER 2003
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Slynn of Hadley
Lord Hobhouse of Woodborough
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Bristol Magistrates Court and others (Appellants) ex parte Junttan Oy (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)
Regina v. Bristol Magistrates Court and others (Respondents) ex parte Junttan Oy (Appellants) (Criminal Appeal from Her Majesty's High Court of Justice)
 UKHL 55
The 1974 Act
The machinery directive
The 1992 regulations
The first question: co-existence of manufacturers' duties under the 1974 Act and under the 1992 regulations
The consequence of this incompatibility
The second question
LORD SLYNN OF HADLEY
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".
The 1974 Act
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.
As to the second question referred
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
a) 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
b) 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.
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.
The Divisional Court upheld the first objection but rejected the second: R (on the application of Junttan Oy) v Bristol Magistrates' Court  EWHC 566. The Divisional Court dealt with the issues in reverse order.
In a separate judgement Wright J expressed agreement with the judgment of the Lord Chief Justice.
This is the question to be examined on the appeal of the HSE to the House.
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):
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:
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.
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.
Regulation 12 provides:
Regulation 2(2) provides a relevant definition:
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.
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):
It is now necessary to examine this part of the judgment of the Divisional Court.
For all these reasons I conclude that the regulations are not capable of bearing the restricted meaning favoured by the Divisional Court.
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:
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.
The Second Certified Question.
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.
LORD HOBHOUSE OF WOODBOROUGH
S.33 of the Act provides that following a conviction on indictment the offender shall be liable to an unlimited fine.
Discussion: English Law.
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.