R (Junttan Oy) v Bristol Magistrates’ Court

Where the same conduct constitutes offences under an Act and subordinate legislation, the prosecutor may ordinarily proceed under either regime unless a contrary legislative intention appears. The Supply of Machinery (Safety) Regulations 1992 did not exclude prosecution under section 6 of the Health and Safety at Work etc Act 1974.

The machinery directive did not prevent that prosecution where the alleged danger also involved non-compliance with the directive’s essential safety requirements. A CE marking created a rebuttable presumption of conformity; it did not establish safety conclusively. The directive’s safeguard procedure ceased to be relevant after the manufacturer modified the machinery so that it no longer presented the identified danger.

Following a fatal accident involving a CE-marked piling rig manufactured in Finland, the Health and Safety Executive prosecuted its manufacturer under section 6 of the Health and Safety at Work etc Act 1974. The manufacturer contended that any prosecution had to be brought under the less severely penalised Supply of Machinery (Safety) Regulations 1992, which implemented Directive 98/37/EC.

The Bristol Magistrates’ Court held that it had jurisdiction. On judicial review, the Divisional Court in [2002] EWHC 566 declared the section 6 prosecution unlawful, but rejected a separate challenge based on the Executive’s failure to use the directive’s article 7 safeguard procedure.

The conjoined appeals asked whether prosecution under the 1974 Act remained permissible and whether article 7 had been breached after the machinery was modified.

1. Disposition. By a majority of three to two, the House allowed the Health and Safety Executive’s appeal and held that the prosecution under section 6 of the Health and Safety at Work etc Act 1974 could proceed. The House unanimously dismissed the manufacturer’s appeal concerning article 7 of Directive 98/37/EC.

2. Domestic statutory position. Lord Steyn, Lord Slynn and Lord Millett held that sections 18 and 23 of the Interpretation Act 1978 permitted prosecution under either of two overlapping statutory regimes unless a contrary intention appeared. No such intention appeared in the Supply of Machinery (Safety) Regulations 1992. Paragraph 7 of Schedule 6 preserved the taking of “any action” under the 1974 Act. Its ordinary meaning extended to prosecution, and the Regulations contained no other provision excluding section 6.

3. Effect of the directive. Lord Steyn held that the directive placed overriding importance on actual safety. A CE marking and declaration of conformity created only a rebuttable presumption. Articles 2 and 7 required action where machinery was liable to endanger persons, even if it bore the marking. The directive did not prescribe domestic criminal sanctions or prevent the continued operation of section 6.

   Lord Slynn agreed that the directive’s free-movement objective did not curtail a member state’s power to act where safety was not assured. Lord Millett adopted the narrower basis that prosecution was permissible where, as alleged here, the machinery was unsafe because it failed to comply with an essential requirement in Annex I. Differences in available defences and penalties arose only after danger or non-compliance had been established and were matters for national law.

4. Minority. Lord Nicholls and Lord Hobhouse would have dismissed the Executive’s appeal. They considered that the parallel regimes produced unacceptable ambiguity and that the Regulations superseded or required disapplication of section 6 within the directive’s field.

5. Safeguard procedure. Lord Steyn, with the agreement of the other Law Lords on the result, held that article 7 ceased to be relevant after the manufacturer had modified the rigs and removed the identified danger before prosecution. No useful market-withdrawal measure then remained to be notified. Commercial pressure did not make the modifications legally involuntary. There was no failure to follow the safeguard procedure and no question required reference to the Court of Justice.

1. House of Lords: By a majority of three to two, allowed the Health and Safety Executive’s appeal concerning the availability of prosecution under the Health and Safety at Work etc Act 1974. Unanimously dismissed Junttan Oy’s appeal concerning article 7 of Directive 98/37/EC.
2. Divisional Court: In [2002] EWHC 566, declared the section 6 prosecution unlawful and quashed the District Judge’s contrary ruling. It rejected the challenge based on article 7.
3. Bristol Magistrates’ Court: District Judge Thomas ruled that the court had jurisdiction to hear and determine the prosecution under section 6.