Oy, R (on the application of) v. Bristol Magistrates Court & Ors

This appeal concerned whether the Health and Safety Executive (HSE) was entitled to prosecute Junttan Oy under section 6(1)(a) of the Health and Safety at Work etc Act 1974 for manufacture/supply defects in machinery, rather than under the Supply of Machinery (Safety) Regulations 1992 which implement Council Directive 98/37/EC (the machinery directive). The House considered the interaction between the 1974 Act, the 1992 Regulations and the Directive (in particular Articles 2, 3, 4, 5 and 7 and the essential requirements in Annex I), and the effect of the savings provision in schedule 6 paragraph 7 to the 1992 Regulations. The majority held that the Regulations and the Directive do not preclude prosecution under section 6 of the 1974 Act: domestic law permits prosecution under either enactment (absent a clear contrary intention), and Community law does not prevent Member States from taking stronger national measures or applying national criminal sanctions where machinery is found to be unsafe. The majority further held that the Article 7 safeguard procedure did not preclude the prosecution on the facts, since the machinery had been modified and the safeguard procedure was not required to be invoked. A minority concluded that the 1974 Act duties should be disapplied so far as they overlap the Directive and that the HSE should not prosecute under section 6 where the Regulations cover the same ground.

This case arose from a fatal accident in February 1999 involving a Junttan PM20 piling rig. The HSE issued enforcement notices and later laid an information against Junttan Oy under section 6 of the Health and Safety at Work etc Act 1974 alleging unsafe design or construction. Junttan challenged the magistrates' court decision that it had jurisdiction to try the charge, arguing that the Supply of Machinery (Safety) Regulations 1992, made to implement the machinery directive (Directive 98/37/EC), provide the exclusive domestic criminal regime for such matters and that Article 7 of the Directive required the UK to follow a safeguard procedure before taking action in respect of CE-marked machinery.

Procedural posture: The District Judge (Bristol Magistrates' Court) held he had jurisdiction; Junttan obtained judicial review and the Divisional Court ([2002] EWHC 566 (Admin)) quashed that part of the District Judge's decision and certified two questions of law of general public importance. The HSE appealed to the House of Lords; Junttan cross-appealed on the Article 7 point.

Issues framed:

• Whether HSE could prosecute under section 6 of the 1974 Act in respect of supply and safety of machinery, or whether prosecution was limited to regulation 29(a) of the 1992 Regulations implementing the Directive.
• Whether the HSE had failed to follow the mandatory Article 7 procedure of the Directive and, if so, what effect that had on the prosecution.

Court's reasoning (concise): The House divided. The majority (Lords Steyn, Slynn and Millett) held that as a matter of domestic construction there was no clear contrary intention in the Regulations to displace prosecutions under the 1974 Act, and Section 18 of the Interpretation Act 1978 permits prosecution under either measure where conduct constitutes an offence under both. They further reasoned that the Directive does not prevent Member States prosecuting under national law with penalties differing from those in the implementing regulations; the Directive sets minimum harmonised safety requirements and a safeguard procedure (Article 7) but does not prescribe exclusive criminal sanctions or prevent Member States taking stronger measures where machinery is found to be unsafe. On the Article 7 point the majority found no relevant failure because the machinery had been modified after enforcement action and the safeguard procedure was not engaged. The minority (Lords Nicholls and Hobhouse) considered that the comprehensive transposition by the 1992 Regulations and the savings provision in schedule 6 demonstrated that Parliament intended the Regulations to be the operative code for machinery safety and that continued overlap created unacceptable uncertainty and risked undermining the Directive; accordingly, they would have disapplied the 1974 Act so far as its duties overlapped the Directive and upheld the Divisional Court on the first question.

Appeal allowed. The majority held that nothing in the Supply of Machinery (Safety) Regulations 1992 or in Directive 98/37/EC prevents the HSE prosecuting under section 6 of the Health and Safety at Work etc Act 1974 where the same conduct may amount to an offence under both regimes: absent a clear contrary intention prosecutions may proceed under either enactment (Interpretation Act 1978, s.18). The Directive does not forbid Member States from applying national criminal sanctions or stronger measures where machinery is found to be unsafe. On the Article 7 issue the majority held no mandatory safeguard procedure had to be invoked on these facts because the machinery had been modified and withdrawal/prohibition procedures were not required; Junttan's appeal on Article 7 was dismissed. A minority would have reached the opposite conclusion on the first question and disapplied section 6 so far as it overlapped the Directive and Regulations.

Bristol Magistrates' Court (District Judge Thomas) — decision that court had jurisdiction to hear prosecution; judicial review to Divisional Court (Lord Woolf CJ and Wright J) [2002] EWHC 566 (Admin) — Divisional Court quashed that part of the District Judge's decision and certified two questions; appeal to House of Lords [2003] UKHL 55.