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NELSON GROUP SERVICES, R v. [1998] EWCA Crim 2511 (30th July, 1998)
No.
9704750 W4 9706764 W4 9707131 W4
IN
THE COURT OF APPEAL
CRIMINAL
DIVISION
Royal
Courts of Justice
The
Strand
London
WC2A 2LL
Thursday
30th July 1998
B
e f o r e :
LORD
JUSTICE ROCH
MR
JUSTICE BENNETT
and
MR
JUSTICE THOMAS
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|
|
REGINA
|
|
|
-
and -
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|
|
NELSON
GROUP SERVICES
|
|
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- - - - - - - - - - - - - - - - - - - -
Computer
Aided Transcript of the Handed Down Judgment of
Smith
Bernal Reporting Limited
180
Fleet Street, London EC4A 2HD
Tel
No: 0171 421 4050 Fax No: 0171 831 8838
(Official
Shorthand Writers to the Court)
-
- - - - - - - - - - - - - - - - - - - -
MR
RM OWEN QC & MR C PARRY (30.7.98)
appeared on behalf of the Appellant
MR
N WOOD
appeared on behalf of the Crown
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- - - - - - - - - - - - - - - - - - - -
JUDGMENT
(As
Approved by the Court)
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Crown
Copyright
Thursday
30th July 1998
JUDGMENT
LORD
JUSTICE ROCH:
The
appellants, Nelson Group Services (Maintenance) Ltd are a company involved in
the installation, servicing and maintenance of gas appliances. Their clients
include British Gas who employ them to install gas appliances which British Gas
has sold to others, Local Authorities and Housing Associations together with
other major organisations, including commercial undertakings that use gas. In
addition the appellants have maintenance contracts with a few private
individuals.
Prior
to the convictions against which the appellants appeal they had no conviction.
Between June 1997 and January 1998 the appellant company faced six indictments
for offences under the Health and Safety at Work Act etc 1974. The appellant
company was acquitted on three of those indictments. It was convicted of one
or more offences on the other three indictments and we shall set out the
particulars of those offences and the facts giving rise to them a little later
in this judgment.
The
appellant company is a national company employing between 800 and 900 fitters,
in addition to supervisory staff and office and management personnel. The
appellant company has its own training centre for training its employees.
The
main issue which arises in two of these three appeals is the extent of the duty
placed upon an employer by s. 3(1) of the 1974 Act. The directions given to
the jury on the nature and extent of the duty under this section were not the
same in each case. In the first and third of the appeals the appellants accept
for the purpose of the appeals that one of their fitters, in the first case
installing a gas cooker at a private house, and in the third case in removing a
gas fire which had become dangerous from the living room of another private
house, did not perform their work as fitters properly. In the first case it is
accepted that a proper test for gas leaks in the system following installation
was not carried out, and in the third case that the end of the pipe supplying
gas to the fire where that pipe was broken to allow removal of the gas fire was
not properly capped. It is accepted by the respondent that in those cases the
fitters concerned were properly trained, properly certificated, had as
necessary undergone refresher courses, received proper instructions and been
supplied with proper equipment which would have allowed them to discharge their
work as fitters satisfactorily and safely. On the other hand, it is now common
ground that the gas fittings, which include gas appliances, (see Regulation 2
of the Gas Safety (Installation and Use) Regulations 1994) were left in such a
condition that the occupiers of the private houses were exposed to risk to
their health or safety.
The
question which arises is whether that fact alone renders the appellant in
breach of their duty under s. 3(1) and guilty of a criminal offence under s.
33(1)(a) or whether either of two submissions made on behalf of the appellants
offers a defence. The first is that the negligent act by the fitter is not
“the employer conducting his undertaking”. The second is that the
employer is not prevented from showing that he has so far as is reasonably
practicable conducted his undertaking in such a way as to ensure that persons
not in his employment who may be affected thereby are not thereby exposed to
risk to their health or safety by the fitter’s negligent act or omission.
This
issue is not the sole ground of appeal raised in these three appeals.
Consequently it is necessary to set out the three cases in some detail so that
the other grounds and our decisions on them may be understood.
In
the first case, the appellants faced an indictment containing four counts. The
first count charged the appellants with failing to discharge the duty imposed
on them by s. 3(1) of the 1974 Act contrary to s. 33(1)(a) of that Act. Count
2 charged the appellants with contravening Regulation 26(5) of Gas Safety
(Installation and Use) Regulations 1994, hereafter referred to as the
Regulations, contrary to s. 33(1)(c) of the 1974 Act. Both those counts were
based on an allegation that a gas cooker installed at 23, Highfield Road,
Petersfield by the appellants had been left connected to the gas supply by
fittings which were not gas tight. Count 3 charged the appellants with
contravening Regulation 3(5) of the same Regulations contrary to s. 33(1)(c) of
the 1974 Act. The particulars of this charge were that the appellants failed
to ensure that one of their fitters, Frederick Thorpe, had complied with
Regulation 26(5) of the Regulations, he being a person on whom a duty was
imposed by that Regulation. Count 4 in the indictment charged Frederick Thorpe
with contravening Regulation 26(5) of the Regulations contrary to s. 33(1)(c)
of the 1974 Act. The particulars were that Mr Thorpe had installed a gas
cooker at 23, Highfield Road, Petersfield and left it connected to the gas
supply when it could not be used safely.
The
case against the appellants and Mr Thorpe was heard by a jury at the Portsmouth
Crown Court in a trial presided over by HHJ Shawcross between the 17th and 25th
June 1997. Count 4 against Mr Thorpe was dismissed because Mr Thorpe was one
of two fitters who had installed the gas cooker at 23, Highfields Road, the
other being a Mr Quested, and the prosecution were not able to establish which
of those two fitters had been in breach of Regulation 26(5). As a consequence
of the jury being directed to acquit Mr Thorpe on Count 4, the jury were
directed, in our view correctly, to acquit the appellants on Count 3.
The
appellants were found guilty on Counts 1 and 2 and were fined £250 in
respect of each count.
The
facts were these: the gas cooker had been purchased by the occupiers of 23,
Highfield Road, Mr & Mrs Porter from British Gas who employed the
appellants to install it and had been installed by a fitter employed by the
appellants on the 2nd October 1995. There was no defect in the gas cooker
itself, nor in the connection made by the appellant’s fitter between the
bayonet fitting and the gas cooker. Part of the pipe work behind the gas
cooker included a back plate elbow. The joint between the pipe leading to the
back plate elbow and the back plate elbow was found to be leaking by a fitter
employed by Transco later on the 2nd October 1995 when he was called to 23,
Highfield Road by Mr & Mrs Porter. Mr and Mrs Porter had smelled gas and
called the emergency number. The jury by their verdicts must have been
satisfied that that joint had been disturbed by the work of installing the gas
cooker and that one or other of the appellant’s fitters should have
discovered the leakage from that joint by pressure testing the system after
their work of installation was complete. There was an issue as to whether the
leak found by the Transco fitter exposed Mr & Mrs Porter to risks to their
health or safety. Again on the jury’s verdicts it must be assumed that
the jury were sure that such a risk existed on the 2nd October 1995.
The
first point taken by the appellants relates to Count 2 in the indictment and
has been conceded by the respondents, namely that Regulation 26(5) of the
Regulations does not place a duty on the employers. Because both sides to this
appeal wish to have guidance on the scope of the duties under the Regulations
and under the Act, we shall state shortly why we consider that the point taken
by the appellants under Regulation 26(5) is sound and that the concession of
the point by the respondents is properly made.
Regulation
26(5) provides that:
"No
person carrying out the installation of a gas appliance shall leave it
connected to the gas supply unless the appliance can be used safely."
The
Regulations clearly distinguish between “any person carrying out any
work” in relation to a gas fitting and the “employer of any
person” see in particular Regulations 3 and 4. Moreover, the Regulations
distinguish between the duties imposed upon the person who carries out the work
in relation to gas fitting, and the duties imposed upon the employer of such a
person. The Regulations impose a series of obligations upon the person who
carries out the work in relation to a gas fitting. They specify the result to
be achieved, and impose strict liability subject to Regulation 37. Regulation
37 provides:
"No
person shall be guilty of an offence by reason of contravention of Regulation
3(2) or (5), 5(1), 7(3), 15, 16(2) or (3), 17, 30, 33(1), or 35 in any case
in which he can show that he took all reasonable steps to prevent that
contravention."
Regulation
3(2) and (5) create duties on the part of the “employer of any person
carrying out work” to ensure that a certain result is achieved. The
employer is given a defence under Regulation 37 in respect of both of those
provisions. Regulation 4 also places a duty on an employer who requires any
work in relation to a gas fitting to be carried out at any place of work under
his control, to take reasonable steps to ensure that the person undertaking
that work is suitably qualified. Again the distinction is drawn between the
employer on the one hand, and the employee who carries out the work on the
other. The person who carries out the work has, save in those cases provided
in Regulation 37 an absolute duty to achieve the desired result, an example is
the duty imposed by Regulation 26(5) which we have cited above. This is to be
contrasted with the employer who has to take “all reasonable steps to
prevent a contravention” or “to take reasonable steps to ensure
......”
Another
reason why Regulation 26(5) should not be read as imposing a duty on employers
is that it would be anomalous for the same facts to give rise to two similar
offences, one under the Act and the other under the Regulations, in respect of
which the employer would in the one case have a defence of reasonable
practicability, but not in the other. Thus whether the defence of reasonable
practicability was open to the employer or not would depend on the whim of the
prosecutor as to which provision he chose as the basis of the alleged offence.
Mr Owen for the appellant submitted that it is a fundamental principle of law
that statutory regulations cannot extend the criminal liability of persons
beyond that contained in the primary legislation.
In
his skeleton argument, Mr Nicholas Wood for the Respondent states:
"It
is acknowledged that, practically, the specific (operational) duties laid down
in the Gas Safety (Installation and Use) Regulations 1994, for example that
imposed by Regulation 26(5), do not lie readily on employers who are not
actually engaged on the work themselves, therefore on corporate employers in
particular; moreover, that Regulation 3(5) is probably a sufficient discipline
to keep such employers up to the mark in the public interest."
Mr
Wood then went on in his skeleton argument to examine the antecedents of this
legislation which he submitted tended to point to the same conclusion and
suggested strongly that at any rate the corporate employer is not under a
direct duty in relation to the specific safeguards set out in the Regulations.
The
appellants do not criticise the direction of the trial judge with regard to
Count 1 in the indictment and the duty imposed on employers by s. 3(1) of the
1974 Act. The appellants submit that the verdict on Count 1 was tainted by the
direction given on Count 2 and by the failure to withdraw Count 2 from the
jury. The jury were directed that:
"Count
2 is simpler. It is basically what it says it is. It has been referred to
rightly by defence counsel as an absolute offence. That means that if the
facts necessary to support this offence as set out in Count 2 are established
to your satisfaction so that you feel sure, it does not matter that the
defendants may not have intended it. It may have been accidental. It may not
have been deliberate. But if those facts are established then guilt follows."
The
submission put briefly is that if the jury in the light of that direction felt
obliged to convict on Count 2 they would have felt obliged to convict on Count 1.
That
submission, in the judgment of this court, ignores the direction given to the
jury on Count 1 namely that there were three factual matters of which the jury
had to be sure. If they were sure of those three matters then the jury had to
ask themselves whether the appellants had satisfied them as a matter of
probability that they had so far as was reasonably practicable ensured that a
situation, in which there was a risk to the occupants’ health or safety,
would not arise. In the light of the clear direction given on Count 1, we do
not consider that the submission that the direction on Count 2 would have
detracted from that clear direction can be made out.
The
remaining ground which is particular to the first indictment is the procedural
point taken on behalf of the appellants, namely that there was no order
committing the appellant company for trial and consequently the proper officer
of the Crown Court who signed the indictment had no authority to do so in so
far as the indictment concerned the appellants who are a corporate body. Thus
the indictment was a nullity and the proceedings in the Crown Court against the
appellants based on it were a nullity.
In
Ground 4 of the Notice of Appeal, it is contended that the committal of the
appellants to the Portsmouth Crown Court by the South East Hampshire
Magistrates (sitting at Portsmouth) on 14 November l996 was defective, that in
consequence the Indictment was invalid and that the trial was a nullity.
The
facts relevant to this point are as follows. The committal in this case was
what is called “a paper committal”, i.e. no oral evidence was
called and the Magistrates had to consider whether the statements disclosed a
prima facie case to answer. The appellants and Mr Thorpe conceded in front of
the Magistrates that there was a prima facie case and accordingly the
Magistrates committed the appellants and Mr Thorpe for trial. The certificate
of committal was sent to the Crown Court with the Schedule thereto in which the
offences were specified. On 12th December l996 an officer of the Crown Court
signed the Bill of Indictment. On 30th December l996 the appellants were
arraigned, pleaded not guilty, and a plea and directions hearing was held. Mr
Owen QC informed us that on 30th December l996 the appellants’ solicitors
received a copy of the certificate of committal. The appellants did not
advance the argument that the committal was defective, either at the plea and
directions hearing, or on 16th June l997 immediately prior to the start of the
trial in the Crown Court, or at any stage during the trial which concluded on
25th June l997, nor was there a motion to quash the indictment on the ground
that the indictment was, in the case of the appellants, a nullity or that it
had been signed without authority. Indeed no point was taken until grounds of
appeal were submitted to this court on 7th October l997.
Mr
Owen submitted that before an indictment could be laid against the appellants
the Magistrates had to have authorised the prosecutor in writing to prefer it.
Without that there was no legal authority to prefer the indictment. He
submitted that the law was clear; there was no jurisdiction for an indictment
to be preferred and the trial was a nullity. Although he conceded that the
form used was entirely appropriate so far as Mr Thorpe was concerned, he
contended that the provisions of the Magistrates Court Act l980 relevant to
corporations is mandatory, that the wrong form was used and thus no indictment
could be preferred. Mr Owen relied on the decision of this Court in
R v. H. Sherman Limited
[l949] 2 KB 674 to which we will return in due course. Furthermore, Mr Owen
drew our attention to the words of Section 33 of the Criminal Justice Act l925
which provided:
“Where
the corporation is charged, whether alone or jointly with some other person,
with an indictable offence, the examining Magistrates may, if they are of
opinion that the evidence offered on the part of the prosecution is sufficient
to put the accused corporation upon trial, make an order empowering the
prosecutor to present to the grand jury at Assizes or Quarter Sessions, as the
case may be, a bill in respect of the offence named in the order, and for the
purpose of any enactments referring to committal for trial (including this Act)
any such order shall be deemed a committal for trial.”
He
submitted that Section 33(1) has to all intents and purposes been repeated in
the relevant provisions in the Magistrates Courts Act l980.
The
relevant provisions of the Magistrates Courts Act l980 are Sections 6(2), 46
and Schedule 3, paragraphs 1 and 6. Section 6(2) provides:
“(2) A
Magistrates Court enquiring into an offence as examining justices may, if
satisfied that all the evidence......consists of written
statements.........commit the accused for trial for the offence without
consideration of the contents of those statements, unless -
a) the
accused ........has no legal representative acting for him in the case...;
b) a
legal representative for the accused .......has requested the court to consider
a submission that the statements disclose insufficient evidence to put that
accused on trial by jury for the offence;
and
sub-section (1) above shall not apply to a committal for trial under this
sub-section.”
Section
46 provides:
“The
provisions of Schedule 3 of this Act shall have effect where a corporation is
charged with an offence before a Magistrates Court”.
Schedule
3 paragraph 1(1) provides:
“A
Magistrates Court may commit a corporation for trial by an order in writing
empowering the prosecutor to prefer a bill of indictment in respect of the
offence named in the order.”
Paragraph
6(1) provides:
“Subject
to the preceding provisions of this Schedule, the provisions of this Act
relating to the enquiry into, and trial of, indictable offences shall apply to
a corporation as they apply to an adult.”
The
form of order used in the case of a committal of a corporation is to be found
at Form 19 of Part IX of the Precedents and Forms of Stones Justices Manual.
The document must be dated and the accused corporation identified together with
its registered office. Then there is to be set out the alleged offence or
offences. The form then continues as follows:
“The
accused corporation was today charged before the above Court with the above
offence and the court having enquired into the offence and determined to commit
the accused corporation for trial at the Crown Court at
..................................
ORDER:
You (name), as prosecutor are hereby empowered to prefer a bill of
indictment in respect of the offence at the Crown Court.”
The
document is then to be signed by a Justice of the Peace or by the clerk of the
court upon the order of the magistrate.
The
certificate of committal was in fact in Form 16, the relevant part of which
reads:
“CERTIFICATE
TO BE SENT TO THE CROWN COURT ON COMMITTAL FOR TRIAL
SOUTH
EAST HAMPSHIRE MAGISTRATES COURT SITTING AT PORTSMOUTH CODE 1782
DATE:
14 November l996
ACCUSED:
FREDERICK THORPE a male person born 30.05.38
Nelson Group Services (Maintenance) Ltd.
Having
been committed for trial on unconditional bail under Section 6(2) of the
Magistrates Courts Act l980 to the Crown Court at Portsmouth charged with the
offences specified in Schedule 1 hereto.”
Other
matters are then set out. The certificate is signed by a Justice of the Peace
for Hampshire and the charges are set out in Schedule 1.
We
consider it appropriate to start by considering this point as if it were
unfettered by authority. The purpose of the parts of the Magistrates Courts
Act l980 which we have cited is to provide a mechanism by which individuals
and/or corporations are committed for trial. We accept Mr Wood’s point
that if at the conclusion of the proceedings in the magistrates court, the
justices, their clerk, the prosecutor and the appellant’s solicitor had
been asked whether the appellants and Mr Thorpe had been committed for trial,
the answer would have been emphatically in the affirmative. In other words,
the committal was the oral order of the magistrates. This is confirmed by the
wording of Form 19. The Magistrates Courts Act provides that thereafter in the
case of the appellants (being a corporation) a document (Form 19) is to be
brought into existence. It seems to us that if the act of committal is the
oral determination by the magistrates in court and that that act was valid,
then the bringing into existence of a document (Form 16) rather than a document
in the form of Form 19, could not invalidate that which was already valid.
Furthermore,
a certificate of committal in the instant case confirmed to and must have
satisfied, the proper officer in the Crown Court that the appellants had been
committed for trial and the charges upon which they were committed. The proper
officer then had all the information he needed for an indictment to be drafted,
either by him or by Counsel for the Crown and for it then to be signed by him.
Accordingly,
on first principles, it would seem to us that the absence of the
“empowering” words in Form 19 did not make, and could not have
made, any difference as to what actually happened. The proper officer of the
Crown Court knew what he had to do without the necessity for the
“empowering” in Form 19 to be actually recited in the document. We
would therefore conclude that, absent authority, that the words of Section 46
and paragraph 1(1) of Schedule 3 of the Magistrates Court Act are directory and
not mandatory, as Mr Wood contends.
We
now turn to consider the decision of this court in
R
-v- H Sherman Ltd
[l949] KB 674. In that case information was preferred against the appellants
charging them with an offence under Section 1 of the Betting Act l853. On 25
January l949 the appellants were committed for trial by the stipendiary
magistrate to the Glamorgan Assizes. A bill of indictment was preferred. The
day before the case came on for hearing at the Assizes, the solicitor for the
appellants asked the magistrates’ clerk whether an order had been made
under Section 33(1) of the Criminal Justice Act l925, empowering the
prosecution to prefer a bill of indictment. The answer came that no order had
been made.
On
the day of the trial before arraignment but after the bill of indictment had
been signed, the magistrate drew up an order in compliance with section 33(1)
and ante-dated it to 25 January l949. On arraignment the appellants objected
that the indictment was bad because section 33(1) had not been complied with by
the time the bill of indictment was signed. The trial judge rejected that
submission. The trial proceeded. The appellants were convicted and fined.
They appealed. The Court of Criminal Appeal allowed the appeal and quashed the
conviction. The court held that:
(i) the
order of the magistrates had to be in writing,
(ii) that
the written order had to be received by the clerk of the assize before he
signed the bill of indictment,
(iii) as
it was not so received, there was no order “empowering the
prosecutor”.
(iv)
thus
the committal was nugatory and the trial invalid, and
(v) it
was the duty of the clerk of assize in any case where it was proposed to indict
a company, to be satisfied that before he signed the bill, the necessary order
had been obtained.
At
page 680, Lord Goddard CJ, giving the judgment of the Court, said:
“In
this case, the first point argued by Mr Arthian Davies in support of the
indictment was that the magistrate, in committing for trial, had in effect
given leave to the prosecutor to prefer a bill under the provisions of Section
33 of the Criminal Justice Act. He supported that contention by saying that
the statute did not require the order to be in writing, and the learned judge
so held. With all respect to the learned judge, this Court is unable to take
that view. Where a statute makes an order of a particular character a
necessary condition precedent to the doing of some other act, we have no doubt
that we must construe that section as meaning that the order must be an order
in writing - an order of the court drawn up under the hand of the presiding
magistrate and bearing the seal of the court. The order must be authenticated,
and if any question arises whether or not an order has been made, the right way
of proving the order is by producing it, and an order can only be produced if
it is an order in writing. In the present case there was no order drawn up and
authenticated at the time; what the magistrate in fact did was to say that he
committed the defendants for trial, and on the analogy of
Rex
-v- Daily Mirror Newspapers Ltd
.....he had no power to commit for trial, because it is not possible to commit
a corporation for trial. The proper procedure was to have made an order. If
having made up his mind that there was a case to go for trial, the magistrate
had drawn up the order afterwards, there would have been no objection to it
merely on the ground that he did not have it drawn up on the actual day of the
hearing of the case. If a court gives its decision orally, as it almost
invariably does, the order is drawn up afterwards. It may be drawn up on the
same day; it may be drawn up a day, or two or three days after, or even a
considerable time after. It is well known, for instance, that in the Chancery
Division of the High Court, where orders have to be passed by the Registrar,
they are not in fact drawn up until a considerable time after the judge has
given his judgment. So in the King’s Bench Division orders are very
often not drawn up until some days after the trial.
But
in fact in the present case the order giving leave to prefer a bill was not
drawn up until the morning of the arraignment. I think we must infer that by
that time the bill of indictment had been signed, because I am quite certain
that, if it had not been signed and the clerk of assize had been waiting for
the order to come through he would have said to the judge: “The order
came through this morning and I signed the bill after I got it.”
It
follows, as I have said, that the time of the signing of the bill is the
critical moment, and it becomes so by reason of the provisions of the Act to
which I have referred: the bill becomes an indictment as soon as it is signed.
I
think we must put our decision on this ground: we must hold that in the
particular circumstances this order was not made by the magistrate before the
bill was signed. That being so, when the bill was signed and when, therefore,
the indictment became effective there had not been a compliance with section 33
of the Criminal Justice Act, l925. There had been a committal for trial which
was nugatory, and the position would have been the same as if the magistrate
had refused to commit for trial. If he had refused to commit the company and
the other defendants for trial, the prosecution could still have gone to a
judge in chambers and obtained leave to prefer a bill, but if they had done so
it would be wrong to say that the defendants were committed for trial.
For
the reasons which I have endeavoured to express, the Court is of the opinion
that effect must be given to the preliminary point taken by Mr Beyfus, and
that we must hold that the bill of indictment against the company was bad.
It
follows from what I have said - and I desire to repeat it by way of emphasis -
that it is the duty of the clerk of assize in any case in which it is proposed
to indict a company, to be satisfied before he signs the bill that the
necessary order has been made.”
We
refer now to the decision of this court in
R
-v- Hall (Peter Michael)
[l981] 1 WLR1510, where it was held that a committal for trial was valid where
proceedings had been started before the Magistrates’ Courts Act l980 came
into force, and when section 2 of the Criminal Justice Act, l967, was still in
force, notwithstanding that the statement that the appellants had been
committed for trial without consideration of the evidence, required by Rule
10(2)(b) and (j) of the Magistrates’ Courts Rules l968, erroneously
recited compliance with the relevant section of the Magistrates’ Courts
Act l980.
At
page 1513, Lord Lane CJ, giving the judgment of this Court, set out the head
note of
Sherman
and
continued:
“There
is no doubt, if one reads the judgment of Lord Goddard CJ, in that case, that
had the wording of the Act in that case, Section 33(1) of the Criminal Justice
Act 1925 been similar to the wording of any Act under which we were considering
the present case, that judgment would have been a powerful argument in favour
of the appellant here. But in the judgment of this Court,
Rex
-v- H Sherman Ltd
.
is a very far distance away from the facts of the present case. That dealt
with a committal for trial of a corporation, the distinction being an obvious
one, that in ordinary circumstances a person who is a human being is committed
for trial either in custody or on bail, but a corporation cannot be bailed and,
of course, cannot be committed in custody. Consequently the considerations
which affected the Court in
Rex
-v- H Sherman Ltd
do not affect us here. There is nothing in the present case equivalent to the
“order” which was required by section 33(1) of the Act of
1925.”
He
continued a little further on:
“There
are in this case two separate problems to be considered. The first problem is,
was there a valid committal? If there was not, then that is the end of the
matter and this appeal must succeed. If there was a valid committal, then one
has to ask the second question, was there a valid bill of indictment? If there
was, this appeal must fail. If there was not, once again the appeal will
succeed.
It
is suggested that the statement of the wrong statute on the certificate sent
forward to the Crown Court invalidates the committal. It is suggested by Mr
Marriage that that certificate is, so to speak, the committal document.”
Lord
Lane then set out the relevant provisions of the Magistrates’ Courts
Rules 1968. He then continued:
“Two
things emerge from those words. First of all it is quite plain from the
opening words of rule 10(2) that the certificate is not the committal. The
committal must have taken place before this document came into existence.
Although it is perhaps not necessary to decide the exact moment when the
committal takes place, it seems to this Court highly likely to be when the
committing justice tells the defendant that he is to be committed; that spoken
order is probably the committal.
Secondly,
it emerges from the words of the rule that this certificate is something which
the clerk sends forward to the committal court. If there is a mistake on the
face of the Certificate, such as one which exists here, it is a mistake of the
clerk. But that is not the basis of our decision.
The
justices undoubtedly had power to act as they did under Section 7(1) of the
Magistrates’ Courts Act 1952 so far as their power to commit for trial is
concerned, and under Section 1 of the Criminal Justice Act 1967, so far as
their power to commit for trial without consideration of the evidence is
concerned. Consequently the fact that in the Certificate which comes into
existence later the wrong Act was mentioned seems to us in no way to invalidate
the committal. That is enough so far as the first part of the argument is
concerned.”
The
court concluded that as there was a valid committal there was a valid bill of
indictment.
Although
the Court of Appeal apparently considered that
Rex
-v- H Sherman Ltd
was still good law, the Court was of the view that the spoken order in
Hall
was the committal and that the fact that in the certificate the wrong Act was
mentioned did not invalidate the committal and the bill of indictment was thus
valid.
We
accept Mr Owen’s submission that section 33(1) of the Criminal Justice
Act 1925 to all intents and purposes is repeated in Section 46 of and paragraph
1(1) of Schedule 3 to the Magistrates’ Courts Act 1980. However, it
seems to us to be a strange concept that whereas the committal of Mr Thorpe was
the oral order and thus valid, the committal of the appellants was not and
could not be oral but had to be in writing before it could be valid. We see no
justification why the act of committal should be any different, particularly in
this case where the appellants were represented, had consented to be
committed, and fully understood that they had been committed, for trial.
Furthermore,
in our judgment, there is a factual distinction between
Rex
-v- H Sherman Ltd
and the instant case. In
Sherman
there was no document at all in existence at the time of the signing of the
indictment. In the instant case by the 12th December 1996 the Crown Court
officer had received the certificate of committal. If that certificate had
been in the correct form, no argument could have been advanced that the
committal was nugatory. It was an essential ingredient of the decision in
Sherman
that there was no document in existence recording the act of committal prior to
the signing of the bill of indictment. In the instant case there was, albeit
in the wrong form.
We
conclude that we are not constrained by the authority of
Rex
-v- H Sherman Ltd
to find that Section 46 of and paragraph 1(1) of Schedule 3 to the Magistrates
Court Act 1980 are mandatory. In our judgment these provisions are directory
only. In the circumstances of this case the breach of them i.e. the use of
Form 16 instead of Form 19 in the case of the appellants, did not render the
committal invalid and the indictment and trial were
valid. Accordingly, this ground of appeal fails.
The
second indictment contained four counts. Count 1 was an allegation that the
appellants failed to discharge their duty under s. 3(1) of the Act. They were
acquitted on that Count. Count 2 alleged that the appellants contravened
Regulation 26(1) of the Regulations contrary to s. 33(1)(c) of the Act. The
appellants were acquitted of that count. Count 3 charged the appellants with
contravening Regulation 3(5) of the Regulations contrary to s. 33(1)(c) of the
Act in that they “on the 21st September 1995 being the employer of Terry
Radcliffe, a person carrying out work in the course of his employment in
relation to gas fittings at the property known as 31, Robins Gardens,
Waterlooville, Hants on whom a duty was imposed under Regulation 26(1) of the
Regulations, failed to ensure that Terry Radcliffe complied with that
Regulation in that he installed a gas cooker at that property which could not
be used without constituting a danger to any person”. The appellants
were convicted on that count. Count 4 charged Terry Radcliffe with
contravening Regulation 26(1) of the Regulations contrary to s. 33(1)(c) of the
Act in that he on the “21st September 1995 installed a gas cooker at the
property known as 31, Robin Gardens ...., which could not be used without
constituting a danger to any person”. Mr Radcliffe was acquitted on that
Count.
The
ground of appeal here is that the conviction of the appellants on Count 3 was
logically inconsistent with the acquittal of Mr Radcliffe on Count 4.
What
occurred in this case was that the gas cooker purchased by Mrs Clarke who owned
and occupied 31, Robins Gardens, had a connection within the cooker which was
cross threaded. The evidence was to the effect that before gas cookers are
released from the factory where they are made, they are tested in a way which
is seven times more rigorous than required by British Standards. The fitter
who installs such a cooker would not be expected to check the connections
within the cooker. Indeed it would be negligent to interfere with such
connections in the light of the fact that it would have been tested to the very
high standard required at the factory before the appliance left it. The jury
also had evidence that a connection could be cross threaded and yet form a
proper seal. It was Mr Radcliffe’s case that he had left this cooker in
a safe condition. At page 21 A of her summing-up the Recorder directed the jury:
"So
members of the jury you may think that we come neatly at this point to the
central issue in this case. That is to say, did Mr Radcliffe actually leave
this cooker in a safe condition, having carried out the necessary soundness
test? Members of the jury, the second aspect of this is, what was it that
caused this leak? Did or might something have happened after he left to cause
it?"
Regulation
26(1) provides:
"No
person shall install a gas appliance unless it can be used without constituting
a danger to any person."
By
their verdict on Count 4 the jury decided that Mr Radcliffe had not contravened
Regulation 26(1). It had to follow that the jury could not have been sure that
Mr Radcliffe had failed to comply with Regulation 26(1) and consequently the
jury could not have been sure that the appellants had failed to ensure that he
did comply with it.
Mr
Wood struggled valiantly to escape from the fact that the two verdicts cannot
be reconciled having at the outset of his skeleton argument conceded that
there was a logical inconsistency in the verdicts. In the view of this court
what Mr Wood’s submission came down to was that the jury may have had
considerable sympathy for Mr Radcliffe and little sympathy for the appellants.
We content ourselves with saying that if that indeed was the jury’s
approach then that was an improper approach. We prefer to view these verdicts
as being logically inconsistent and as being explained by the jury for some
reason thinking that the duty on the employers was more stringent than that
upon Mr Radcliffe having misunderstood the clear directions given by the
Recorder. In our judgment the conviction on Count 3 of the second indictment
is unsafe and the appellants’ appeal against that conviction must be
allowed. There can be no question of ordering a retrial because the
jury’s acquittal of Mr Radcliffe on Count 4 precludes a conviction of the
appellants on Count 3.
The
third indictment charged the appellants with three offences. Count 1 was of
failing to discharge their duty under s. 3(1) of the 1974 Act contrary to s.
33(1)(a) of the Act. Count 2 charged the appellants with contravening
Regulation 6(3) of the Regulations contrary to Section 33(1)(c) of the Act.
Count 3 charged the appellants with contravening Regulation 3(5) of the
Regulations contrary to s. 33(1)(c) of the Act.
This
indictment arose out of a visit by one of the appellants fitters, a Mr Brennan,
to the home of Mrs West at 13, Leighton Avenue, Swindon. Mr Brennan found that
the gas fire in the living room at Mrs West’s home was defective and
dangerous and disconnected it from the pipe work leading to the gas fire. The
jury convicted the appellants on Counts 1 and 3. Those verdicts indicate that
the jury were sure that Mr Brennan did not seal the outlet of a restrictor
elbow to which the pipe work of the gas fire had been connected, after
disconnecting it. The matter was heard by the jury at the Swindon Crown Court
in a trial presided over by HHJ Darwall-Smith between the 29th September and
the 6th October last year. The evidence indicated that Mr Brennan had reported
the defect in the fire which was a cracked fire box to his supervisor, one
Harris, who had instructed Brennan to disconnect the fire and to make safe.
The evidence indicated that the work required to screw down the restrictor
elbow and plug it was simple. Moreover any pressure test of the gas system
after the fire had been disconnected would have demonstrated a serious leak, if
the restrictor elbow had been left unplugged.
In
respect of this indictment, one ground of appeal related to a female member of
the jury being married to a Health and Safety advisor with the Wiltshire County
Council. Although not initially abandoned, this ground was not pursued by Mr
Owen on behalf of the appellants in the light of the stance taken by Mr Parry
who represented the appellants in the Crown Court, during discussions between
counsel and the judge on this matter. We need say no more about this ground of
appeal which was the second ground of appeal in this case.
The
third ground of appeal was that the judge failed to deploy the defence case
properly and fully in his summing-up to the jury. Five particular points are
set out under this heading in the grounds of appeal. Again it suffices that we
say we have read the summing-up of HHJ Darwall-Smith with care and we are
satisfied that the difficult factual case which the appellants sought to make
before the jury was fairly set out in the summing-up. We observe that the
summing-up was a model of clarity and must have provided great assistance for
the jury.
There
are two grounds of substance which were argued by Mr Owen. The first related
to the application of the statutory defence afforded by Regulation 37 of the
Regulations to the offence created by Regulation 3(5). Regulation 3(5) requires:
"the
employer of any person carrying out any work in relation to a gas fitting
..... in the course of his employment shall ensure that such of the following
provisions of these Regulations as impose duties upon that person and are for
the time being in force are complied with by that person."
The
duty on Mr Brennan on which the prosecution relied under Count 3 in the
indictment was that under Regulation 6(3) namely:
"any
person who disconnects a gas fitting shall, with the appropriate fitting, seal
off every outlet of every pipe to which it was connected."
The
complaint that is made is that the judge directed the jury at page 7 A of the
summing-up:
"In
this case it is the failure to comply with Regulation 6(3), that is the
requirement to seal off every gas outlet, and this is another absolute or
strict liability offence against an employer, and this too carries with it a
similarly limited defence. It is this: if the defendants can prove that it was
more probable that all reasonable steps had been taken to prevent this breach
than not, then they are entitled to be acquitted. Although, members of the
jury, “all reasonable steps” are different words from
“everything reasonably practicable”, you may think that the defence
is very similar to Count 1 and in the same way is equally restrictive in its
scope.
Again,
you have to decide what is the more probable. Have the defendants proved that
they have taken all reasonable steps, or not? Were there reasonable steps that
they could have taken and did not?"
The
part of that direction to which objection is taken is the sentence “You
may think that the defence is very similar to Count 1 and in the same way is
equally restrictive in its scope”. The direction that the judge gave the
jury with regard to the defence available to the appellants under Count 1 at
page 4 H of the summing-up was:
"Members
of the jury, an acquittal follows if the defendant proves that it is more
probable than not that everything reasonably practicable had been done to avoid
the danger to Mrs West of leaking gas. The burden is upon the defendants to
satisfy you, a jury, of that fact. Now members of the jury, that does not mean
that the defendant is to be acquitted just because you think that the
management of the company has taken all reasonable care to discharge its
duties. All reasonable care is not enough. The law requires them to do
everything that is reasonably practicable."
The
vice in that part of the direction on Count 3 of which complaint is made is
that the jury may have required the appellants to establish that they had done
everything that was reasonably practicable before acquitting them on Count 3,
whereas all the appellant had to prove was that they had taken all reasonable
steps to prevent Mr Brennan contravening Regulation 6(3).
In
our judgment the judge was correct that the two defences are very similar. Any
possible disadvantage to the appellants from that observation was removed by
the judge’s repetition at the end of this passage of his summing-up that
the jury had to decide whether the appellants had proved that they had taken
all reasonable steps. Even in the sentence of which complaint is made the
judge was reminding the jury of the difference between “all reasonable
steps” and “everything reasonably practicable”.
The
second submission made with regard to the appellant’s conviction under
Count 3 is that the judge ought to have directed the jury that when considering
the “reasonable steps” defence, they ought not to take account of
any act or omission on the part of Brennan. The issue was not whether Brennan
had contravened Regulation 6(3) but whether the appellants had taken all
reasonable steps to prevent him from contravening that Regulation. The defence
would never be open to them and the purpose of Regulation 37 would be defeated
if the act or omission of the person carrying out the work constituted on the
part of the employer a failure to take all reasonable steps. The directions
the judge gave the jury began by telling the jury:
"Now
a company is a legal person, and is capable of being prosecuted for certain
offences. It has no human attributes itself but it of course acts through its
management in the conduct of its business; in other words, from the managing
director downwards to the lowliest employee. Thus, when you are considering
the conduct of the company you will be looking at how individuals in the
company itself carry out its business, and you make a judgment as to its
performance made up from the action of one or more employees - in this case in
particular, the performance of their employee Brennan."
Towards
the end of his summing-up at page 25 B the judge directed the jury:
"If
you are driven to the conclusion that the open gas pipe must have been down to
Brennan then you will have to consider whether the defendant company has
satisfied you that everything reasonably practicable had been done in Count 1,
and all reasonable steps had been taken in Count 3. You decide that, members
of the jury, by applying the standard of protection that you would expect
members of the public like Mrs West are entitled to receive."
We
consider that these were misdirections’ with regard to the application of
the statutory defence afforded by Regulation 37 of the Regulations in relation
to Count 3 in the indictment which render the appellants conviction on that
Count unsafe. The jury may well have convicted the appellants on the basis
that they had not proved that they had taken all reasonable steps because
Brennan had left the pipe uncapped. We quash the conviction on Count 3.
This
leaves the conviction in the third indictment of Count 1 together with the
conviction on the same count in the first indictment. The directions that HHJ
Darwall-Smith gave with regard to the duty owed under s. 3(1) of the Act began
with the direction to the jury as to the conduct of a company of its business
and the performance by a company of its legal obligations, which we have
already cited. The direction that the judge gave as to the elements of the
offence charged in the first count of the indictment was this:
"That’s
what the prosecution have to prove, three elements. Firstly, they have to
prove that the company is an employer of persons. Well, there is no dispute
that it is and that it was employing Brennan at the material time, so you
needn’t worry about that. The second matter that has to be proved is
that it conducts an undertaking, as it says in the offence. “Conducts an
undertaking” simply means it carries out a particular business. Again,
there is no dispute that it carries on the business of fitting gas appliances,
so you needn’t worry about that.
The
third matter, which is the real issue in the case, is that it failed to ensure
that a person not in its employment was not exposed to risks to their health or
safety. Well, you ensure something, members of the jury, by seeing that a
state of affairs does not exist. You expose them to a risk by exposing them to
the possibility of danger. In this case the allegation is that the defendant
company, through their employee Brennan, failed to ensure that Mrs West was not
exposed to the risk of the danger of leaking gas.
Now
once those three elements have been proved, the offence is made out and a
verdict of guilty must follow because the reason is that this is an offence of
absolute or strict liability. The defence, of course, challenge the primary
facts in this case; but there is, however, one limited defence open to a
defendant employer. This is provided by the statute that creates this offence.
Members of the jury, an acquittal follows if the defendant proves that it is
more probable than not that everything reasonably practicable had been done to
avoid the danger to Mrs West of leaking gas. The burden is upon the defendant
to satisfy you, a jury, of that fact. Now members of the jury, that
doesn’t mean that the defendant is to be acquitted just because you think
that the management of the company has taken all reasonable care to discharge
its duties. All reasonable care is not enough. The law requires them to do
everything that is reasonably practicable."
The
judge went on to explain what is meant by reasonably practicable and then
continued; referring to the policy behind s. 3(1) of the Act:
"Members
of the jury it is to ensure that when the public are exposed to danger the
responsibility has to fall on the employer of the person who actually created
the danger. In law the defendants cannot delegate their duty to some fitter or
supervisor, and wash their hands of it if something goes wrong. The basic duty
is upon the defendant company to make sure that their business is operated in
such a way that other people are not exposed to risk. It doesn’t matter
at what level in the hierarchy of the company that breakdown occurs. It could
be the fault of the lowliest employee at the most basic level. It
doesn’t matter that the management or directing mind of the company took
no active part themselves in the act or omission that created that danger."
In
short the judge was directing the jury that if they found that Mr Brennan had
left the pipe uncapped and that created a danger to Mrs West’s health or
safety then the appellants were guilty of the offence charged.
Section
3(1) provides:
"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."
It
is accepted by the appellants that the possibility of danger to health or
safety is sufficient, see
R
-v- Board of Trustees of Science Museum
[1993] 1 WLR 1171 CA. Mr Wood relies upon that decision as showing that the
courts consider it to be in the public interest to adopt a strict
interpretation of s. 3(1) to give effect to the policy of the legislation to
provide the public with the maximum degree of protection. Mr Wood also relies
upon the decision of this court in
R
-v- British Steel plc
[1995] 1 WLR 1356 and the passage in the judgment of this court, delivered by
Steyn LJ, as he then was, at page 1361 H:
"In
our judgment the decision in
Tesco
does not provide the answer to the problem of construction before us. The
answer must be found in the words of s. 3(1) of the Act of 1974 read in its
contextual setting. It is on the Act of 1974 and in particular s. 3(1) that we
will concentrate. On the other hand, we recognise that our construction of s.
3(1) must have relevance to the interpretation of s. 2(1) which provides for
the employer’s duty to his own employees."
There
this court was referring to the decision of the House of Lords in
Tesco
-v- Nattrass
[1972] AC 153 in which their Lordships had to consider the liability of Tesco
for an offence under s. 11(2) of the Trade Descriptions Act, in the light of
the statutory defence provided by s.24(1) of the Act, namely that the
commission of the offence was due to the act or default of another person and
that Tesco had taken all reasonable precautions and exercised all due diligence
to avoid the commission of the offence. The issue was whether the store
manager who was the author of the trade description was “another
person” vis a vis the supermarket company. Their Lordships held that he
was. For the purposes of that Act, the company was confined to those persons
who could be said to carry out functions as the company.
This
court then referred to two decisions: that in
R
-v- Board of Trustees for the Science Museum
[supra] and in
R
-v- Associated Octel Co Ltd
[1995] ICR 281 CA. This court then said at page 1362 F:
"We
are, of course, bound by these two decisions. But we have had the benefit of
argument calling them into question. If we had to consider the matter de novo
we would have still concluded that the words of s. 3(1) are in context capable
of one interpretation only, namely, that, subject to the defence of reasonable
practicability, s. 3(1) of the Act of 1974 creates an absolute prohibition."
A
little later at page 1362 H this court said:
"We
would go further. If it be accepted that Parliament considered it necessary
for the protection of public health and safety to impose, subject to the
defence of reasonable practicability, absolute criminal liability, it would
drive a juggernaut through the legislative scheme if corporate employers could
avoid criminal liability where the potentially harmful event is committed by
someone who is not the directing mind of the company. After all ..... s. 3(1)
is framed to achieve a result, namely , that persons not employed are not
exposed to risks to their health and safety by the conduct of the undertaking.
If we accept British Steel plc’s submission, it would be particularly
easy for large industrial companies engaged in multifarious hazardous
operations, to escape liability on the basis that the company through its
“directing mind” or senior management was not involved. That would
emasculate the legislation."
This
court went on to consider submissions by counsel for British Steel that the
interpretation being adopted by the court would lead to manifestly absurd
consequences, such as the dropping of a spanner by an employee constituting a
breach of the employer’s duty under s. 3(1) if there was a person not in
the employer’s employment in the vicinity so that the falling spanner was
a risk to that persons’ safety. This court considered that such
absurdities should not lead it to a different interpretation of the section.
In practice this court anticipated that no difficulty would arise because no
employer would be prosecuted in the situations postulated by counsel for
British Steel or, if they were, and convicted, a judge would impose an absolute
discharge and refuse to order costs for the prosecution.
It
is to be noticed that in that case British Steel employed two men on a labour
only basis to reposition a heavy section of steel platform at their Sheffield
plant. British Steel’s employee, a section engineer was responsible for
laying down the system of work and for supervising the work. The work was not
done in a safe manner with the consequence that the steel section fell on one
of the two labour only sub-contractors killing him. There was consequently
clear evidence of a failure to lay down a safe system of work and by
supervision to see that that system was applied.
Mr
Wood conceded during argument that there is no case, other than the present
appeals, in which a court has had to decide whether the act or omission of a
fitter during the course of his work inevitably involves the employer in
criminal liability for failing to discharge the duty to which the employer is
subject by virtue of s. 3(1), see s. 33(1)(a) of the Act. Mr Owen for the
appellants accepts that the duty under s.3(1) could rest on a person far down
the chain if he was carrying out one of the duties of the company as an
employer, for example a fitter supervising an apprentice. However he
contended, on the basis of passages in the speeches of Lord Reid and Lord
Diplock in
Tesco
-v- Nattrass
,
that the duties carried out by the employee should only be, for the purposes of
s. 3, the duties the employee carries out on behalf of the company as the
employer and not the duties which he carries out simply as an employee. For
the reasons given by Steyn LJ in the
British
Steel
case the passage we have cited, we do not consider that the decision in
Tesco
-v- Nattrass
is of direct assistance in the construction of s. 3 of this Act.
In
the case of
R
-v- Associated Octel Co Ltd
,
one of the authorities considered by this court in the
British
Steel
case,
the defendant company operated a chemical plant which was designated a
“major hazard site”. The defendants operated a contractors
“permit to work system”. During an annual shut down of the plant
the task of repairing the lining of a tank within the chlorine plant was
entrusted to an independant specialist contractor. The work was carried out
pursuant to the permit to work system and the contractor’s employees were
provided with protective clothing and equipment from the defendant
company’s store. One of the contractors’ employees was badly
burned during the process. The defendant company was convicted of failing to
discharge its duty under s. 3(1) of the Act. The defendant company appealed to
the Court of Appeal Criminal Division which dismissed the appeal holding that
the repairing of the lining of the tank was part of the carrying on of the
employer’s business and was therefore part of the employer’s
conduct of his undertaking within the meaning of s. 3(1) whether the work was
done by the employer’s own employees or by independant contractors. It
followed that if persons not employed by the employer whether
contractor’s employees or members of the public were at risk of injury to
their health or safety there was prima facie criminal liability falling on the
employer under s. 3(1) subject to the defence of reasonable practicability.
The
employer’s duty under s. 3(1) cannot be delegated. That is a proposition
accepted by Mr Owen on behalf of the appellants. Mr Owen pointed out that in
the judgment of this court in
Associated
Octel Ltd
,
the court went on to say at page 293 E:
"But
the question of control may be very relevant to what is reasonably practicable.
In most cases the employer/principal has no control over how a competent or
expert contractor does the work. It is one of the reasons why he employs such
a person - that he has the skill and expertise, including knowledge of
appropriate safety precautions, which he himself may not have. He may be
entitled to rely on the contractor to see that the work is carried out safely,
both so far as the contractor’s workmen are concerned and others,
including his own employees or members of the public. And he cannot be
expected to supervise them to see that they are applying the necessary safety
precautions. It may not be reasonably practicable for him to do other than
rely on the independant contractor."
The
court continued “the question of what is reasonably practicable is a
matter of fact and degree in each case and will depend on a number of
factors”. The court went on to find that in that case the employers had
had a prima facie case to answer and that there had been no misdirection of the
jury by the judge so that the appeal against conviction was dismissed.
The
employers appealed to the House of Lords ([1996] 1 WLR 1543). The House of
Lords also dismissed the appeal deciding that it was part of the undertaking of
the employer in that case
"not
merely to clean the factory, but also to have the factory cleaned by
contractors."
The
reasons of their Lordships are contained in the speech of Lord Hoffmann who at
page 1548 D said:
"The
employer must take reasonably practical steps to avoid risk to the
contractors’ servants which arise, not merely from the physical state of
the premises ...., but also from the inadequacy of the arrangements which the
employer makes with the contractors for how they will do the work."
Lord
Hoffmann went on to point to activities which could not fairly be described as
the conduct by the employer of his undertaking. His Lordship counselled
against the attempt to find some formula to take the place of the simple words
of the statute.
"Whether
the activity which has caused the risk amounts to part of the conduct by the
employer of his undertaking must in each case be a question of fact."
His
Lordship went on to reject the reasoning of the Divisional Court in
RMC
Roadstone Products Ltd -v- Chester
[1994] ICR 456 where the Divisional Court had held that work was not within the
ambit of an employer’s conduct of his undertaking where the work had been
left to an independent contractor to do in the way the independent contractor
thought fit. Lord Hoffmann considered that the trial judge in the
Octel
case
had been wrong in not leaving to the jury the question whether the activity
which had caused the risk amounted to part of the conduct of the employer of
his undertaking, but that there was only one answer which a jury properly
directed could have given to that question and that therefore the conviction
was safe. His Lordship did not consider the defence of reasonable
practicability nor did he comment on that passage in the Court of
Appeal’s judgment which we have cited, but at p. 1549G his Lordship said:
"If
it does, (referring to the words forming part of the employers’
undertaking) he owes a duty under s. 3(1) to ensure that it is done without
risk - subject, of course, to reasonable practicability, which may limit the
extent to which the employer can supervise the activities of a specialist
independent contractor."
In
the light of their Lordships’ decision there can be no doubt that the
activities of the appellant’s fitters are part of the conduct by the
appellants of their undertaking. Moreover it is clear that such acts and
omissions of the fitters exposed the householders to risks to their health or
safety.
The
remaining issue is whether the appellants were unable to establish a defence of
reasonable practicability by the simple fact that an act or omission of one of
their employees had exposed the householder to danger?
We
have found the decision of this court in
R
-v- Gateway Food Markets Ltd
[1997] 3 All ER 78 of assistance. In this case the court was concerned with
the construction of s. 2(1) of the 1974 Act. In the court’s judgment at
page 83 B the court said:
"However,
the same wording appears in s. 3(1) and, in our judgment, the general
considerations referred to in the authorities, including the purpose and object
of the legislation, make it overwhelmingly clear that s. 2(1), like s. 3(1),
should be interpreted so as to impose liability on the employer whenever the
relevant event occurs, namely a failure to ensure the health etc. of an
employee."
The
court went on to consider the passage from the judgment of Steyn LJ in the
British
Steel
case
dealing with so called absurdities and suggested that a principled answer could
be found. The court then said:
"We
agree that it is a somewhat extreme contention that the employer should be held
criminally liable even for an isolated act of negligence by a junior employee,
affecting the health, safety or welfare either of a fellow employee (s. 2(1)),
or of some other person (s. 3(1)) ....
The
answer lies, we suggest, in the application of a qualification or caveat
contained in the statute itself. The duty under each section is broken if the
specified consequences occur, but only if “so far as is reasonably
practicable” they have not been guarded against. So the company is in
breach of duty unless all reasonable precautions have been taken, and we would
interpret this as meaning “taken by the company or on its behalf”.
In other words, the breach of duty and liability under the section do not
depend upon any failure by the company itself, meaning those persons who embody
the company, to take all reasonable precautions. Rather, the company is liable
in the event that there is a failure to ensure the safety etc. of any employee,
unless all reasonable precautions have been taken - as we would add, by the
company or on its behalf."
In
that case this court concluded that a failure at store management level was
certainly attributable to the employer, whilst leaving open the question
whether the employer is liable in circumstances where the only negligence or
failure to take reasonable precautions has taken place at some more junior level.
We
derive considerable assistance from the judgment of this court in the
Gateway
case.
We would summarise the law in this way: first, if persons not in the
employment of the employer are exposed to risks to their health or safety by
the conduct of the employer’s undertaking, the employer will be in breach
of s. 3(1) and guilty of an offence under s. 33(1)(a) of the Act unless the
employer can prove on the balance of probability that all that was reasonably
practicable had been done by the employer or on the employer’s behalf to
ensure that such persons were not exposed to such risks . It will be a
question of fact for the jury in each case whether it was the conduct of the
employer’s undertaking which exposed the third persons to risks to their
health or safety. The question what was reasonably practicable is also a
question of fact for the jury depending on the circumstances of each case. The
fact that the employee who was carrying out the work, in this case the fitter
installing the appliance, has done the work carelessly or omitted to take a
precaution he should have taken does not of itself preclude the employer from
establishing that everything that was reasonably practicable in the conduct of
the employer’s undertaking to ensure that third persons affected by the
employer’s undertaking were not exposed to risks to their health and
safety had been done.
In
our view this analysis is consistent with the distinction which appears in the
Regulations between the duties of employers of persons and the duties of
persons performing the work. It is not necessary for the adequate protection
of the public that the employer should be held criminally liable even for an
isolated act of negligence by the employee performing the work. Such persons
are themselves liable to criminal sanctions under the Act and under the
Regulations. Moreover it is a sufficient obligation to place on the employer
in order to protect the public to require the employer to show that everything
reasonably practicable has been done to see that a person doing the work has
the appropriate skill and instruction, has had laid down for him safe systems
of doing the work, has been subject to adequate supervision, and has been
provided with safe plant and equipment for the proper performance of the work.
That
being our view of the correct interpretation of s. 3(1) it remains to consider
the conviction of the appellants of the first count in the first indictment and
their conviction on the first count in the third indictment.
As
no criticism is made of the direction of HHJ Shawcross on Count 1 in the first
indictment, and as the two issues of fact which we have identified were left
fairly to the jury, there can be no complaint of the appellant’s
conviction on this count. In our judgment that conviction is not unsafe and
the appeal against that conviction will be dismissed.
With
regard to the conviction of the appellants on the 1st Count in the third
indictment, the direction of HHJ Darwall-Smith that the disconnecting of the
gas fire at Mrs West’s home by Mr Brennan was part of the conduct of the
appellant’s undertaking, although removing from the jury a question of
fact which strictly should have been left to them, was a question which the
jury could only have answered in one way. The further factual question whether
Mr Brennan had failed to cap the pipe was left to the jury, who by their
verdict were clearly satisfied that he had failed to cap the pipe. The
essential issue in the appeal on this ground is whether the judge left the
defence of reasonable practicability to the jury. The direction the judge gave
on this defence was:
"Well,
you may ask why there is strict liability against an employer with such a
limited statutory defence? Members of the jury, it is to ensure that when the
public are exposed to danger the responsibility has to fall on the employer of
the person who actually created the danger. In law the defendants cannot
delegate their duty to some fitter or supervisor, and wash their hands of it if
something goes wrong. The basic duty is upon the defendant company to make
sure their business is operated in such a way that other people are not exposed
to risk. It doesn’t matter at what level in the hierarchy of the company
that that breakdown occurs. It could be the fault of the lowliest employee at
the most basic level. It doesn’t matter that the management or directing
mind of the company took no active part themselves in the act or omission that
created that danger.
It
comes to this: if the defendants have satisfied you that the probability is
that everything reasonably practicable had been done that could be done to
avoid an unsealed gas pipe being left in Mrs West’s house then they are
entitled to be acquitted. If you think that the probability is that they have
not done everything practicable to prevent that happening then your verdict
will be one of guilty."
Just
before the jury retired the judge returned to this issue saying
"If
you are driven to the conclusion that the open gas pipe must have been down to
Brennan then you will have to consider whether the defendant company has
satisfied you that everything reasonably practicable had been done in Count 1,
and all reasonable steps had been taken in Count 2."
The
effect of these directions was that if the jury found Mr Brennan had not capped
the gas pipe then they could not find that the appellants had done all that was
reasonably practicable to ensure that Mrs West was not exposed to risk to her
health or safety. That in our judgment was a misdirection which renders that
conviction unsafe. Consequently the appeal against conviction on Count 1 in
the third indictment will be allowed.
LORD
JUSTICE ROCH: Yes, Mr Wood.
MR
WOOD: May it please your Lordship. I appear for the Crown again and my
learned friend Mr Parry appears for Nelson.
First,
the matter of costs. May I mention that? I am aware my learned friend Mr Parry
will have something to say about costs obviously, but may I, on behalf of the
Crown, ask for an order that the defendant pay two-fifths of the costs of this
appeal to the Crown as an inter partes order under section 18 of the
Prosecution of Offences Act 1985. I can give your Lordship the reference if it
is helpful.
LORD
JUSTICE ROCH: Yes.
MR
WOOD: In Archbold at paragraph 6-27. It is subsection (2): "Where the court
of appeal dismisses an appeal...it may make such order as to the costs to be
paid by the accused to such persons as it considers just and reasonable."
I
simply ask for an apportionment really on the basis I have no doubt my learned
friend and I can agree a figure, because a figure has to be specified, as
indeed it does for a defendant's costs order. However, may I just, for the
moment at any rate, put it on the basis of an apportionment. I do it for these
reasons. First, the issue of jurisdiction, that is to say whether there was a
valid indictment and valid trial, took up quite a long time proportionally, as,
of course, did the, if I may so describe it, British Steel issue, or the
section 3 issue, which related back to the first indictment, although not
contentiously so, and had to be considered. So there is a very substantial
attributability of costs to the first appeal, the first indictment, against
which, of course, I have to concede the loss of Count 2, which was the
regulatory one, but that went by concession, so, relatively speaking, it did
not take up that much time and effort. So that, my Lord, is my position on the
costs.
I
am neutral on whatever Mr Parry may say about a defendant's costs order.
My
Lord, there is another question which I seek to raise with your Lordships, and
that is the certification of a point of law of general public importance, and I
would be asking for leave to appeal to the House of Lords. Perhaps I shall
deal with that later.
LORD
JUSTICE ROCH: Certainly.
Costs,
Mr Parry.
MR
PARRY: My Lord, because this appeal involved three indictments, it is
something of a Gordian knot, and it may be that some kind of appropriate
compromise can be reached.
However,
may I start by inviting your Lordships to grant the appellants their costs
below, both at the Magistrates and Crown Court, of the two successful appeals.
LORD
JUSTICE ROCH: Those are the second and third indictments.
MR
PARRY: The second and third indictments, yes. That, I would respectfully
submit, would be an appropriate course, and the one that follows, dare I say
it, the usual convention.
What
is then left is the costs of those two ----
LORD
JUSTICE ROCH: Those would be costs out of public funds.
MR
PARRY: Please, my Lord, yes. A conventional defendant's costs order.
What
is then left are the costs borne by my clients of the presentation of the
appeals here on all three indictments, and a recognition that we have lost on
one of those appeals.
LORD
JUSTICE ROCH: Did the committal point relate to the first indictment?
MR
PARRY: It was, yes.
LORD
JUSTICE ROCH: So you have really lost on the first indictment.
MR
PARRY: Yes. In my respectful submission it would not be unusual for
successful appellants in this Court to be granted their costs out of central
funds, particularly where there has been a significant point of law raised; one
which has revisited, and if I may be permitted to say so, redefined the law in
a significant way. Therefore I would invite your Lordships to consider whether
it is appropriate for the appellants to have their costs out of central funds
in relation to the indictments two and three. Of course as soon as I make that
submission we are right in the middle of Gordian knot because of the
apportionment, and the apportionment is not an easy task because that is an
enormous overlap, particularly for the solicitors, in the presentation of the
case. Therefore I simply propose ----
LORD
JUSTICE ROCH: If we took the view that really on the issues on which you
succeeded and the issues on which you have lost, about an equal time was spent
during the appeal, then if we make no order in your favour for costs out of
public funds and no order for the respondent for costs against you in relation
to this appeal, justice would be achieved, would it not?
MR
PARRY: I would like to try and persuade your Lordship that the knife has
sliced the knot, not in the middle but to one-third.
LORD
JUSTICE ROCH: Mr Wood was talking about two-fifths.
MR
PARRY: Of course. Actually, on the figures involved, that would be quite a
sorry finding for my clients.
LORD
JUSTICE ROCH: The beauty of it is that would be no further expense if the
parties did not agree about costs here.
MR
PARRY: That, I know, is very attractive. I appreciate that point. May I
invite your Lordship to consider whether the line could not be moved a little
way in favour of my clients bearing in mind the ----
LORD
JUSTICE ROCH: What you are saying is that you should have two-thirds of your
costs from public funds. How is the respondent to be compensated?
MR
PARRY: Perhaps one way of dealing with it is to accede to my learned friend's
application for two-fifths of his costs from public funds.
LORD
JUSTICE ROCH: No. He wants them from you.
MR
PARRY: My Lord, forgive me. May I say what I meant to say? I accede to his
application for two-fifths of his costs to be paid by the appellants, and one
half of the appellant's costs, or perhaps two-thirds of the appellant's costs,
to come from central funds in the appeal in so far as we have been successful
on two-thirds of it.
LORD
JUSTICE ROCH: We have your case. We will ask Mr Wood what he says.
MR
WOOD: I am neutral on my learned friend's position when it comes to central
funds. I am glad to hear him accede to my suggestion of two-fifths, and I
stand by that my Lords, inter partes. So that, I hope, disposes of the costs
issue.
My
Lord, so far as ----
LORD
JUSTICE ROCH: We will resolve that first.
MR
WOOD: I am so sorry.
Short
pause
LORD
JUSTICE ROCH: Mr Parry and Mr Wood, the orders we are going to make is that
the appellants are to have their costs below in respect of the second and third
indictments. So far as this appeal is concerned, there is no order as to costs.
MR
WOOD: My Lord, then may I pass to the point of law? I have had it typed up. I
do not know whether your Lordships yet have it.
LORD
JUSTICE ROCH: Yes, we have it, thank you. We can indicate that we would like
your help on a technicality. Can we deal with this point in the absence of
Bennett J? I think that it would be wrong for us to proceed with this point
without taking his view, but we can hear your submission and we can report your
submission to him and any comment that Mr Parry makes.
MR
WOOD: My Lord, I am certainly content with that.
LORD
JUSTICE ROCH: At the moment, so far as I am concerned, you are pushing at an
open door. I think this is a point for the Lords.
MR
WOOD: Then may I deal with the definition of it because your Lordship has a
note of the way I put it. May I say that the drafting of this point, although
it comes down to something quite simple - a few words - one has been through
quite a circuitous route to get there:
"Whether
an employer may make out the statutory defence available under section 3(1) of
the Health and Safety at Work etc Act 1974 by proving systems of management
such as the provision for operatives of training, supervision and equipment,
and/or work, when his prima facie breach of the duty imposed by the section
resulted from the failure on the part of an operative by whom he chose to
conduct part of his undertaking to do everything reasonably practicable to
avoid such exposure to risks."
My
Lord, that is my final definition of it, and the one I put before your Lordship.
My
Lord, in order to justify this, may I invite your Lordships first to think
about section 3, which is in the judgment. I think I have the right reference
in the revised print. I think it is page 18 line 31:
"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."
My
Lord, as your Lordships have said, having regard to the case of
Octel,
in particular what was said in the speech of Lord Hoffman, it is not in doubt
that the activities of Nelson's fitters, Brennan in particular from the same
indictment, were part of the conduct by Nelson's of their undertaking. I think
your Lordship gets that from - I am sorry I have I have not translated the
reference from the draft. I will see if I can do that quickly.
LORD
JUSTICE ROCH: It is page 22 line 24.
MR
WOOD: I am grateful. So there is that, as it were, main plank of the case.
It is a question of fact, of course, but it is one which again your Lordships
say could only go one way. One gets that from page 24 line 19, I think.
MR
JUSTICE THOMAS: You are using the?
MR
WOOD: The new version. Line 18:
"With
regard to the conviction of the appellants on the 1st Count in the third
indictment, the direction of HHJ Darwall-Smith that the disconnecting of the
gas fire at Mrs West's home by Mr Brennan was part of the conduct of the
appellant's undertaking, although removing from the jury a question of fact
which strictly should have been left to them, was a question which the jury
could only have answered in one way."
Further
issues of fact, of course, perhaps you do not need references for these,
depending on the circumstances of the case, first are whether there was a risk,
whether persons not in the employment of the employer were subjected by the
conduct of his undertaking to risks; secondly, it was the conduct of the
undertaking which did expose such persons to risk; and thirdly, whether
everything reasonably practicable was done to avoid that state of affairs. All
straightforward issues of fact.
LORD
JUSTICE ROCH: The part of the judgment you want to challenge is at page 23
line 35:
"The
fact that the employee who was carrying out the work, in this case the fitter
installing the appliance, has done the work carelessly or omitted to take a
precaution he should have taken does not of itself preclude the employer from
establishing that everything that was reasonably practicable...had been done."
That
is the principle in the judgment you wish to challenge.
MR
WOOD: It is, yes.
LORD
JUSTICE ROCH: The question is: does the formulation of your question do that?
Do you not simply want to ask the question: "Does the fact that", and then set
out what is in those five lines of the judgment.
MR
WOOD: I can do that, yes.
LORD
JUSTICE ROCH: Because that is the essence of your complaint about the
conclusion. You say that that is wrong.
MR
WOOD: Yes. May I just light upon page 23 line 35 again?
LORD
JUSTICE ROCH: Yes.
MR
WOOD:
"The
fact that the employee who was carrying out the work, in this case the fitter
installing the appliance, has done the work carelessly or omitted to take a
precaution should have taken does not of itself preclude the employer from
establishing that....."
Yes.
One could do it the way I have drafted it; one could do it that way
LORD
JUSTICE ROCH: Bennett J is not here, and drafting in open Court is always
difficult. Why do you not take further time to consider, and you can make your
submission in writing to us. Mr Parry can make any submission he wants. You
can exchange those before submitting it to us, and we can deal with this matter
at the beginning of next term. If there is no hurry over the formulation of a
question, it is better that it is done accurately.
MR
WOOD: Assuming one can get the question formulated and your Lordships are
prepared to certify, then of course I ask for leave to appeal.
LORD
JUSTICE ROCH: I think we would tell you that you must go to their Lordships
for that. Their Lordships may take the view that they have had enough of these
cases.
MR
WOOD: They may take the view that it is time to clarify something.
LORD
JUSTICE ROCH: Yes, they might do, but they are quite jealous about those cases
where they give leave and those where they do not.
MR
WOOD: We understand that. Then, my Lord, I respectfully agree with that
course, and will do it in writing.
LORD
JUSTICE ROCH: Mr Parry, do you want to say anything?
MR
PARRY: I would like to try to persuade your Lordships, in due course, that the
path that has been taken through the authorities really is very clear. It
identifies the matters that should be left to a jury and that probably, in my
submission, it would be unnecessary for this case to go any further. However,
I do appreciate the point that you make, and it is implicit in the submissions
that were made, that the ramifications of this authority, particularly to
commercial and business, might be substantial, and I have to accept that.
If
I may say so, the passage that your Lordship highlighted, I was going to
suggest to my learned friend was really what we should be looking at in terms
of formulation of a question. That is really the nub of the point and perhaps
together we can work on it if my initial submission is going to fall on stony
ground.
May
I - I do not know whether it is appropriate to mention this in open court - but
if this matter has to come back before your Lordships for an oral hearing,
might I ask that it not be listed before 20th September?
LORD
JUSTICE ROCH: That application is readily granted. It will not be heard until
the beginning of next term.
MR
PARRY: Thank you very much.
© 1998 Crown Copyright
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