‘I have found this issue one of considerable difficulty and finely balanced. However, I have come to the conclusion that it is inappropriate and wrong for the Health and Safety Executive to prosecute for an offence under section 6 of the 1974 Act when there is a specific statutory offence under the Regulations covering exactly the same ground as section 6 but in different language so that different issues can arise as to the standard of safety which is required, and imposing a different penalty. The offence under the Regulations is the offence which gives effect to the Directive. In addition, the 1974 Act was there in the background. If there was an intention to prosecute for a different offence (not one covering exactly the same ground as the offence in the Regulations), I would take a different view. Partly as a matter of interpretation, and partly because it appears to me that it would be a form of misuse of the powers of the 1974 Act to rely on section 6, I have come to the conclusion that it was not open to the Executive to bring proceedings under section 6. They should have brought proceedings under the Regulations. It may be that the penalty under the Regulations is lower than it should be. If so, the Regulations should be amended. Indeed, I consider that attention should be given to the question of whether the penalties under the Regulations are sufficient. However, the person manufacturing the machinery to which the regime established by the Directive applies is entitled to have his conduct judged by the standards set in the Directive. Those standards are reflected in the Regulations, but not precisely reproduced by section 6 of the 1974 Act. Accordingly, I conclude that the decision of the District judge was wrong in that regard.’
Woolf LCJ, Wright J
[2002] EWHC 566
England and Wales
Citing:
Appealed to – Regina v Bristol Magistrates Court and others ex parte Junttan Oy HL 23-Oct-2003
The improper use of machinery had resulted in the death of an employee, and the applicant was prosecuted under the 1974 Act, but complained that the prosecution should have been under the Regulations. The directive required member states to apply . .
Cited by:
Appeal from – Regina v Bristol Magistrates Court and others ex parte Junttan Oy HL 23-Oct-2003
The improper use of machinery had resulted in the death of an employee, and the applicant was prosecuted under the 1974 Act, but complained that the prosecution should have been under the Regulations. The directive required member states to apply . .
Cited – Baker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .
Lists of cited by and citing cases may be incomplete.
Health and Safety
Updated: 23 December 2021; Ref: scu.187178
