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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Davies v Health and Safety Executive [2002] EWCA Crim 2949 (18 December 2002) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/2949.html Cite as: [2002] EWCA Crim 2949, [2003] ICR 586, [2003] IRLR 170 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SWANSEA CROWN COURT
HIS HONOUR JUDGE PRICE Q.C.
Strand, London, WC2A 2LL |
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B e f o r e :
MR. JUSTICE DOUGLAS BROWN
and
HIS HONOUR JUDGE GORDON
____________________
DAVID JANWAY DAVIES |
Appellant |
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- and - |
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HEALTH and SAFETY EXECUTIVE |
Respondent |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Oba NSUGBE Q.C. and Bernard THOROGOOD (instructed by DLA Solicitors) for the Respondent
____________________
Crown Copyright ©
Lord Justice Tuckey:
the duty 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.
Section 40 says that in any proceedings for an offence
consisting of a failure to comply with a duty … to do something ….. so far as is reasonably practicable …. it shall be for the accused to prove ….. that it was not reasonably practicable to do more than was in fact done to satisfy the duty…..
The facts
Construction
Compatibility
Discussion
Presumptions of fact or law operate in every legal system. Clearly the Convention does not prohibit such presumptions in principle. It does however require the contracting States to remain within certain limits in this respect as regards criminal law …. Article 6 (2) does not therefore regard presumptions of fact or law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.
It is worth adding at this point that in the field of health and safety the E.E.C. accept that it is possible to impose absolute duties on employers. Thus Article 5.1 of Council Directive 89/391/EEC requires member states to provide that:
The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.
Member states may, but are not required:
…. to provide for the exclusion or the limitation of employers responsibility where occurrences are due to unusual and unforeseeable circumstances beyond the employers control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.
A strict responsibility may be acceptable in the case of statutory offences which are concerned to regulate the conduct of some particular activity in the public interest. The requirement to have a licence in order to carry on certain kinds of activity is an obvious example. The promotion of health and safety and the avoidance of pollution are among the purposes to be served by such controls. These kinds of cases may properly be seen as not truly criminal. Many may be relatively trivial and only involve a monetary penalty. Many may carry with them no real social disgrace or infamy.
The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, common consumers and motorists to name but a few) from the potentially adverse affects of otherwise lawful activity. Regulatory legislation involves the shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.
It follows that regulatory offences and crimes embody different concepts of fault. Since regulatory offences are directed primarily not to conduct itself but to the consequences of conduct, conviction of a regulatory offence may be thought to import a significantly lesser degree of culpability than conviction of a true crime. The concept of fault in regulatory offences is based upon a reasonable care standard and, as such, does not imply moral blameworthiness in the same manner as criminal fault. Conviction for breach of a regulatory offence suggests nothing more than that the defendant has failed to meet a prescribed standard of care.
This distinction could be justified by what he called the licensing argument:
….. while in the criminal context the essential question to be determined is whether the accused has made the choice to act in the manner alleged in the indictment, the regulated defendant is by virtue of the licensing argument, assumed to have made the choice to engage in the regulated activity….. those who choose to participate in regulated activities have in doing so placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility…. Those persons who enter a regulated field are in the best position to control the harm which may result and they should therefore be held responsible for it.
and the vulnerability justification:
Regulatory legislation is essential to the operation of our complex industrial society: it plays a legitimate and vital role in protecting those who are most vulnerable and least able to protect themselves. The extent and importance of that role has increased continuously since the outset of the Industrial Revolution. Before effective workplace legislation was enacted labourers – including children - worked unconscionably long hours in dangerous and unhealthy surroundings that evoke visions of Dante's Inferno. It was regulatory legislation with its enforcement provisions which brought to an end the shameful situation that existed in mines, factories and workshops in the nineteenth century.
This analysis led him to conclude that the legislation in question which required the defendant to prove that he had exercised due diligence to prevent false and misleading advertising was not incompatible with the presumption of innocence in the Canadian Charter saying:
Criminal offences have always required proof of guilt beyond a reasonable doubt; the accused cannot therefore be convicted where there is a reasonable doubt as to guilt. This is not so with regulatory offences, where conviction will lie if the accused has failed to meet the standard of care required. Thus the question is not whether the accused has exercised some care but whether the degree of care exercised was sufficient to meet the standard imposed. If the false advertiser, the corporate polluter and manufacturer of noxious goods are to be effectively controlled, it is necessary to require them to show on a balance probabilities that they took reasonable precautions to avoid the harm which actually resulted. In the regulatory context there is nothing unfair about imposing that onus; indeed it is essential for the protection of our vulnerable society.
Conclusion
Misdirection
in any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something as far as it is practicable or so far as is reasonably practicable or to use the best means to do something that shall be for the accused to prove (as the case may be) that was not practicable or not reasonably practicable to do more than in fact was done to satisfy the duty or requirement or that there was no better practicable means than was in fact used to satisfy the duty or requirement.
you will have to decide what was and was not reasonably practicable in the particular situations that existed here.
thirdly it must be proved that the defendant failed to ensure so far as was reasonably practicable that Mr Gardner was not exposed to risks to his health or safety as a result of the defendant's business operation and this is one of the core issues for you to decide.
The law stipulates that in such circumstances it shall be for the defendant to prove that it was not practicable, or was not reasonably practicable to do more than in fact was done to satisfy the duty or requirement or that there was no better practicable means than was in fact used to satisfy the duty or requirement.
The question for you is this: did he fail to ensure that so far as was reasonably practicable? As a result, was Mr Gardner exposed to a risk to his safety? In other words was he exposed to the possibility of danger to his safety? If he was, then has the defendant established that it was probably not practicable or reasonably practicable to do more than he did or that there were no better practicable means for him to carry out that duty.
Was it reasonably practicable for him to check to find out if Mr Gardner had heard him giving his instructions to Mr Ralph to reverse tight up? Was it reasonably practicable for him to look up and check to find out where Mr Gardner was at the critical time? Was it reasonably practicable for him to keep watch on the rear of the JCB and the Volvo truck during the reversing manoeuvre rather than burying his head into the Volvo cab with the fuses? Well now, those are the central questions for you to answer.
It would have been better if the judge had finished at that point, but he continued:
On the other hand was there no better practicable means to ensure that there was no such risk other than telling Mr Gardner firstly to go home, secondly shouting out instructions to Mr Ralph to reverse up and thirdly the fact that the vehicle, the JCB, will be making quite a bit of noise as it was reversing making it obvious what was happening? – particularly bearing in mind that Mr Gardner had been on a safety course in the past. Well those are for you to evaluate here.
Shortly before the end of his summing up, the judge returned to directions which referred only to reasonable practicability.
Conclusion
LORD JUSTICE TUCKEY: We have the short question of costs to deal with.
MR WILLIAMS: My Lord, I am not sure in what sequence we should deal with it. I have given your Associate a certified question which I would ask your Lordships to consider certifying. This case raises a question of general public importance and I have drafted a question.
LORD JUSTICE TUCKEY: You only have one copy?
MR WILLIAMS: I am very sorry, my Lord, I am afraid I did it quickly. My Lord, the form of the question is taken identically, so far as it can be, from the wording used in one of the other appeal cases.
LORD JUSTICE TUCKEY: It is a perfectly reasonable question, looking at it superficially, and it is not entirely unexpected.
MR WILLIAMS: My Lord, very briefly in support of it I think twice in your Lordships' judgment you refer to the importance of this decision, and clearly this is the first decision dealing with legislation of this kind and in my respectful submission that does distinguish it from the other Court of Appeal decisions.
LORD JUSTICE TUCKEY: In Longmore LJ's case I think they certified and the House declined.
MR WILLIAMS: That is as I believe it, my Lord, yes.
LORD JUSTICE TUCKEY: We will consider that in a moment.
Mr Nsugbe, you have an application for costs?
MR NSUGBE: My Lord, yes. I do not know whether your Lordships want to hear me on the question of certification?
LORD JUSTICE TUCKEY: What do you say?
MR NSUGBE: My Lord, I say that it is not the first case of its kind in that sense because of course we have---
LORD JUSTICE TUCKEY: We probably do not need to hear you on that. You are happy with the form of the question but you say we should not give leave.
MR NSUGBE: No, my Lord.
LORD JUSTICE TUCKEY: What about costs? I am absolutely staggered at what it is that you are seeking. I have to say I only looked at it this morning and I nearly fell off my chair, but perhaps that was an intemperate reaction.
MR NSUGBE: My Lord.
LORD JUSTICE TUCKEY: This is a point of very considerable importance to the Health and Safety Act in which no expense has been spared. Why should Mr Williams have to pay anything for your success?
MR NSUGBE: Well, my Lord, it was a very important question so far as the Health and Safety Executive are concerned.
LORD JUSTICE TUCKEY: It was bound to come from someone, and it had already come from somewhere else.
MR NSUGBE: My Lord, yes. But in this case my Lord the appellant, who for some period of time was privately funded, took the point of appeal and was not successful and in normal circumstances my Lord we would be entitled to ask for our costs.
LORD JUSTICE TUCKEY: You would be entitled to ask for them, whether you get them is another matter.
MR NSUGBE: My Lord, I can see that.
MR JUSTICE DOUGLAS BROWN: What proportion of cases in this court are unsuccessful appellants ordered to pay costs to the Crown. Do you know? I suggest it is minute.
MR NSUGBE: I think in the case of legally aided unsuccessful appellants it is minute, but in the case of appellants who are funded by other means, and certainly for the larger part of this appeal they were, then the question is a more live one. That is what I would submit. The costs that have been expended have been in the thorough research of an important point of principle.
LORD JUSTICE TUCKEY: No one doubts it is an important point from the Health and Safety Act point of view. Anyway, I think we have the drift of your submissions.
MR NSUGBE: Can I add one point. I am sure your Lordships have had a view about costs. Can I add one point. There was a time certainly when there was some discussion I think about whether the appeal would continue and we had thought that at one stage the appeal would be withdrawn. It was continued with in July. In those circumstances, my Lord, I do say that you can consider if not all the costs you can consider payment of a part of the costs by the appellant.
LORD JUSTICE TUCKEY: Thank you very much.
Mr Williams, we need not trouble you about the application that is made against you, but we have a duty to make what is now called an RCDO. You probably know that the Special Investigation Unit of the Legal Services Commission have made an investigation into your client's means. I do not know if you have seen the document?
MR WILLIAMS: I did not know they had done that, my Lord, no.
LORD JUSTICE TUCKEY: It is showing the total net assets of £95,000-odd, with a borrowing value (whatever that may be), that seems to be assessed on an arbitrary percentage of 67 per cent of £46,000; the accounts of the business show an income of £34,517 per annum; your client has got some mortgage payments; he has two children and so on. I think that is the sort of broad shape of it, and we, I think, were minded to make an order for him to contribute to his costs of the appeal. Can you tell us, has he paid the fine and the costs?
MR WILLIAMS: My Lord, he has not. That is outstanding pending these proceedings.
LORD JUSTICE TUCKEY: That is what I thought. Have you any suggestion to make, or do you want us to take a figure out of the air?
MR JUSTICE DOUGLAS BROWN: Was he funding it himself?
MR WILLIAMS: I think I should be entirely clear with your Lordships. At the trial below he had the benefit of an insurance policy so they founded his own legal expenses, but of course did not fund - they will not pay the fine or the costs, so he has to meet that out of his own pocket, assuming that this is the end of the road for him. So far as this appeal is concerned, initially the insurers were also prepared to fund his side of the costs, but, and this is how my learned friend's reference to the appeal may be being withdrawn, once Mr Davies realised because we had to explain it to him because the HSE made their position clear, that they would seek an order for costs against him should he fail, he was not minded to pursue the appeal and so on legal advice he made an application for legal aid which would have assisted him in resisting applications for costs should it be granted and so that is the factual circumstance in which we now find ourselves.
LORD JUSTICE TUCKEY: Right.
MR WILLIAMS: But one way or another the insurers would never have been in a position to indemnify him against the other side's costs below, and so forth.
LORD JUSTICE TUCKEY: I follow that.
MR WILLIAMS: I can only invite you to do what you regard as just, given the information you have. I have no better information, my Lord.
LORD JUSTICE TUCKEY: Thank you very much.
JUDGE GORDON: If we do make an order, is he going to have to pay it, or will the insurance company pay it?
MR WILLIAMS: My Lord, I should be entirely open with you. My instructing solicitor will seek to persuade the insurer to indemnify him, but I do not think there is a legal obligation that they should seek do so, so I think your Lordship should assume that it is at least possible that he will pay and not the insurer. Again we will seek to persuade them, of that your Lordship should have no doubt about.
LORD JUSTICE TUCKEY: Can you help us at all, Mr Williams, perhaps from previous experience, what are the costs that you are likely to have to pay, or the legal aid costs likely to be?
MR WILLIAMS: It is a guess, my Lord, but if we took the ballpark figure of somewhere between £30,000 and £40,000 that would be the absolute maximum. But that is a guess. It involves two counsel and my instructing solicitors effectively from last July.
LORD JUSTICE TUCKEY: We have three things to deal with. First of all, we are prepared to certify the question which has been put before us which is whether section 40 of the Health and Safety at Work Act 1974 construed in accordance with section 3 of the Human Rights Act 1998 imposes upon a defendant a persuasive or evidential burden when he has been prosecuted under sections 2 to 6 of that Act, but we do not give leave to go to the House of Lords; it is for them to decide whether they are willing to consider a further case on this question of reverse onus, they having considered the question in another context before.
The Health and Safety Executive make an application for costs before the appellant became legally aided. They do so in the sum of over £50,000. That application is refused. We do not think, although they have been successful, that it would be reasonable to expect this appellant to bear costs of that or indeed any order in this case. This was obviously a matter which the Health and Safety Executive have considerable interest in. To that end they instructed two leading counsel, I think I am right in saying, and a Professor to advise them on the European Directive and so on and so forth. That was all no doubt money well spent in the wider interests, but it is not a cost which we think it would be fair for this appellant to have to bear.
So far as his own costs are concerned, this court has to consider whether to make a Recovery of Defence Costs Order. We do so without a great deal of information but conscious of the fact that the appellant still has to pay the fine and costs which total nearly £40,000 which the Crown Court ordered him to pay. We think he should nevertheless, from the financial information we have got, make some contribution towards his costs in this court and we assess that contribution in the sum of £5,000.
MR WILLIAMS: My Lord, I just ask for the following directions. First of all that in the event that a petition is presented to the House of Lords, my Lord I think we have 14 days from today, would your Lordship stay the fine and the costs imposed until either that period has elapsed or the House of Lords has decided whether to grant permission to appeal and if they do grant it until the appeal is heard?
LORD JUSTICE TUCKEY: I am not sure that we have power but if we do we will stay it. If not we can stay our own order. If we have the power to stay the order of the court below we will do it.
MR WILLIAMS: My Lord, I only ask.
LORD JUSTICE TUCKEY: You are, I suspect, at the mercy of the Crown Court but I suspect that if you tell them what is happening if they have not gone for you yet they are not going to go for you whilst that is happening.
MR WILLIAMS: Finally, I think it is for your Lordships' court to consider whether to extend legal aid for the presentation of the petition. That is, as I understand, the House of Lords rules on this which my instructing solicitor downloaded for my benefit. I have to make an application for legal aid for the presentation of a petition and it is obviously for your Lordships to consider whether that should be granted or not.
LORD JUSTICE TUCKEY: Mr Williams, if we do have the power, and I must say none of us have come across this before, we will grant you legal aid for that purpose.
MR WILLIAMS: My Lord, thank you.