Dangerous machinery - prosecution - permissible under 1974 Act rather than under 1992 Regulations

R (Junttan Oy) v Bristol Magistrates' Court (conjoined appeals): HL (Lord Nicholls of Birkenhead, Lord Slynn of Hadley, Lord Steyn, Lord Hobhouse of Woodborough and Lord Millett): 16 October 2003

The claimant, a Finnish company, manufactured a piling rig with an EC declaration of conformity and supplied it to an English company.

The hammer of the rig inadvertently descended and killed a workman.

Following an improvement notice issued by the Health and Safety Executive (HSE), the claimant modified its rigs.

Subsequently, the HSE laid an information under section 33 of the Health and Safety at Work etc Act 1974 charging the claimant with an offence under section 6.

The district judge in the magistrates' court rejected its argument that he had no jurisdiction to determine the charge, but the Divisional Court of the Queen's Bench Division granted its application for judicial review.

The HSE appealed, and the claimant appealed against the rejection by the Divisional Court of its further ground of application that the HSE had failed to follow the mandatory procedure in article 7 of Council Directive 98/37/EC.

Paul Lasok QC and Jason Coppel (instructed by Bond Pearce, Plymouth) for the HSE; Gerald Barling QC and Sarah Lee (instructed by CMS Cameron McKenna) for the claimant.

Held, allowing the HSE's appeal (Lord Nicholls of Birkenhead and Lord Hobhouse of Woodborough dissenting) and dismissing the claimant's appeal, that 'any action' in paragraph 7 of schedule 6 to the Supply of Machinery (Safety) Regulations 1992 (SI 1992/3073), embraced prosecution as well as administrative enforcement and no provision of the regulations prevented a prosecution under section 6 of the 1974 Act or displaced section 18 of the Interpretation Act 1978; that community law did not prevent the obligations under Council Directive 98/37/EC being enforceable by more than one legislative provision and, accordingly, the HSE had been entitled to prosecute the claimant under the 1974 Act rather than under the 1992 regulations; and that the procedure under article 7 of the Directive had ceased to be relevant once the claimant's rigs had been modified and there had been no failure by the HSE to follow its procedure.

(WLR)

Offensive weapon - having bladed article in public place - 'public place' not including land adjacent to place to which public had or permitted access

R v Roberts: CA (Lord Justice Mantell, Mr Justice Elias and Mr Justice Jack): 20 October 2003

The defendant was restrained in his front garden and was later found to have a lock knife in his trouser pocket.

The garden being less than a metre wide it was possible for the defendant to sit on the window sill of the front room and put his feet on the top of the garden wall.

He was tried on indictment on a count of possessing a bladed article in a public place contrary to section 139 of the Criminal Justice Act 1988.

The defendant submitted that there was no case to answer because the garden was not a 'public place', which was defined by section 139(7) to include 'any place to which at the material time the public have or are permitted access, whether on payment or otherwise'.

The judge rejected the submission, holding that, although the garden was not a place to which the public was 'permitted access', a public place might include land adjacent to areas where the public 'have access', provided that the harm against which the section was designed to provide protection could still be inflicted from such place; and that it had been possible for the defendant, standing in his own garden, to use the knife against a passing pedestrian.

The defendant was convicted.

He appealed.

Tony Ventham (instructed by the Registrar of Criminal Appeals) for the defendant; Alisdair Smith (instructed by Crown Prosecution Service, Harrow) for the Crown.

Held, allowing the appeal, that, on a true construction, 'public place' in section 139 did not include land adjacent to a place to which the public had or was permitted access, even if the harm against which the section was designed to provide protection could be inflicted from that land; and that, accordingly, it had not been proved that the defendant had been in possession of the knife in a public place.