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		
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	NELSON GROUP SERVICES		

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Computer Aided Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited
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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.