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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Board of Trustees of the Science Museum, R. v [1993] EWCA Crim 2 (09 March 1993) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1993/2.html Cite as: [1993] EWCA Crim 2

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice,
		9th March 1993.

LORD JUSTICE STEYN:

The Conviction

In October 1990 the appellants were tried in the Crown Court at Knightsbridge on a charge of failing to discharge the duty imposed upon them by section 3(1) of the Health and Safety art Work Act 1974 contrary to section 33(1) (a) of the Act. Section 3(1) reads as follows:

"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."

Section 33(1) provides inter alia that it is an offence for a person to fail to discharge a duty to which he is subject by virtue of section 3(1). The particulars of the offence set out in the indictment were as follows:

"The board of Trustees of the Science Museum between 20th June 1988 and 4th March 1989 being employers within the meaning of the Health and Safety at Work Act 1974 failed to conduct their undertaking, namely the Science Museum, Exhibition Road, London, in such a way as to ensure, so far as was reasonably practicable, that persons not in their employment who might be affected thereby were not thereby exposed to risks to their health and safety in each of the following respects. As regards the air conditioning system for the infill building of the said museum:

(a) they failed too institute and maintain a regime of regular cleansing and disinfection;

(b) they failed to maintain in operation an efficient chemical water treatment regime;

(c) they failed to monitor the efficacy of the said water treatment regime,

whereby members of the general public were exposed to risks to their health from exposure to Legionella Pneumophila."

The appellants pleaded not guilty. The trial occupied nine working days. On 11th October 1990 the jury returned a verdict of guilty by a majority of 10 to 2. The appellants were fined £500 and ordered to pay prosecution costs of £35,000.

The shape of the appeal

Since the perfected grounds of appeal raised only a point of statutory construction, the Registrar referred the matter to the full court. When the appeal came before us on 23rd February 1993 it quickly became clear that the appellants in addition wished to argue in the alternative that on the evidence led by the prosecution there was no case to answer. Additional grounds of appeal were produced and we granted leave to amend. The prosecution was unable to deal fully with the new grounds and the appeal had to be adjourned until today. In view of the new grounds of appeal it will be necessary to set out the background in some detail.

The infill building of the Science Museum was part of the undertaking of the appellants. It contained two cooling towers. A bacterium called Legionella Pneumophila, to which we will refer as "LP", is commonly found in air conditioning cooling towers. While there are different types of cooling towers the underlying concept is sufficiently explained in a glossary before us. It reads as follows:

"A tower contains a pack of material arranged to provide a large surface area. Warm water from a water-cooled condenser is fed to the top of the packing and falling under gravity to a pond at the bottom of the tower wets the surface. A fan promotes counter airflow and the water is cooled by evaporation before descending into the pond when it is pumped into the condenser."

The bacterium causes legionnaires disease which is a rare form of pneumonia. The predominant route of infection is by inhalation. The incubation period is measured in days rather than weeks. Contamination of water systems by LP only becomes dangerous to man when the conditions create an opportunity for the organisms to multiply and then to become airborne in the form of an aerosol.

The focus of the prosecution case was not a risk to the health and safety of employees of the Science Museum. The prosecution alleged that, by reason of the appellants' inadequate system of maintenance, treatment and monitoring, members of the public outside the Science Museum were exposed to risks to their health from LP. It was common ground that the escape of LP from the cooling tower of the Science Museum could expose members of the public within a cordon of 500 yards to risks to their health and safety.

The prosecution case

The principal prosecution witness was Mr. Seed, a maintenance engineer. The thrust of his evidence was as follows. In early 1987 refurbishment of the old air conditioning plant al the infill building of the Science Museum started. The Property Services Agency (PSA) were responsible for the refurbishment. There were problems with the main contractors over delays in commissioning the infill plant room. The appellants were supposed to take over responsibility for the maintenance of the infill building system from the PSA on 1st April 1988. In the result the appellants' takeover of the air cooling system was delayed until 20th June 1988. Mr. Seed, who was responsible for the day to day maintenance of the system, was aware of various problems before that date.

On 5th July 1988 instructions were given to the Science Museum's contractors to carry out the necessary work, The work was carried out and the system was started up. In July 1988 Mr, Seed noted there were still problems with the cooling tower. The PSA initially left the old booster pumps. Mr. Seed managed to get them going. The PSA then removed those pumps. They did that because they were responsible for the installation of new pumps. Someone used the fire hose reel to replenish the pond in the cooling tower from the fire system. Mr. Seed did not know about this until after the event. On 7th August 1988 in order to supply water to the pond, he made a temporary link with the fire water pipes. On 8th August 1988 he recorded that the bringing into operation of the air conditioning was complete, although some work still needed to be done, and that was the machinery which had not been used for over a year was being run in.

The PSA delivered the booster pumps sometime before 19th September 1988. Mr. Seed thought that not much more than three weeks were required to install the pumps. In fact, however, the PSA contractors did not complete the job until 10th January 1989. During the period without booster pumps there was uncontrolled dumping of water. Water was pumped in by the fire system booster pumps through the temporary valve which had to be opened manually. This was done two or three times a week. There were sometimes gaps of two days between dumping and replenishment. Replenishment took up to two hours and during that time biocides (a chemical agent which destroys LP) were added manually. Mr. Seed used his discretion as to how much biocide to put in. Probably he put in more than was necessary, but it took time for the water and the biocide to mix.

In August 1988 consultants were asked to visit the site. They did so on 26th October 1988. They reported on 15th December 1988. During this period the Science Museum's contractors were instructed and gave a quotation dated 15th December 1988 for the system to be cleaned. Mr. Seed gave authority for four items of work to be carried out. He instructed the system to be cleaned chemically and physically; the dosing equipment to be recommissioned; the water softening equipment to be recommissioned; and biannual cleans and sterilisation to be carried out. In fact the cleaning did not start until the beginning of February 1989, that is three weeks after the installation of the booster pumps. At the start of the cleaning the whole air cooling system of both cooling towers was shut down.

On 4th March 1989 the water was tested and LP was found in the system which had not yet been cleaned. At the trial the appellants admitted that LP was present in the cooling tower at a concentration of 5,000 organisms per litre and in the chiller at a concentration of 10,000 or more per litre. The appellants also admitted that the total viable count showed that the condition of the water was conducive to LP multiplying.

Cleansing and disinfection

The prosecution called three expert witnesses, Mr. Sykes, Dr. Mayatt and Dr, Colbourne. They testified about the need for regular cleaning and disinfection. The second Badenoch Report {the Report of the Committee of Enquiry into the outbreak of legionnaires disease in Stafford) to which the experts referred, recommended that the tower pond should be drained and replenished if any doubt arose concerning the state of the water system. Dr. Logan was called as the appellants' expert. His view was that there was no failure to institute and maintain a regular system of cleaning and disinfection. The system was, in fact, cleaned in September 1987, July 1988 and February 1989.

Chemical water treatment

The prosecution relied on the second Badenoch Report. The report stated, in paragraph 169, that if the organism was found in a concentration greater than 1,000 per litre the drainage and makeup rate for the biocide regime should be revised and the water retested until the concentration fell below 1,000 per litre.

Monitoring the water treatment regime

The prosecution's experts agreed that in a stable condition monitoring was required to determine the efficiency of the treatment system. Dr. Mayatt and Dr. Colbourne both regarded written records of treatment as necessary. They said that regular dip slide testing should have been done to check on the presence of LP and on the water conditions. No written records of water treatment were kept. Dr. Logan did not agree that there was a need to do a dip slide test as there was no steady stable system.

The Judge's rulings and summing-up

The judge had to resolve an important issue as to the interpretation of the words "thereby exposed to risks to their health and safety". The prosecution contended that they did not have to prove that the members of the public actually inhaled LP or that LP was actually there to be inhaled. It was sufficient if there was a risk of it being there. The defence argued that this interpretation was wrong and submitted that the prosecution had to go further because a possible danger, or a potential danger, cannot impair the health and safety of the public. That can only come about when the danger ceases to be potential and becomes real.

The construction put forward by the defence formed the basis of a submission at the end of the prosecution case, which was repeated after the defence called their expert witness, that there was no case for the defence to answer. The judge ruled against the defence on both occasions. In a careful and lucid summing-up the judge adopted the interpretation put forward by the prosecution. He directed the jury as follows:

"The third matter that the prosecution have to prove is that the defendants failed to ensure that the air conditioning system did not expose members of the public to the risk of injury to their health from Legionella Pneumophila. The key word in that third matter which the prosecution have to prove is 'risk'. 'Risk' is a different word from the word danger and it has a different meaning. It means in the circumstances of this case a possible source of danger .... It is common ground that the distance from a source is 500 metres. It is common ground that in certain circumstances and under certain conditions, which I will come to, that Legionella Pneumophila is a risk to health. The prosecution do not have to prove that members of the public actually inhaled Legionella Pneumophila or that Legionella Pneumophila was actually there to be inhaled. It is sufficient if there was a risk of it being there; that is the risk to which the public must have been proved to have been exposed."

In the perfected grounds of appeal it was contended that this was a misdirection and that submission was repeated in oral argument.

While this case is concerned with the risk posed by an accumulation of LP in cooling towers, it seems right to consider the interpretation of section 3(1) against the spectrum of risks against which the statutory provision is intended to provide protection. The report of the Committee 1970-1972 on Safety and Health at Work which was chaired by Lord Robens, led to the enactment of the Health and Safety at Work Act 1974. The reference to that report is Command 5034. The report stated:

"294....special attention must be given to the need to protect the public as well as workers from the very large scale hazards which sometimes accompany modern industrial operations.

295, The storage and use in industry of a number of intrinsically dangerous substances with highly explosive, flammable or toxic properties such as petroleum the liquefied petroleum gases, liquid oxygen, chlorine, phosgene and sulphur dioxide, constitutes a particular area in which significant risks can arise for the public as well as workpeople. A marked feature of industrial development over the last two decades has been the vastly increased scale on which such substances are used and stored. Our attention has been drawn to a number of locations in this country where highly explosive or flammable substances are kept in such quantities that any failure of control, however remote the possibility, could create situations of disaster potential.

297. Situations of considerable potential risk to the public can be created in a variety of ways and circumstances. The potential risk may be created by an entirely new development, by a change of use or process in an existing establishment, or simply by an increase in the size and scale of existing operations. The area of risk may be fairly limited or may extend to a whole neighbourhood. The problem can be particularly acute in sites or areas where there is a gradual accretion of potentially hazardous development by different employers...."

It was a central thesis of the report that the development control powers of local authorities were insufficient to protect members of the public. The report recommended specific statutory controls exercised directly in the interests of public safety. This approach explains the battery of powers in the 1974 Act. Section 18 and following sections provide for the enforcement of "the relevant statutory provisions" which include section 3(1): see section 53. Section 20 vested inspectors with a wide ranging power to investigate. Section 21 and 22 created a power to serve improvement and prohibition notices, a failure to comply with such a notice constitutes an offence. These far reaching statutory powers are linked with section 3(1). It is, therefore, clear that the broad purpose of this part of the legislation was preventive. Section 3 must, therefore, not be read in isolation. The powers set out in section 20, 21 and 22 are an important contextual aid to the construction of section 3(1).

The critical question of interpretation is as follows. Was it enough for the prosecution to prove that there was a risk that LP might emerge, or did the prosecution have to go further and show that LP did in fact emerge into the atmosphere and was available to be inhaled? Mr. Carlisle Q.C., leading counsel for the prosecution, illustrated the problem with a simple example. Imagine, he said, a loose object on a roof near a pavement. In case A the loose object is in a position in which it might fall off and hit a pedestrian. In that case there is a mere risk. In case B the object in fact falls and exposes pedestrians to actual danger. In case C the object falls and causes actual injury to a pedestrian. The prosecution submits that exposure to risk in case A constitutes a prima facie case under section 3(1). The defence submits that section 3(1) only covers cases B and C.

The starting point must be the ordinary meaning of the language of section 3(1). In our judgment the interpretation of the prosecution fits in best with the language of section 3(1). In the context the word "risks" conveys the idea of a possibility of danger. Indeed, a degree of verbal manipulation is needed to introduce the idea of actual danger which the defendants put forward. The ordinary meaning of the word "risks" therefore supports the prosecution's interpretation and there is nothing in the language of section 3, or indeed in the context of the Act, which supports a narrowing down of the ordinary meaning. On the contrary, the preventive aim of sections 3, 20, 21 and 22 reinforces the construction put forward by the prosecution and adopted by the judge. The adoption of the restrictive interpretation argued for by the defence would make enforcement of section 3(1), and to some extent also of sections 20, 21 and 22 more difficult and would in our judgment result in a substantial emasculation of a central part of the 1974 Act. The interpretation which renders those statutory provisions effective in their role of protecting public health and safety is to be preferred.

We have not lost sight of the defence submission that we ought to concentrate on the word "exposed" rather than "risks" in section 3(1). If the word "risks" has the meaning which we consider it has, the point disappears. In that event exposure to a possibility of danger is sufficient. The word "exposed" simply makes clear that the section is concerned with persons potentially affected by the risk. In this case that refers to members of the public within a certain range of the infill building. But the word "exposed" cannot change the meaning of "risks" from a possibility of danger to actual danger. On the principal point in this case this argument of the defence is really a red herring.

The defence also argued that if the prosecution's submission is accepted the result may be that, subject to the defence of reasonable practicability, all cooling towers in urban areas are prima facie within the scope of the prohibition contained in section 3(1). On the evidence led in the present case that may be correct. Almost certainly such a result would be true of a number of extra hazardous industrial activities. Subject only to the defence of reasonable practicability section 3(1) is intended to be an absolute prohibition. Bearing in mind the imperative of protecting public health and safety so far as it is reasonably practicable to do so, the result can be faced with equanimity.

The Indictment

Mr. Machin Q.C. argued in the alternative that even if risk only means the possibility of danger, then by the terms of the indictment the prosecution assumed a burden of proving actual danger. It is true that the indictment is not happily worded but in our judgment it does not bear the meaning placed on it by counsel for the appellants. We reject this submission.

The additional grounds of appeal

Mr, Machin Q.C., who appeared for the appellants, pointed out that there was no evidence that the cooling towers, or either of them, were in operation between 3rd February 1989 and 4th March 1989. As we have explained the incubation period of LP is measured in days rather than weeks. It follows that the operation of the cooling towers cannot be said to have caused the colonising of LP found on 4th March 1989. It is conceded by the prosecution that there was no case to answer in respect of this period which was covered by the indictment.

It follows that the focus must be on the period 20th June 1988 to 3rd February 1989. Mr. Machin boldly submitted that the judge withdrew from the jury the issue whether an offence was committed during this period. He relies on a passage in the summing-up when the judge said:

"You do know, however, from the evidence of Dr. Mayatt that these organisms can build up at a very fast rate and indeed there is evidence in the Badenoch Report about that. She has told you that that build-up to those concentrations can take place in a very short space of time. Just because you have that evidence you cannot infer back earlier than 3rd February that some Legionella Pneumophila must have been present in that system. It had not been used for a month. You have been reminded by counsel that the other part of the admission, what I call the TVC (Total Viable Count) was not able to indicate anything about the presence of Legionella Pneumophila. It merely indicates that a condition of the water was conducive to it multiplying. That does not take you any further forward in relation to the Legionella that was found when the samples were taken on 4th March. In those circumstances, members of the jury, you may feel that the admissions that the prosecution have obtained from the defence do not assist the prosecution in any way at all."

Mr. Machin then referred us to another passage where, after referring to the second Badenoch Report, the judge said:

"The prosecution say here, members of the jury, that from those passages to which I have just referred you to there is a risk, It is from those passages, members of the jury, that the prosecution have found themselves in respect of the third matter that they have to prove, What they say is this, and it is for you to judge when you consider those paragraphs that I have mentioned and the other references that I have made just before: It is an inherent risk that Legionella Pneumophila will be, or may be, in air cooling systems, and that the opportunity to multiply to a dangerous concentration is available Also because of the way in which air cooling systems are operated, there is the opportunity for them to become aerosolised and emerge through the air cooling tower,"

Read in context, we take the view that the judge was simply saying, in the first passage, that the jury cannot infer anything from the admissions alone. There was no withdrawal of an issue. By way of alternative, Mr. Machin argued that the two passages were inconsistent and therefore calculated to confuse the jury. Once the first passage is interpreted, as we have done, the inconsistency also disappears.

It is now necessary to consider the merits of the appellants' arguments on the state of the evidence. This aspect must be considered on the basis of the interpretation which we have given to section 3(1). This consideration on its own serves to filter out a number of arguments of the appellants which were linked with their now rejected submission. Bearing in mind that there are no material misdirections, the question is simply whether there was a case to be answered.

The prosecution case revealed an ever present risk of LP escaping from the appellants' cooling towers. From 7th August 1988 to 10th January 1989 the appellants were not pumping fresh water into the towers. Instead water was irregularly pumped via the fire water supply. That water contained stagnant dead-ends. The jury was entitled to infer on the expert evidence led in this case that any cooling tower, which is in operation, poses a risk to persons in the vicinity of it. They were entitled to infer that in the present case that risk was increased by the appellants' failure to maintain an efficient water treatment regime from August 1988 to January 1989.

It is true that there was no evidence of the exact concentration of LP required to establish a health hazard. The Badenoch Report was of some help since it stated that if LP was found in a concentration greater than 1,000 per litre, the drainage and makeup rate of the biocide regime should be revised and water retested until the concentration falls below 1,000 per litre. In any event the jury was concerned with the question of risk not actual danger, and there was ample evidence to support the charge in respect of the period August 1988 to January 1989, The truth of the matter is that the only possible answer to the charge was the defence that the appellants had taken reasonably practical steps to minimise the risk. In respect of that defence the burden rested on the appellants: see section 40 of the Health and Safety at Work Act 1974. On the evidence, the jury concluded that the defence was not established. That was not surprising since all reasonably practicable steps to ensure that the public was not exposed to risks to health and safety were not taken.

In our judgment the conviction is safe and satisfactory. The appeal is dismissed.

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