The open spaces of London are one of its glories. They are “the lungs of London”: they provide the city and its citizens with breathing space. Their number and extent distinguish London from other major capital cities. And of all of London’s open spaces, Hampstead Heath is the greatest. Unlike the parks of London, it is in general preserved in its “natural aspect and state”: see section 16 of the Hampstead Heath Act 1871.

There are numerous ponds on the Heath. Most were originally dug out, probably in the seventeenth century, to serve as reservoirs for London’s water supply. They are replenished by natural springs. Those on the north-eastern side of the Heath are known as the Highgate Ponds; those on the south side of the Heath are known as the Hampstead Ponds. Ponds on the Heath have for many years been used for swimming and bathing. There is a painting by Constable, newly displayed in Kenwood House, once the home of the great Lord Mansfield, showing bathers in one of the ponds at Branch Hill in about 1829.

These days, only three of the ponds are used for swimming or bathing. The Kenwood Ladies’ Pond, near Kenwood House, has been used by women swimmers since 1925. The Highgate Men’s Pond has been used by men swimmers since at least 1890.

This case is concerned with the Mixed Pond, which, as its name suggests, is available to both men and women swimmers. There is a jetty that has been constructed at some time to assist swimmers to get in and out of the water, and the side on one side has been concreted and fenced, but otherwise it has the appearance of a natural pond. It is not suggested that there are any unusual or hidden dangers in the Mixed Pond. Some swimmers wish to swim in the Mixed Pond early in the morning in winter when it is unattended and not open to the public, and before the other Ponds open to the public. They include the Second Claimant, and the First Claimant represents other potential early morning swimmers.

The swimmers accept that swimming in an unattended pond exposes them to some risks. They say that they know the risks, which they consider to be small, and are willing to incur them. They are willing to do so because they enjoy swimming in the Pond, and appreciate the benefits of swimming. The Corporation has decided, by the resolution of 26 July 2004 referred to in paragraph 15 below, to refuse to permit them to swim in the Mixed Pond because it considers that if it were to do so it would be liable to prosecution under section 3 of the Health and Safety at Work etc Act 1974 (“the 1974 Act”). The swimmers contend that the Corporation’s decision is based on an erroneous view of the law; that if the Corporation permits them to swim in the Pond it will not be exposed to a risk of prosecution under the 1974 Act; and they seek judicial review of the Corporation’s decision on that basis.

Ultimately, this case turns on the interpretation and effect of section 3 of the 1974 Act, and raises an important point of principle. The Health and Safety Executive is the authority generally responsible for enforcing the provisions of the Act, and was therefore joined in the proceedings as an Interested Party to enable it to make such submissions to the Court as it thought fit. It has chosen not to appear or to make any representations to the Court. I comment on its position below.

Hampstead Heath has been in public ownership since the 1871 Act, although its area has been supplemented subsequently. The Corporation of London came to manage Hampstead Heath as a result of the abolition of the General London Council. The Heath and the functions previously exercised by the GLC in relation to it were transferred to the Corporation by the London Government Reorganisation (Hampstead Heath) Order 1989. The Order required the Corporation to appoint the Hampstead Heath Management Committee “for the purposes of giving advice on, and implementing, the City’s policies and programmes in relation to the Heath lands”. The Committee must have at least 18 members, of whom at least 6 must be neither Council members nor employees of the Corporation. The Order also required the appointment of a Consultative Committee.

The functions transferred to the Corporation included those set out in the Ministry of Housing and Local Government (Greater London Parks and Open Spaces) Provisional Order 1967. They included the provision and maintenance of outdoor bathing places, the enclosing of such places and the preclusion of entry by unauthorised persons and in the interests of the safety of the public. That Order was subsequently confirmed by a similarly entitled 1967 Act.

The Corporation also has power to provide recreational facilities, and in particular swimming pools, under section 19 of the Local Government (Miscellaneous Provisions) Act 1976. The provision of recreational facilities involves their management, and decisions as to who is to use them, when and under what conditions.

The recreational facilities on the Heath include the three ponds used for swimming, and an artificial swimming pool, the Lido, on Parliament Hill. The Ladies’ Pond and the Men’s Pond have long been open for swimming in winter; the Mixed Pond has not. All of these facilities are managed by the Corporation.

The swimming ponds are open only when attended by lifeguards. Changes in opening hours have meant that neither the Ladies’ Pond nor the Men’s Pond is open early in the morning in winter, i.e. before 7.15 a.m.; and the Mixed Pond is not open to the public in winter at all. While in absolute terms the reduction in opening times is not great, it has a substantial effect on those who wish to swim before work, and effectively precludes their doing so.

The First Claimant (“The Club”) is an unincorporated association formed specifically to seek to enable its prospective members to swim in the Mixed Pond on a self-regulated basis at defined times before the other Ponds are open to the public during the winter season. The Second Claimant is the Club’s secretary, and is one of those who wish to swim in the Pond on a self-regulated basis when it is otherwise closed. The Club is affiliated to another unincorporated association, the United Swimmers’ Association of Hampstead Heath, misleadingly referred to in the evidence as “the USA”, which campaigns for the maintenance of the traditional hours of opening of the Ponds. The USA is not a party to these proceedings, but supports the claim, and its chairman, Robert Sutherland Smith, made a witness statement in support of the Club’s claim.

As a result of reductions in opening hours at the swimming ponds, in 2003 a number of swimmers, including the USA, approached the Corporation and suggested that it permit unsupervised use of one or more Ponds outside opening hours for a controlled group of swimmers willing to absolve the Corporation from civil liability. Such swimming is referred to in the evidence as “self-regulated swimming”, and I shall use the same expression.

Negotiations ensued between the Club and the Corporation as to whether, and if so on what terms, the Corporation might permit self-regulated swimming. The negotiations involved consideration of the terms of a proposed written licence which, if approved, would be granted by the Corporation to the Club. The terms of the licence were never agreed, but it is informative to refer to the draft of May 2004 as giving some indication of what was envisaged. It relates to swimming by members of the Club during “permitted hours”, namely the hours between 6 a.m. and 9 a.m., and between 2 p.m. and 8 p.m., during the licence period, which runs from 1^st October in each year to 30^th April in the following year. The Club undertakes that membership will be restricted to persons of 18 or more years of age who are strong swimmers, of sound mind, and who sign a document in agreed form confirming his or her awareness of the risks of self-regulated swimming, and a declaration that he or she is habituated to cold-water swimming. Members of the Club would be prohibited from entering or remaining in the Pond if no other club member was present or if “conditions of natural light visibility at the time are (not) such that a person at any position in the designated swimming area of the Mixed Pond can be seen from the jetty”. The draft contains an indemnity given to the Corporation by each member of the Club against loss, and an undertaking by the Club to maintain insurance to indemnify the Corporation against public liability and any claims in respect of personal injury.

The negotiations foundered as a result of advice received by the Corporation from Mr Straker QC. It led to the Hampstead Heath Management Committee passing, on 26 July 2004, a resolution that the request for self-regulated swimming in the Pond be refused. The Committee had before it a report of the Comptroller and City Solicitor and a letter from the solicitors for the USA commenting on Mr Straker’s advice. The relevant part of the minute is as follows:

It is evident from the terms of the Motion and the Resolution, and is common ground, that the only basis for the decision was the advice that there was a risk of prosecution under section 3 of the 1974 Act, and I have not considered whether the Corporation could lawfully have made the same decision on different grounds. It is the lawfulness of this resolution that is the subject of these proceedings.

In his advice referred to in the Minute, Mr Straker stated:

During the negotiations with the Corporation, the Club sensibly approached the HSE, which is the authority responsible for prosecutions under the 1974 Act, in order to ascertain its position on the proposed unsupervised swimming. In its important letter of 13 November 2003 to the Club’s solicitors, the HSE stated:

Because this case turns on the effect of section 3 of the Act, the HSE was joined as Interested Party. Having been served with the proceedings, it wrote to the Corporation on 13 December 2004 stating that it did not wish to be an interested party, and accordingly would not be filing an acknowledgement of service. Its position did not change following the amendment by the Claimants of their Grounds. In a letter dated 20 February 2005, the Corporation sought elucidation of the HSE’s position. In its letter dated 2 March 2005, the HSE stated:

It did not formally accept the Claimants’ position that if the Corporation were to commit them to swim unsupervised in the mixed bathing pond, the Corporation would have, as a matter of law, no exposure to any risk of prosecution for breach of section 3 of the Act.

“If the Claimants were successful …, whether the HSE would be barred from prosecuting … would depend upon the precise terms of the judgement, or declaration if any, made by the Court.”

The HSE did not formally accept that if the Corporation were to permit unsupervised swimming, it would not constitute an “employer conducting an undertaking” within the meaning of section 3.”

Finally, in a letter dated 24 March 2005, the HSE stated:

The question I have to consider under this head is whether the Court should give a ruling on the meaning and effect of a criminal statute in the absence of the prosecuting authority and where it is not alleged that an offence has been committed. The conduct of the Corporation that might be the subject of a prosecution is therefore in a sense hypothetical. It was partly because the facts of any accident cannot be anticipated that the HSE refused to give any commitment as to a future prosecution.

I have considered the helpful discussion and summary of the effect of the authorities on this question in Zamir & Woolf, The Declaratory Judgment, 3^rd edition, at paragraphs 4.172 to 4.204. In contrast to a case such as R (Pretty) v DPP [[2001] UKHL 61, 2002] 1 AC 800, this is not a case in which a party seeks an order of the Court precluding his prosecution for an offence he may commit in the future. Nor is this a case in which such a party seeks an order of the Court the effect of which is to establish whether his action or failure to take action (such as not complying with an enforcement notice, as in Francis v Yiewsley and West Drayton UDC [1958] 1 QB 478) has constituted or will constitute a crime. In the present case, the party seeking the assistance of the Court is not the party fearing prosecution, but a third party who is affected by the Corporation’s concern that it may commit a crime.

The issue here is not whether a party has acted in contravention of section 3, but whether on a certain hypothesis section 3 applies to its conduct. The Court must exercise caution whenever it is asked to decide whether hypothetical acts may infringe the criminal law. Even greater caution is appropriate where the decision is to be made without the benefit of the representation of the body responsible for enforcing that law, in the present case the HSE. The Court must be particularly astute where there is concern as to collusive litigation, but caution will be appropriate whenever there is a real possibility that not all relevant points have been argued or that relevant material is not before it.

The issue in this case as to the effect of section 3 of the 1974 Act is a genuine issue arising in civil litigation. This is not collusive litigation. On the Claimants’ case, the Corporation has made a decision on the basis of a misapprehension as to the law. There is no other means of testing the correctness or otherwise of the legal advice on the basis of which the Corporation made its decision. While I regret the absence of the HSE, it has had the opportunity to make submissions, and has chosen not to do so on the basis that it has no further material contribution to make to my decision. Moreover, it has stated that it is content that the Court should interpret the Act. As will be seen, every point available to the HSE, if it were to contend that section 3 is engaged, has been argued by Mr Straker on behalf of the Corporation.

In these circumstances it is in my judgment appropriate for the Court to determine the legal issues in these proceedings.

Section 3 is as follows:

By virtue of section 33(1)(a), it is a criminal offence for a person to fail to discharge the duty imposed by section 3. In the case of a body corporate, section 37 provides that if it commits an offence under the Act, and it “is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence”. One therefore understands the personal concerns of the members and officers of the Corporation. The offence created by section 3 is an absolute offence, although that is qualified because it is subject to the reasonably practicable defence, which is for a defendant to prove on a balance of probabilities “that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty …, or that there was no better practicable means than was in fact used to satisfy the duty or requirement”: section 40; and see R v British Steel Plc [1995] ICR 586.

It is of course common ground that the Corporation is an employer to whom section 3(1) applies. It is equally common ground that unsupervised swimming in the Mixed Pond near dawn in winter involves risk. There were over 40 incidents at the Ponds between 1994 and 2004, nearly all of which required the intervention of a lifeguard. Since 1933 there have been 6 fatal drownings when lifeguards were not present, 2 of which were suicides.

For the Claimants, Mr Beloff QC submitted:

Section 3 is a penal provision, and as such is to be restrictively construed; it is to be given a “contextual and purposive construction”, and construed so as to respect “the individualist values of the common law”.

Section 3 applies only to a risk created by the employer’s conduct of his undertaking. It follows that, on its proper interpretation, it applies to activities carried out by an employer, and so does not apply to a risk created by the employer’s premises as such. The grant of access to the Mixed Pond to self-regulated swimmers would not constitute “the conduct of (the Corporation’s) undertaking”.

Any risk created by members of the Club swimming in the Pond would be the result of their deciding to do so with full knowledge of the risks involved. Their exposure to such risks would not have been caused by the conduct of the Corporation’s undertaking, but by their own action. The requirement in section 3 that the exposure to risk must be “thereby”, i.e. by the conduct of its undertaking, cannot be satisfied.

In determining whether an employer has established the reasonably practicable defence, the value of the activity it has permitted must be taken into account, and not solely the cost or physical difficulty of eliminating the risk inherent in that activity. In the instant case, in relying on paragraph 20 of Mr Straker’s advice, the Corporation had taken into account only the available means of eliminating the risk, and had not weighed against that the value of permitting unregulated swimming.

Mr Beloff also submitted that members of the public are not persons not in the employment of an employer within the meaning of section 3, so that their exposure to risk is outside its scope. He recognised, however, that this to my mind unattractive submission was not open to him in this Court by reason of the decision of the Court of Appeal in R v Board of Trustees of the Science Museum [1993] 1 WLR 1171, and he reserved the point for argument if necessary before a higher court.

On behalf of the Corporation, Mr Straker QC submitted:

A restrictive interpretation of section 3 is inappropriate. A purposive interpretation is appropriate.

Section 3 is not limited to activities, but applies equally to risks created by an employer’s premises.

The risks inherent in unsupervised swimming would be created by the Corporation’s grant of access. The Corporation would therefore be liable for the creation of those risks under section 3.

The only matters to be taken into account in determining whether an employer has established the reasonably practicable test are the costs and physical difficulty of a relevant precaution.

The proposition that in general a penal statute should receive a strict or restrictive interpretation requires no authority. Mr Beloff cited Dickenson v Fletcher (1873) LR 9 CP 1. The Health and Safety at Work Act 1974 is a penal Act to the extent that it creates criminal offences. But, as Mr Beloff himself accepts, there are other principles of interpretation that also apply, including the principle that a statute should be given a purposive construction. Here, the purpose of the statute is (among other things) to secure and to protect the safety of employees and others. It is for that purpose that functions beyond the prosecution of offences created by the Act were conferred on the Health and Safety Commission and the HSE: see sections 10 and 11. That purpose requires the court to avoid an over-restrictive interpretation if it would be inconsistent with that purpose. The requirement that section 3 should be interpreted in its context also points against an automatic narrow interpretation.

The principle contended for by Mr Beloff that the Act should receive a construction that respects “the individualist values of the common law”, expressed in those terms, would be new. The quotation is from the speech of Lord Hoffmann in Tomlinson v Congleton Borough Council [2003] UKHL 47, [2004] 1 AC 46, at [47], and there is no reported case in which the phrase has been used since. I shall have to refer to the speeches in that case at length below. However, while the formulation is new, I think that the principle itself is well-established. It has always been a principle of the interpretation of statutes that the courts should seek to construe them so as to produce a just and fair law. The courts presume that Parliament intended to legislate justly, fairly and reasonably: see the discussion at paragraph 1442 of volume 44(1) of Halsbury’s Laws of England 4^th edition, and in Part XVI of Bennion, Statutory Interpretation 4^th edition, especially section 265. The values of the common law are components of the concepts of justice, fairness and reasonableness. Or to put it more accurately: the values of the common law are dictated by current concepts of justice and fairness and reasonableness. What is considered to be just, fair and reasonable varies from time to time, as do the values of the common law. (See, for example, in the context of the law of tort, but not otherwise far removed from the present context, Lord Pearson in Herrington v British Railways Board [1972] AC 877 at 929F-930B, and Lord Reid’s reference to “current conceptions of social duty” at 899F.) The speeches in Tomlinson must be regarded as an authoritative exposition of legal policy at the present time.

Before turning to consider the application of section 3 in the present context, it is convenient to address the decision of the House of Lords in Tomlinson.

In Tomlinson, the defendants appealed against the decision of the Court of Appeal holding them liable in damages to the claimant, who had injured himself when he had gone swimming in a lake in a disused quarry in a country park owned, occupied and managed by the defendant local authorities. (There were two local authority defendants, who had sensibly decided to settle their differences, so that it was unnecessary to distinguish between them.) Swimming in the lake was prohibited, and there were prominent notices stating “Dangerous water: no swimming”. The defendants were aware that the notices were frequently ignored and had little effect in preventing visitors to the park from entering the water, and several accidents had resulted from swimming in the lake. On a hot day, Mr Tomlinson went into the lake, and from a standing position in shallow water dived and struck his head on the sandy bottom, breaking his neck. He alleged that the accident had been caused by the defendants’ breach of their duty of care, owed to him as a trespasser under section 1 of the Occupiers’ Liability Act 1984. The judge had found as a fact that there was nothing about the lake that had made it any more dangerous than any other stretch of open water, and that the danger and the risk of injury from diving in it where it was shallow had been obvious.

So far as is relevant, section 1 of the Occupiers’ Liability Act 1984 is as follows:

The House of Lords also referred to the “common duty of care” owed under the Occupiers’ Liability Act 1957 by an occupier of premises to his lawful visitors, that is, persons who are permitted by him to be on his premises. Section 2(2) of that Act provides that:

The principal speech was given by Lord Hoffmann, with whom Lord Nicholls of Birkenhead agreed, as generally did the other Law Lords, as will be seen. Lord Hoffmann held that Mr Tomlinson’s accident was not caused by the state of the defendants’ premises, which had no hidden danger, but by his decision to do something that had inherent risk. He said, at [27]:

Lord Hutton agreed that the defendants would not have been in breach of their occupiers’ duty of care to lawful visitors. Lord Hobhouse of Woodborough agreed with Lord Hoffmann and added this:

Lord Scott of Foscote agreed with Lord Hoffmann, subject to one reservation that is irrelevant for present purposes. He said:

These forthright speeches, and the decision itself in Tomlinson, require serious consideration in the present context. In fact, the decision of the House of Lords was not revolutionary. It was to the same effect as earlier, if less eloquent, judgments of the Court of Appeal: Ratcliff v McConnell [1999] 1 WLR 670, Darby v National Trust [2001] EWCA Civ 189, [2001] PIQR P372, CA, and Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231, [2003] QB 1008. Those decisions related to trespassers. However, the House of Lords in Tomlinson said that its decision did not depend on the issue whether Mr Tomlinson was a trespasser in the lake or a lawful visitor: whether he was a trespasser in the lake or a lawful visitor when he swam in the lake, the defendant had no liability to him. And so the question arises as to the relevance of these decisions, and in particular that of the House of Lords, to the issues I have to decide.

The facts of Tomlinson are indistinguishable from the facts envisaged by the Corporation when it decided to refuse the Claimants’ request. If the members of the Club were to be allowed to swim in the Mixed Pond on the terms set out in the draft licence, and one of them were to be injured or even were to drown as a result, the Corporation as occupier would have no civil liability under the Occupiers’ Liability Act 1957. It was presumably the decision in Tomlinson that led to the advice, referred to in the resolution of 26 July 2004, that “the question of potential civil liability had been largely resolved by case law”.

However, as Mr Straker pointed out, Tomlinson (and equally Ratcliff, Darby and Donoghue v Folkestone Properties Ltd) concerned the law of tort, not criminal law. The House of Lords did not have to consider whether Congleton Borough Council was, on the facts of the case before it, guilty of an offence under section 3 of the 1974 Act. The decision of the House of Lords is not authority for the proposition that the defendants in that case were free of any criminal responsibility resulting from Mr Tomlinson’s accident. Furthermore, quite apart form their different contexts, the wording of section 3 differs markedly from that of section 2 of the Occupiers’ Liability Act 1957, and one cannot necessarily transfer the interpretation of the latter provision to the 1974 Act.

Furthermore, the functions of the civil law and the criminal law are different. The essential function of the civil law is, in the present context, to compensate those whose injuries are the responsibility or fault of another. The function of the criminal law is normative, to provide rules to be observed, the infringement of which leads to punishment (or to some other form of sentence). There is no simple relationship between the law of crime and the law of tort. Some statutory crimes give rise to a private cause of action for compensation on the part of anyone injured by its commission, others do not. Section 47 of the 1974 Act expressly provides that a contravention of section 3 does not of itself confer a right of action in civil proceedings. The criminal courts always have power to order a person convicted of a crime to pay compensation to someone injured by that crime, but that power is ancillary to the primary purpose of sentencing.

One can nonetheless say that one expects the scope of tort to be wider than that of crime. The relationship is summarised in Winfield and Jolowicz on Tort, 15^th edition, at page 14:

I bear in mind the qualifications and reservations that must result from differences between tort and crime and between different enactments having different purposes. However, both Section 2 of the Occupiers’ Liability Act and section 3 of the 1974 Act are concerned with responsibility for fault. The former imposes liability on the basis of fault: a failure to take “such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe …” An employer is absolved from liability under section 3 of the 1974 Act if he can show that he was without fault, in the sense that he did all that was reasonably practicable to do to remove or to minimise the relevant risk. I consider that it would be anomalous if Congleton Borough Council, so emphatically relieved by the House of Lords of liability in tort to Mr Tomlinson, were to be held to have infringed section 3 of the 1974 Act by failing to prevent his swimming in the lake. It would mean that the individual liberty that the House of Lords thought it was upholding was illusory: the criminal law would take away what the House of Lords thought it was establishing. And so I think it right to derive from the judgments in Tomlinson an approach to the interpretation and application of the 1974 Act in the present factual context.

I can now turn to the issues as to the interpretation and effect of section 3 of the 1974 Act. As indicated above, both Mr Beloff and Mr Straker made submissions on the individual ingredients of an offence under the section, no doubt having in mind the summary of those components in the judgment of the Court of Appeal in R v Associated Octel Ltd [1994] 4 All ER 1051 at 1063j. However, I think that one also has to consider the interpretation of the section as a whole, and its effect as so interpreted.

“Undertaking” is more normally used in the context of a business, but it is common ground, and in any event clear, that the 1974 Act applies equally to local authorities as well as to employers carrying on a commercial business. The Corporation owns the Heath and the Ponds, and manages them. The Ponds are part of its undertaking for the purposes of section 3.

The real point made by Mr Beloff under this head is that the risk apprehended by the Corporation does not arise from any activity on its part, but from the mere existence of the Mixed Pond. He submitted that Parliament intended section 3 to be limited to activities of employers, as shown by the preamble to the Act and section 1(1)(b), and by the separate provision for the liabilities of employers in relation to premises in section 4.

The preamble to the Act is as follows:

The words italicised by me support Mr Beloff’s submission. Section 1(1)(a) and (b) provide:

These italicised words do not permit me to accept Mr Beloff’s submission, in so far as it is based on the terms of section 1(1)(b), in its generality. I must treat section 1, an operative provision of the Act, and in particular subsection (3), as elucidating, and in effect enlarging upon, the preamble, which is no more than a guide to Parliament’s intention: c.f. Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436. In addition, the distinction between dangers arising from the static condition of premises and activities carried out on them is of dubious validity: see Herrington v British Railways Board per Lord Pearson at 929E and Lord Diplock at 942G. Whether in the circumstances envisaged by the grant of a licence there would be any risk attributable to the condition of the Mixed Pond is another question, to which I shall return below.

Section 4 of the Act so far as relevant provides:

The Mixed Pond is undoubtedly non-domestic premises: see the definitions of premises (which “includes any place”) and domestic premises in section 53. But the swimmers do not use it as a place of work, and I do not think that the jetty is “plant” which they use. I therefore do not think that section 4 applies to the swimmers at the Pond. In any event, no one suggests that the Mixed Pond is unsafe or constitutes a risk to health. Presumably, it is because the Corporation do not fear prosecution under section 4 that they do not rely on it. But even if section 4 does apply, and Mr Beloff limited himself to submitting that on the Corporation’s construction of section 3, section 4 is “substantially redundant”, it does not follow that section 3 does not apply: see R v Mara [1987] 1 WLR 87, in which the contention that sections 3, 4, 5 and 6 were mutually exclusive was castigated by the Court of Appeal as untenable. The Court said that the overlap between section 3 and later sections of the Act “is the inevitable result of the wide wording of section 3”.

The Corporation were correct to consider that their regulation of admission to the Ponds constitutes the conduct of an undertaking within the meaning of section 3 of the 1974 Act.

Mr Beloff conceded that his submission under this head was his strongest point, and I agree.

The Claimants rightly concede that if the Corporation were to permit the swimmers to swim in the Mixed Pond unsupervised in the winter season, and they were to do so, they would be exposed to risk. The Corporation submits that this establishes that the swimmers would be exposed to risk by the permission. But the swimmers would also be exposed to risk as they drive or walk or run to the Pond, and as they travel from the Pond to their work or homes. No one would suggest that the Corporation should be responsible for an accident resulting from the risks of a traffic accident, or a heart attack while walking or running to or from the Pond. Risk is inherent in life, and some risk is unavoidable.

In the law, the ascription of a cause to a consequence may involve a value judgment. The decision of the House of Lords in Tomlinson demonstrates this. The existence of the lake, the ease with which someone could swim in the lake, the hot weather and Mr Tomlinson’s decision to swim were all, in a sense, causes of his accident. The risks that Mr Tomlinson incurred when he chose to swim could be said to result from the existence of the lake and the ease with which he could swim in it. But the House of Lords held that the risks were not caused by the condition of the premises, which had no hidden dangers, but by his decision to swim: see Lord Hoffmann at [27]:

Similarly, in his judgment in Donoghue, which was approved by the House of Lords in Tomlinson, Lord Phillips MR said, at [36]:

The above statement of Lord Hoffmann in Tomlinson at [27] illustrates that the law sometimes decides that a physical cause is irrelevant as a matter of law: see Weld-Blundell v Stephens [1920] AC 956, 986; and Lord Reid in Stapley v Gypsum Mines [1953] AC 663, 681. This is because the law is concerned not with causation, but with responsibility. In M’Lean v Bell (1932) TLR 467, a road accident case concerning liability for the tort of negligence, Lord Wright said at 469:

In the context of legislation concerning safety at work, but still a case on liability in tort, in Norris v W Moss & Sons Ltd [1954] 1 WLR 346, the employer who had erected scaffolding in a manner that infringed the Building (Safety, Health and Welfare) Regulations 1948 was held not to be liable to his employee who had noticed the defect and set about remedying it negligently and was injured as a result. The Court of Appeal held that the breach of the Regulations was not the cause of the accident.

The same principle applies in criminal law. Hart and Honoré, in Causation in the Law, 2^nd edition, say, at 326:

In my judgment, the requirement in section 3 that the exposure to risk should be by the conduct of the employer’s undertaking is subject to the same considerations as those referred to by the House of Lords in Tomlinson. If an adult swimmer is given permission to swim unsupervised in a pond that has no hidden dangers, and the swimmer decides to swim in it, the risks he incurs in doing so are in a sense the result of both the permission and his decision. But if the law is to protect individual freedom of action, and to avoid imposing “a grey and dull safety regime on everyone”, it must discriminate between these causes. In my judgment, for the purposes of section 3 of the 1974 Act, if an adult swimmer with knowledge of the risks of swimming chooses to swim unsupervised, the risks he incurs are the result of his decision and not of the permission given to him to swim. And it follows that those risks are not the result of the conduct by the employer of his undertaking, and the employer is not liable to be convicted of an offence under that provision.

This conclusion is consonant with the application of the Act to risks arising both from an employer’s activities and the “risks attributable to … the condition of premises” used for the purposes of his undertaking: section 1(3). As the decision of the House of Lords in Tomlinson and the judgment of Lord Phillips MR in Donoghoe show, the risks incurred by adult swimmers who choose to swim in the Mixed Pond, if it has no hidden dangers (and it is not suggested that it has) are not attributable to the condition of the Pond, but to the decision of the swimmers to swim in it.

The meaning of the words “so far as is reasonably practicable” was authoritatively considered by the House of Lords in Austin Rover Group Ltd v H.M. Inspector of Factories [1990] 1 AC 619. It held that the relevant factors are the foreseeable risk of injury and the cost of the preventive measures. The decision of the House of Lords in Tomlinson cannot be held to have affected that decision.

The preventive measures that must be taken must relate to a relevant risk. In the case of section 4 of the 1974 Act, that risk arises from the lack of safety of the premises. In the case of section 3, the relevant risk arises from the conduct by the employer of his undertaking. If the conduct of the undertaking does not create a relevant risk, the question of reasonably practicable precautions does not arise.

Since a permission by the Corporation to adult able swimmers to swim in the Mixed Pond does not, as I have held, create a relevant risk, it follows that the question of reasonable precautions does not arise.

I stated above that I should consider not only the individual components of section 3 but also the interpretation of the section as a whole. The result of the above analysis is, in my judgment, just and sensible. The swimmers will be under no compulsion or pressure to incur the risks involved in self-regulated swimming. They will do so of their own free will. The criminal law respects the individual freedom upheld by the House of Lords in Tomlinson.

The resolution of 26 July 2004 was based on a legal error. The Corporation’s grant to the Club of permission to swim unsupervised in the Mixed Pond will not of itself render it liable to prosecution under section 3 of the 1974 Act.

As requested by the parties, the order to be made by the Court in consequence of my judgment will be considered after the parties had had an opportunity to consider this judgment.