Wallis v Bristol Water Plc

1. LORD JUSTICE DYSON: I will ask Tugendhat J to give the judgment of the court.

2. MR JUSTICE TUGENDHAT: This case concerns the meaning of the word "likely" as it appears in regulations creating an offence, in particular Regulation 3(2) of the Water Supply (Water Fittings) Regulations 1999, SI 1148. These regulations make provision for the prevention by a water undertaker of contamination of water. The purpose is to protect the health of the public.

3. By Regulation 3(2) it is provided that:

"No water fitting shall be installed, connected arranged or used in such a manner that it causes or is likely to cause-

(i) waste, misuse, undue consumption or contamination of water supplied by a water undertaker ..."

4. In paragraph 1 of Schedule 2 there are definitions. "Backflow" means flow upstream, that is, in a direction contrary to the intended normal direction of flow within or from a water fitting. "Contamination" includes any reduction in chemical or biological quality of water due to a change in temperature or the introduction of polluting substances.

5. By Regulation 7(1)(a) it is provided that a person who contravenes any of the provisions of Regulation 3(2) is guilty of an offence. By Regulation 4, it is provided that:

"(3) Every water fitting shall comply with the requirements of Schedule 2 to these Regulations as it applies to that fitting.

(4) Where any requirement of Schedule 2 relates to a water system, every water fitting which forms part of that system shall be fitted or, as the case may be, altered or replaced so as to comply with that requirement."

6. There is provision to avoid the regulations having retrospective effect. Regulation 2(4) provides:

"Nothing in these Regulations shall require any person to remove, replace, alter, disconnect or cease to use any water fitting which was lawfully installed or used, or capable of being used, before 1st July 1999."

7. But under the heading "Backflow prevention", Schedule 2, paragraph 15 provides:

"(4) Backflow prevention shall be provided on any supply pipe or distributing pipe- ...

(b) where the water undertaker has given notice for the purposes of this Schedule that such prevention is needed for the whole or part of any premises.

(5) A backflow prevention device is adequate for the purposes of paragraph (1) if it is in accordance with a specification approved by the regulator for the purposes of this Schedule."

8. There are five categories of water under the regulations which are defined in Schedule 1. Fluid category 1 is Wholesome water supplied by a water undertaker or licensed water supplier and complying with the requirements of regulations made under section 67 of the Water Industry Act 1991. Fluid category 5 is "Fluid representing a serious health hazard because of the concentration of pathogenic organisms, radioactive or very toxic substances, including any fluid which contains- (a) faecal material or other human waste; (b) butchery or other animal waste; (c) pathogens from any other source."

9. The case stated records that on 20 November 2008 an information was preferred against the appellant that he had contravened Regulation 3(2)(i) in six respects. The first question in the case raises a point which is common to each of the six charges, and for that purpose it is sufficient to read the first:

"On 28/05/2008 at Brittons Farm being the owner thereof did contravene requirements of the Water Supply (Water Fittings) Regulations 1999, as follows: the hose union tap in the old dairy on the farm used for non-domestic purposes in an area exposed to a fluid category 5 risk had no backflow prevention contrary to paragraph 15 of Schedule 2 to the Regulations and was thus connected in such a manner as to be likely to cause contamination of water supplied by Bristol Water plc contrary to Regulation 3(2)(i) of the Water Supply (Water Fittings) Regulations 1999."

10. The case continues as follows, save that I omit passages which refer to non-statutory guidance material which was before the justices.

"We heard the said information on the 24th and 27th days of April 2009 and found the following facts.

a. The appellant's working dairy farm was surveyed by the respondent on 14 May 2007 and found to have five hose union taps (HUTs), in agricultural premises, namely the dairy, the old dairy and the parlour. At the time of inspection, no hoses were connected to any of the HUTs. Those buildings were not being used for animal occupation, were dry and contained no animal slurry.

b. The udder wash was in agricultural premises, namely the dairy and was flexible and capable of being moved so that the outlet could make contact with surrounding walls.

c. The udder wash was not used at the time of inspection and was not tested to see if it was connected to the mains. The stock tap was turned off. It was subsequently disconnected by the appellant following advice from his expert.

d. The contamination risk in each location was of Fluid Category 5 because pathogenic organisms are presumed to be present in cow excreta.

e. The appellant was given notice on 22nd May 2007 that action was required to bring this equipment into conformity with the regulations [that is a reference to Schedule 2, paragraph 15(4)(b)].

f. On 28th May 2008, inspection by the respondent found that the appellant had not taken action to bring the equipment into conformity with the regulations.

3. It was contended on behalf of the appellant that:

a. The HUTs and udder wash were not 'connected in such a manner as to be likely to cause contamination'.

b. There was no likelihood of contamination as there were no cow excreta in any of the buildings.

c. There was adequate backflow protection appropriate to a risk of category 5.

d. The AUK3 air gap backflow protection is present where an HUT, fed directly from the mains, is located at least twice the bore diameter, or 20mm, whichever is greater, above the floor, or highest fill level of any receptacle beneath it.

e. The AUK3 air gap is maintained by the appellant's actual use of the fitting, either by not attaching a hose or by attaching a hose that does not reach within the stipulated distance of the floor, and by not placing any such hose in a receptacle that could fill to a level creating a risk of backflow.

f. The Regulations do not outlaw the use of hoses in agriculture premises ...

h. Devices are readily available to enable a hose to be connected to a standard bib tap; the use of standard bib taps does not preclude the possibility of a hose being connected.

i. The regulations do not apply to the udder wash because it was lawfully installed before the Regulations came into force in 1999.

j. The udder wash was adequately protected from backflow by means of an isolating stop tap. There was no evidence on which to base a finding that the udder wash was connected to the mains on the day of inspection.

4. It was contended on behalf of the respondent that:

a. The regulations provide, inter alia for the prevention of contamination of water supplied by the respondent as a water undertaker and regulation 3 makes it an offence to install, connect, arrange or use a water fitting so as to cause or be likely to cause such contamination.

b. The respondent has a statutory duty to enforce the Regulations and would itself be liable to enforcement action if it failed to do so ...

c. The dangers of contamination of the public water supply by backflow of pathogenic organisms were very great, and incidents giving rise to the risk of backflow were a common occurrence. An analysis of data collected over 2003/2004 in the Bristol Water area, showed that the conditions under which contamination can happen are present on average 42 times a day, 365 days a year.

d. The requirement for AUK3 air gap backflow protection to an HUT where the contamination risk is Fluid Category 5, requires that tap to be fed from a cistern, itself fed by an inlet pipe arranged so that the approved (AUK3) air gap is maintained above the highest water level in the cistern, rather than being fed directly from the main water supply.

e. It is immaterial whether or not a hose was observed by the respondent to be attached to any of the HUTs. The requirement for an AUK3 air gap applies whether or not a hose is attached.

f. The assurance of the appellant that he would not attach a hose did not enable him to avoid the Regulations as the taps remained connected and were available for use. The taps needed to be removed, replaced with taps which were not designed to be used with a hose, or the threaded sections removed with a hacksaw. The respondents could not inspect premises regularly to monitor that no hose was in use and any assurance by the appellant would not be binding on future owners if the premises changed hands.

g. An isolating stop tap did not provide adequate backflow protection for the udder wash because as soon as it was turned on there would be direct connection to the mains water supplied.

5. We were not referred to any cases.

6. We were of the opinion that:

a. The Regulations require that where the contamination risk is of Fluid Category 5 and the HUTs are fitted, mechanical backflow protection (a valve) is not adequate; an AUK3 air gap, of at least twice the pipe bore diameter, or 20mm, whichever is greater, is required.

b. The dangers of contamination of the public water supply by backflow of pathogenic organisms from cow excreta are extremely high. Whilst the probability of such an event from any individual, non-compliant installation might not be great, the consequences of such an event have the potential to be catastrophic to public health. The phrase, "... likely to cause contamination of the water supply" has to take into account both the actual likelihood of the event and the severity of the consequences ...

d. The appellant's contention that the water supply is protected because he would not attach a hose that came within 24mm of the floor is wrong. A greater level of protection is required. The purpose of the Regulations is to reduce exposure to risk to the public water supply by preventing dangerous installations. It is not adequate protection that the appellant asserts that he would not attach a hose that would come too close to the floor, because there can be no credible assurance that the appellant will always be present and able to supervise the use of HUTs. Any other person not having knowledge of the dangers of backflow is likely, in the absence of the appellant, to see the HUT and attach a hose to it, thereby creating a danger of backflow and contamination. The respondent has no reasonable, practical ability to monitor the use of the HUTs and so the only effective way of preventing a dangerous installation is to not allow HUTs, directly connected to the mains, in such locations ...

f. The udder wash may have been lawfully installed by pre-1999 standards and the Regulations do not act retrospectively, but paragraph 15(4) of Schedule 2 of the Regulations allows the water undertaker to give notice that backflow prevention is needed on any supply or distribution pipe. The respondent's decision to give such a notice in respect of the udder wash was supported by the legislation and justified in the circumstances.

g. It was not sufficient protection that the isolation tap to the udder wash be turned off, as it could be turned back on again.

h. We were satisfied so that we were sure the appellant's water fittings were likely to cause contamination of the water supply on 28 March 2008, and accordingly we found the appellant guilty of the six offences. We imposed fines of £500 for each offence, the victim surcharge of £15, and costs to the respondent of £6,500.

Questions

7. The questions for the opinion of the High Court are:

a. Were we entitled to find that, on 28 May 2008, the appellant's HUTs were likely to cause contamination of the water supply by Bristol Water because they were designed for the purpose of having a hose attached to them and lacked backflow protection?

b. Having found that the udder wash may have been lawfully installed prior to 1 July 1999, were we entitled to find that the statutory defence contained within Regulation 2(4) of the Regulations do not apply in the appellant's case because the water undertaker (Bristol Water) had given notice under Schedule 2, Paragraph [15](4)(b) of the Regulations that the backflow protection was required?

c. Did we correctly apply the criminal standard in our interpretation and application of the Regulations?"

11. For the appellant, Mr Travers submits clearly and concisely that the justices erred in concluding that the fittings were connected in such a manner as to be likely to cause contamination - "likelihood" being an essential ingredient of the offence. What the justices have done, he submits, is run together the seriousness of contamination of the water supply with the possibility of contamination. He submits that, in particular, in paragraph 6.b it was irrelevant and they should not have taken into account the consequences because the consequences did not affect the probability of an event occurring one way or the other. He submits that, in taking into account the consequences, they did not apply the proper approach to a criminal statute, and did not apply the criminal standard of proof to reach the conclusion that they reached.

12. For the respondent, it is submitted that the justices were correct and that there was evidence upon which they could come to the conclusion that they did. These submissions as to the meaning of the word "likely" apply to all of the charges. The word "likely" has a range of meanings, and the one that is applicable depends on the context. In the case of legislation, it depends on the legislative purpose, or the mischief which the legislature intended to address.

13. In some criminal statutes the word "likely" does mean "probable". In Parkin v Norman [1983] 1 QB 92, the Divisional Court had to construe the word "likely" as it occurs in section 5 of the Public Order Act 1936, which reads:

"Any person who in any public place ... uses threatening, abusive or insulting words or behaviour ... with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence."

14. In that case counsel submitted that "likely" meant "probably" (see page 97G). At page 98B, the court held:

"Our task is to construe the words of section 5 in the light of the Act as a whole, including its long title, to which reference can properly be made if the words of the section are ambiguous."

15. In that context the court said at page 100:

"It is to be noted that the words of the statute are: 'whereby a breach of the peace is likely to be occasioned' and not 'whereby a breach of the peace is liable to be occasioned'. This is a penal measure and the courts must take care to see that the former expression is not treated as if it were the latter."

16. On the other hand, in the case of Re H (Minors) [1996] 1 AC 563 at page 584, Lord Nicholls considered the meaning of the word in section 31 of the Children's Act 1989. This is not a penal statute, but section 31 is addressed to the risk of child sexual abuse. He said:

"I shall consider first the meaning of "likely" in the expression "likely to suffer significant harm" in section 31. In your Lordships' House Mr. Levy advanced an argument not open in the courts below. He submitted that likely means probable, and that the decision of the Court of Appeal to the contrary in Newham London Borough Council v. A.G. [1993] 1 F.L.R. 281 was wrong. I cannot accept this contention.

In everyday usage one meaning of the word likely, perhaps its primary meaning, is probable, in the sense of more likely than not. This is not its only meaning. If I am going walking on Kinder Scout and ask whether it is likely to rain, I am using likely in a different sense. I am inquiring whether there is a real risk of rain, a risk that ought not to be ignored. In which sense is likely being used in this subsection?

In section 31(2) Parliament has stated the prerequisites which must exist before the court has power to make a care order. These prerequisites mark the boundary line drawn by Parliament between the differing interests. On one side are the interests of parents in caring for their own child, a course which prima facie is also in the interests of the child. On the other side there will be circumstances in which the interests of the child may dictate a need for his care to be entrusted to others. In section 31(2) Parliament has stated the minimum conditions which must be present before the court can look more widely at all the circumstances and decide whether the child's welfare requires that a local authority shall receive the child into their care and have parental responsibility for him. The court must be satisfied that the child is already suffering significant harm. Or the court must be satisfied that, looking ahead, although the child may not yet be suffering such harm, he or she is likely to do so in the future. The court may make a care order if, but only if, it is satisfied in one or other of these respects.

In this context Parliament cannot have been using likely in the sense of more likely than not. If the word likely were given this meaning, it would have the effect of leaving outside the scope of care and supervision orders cases where the court is satisfied there is a real possibility of significant harm to the child in the future but that possibility falls short of being more likely than not. Strictly, if this were the correct reading of the Act, a care or supervision order would not be available even in a case where the risk of significant harm is as likely as not. Nothing would suffice short of proof that the child will probably suffer significant harm.

The difficulty with this interpretation of section 31(2)(a) is that it would draw the boundary line at an altogether inapposite point. What is in issue is the prospect, or risk, of the child suffering significant harm. When exposed to this risk a child may need protection just as much when the risk is considered to be less than 50-50 as when the risk is of a higher order. Conversely, so far as the parents are concerned, there is no particular magic in a threshold test based on a probability of significant harm as distinct from a real possibility. It is otherwise if there is no real possibility. It is eminently understandable that Parliament should provide that where there is no real possibility of significant harm, parental responsibility should remain solely with the parents. That makes sense as a threshold in the interests of the parents and the child in a way that a higher threshold, based on probability, would not.

In my view, therefore, the context shows that in section 31(2)(a) likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case. By parity of reasoning the expression likely to suffer significant harm bears the same meaning elsewhere in the Act; for instance, in sections 43, 44 and 46. Likely also bears a similar meaning, for a similar reason, in the requirement in section 31(2)(b) that the harm or likelihood of harm must be attributable to the care given to the child or "likely" to be given him if the order were not made."

17. In the present case the justices had found at paragraph 6.b that the dangers of contamination of the public water supply by backflow of pathogenic organisms from cow excreta are extremely high. In saying that the word "likely" has to take into account both the likelihood of the event and the severity of the consequences, they were approaching the legislation consistently with the guidance given by Lord Nicholls.

18. In my judgment, "likely" in these regulations is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm to public health in the particular case. This interpretation does not offend against any principle of the criminal law. Parkin v Norman does not require that in all penal measures the court must take care to see that "likely" is not treated as if it meant "liable". As the court said in that case, the court's task is to construe the words of the section in light of the Act as a whole.

19. In my judgment, the answers to questions a and c in the case are therefore to be in the affirmative for the reasons given above.

20. Question b arises only in relation to the udder wash, as appears from paragraphs 3.a and 6.f of the case.

21. For the appellant, Mr Travers emphasises Regulation 2(4), and says that Schedule 2, paragraph 15 is something in these regulations, and so is overridden by Regulation 2(4). For the respondent, Mr Dixey says Regulation 2(4) only applies to requirements which are contained in the regulations themselves, and does not apply to a requirement made in a notice issued pursuant to paragraph 15 of Schedule 2 of the regulations. Otherwise, he submits, there would be nothing that could be done about an installation which was in place before 1 July 1999, but which the water undertaker found to be a danger to public health by reason of the inadequacy of the protection against backflow.

22. In my judgment, the submissions of the respondent are to be preferred. The answer to question b is also in the affirmative. The undertaker had given a notice under schedule 2, paragraph 15(4)(b), and therefore the justices had correctly interpreted the legislation.

23. LORD JUSTICE DYSON: I agree. As Lord Nicholls said in Re H (Minors ) [1996] 1 AC 563 at 584F, the word "likely" can mean "probable or "a real possibility". Which of these meanings the word bears in Regulation 3(2) of the Water Supply (Water Fittings) Regulations 1999 depends on the true interpretation of the provision read in the context of the regulations as a whole. Those regulations are made pursuant to section 74(1) of the Water Industry Act 1991, which, so far as material, provides:

"(1) The Secretary of State may by regulations make such provision as he considers appropriate for any of the following purposes, that is to say—

(a) for securing—

(i) that water in a water main or other pipe of a water undertaker is not contaminated; and.

(ii) that its quality and suitability for particular purposes is not prejudiced,

by the return of any substance from any premises to that main or pipe;

(b) for securing that water which is in any pipe connected with any such main or other pipe or which has been supplied to any premises by a water undertaker or licensed water supplier is not contaminated, and that its quality and suitability for particular purposes is not prejudiced, before it is used ..."

24. Regulation 3(2) is therefore made to provide health protection against contamination, inter alia, of mains water. The magistrates made an important finding at paragraph 6.b of the case:

"The dangers of contamination of the public water supply by backflow of pathogenic organisms and cow excreta are extremely high."

25. Having regard to the health interests at stake and the potential for significant harm in the event of water contamination, in my judgment it is inherently unlikely that Parliament would have intended that the restriction imposed by Regulation 3(2) should be limited to cases where it was more probable than not that contamination of the water supply would occur. In my view, the stated objective of section 74(1) of the 1991 Act and of the regulations shows that the word "likely" is being used in the sense of "a real possibility".

26. Mr Travers submits that, since a breach of Regulation 3(2) is a criminal offence (see Regulation 7(1)(a)), any ambiguity in the meaning of "likely" should be resolved in favour of the appellant since Parliament has not made it clear that it is intended "likely" to connote no more than a real possibility. He submits that it must have intended "likely" to bear the meaning more generous to the appellant of "probable".

27. I cannot accept this submission. It is true that a breach of Regulation 3(2) is a criminal offence, but the statutory purpose of Regulation 2 is the protection of persons against the severe consequences to their health of the contamination of water. That purpose would be substantially undermined if the restriction on the installing, connecting or using of a fitting imposed by Regulation 3(2) only arose if it was more probable than not that it would cause water contamination. I accept that generally any ambiguity in a penal provision should be construed in favour of a putative defendant, but that is not an immutable proposition of law. It is always necessary to have regard to the statutory context and the legislative purpose.

28. For the reasons I have given, taking those into account, I agree with my Lord's interpretation.

29. The case stated does not expressly recognise the different meanings of the word "likely", but it seems to me that the reference in paragraph 6.b to the need to take into account "both the actual likelihood of the event and the severity of the consequences" indicates that the justices considered that the word "likely" did not mean "probable" but meant something less, and although they did not spell it out, it seems to me that they must have had in mind "a real possibility". In my judgment, they were entitled to do so.

30. I would, like my Lord, answer the three questions in the way that he has done. I do not wish to add anything to what he has said in relation to question b.

31. Accordingly, this appeal is dismissed.

32. MR DIXEY: My Lord, I would apply for an order for costs on behalf of the respondents. I have got details that I can provide to the court and to my learned friend. The total figure --

33. LORD JUSTICE DYSON: Are you asking us to assess the costs?

34. MR DIXEY: My Lord, it may be simplest if I do so.

35. LORD JUSTICE DYSON: Sorry, are you asking us to assess the costs or not?

36. MR DIXEY: May I very briefly turn my back and take instructions?

37. LORD JUSTICE DYSON: Yes. (Pause)

38. MR DIXEY: My Lord, I would invite you to assess them.

39. LORD JUSTICE DYSON: We have jurisdiction to do that, do we?

40. MR DIXEY: My understand is that you do, yes.

41. LORD JUSTICE DYSON: Is that accepted?

42. MR TRAVERS: It would have been more helpful to have seen the costs.

43. LORD JUSTICE DYSON: You have not seen them?

44. MR TRAVERS: No.

45. LORD JUSTICE DYSON: Well, you certainly should see them. Let us have a look at them. Do you accept that there is power in this court to assess the costs? Whether we choose to exercise the power is another matter.

46. MR TRAVERS: If I can have a moment to refresh my memory.

47. LORD JUSTICE DYSON: How many copies of your costs summary do you have?

48. MR DIXEY: My Lord, I have a total of three, I think.

49. LORD JUSTICE DYSON: If you give one to Mr Travers and give one to us. We will rise for a moment. Mr Travers can first of all consider whether we have power, and secondly can look at your bill of costs and then we can take it from there.

(Short adjournment)

50. MR TRAVERS: My Lord, the position so far is this. I have not been able to find the power for this court to deal with the matter, as it were, on an open court taxation. The costs are significant, and this is quite a detailed document which would require a deal of attention, it seems to me. Those behind me remind me that the costs below, and I did not appear, claimed by the Crown was £6,500, and for a trial that ran over two days and involved, as trials do, the calling of evidence, including the costs of my learned friend --

51. LORD JUSTICE DYSON: What are you saying? Are you saying that we should not perform a summary assessment in this case?

52. MR TRAVERS: Yes, I invite the court to say costs to be the subject of detailed assessment if we cannot reach agreement.

53. LORD JUSTICE DYSON: Yes, thank you. What do you say to that?

54. MR DIXEY: My Lord, I am in your Lordship's hands. May I make this point about the costs below: the amount that was sought, because this is not only the first prosecution undertaken by the respondents under these regulations, but was considered to be a matter of some importance by them, the actual figure that was asked for was from memory £18,000.

55. LORD JUSTICE DYSON: I can only say we are not going to do a summary assessment, but I should make it quite clear that the view of both of us is that we find the solicitors' fees in this case extraordinary. How they could run up such a bill of costs is very difficult to see. This is a case stated, a question of law, and there really should be no need for solicitors to run up this sort of bill of costs. That would be a matter for detailed assessment if the parties cannot agree, but I do merely make the point that that is our very strong initial reaction to these costs.

56. MR DIXEY: My Lord, I am sure that will be noted.

57. LORD JUSTICE DYSON: Thank you both very much.

58. MR TRAVERS: My Lords, there is one other matter. My Lord has just heard this is the first case under these regulations. The court will be aware that it is likely to cause in various incarnations -- there are a great number of environmental statutes -- it is an issue that touches the agricultural industry and waste management industry and a huge number of sectors of the economy. Against that background I would like the court to consider certifying a point of law of general public importance.

59. LORD JUSTICE DYSON: Well, I think we would be assisted by a formulation from you as to what you say the point is.

60. MR TRAVERS: Indeed. Can I render what I have written just so the court has in mind how I would seek to approach it: "Whether "likely" in Regulation 3(2)(i) of the Water Supply (Water Fittings) Regulations 1999 is to be understood as meaning "probable", or is to be construed in the context of both the probability of an adverse event occurring and the consequences of harm if that event did occur."

61. LORD JUSTICE DYSON: I think we will need to think about that. My immediate reaction is that that does not really sufficiently reflect the judgments that we have just given, but we will certainly think about it. It does seem to me that there is a point of law here. It is a question of formulating it correctly.

62. MR TRAVERS: I make no claim of excellence doing it on the hoof, as it were.

63. LORD JUSTICE DYSON: Fine. Thank you very much. Do you have anything to say about that?

64. MR DIXEY: No, my Lord.

65. LORD JUSTICE DYSON: Thank you. We will communicate our decision, and if we decide to certify, then obviously we will notify the parties of the question that we have certified. If we decide not to certify, then we will give brief reasons as to why not.

66. MR TRAVERS: I am most grateful. Would it be helpful if I were to seek to render that question in a slightly more considered form?

67. LORD JUSTICE DYSON: I think it would be helpful, but we would like it as quickly as possible. When could you do that?

68. MR TRAVERS: My Lord, shall we say this: that by the start of business tomorrow, I will have made another attempt and endeavoured to let the court have that.

69. LORD JUSTICE DYSON: That would be very helpful, and I think you should send a copy to the other side.

70. MR TRAVERS: Of course.

71. LORD JUSTICE DYSON: Thank you.