WATER ? Water supply ? Contamination ? Defendant charged with offences of having connected water fittings in such manner as was ?likely to cause? contamination of water supplied by water undertaker ? Justices taking into account both the actual likelihood of contamination and severity of the consequences of contamination ? Defendant convicted ? Whether ?likely to cause? contamination connoted probability or real possibility ? Whether severity of consequences relevant in assessing likelihood ? Water Supply (Water Fittings) Regulations, reg 3(2)(i)

QBD: Dyson LJ, Tugendhat J: 10 December 2009

For a water undertaker to prove that a water fitting had been connected by a person in such a manner that it was ?likely to cause contamination? of water supplied by the water undertaker pursuant to reg 3(2) of the Water Supply (Water Fittings ) Regulations 1999 the water undertaker had to show that there was a real possibility that the manner of connection of the water fitting would cause contamination.
The Divisonal Court of the Queen?s Bench Division so held, dismissing the appeal by way of case stated of the defendant, Michael Hubert Wallis, against convictions for a total of six offences under reg 3(2)(i) of the 1999 Regulations. The allegations made against the defendant by the water undertaker, Bristol Water plc, were that five ?hose union? taps and one udder wash located in the diary, the old diary and the parlour of the defendant?s farm were connected in such a manner that was likely to cause contamination of water supplied by the water undertaker. The justices had ruled that the phrase ?likely to cause contamination of the water supply? had to take into account both the actual likelihood of the event and the severity of the consequences, finding that whilst the probability of such an event from any individual, non-compliant installation might not be great, the consequences of such an event had the potential to be catastrophic to public health, and that therefore the defendant?s water fittings were likely to cause contamination of the water supply. On the defendant?s appeal the court was asked to consider, inter alia, whether the justices had been entitled to find that the defendant?s water fittings were likely to cause contamination of the water supplied by the water supplier and whether the justices had correctly applied the criminal standard in their interpretation and application of the 1999 Regulations.
TUDGENDHAT J said that the word ?likely? had a range of meanings and the one that was applicable depended on the context and in the case of legislation the mischief which the legislature intended to address. The word could mean ?probable? (see, in the context of a penal statute, Parkin v Norman [1983] 1 QB 92) or it could mean ?a real possibility, a possibility that cannot be sensibly ignored having regard to the nature and gravity of the feared harm in the particular case.?: see, in the context of a non-penal statute, Lord Nicholls of Birkenhead in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. In the present case ?likely? was being used in the sense of a real possibility which could not sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case. In saying that the word ?likely? had to take into account both the likelihood of the event and the severity of the consequences the justices were approaching the legislation consistently with the guidance of Lord Nicholls in In re H (Minors) and had not erred.
DYSON LJ, concurring, said that reg 3(2) of the 1999 Regulations was made to provide health protection against the severe results of contamination of water. The principle that any ambiguity in a penal statute should be resolved in favour of a defendant was not an immutable proposition of law and in this case the term ?likely? meant a ?real possibility? that the water fittings were likely to cause contamination.
Appearances: David Travers (instructed byClarke Willmott LLP, Taunton) for the defendant; Ian Dixey (instructed byBond Pearce LLP, Bristol) for the water undertaker.
Reported by: Jessica Giles, solicitor.