Pullen, R (On the Application Of) v Health & Safety Executive

A decision by a prosecuting authority not to prosecute is amenable to judicial review, but review is exercised sparingly. The court may intervene where the authority applies an unlawful policy, departs from its own settled policy, acts perversely, misunderstands the law, or fails to explain its reasoning adequately. The authority must assess whether there is a realistic prospect of conviction, including the likely effect of the evidence and possible defences. It may assess the evidence in the round and need not leave factual issues for a criminal trial. Where the alleged risk results from vandalism or another unauthorised third party, the authority may properly consider whether the defendant had a reasonably practicable system for identifying and remedying risks, and whether there is evidence of employee default. A decision not to prosecute was therefore reasonably open to the HSE.

The claimant sought judicial review of the HSE’s decision not to prosecute Islington or Hyde Housing Association under the Health and Safety at Work etc. Act 1974 after her twelve-year-old son died when a heavy communal security door fell on him. The HSE concluded that the evidence did not establish that the door involved in the accident was the same door previously reported as defective, or that either defendant’s maintenance system was less effective than reasonably practicable. It also concluded that there was no realistic prospect of conviction for either the fatal or technical form of breach of section 3(1). The central issue was whether the HSE’s decision was unlawful, irrational, inadequately reasoned, or based on a misdirection of law.

1. Claim dismissed. The HSE’s decision not to prosecute was reasonably open to it.
2. Judicial review of a decision not to prosecute is available where the authority has applied an unlawful policy, failed to follow its own settled policy, acted perversely, or otherwise misunderstood or misapplied the law. The court must not set the standard of review so high that an effective remedy is denied, but prosecuting authorities possess relevant professional expertise and their assessment of evidence and likely trial outcomes attracts substantial respect.
3. The HSE was entitled to take Mr Wright’s witness statement into account. Reasons had been given informally at meetings, and there was no reason to doubt that the later statement genuinely explained the reasons for the decision.
4. In the unusual circumstances of this case, the alleged risk arose initially from vandalism rather than from an operation created by either defendant. The relevant inquiry was whether the defendants had a system for identifying and remedying risks which was as effective as reasonably practicable, and whether there was sufficient evidence of a relevant act or default by an employee or contractor.
5. The HSE was entitled to assess the evidence in the round. It could consider the uncertainty about whether the accident door was the door reported in June, the results of the July inspection, the subsequent movements of doors, the degree of risk presented by different positions, and witnesses’ perceptions of safety. Those perceptions were relevant to the likely evidential case, the adequacy of the defendants’ systems, and, where relevant, Management of Health and Safety at Work Regulations 1999 regulation 21.
6. On the HSE’s assessment, the defendants had systems which were as effective as reasonably practicable in the difficult circumstances of the estate, and there was insufficient evidence of employee fault. The HSE could reasonably conclude that there was no realistic prospect of conviction for the technical offence, and therefore no basis for judicial review.
7. The court added that judicial review should be approached with greater caution where the only probable offence is technical and the HSE has cogent grounds for concluding that the defendants did everything reasonably practicable to address dangers caused by vandalism.