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

The claimant sought judicial review of the Health and Safety Executive's decision not to prosecute the London Borough of Islington or Hyde Housing Association for offences under section 3(1) of the Health and Safety at Work etc. Act 1974 arising from the death of her son. The court considered whether the HSE had applied the correct legal tests (including the Code for Crown Prosecutors), whether it had misunderstood or misapplied section 3 and regulation 21 of the Management of Health and Safety at Work Regulations 1999, and whether the decision was one no reasonable prosecutor could reach.

The judge held that the HSE had properly assessed the adequacy of the defendants' systems for identifying and remedying hazards, had reasonably concluded that the evidence did not establish that the specific door that caused the death was the same door noted months earlier, and had applied the evidential test correctly. The court rejected arguments that the HSE had misdirected itself on absolute liability under section 3, on the admissibility of witness perceptions, or that the HSE’s later reasons were inadmissible ex post facto rationalisations. Accordingly the application for judicial review was dismissed.

Background and parties: The claimant applied for judicial review of the Health and Safety Executive's decision, communicated by letter and at a review meeting, not to prosecute the London Borough of Islington or Hyde Housing Association after the death of the claimant's twelve-year-old son on 8-13 September 2000 when a heavy communal door fell on him. The Estate had been subject to significant vandalism and Hyde had taken over maintenance on 3 July 2000.

Nature of the claim: The claimant sought review of the HSE's refusal to prosecute under section 3(1) of the Health and Safety at Work etc. Act 1974. She alleged legal errors in the HSE’s decision-making, inadequate reasoning, and that the HSE misapplied statutory provisions (including the alleged absolute character of the offence under section 3 and the effect of regulation 21 of the Management of Health and Safety at Work Regulations 1999).

Procedural posture: First‑instance judicial review in the Administrative Court. The HSE had conducted an investigation, an internal review by HSE lawyers applying the Code for Crown Prosecutors, and a meeting with the claimant before confirming the decision not to prosecute. The claimant then sought judicial review.

Issues framed by the court:

• Whether the HSE lawfully applied the legal tests and relevant statutory provisions (section 3, section 40 and regulation 21).
• Whether the HSE gave adequate reasons and properly exercised prosecutorial discretion under the Code for Crown Prosecutors.
• Whether the evidence provided a realistic prospect of conviction, in particular whether the door that caused the death was the same door noted as off its hinges in June 2000.
• Whether the HSE had taken into account inadmissible matters or misdirected itself as to the nature of the offence (absolute liability) or the relevance of witness perceptions.

Court’s reasoning and conclusions: The court held that the HSE had considered the law and evidence in the round, applying the Code for Crown Prosecutors' two-stage test (evidential and public interest). The HSE reasonably concluded there was insufficient evidence to prove the necessary facts for a realistic prospect of conviction: most critically, it was not established that the door causing the death was the same door noted in June 2000 and present continuously thereafter. The HSE had also properly examined the adequacy and operation of the maintenance and repairs system and took into account likely lines of defence (including witness evidence that doors in certain positions were perceived as safe). The judge found that those assessments were within the range of reasonable prosecutorial judgment and not perverse. The court also accepted the HSE’s explanations given after the decision as genuine reasons rather than inadmissible post hoc rationalisations. The judge noted that judicial review of decisions not to prosecute is to be exercised sparingly and that special caution is warranted when the only likely offence is a "technical" one not causative of the death.

The application for judicial review is dismissed. The HSE had lawfully and reasonably applied the Code for Crown Prosecutors and relevant statutory provisions. The decision not to prosecute was a conclusion open to the prosecuting authority because the evidence did not provide a realistic prospect of conviction (notably because it did not clearly establish that the door causing the death was the same door observed in June 2000 and because the defendants had systems that were, on the evidence, as effective as reasonably practicable in difficult circumstances).