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. Intervention may be justified for an unlawful policy, failure to follow the authority’s settled policy, perversity, or a fundamental error of law, including failure to understand or apply the relevant law.

In assessing whether prosecution is justified, the authority may evaluate the evidence in the round and assess realistically the prospects of conviction. Under section 3 of the Health and Safety at Work etc. Act 1974, the adequacy of an employer’s system for identifying and remedying risks, and evidence of an employee’s relevant act or default, may be central where the immediate danger was created by an unauthorised third party.

The claimant sought judicial review of the HSE’s decision not to prosecute Islington or Hyde Housing Association under section 3 of the Health and Safety at Work etc. Act 1974 after her son died when a heavy security door fell on him in communal premises.

The HSE had investigated the accident, reviewed the decision through its legal review team, and applied the evidential and public-interest stages of the Code for Crown Prosecutors. It concluded that the evidence did not establish a realistic prospect of conviction. The central issues were whether the HSE had misunderstood section 3, section 40 and regulation 21, whether it had assessed the risk and evidence lawfully, and whether its reasons were irrational or inadequately explained.

1. The claim was dismissed. The HSE’s decision not to prosecute was reasonably open to it.
2. The court adopted the established approach that judicial review of a prosecuting authority’s decision is sparingly exercised. Review may be available where the authority acts pursuant to an unlawful policy, fails to follow its own settled policy, reaches a perverse decision, or makes a fundamental error of law, such as misunderstanding or misapplying the relevant statutory provisions.
3. The HSE was entitled to apply the Code for Crown Prosecutors’ evidential test and to decide whether there was a realistic prospect of conviction. The assessment of the evidence and likely defences was primarily for the prosecuting authority, whose expertise in predicting the outcome of a criminal trial was entitled to substantial weight.
4. In this case, the critical questions were whether the defendants had a system for identifying and remedying relevant 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. The HSE was entitled to assess those questions on the evidence in the round.
5. The uncertainty whether the door which caused the death was the same door identified as off its hinges months earlier materially weakened the prosecution case. The HSE was also entitled to consider the differing positions of the door, the degree of risk associated with each position, and witnesses’ perceptions of safety. Those perceptions could affect the likely evidence at trial and were relevant to the adequacy of the systems and, where applicable, regulation 21 of the Management of Health and Safety at Work Regulations 1999.
6. The HSE had not unlawfully treated the door as safe merely because it was laid flat or on its side. Nor had it acted irrationally in concluding that the evidence did not establish an ineffective system or an employee’s relevant default. That conclusion defeated both the causative prosecution and the proposed technical offence under section 3(1).
7. Although the HSE bore a heavy responsibility when deciding whether not to prosecute after the death of a child, the emotional circumstances did not justify intervention where the decision was supported by cogent evidence and was lawfully open to the authority.

First-instance judicial review proceedings in the Administrative Court. The claim challenging the HSE’s decision not to prosecute was dismissed.