Connors Building & Restoration Ltd, R v

A decision by the Health and Safety Executive to prosecute may be stayed for abuse of process only in exceptional circumstances. A breach of enforcement guidance does not by itself establish abuse; the defendant must also show misconduct or oppression. General regulatory duties do not alter that standard, and the growth duty does not apply to the institution of criminal proceedings.

Prosecution may be proportionate for a serious health and safety breach causing serious injury, even if an alternative enforcement measure could also have been available. Speculative assertions that conviction may harm a business or its employees do not establish oppression.

The appellant company was convicted at Liverpool Crown Court of failing to comply with section 2(1) of the Health and Safety at Work Act 1974, after an employee suffered serious injury while using a rip saw.

Before trial, the company applied to stay the prosecution as an abuse of process. It contended that the Health and Safety Executive had failed to give adequate weight to the likely loss of its principal contract and consequent unemployment, and should have used an Improvement Notice rather than prosecution. The trial judge refused the stay.

The company appealed against conviction, alleging that the prosecution was contrary to the regulator's policies, disproportionate, Wednesbury unreasonable and oppressive. The central issue was whether the decision to prosecute was capable of amounting to an abuse of process.

1. Appeal dismissed. The judge was entitled to refuse to stay the prosecution. The company had not established an abuse of process, and its conviction was not unsafe.

2. Decisions to prosecute are ordinarily for the prosecuting authority. Under R (Corner House Research) v Serious Fraud Office [2009] 1 AC 756, a court interferes only exceptionally. A challenge to the proportionality of a prosecution must normally be pursued before the criminal court by an application for a stay, not by judicial review.

3. A failure by an independent prosecutor to comply with guidance or policy does not, without more, establish abuse. The defendant must show misconduct or oppression of the kind identified in Ex parte Bennett [1994] 1 AC 42. The same approach applies to an HSE prosecution. It would be undesirable and anomalous for a wider standard of review to apply to the HSE than to the CPS.

4. The general regulatory principles in sections 21 to 24 of the Legislative and Regulatory Reform Act 2006 did not alter the law of abuse of process. Further, the decision to prosecute was a function of instituting criminal proceedings. It was therefore excluded from the growth duty under section 108 of the Deregulation Act 2015.

5. On the facts, the HSE had complied with its policies. It was entitled to regard the breach as serious, given the extreme risk gap, the available safety guidance and the serious injury caused. It had considered the asserted business consequences, but those consequences were speculative. The evidence did not establish that conviction would cause closure or loss of employment.

6. Prosecution was not rendered disproportionate merely because an Improvement Notice might also have been available. Such a notice would not adequately address the public-interest considerations arising from a serious offence causing serious harm. A reasonable alternative enforcement course does not itself make the chosen prosecution abusive. The company's claimed economic consequences did not demonstrate oppression.

1. Court of Appeal (Criminal Division): In [2020] EWCA Crim 868, dismissed the company's appeal against conviction and upheld the refusal to stay the prosecution for abuse of process.

2. Crown Court at Liverpool: On 20 August 2019, convicted the company under section 2(1) of the Health and Safety at Work Act 1974. On 7 October 2019, imposed a fine, prosecution costs and a victim surcharge. The trial judge had refused the company's application for a stay on 10 July 2019.