Health and Safety Executive, R (on the application of) v Chester Crown Court

A costs order under section 19 of the Prosecution of Offences Act 1985 requires more than an unsuccessful prosecution or ordinary unreasonableness. The prosecution must involve starkly improper conduct, generally shown by a clear and exceptional error such that no reasonable prosecutor would have proceeded. The assessment must consider the whole evidential picture, including material that was reasonably available and should have been obtained. The Administrative Court may review such a costs order, including its quantum, where doing so does not delay or impugn the criminal trial, verdict or sentence. Review remains subject to the stringent irrationality standard.

The Health and Safety Executive sought permission to judicially review a costs ruling made by HHJ Everett, sitting at Chester Crown Court. The ruling required the HSE to pay Falcon Tower Crane Services Limited costs of £587,382.76 after the prosecution was discontinued during trial and not-guilty verdicts were directed.

The Crown Court held that the HSE had engaged in unnecessary or improper conduct by prosecuting despite evidence which showed, or should have shown, that Falcon had appointed an Appointed Person for the crane-erection work. The HSE challenged both the jurisdictional basis for the costs order and the amount awarded. Permission was refused on the papers and renewed before the Administrative Court.

1. Permission refused on both grounds. The HSE’s challenge to the Crown Court costs ruling was not arguable.
2. Section 19 of the Prosecution of Offences Act 1985 imposes a high threshold. The relevant question is impropriety, not merely unreasonableness. The conduct must be starkly improper, ordinarily involving a clear and stark error, and the circumstances must be rare or exceptional. The fact that a prosecution fails does not itself justify an order.
3. The Crown Court judge applied those principles. He undertook a careful, holistic assessment of the evidence available to the HSE when it decided to prosecute and of evidence which a reasonable prosecutor could and should have obtained. His conclusion that no reasonable prosecutor would have commenced or maintained the prosecution was rationally open to him.
4. The judge was entitled to assess witness statements and documentary evidence collectively when deciding whether the prosecutorial decision was proper. He did not impermissibly substitute his own credibility findings for those of the prosecutor. The relevant issue was whether the evidential picture, taken as a whole, made the prosecution improper.
5. The court rejected the challenge based on the reverse burden of proof. The judge was aware of that issue and understood that the prosecution had proceeded on the central allegation that Falcon had no Appointed Person.
6. Under section 29(3) of the Senior Courts Act 1981, the Administrative Court had jurisdiction to review the costs order. Following the approach in R (Exolum Pipeline System Ltd) v Crown Court at Great Grimsby [2023] EWHC 2811 (Admin), review of quantum did not offend the statutory restriction because it did not delay the trial or impugn a verdict or sentence, particularly since the costs had already been paid.
7. The amount awarded was not irrational or unreasonable in the relevant public-law sense. The Crown Court judge considered the parties’ submissions and was entitled to conclude that the full sum reasonably compensated Falcon for costs actually, reasonably and properly incurred.

The application to rely on part of the Coroner’s findings was refused because the proposed evidence concerned only how Mr Ridgway introduced himself and did not materially assist with the wider issue.

• Chester Crown Court: HHJ Everett ordered the HSE to pay Falcon’s costs of £587,382.76 under section 19 of the Prosecution of Offences Act 1985.
• High Court (Administrative Court): Permission was refused on the papers by HHJ Stephen Davies on 1 October 2025. On renewal, the present court refused permission on both grounds.