In this post, Helen Longworth summarises the decision in R v Connors Building and Regulations Ltd. This decision considers abuse of process arguments in HSE prosecutions. Helen is a member of the Specialist Regulatory Advocates panel.
In a judgment handed down on 1st July 2020, Lord Justice Flaux set out that the same standard of review in abuse of process applications applies in decisions by the Health and Safety Executive (HSE) and those decisions by the Crown Prosecution Service (CPS) (see paragraph 23). It is not sufficient for such an argument simply to show a breach of policy, oppression must also be shown. Public interest factors are based on the facts of the case, the fact that an alternative method of enforcement exists does not render prosecution an abuse, nor are the local unemployment figures a relevant public interest factor as that could reduce the enforcement protection available to workers in such areas.
On 2nd June 2017, whilst operating a rip saw in the new joinery room, an offcut piece of wood impaled the right leg of an employee, Mr Daley. He had not lowered the guard on the saw or used the stand provided to catch off cut timber. At the trial, the experts agreed the accident would not have happened had he taken these precautions. His nerve and main artery were damaged, he spent six days as an inpatient, was unable to walk unaided for 16 weeks and was left with a limp and shooting pains which are expected to last for the rest of his life.
Mr Daley returned to work at the end of August 2017 and was still taking painkillers two years later. The matter was investigated by the HSE. In April 2018, the HSE inspector Catherine Lyon completed her report and recommended prosecution to Helen Jones, the principal inspector of Health and Safety. Before the trial, the appellant argued that the prosecution was not in the public interest, was disproportionate, and that they would lose their contract with their only customer, Scottish Power.
At the trial heard by HHJ Brandon at Liverpool Crown Court, the appellant company was convicted of failing to comply with Section 2(1) of the Health and Safety at Work Act 1974.
Abuse of process application
An application to stay the case as an abuse of process was made and refused by the learned judge on 10th July 2019. The judge considered the HSE's Enforcement Policy Statement (“EPS”), Enforcement Management Model (“EMM”), the Approved Code of Practice for the Provision and Use of Work Equipment Regulations (“ACoP”), and the Code for Crown Prosecutors. Ms Jones had assessed the “risk gap, which compares the actual risk in the circumstance and the benchmark risk had it been controlled to an acceptable standard. The risk gap was assessed as “extreme”; a serious breach resulting in serious injury. In such circumstances, prosecution is one of the enforcement options open to the HSE, as is issuing an Improvement Notice. The appellant submitted that the company would lose their Scottish Power contract but had not presented any evidence other than the belief of the managing director that the contract would be lost or that ,but for the prosecution, the company would be successful in tendering for the contract. The judge found that it was not Wednesbury unreasonable to prosecute and that, therefore, the prosecution was not an abuse of process. That it was open to customers to reconsider a business relationship was an ordinary consequence of prosecution, not oppression.
The appeal was based on a submission that the judge had erred in that refusal. There were four grounds, set out at paragraph 13 of the judgment. They were:
(1) That the judge erred in concluding that the prosecution had fully complied with the EPS in reaching the decision to prosecute, in particular in failing to take any or adequate notice of the consequences of a prosecution for the appellant and its employees.
(2) That the judge erred in finding that the closure of the appellant which would be the likely result of conviction was not oppressive.
(3) That the judge erred in finding that the decision to prosecute was not Wednesbury unreasonable in the sense that it served no purpose and that it was very much against the public interest that the appellant cease to trade. No reasonable prosecutor could have made the decision to prosecute in possession of all the known facts.
(4) The judge erred in concluding that the consequences of conviction for the appellant were properly matters of mitigation. The level of penalty was of no consequence as conviction would likely lead to loss of the Scottish Power contract and subsequent closure.
Lord Justice Flaux dismissed the appeal on all grounds. An abuse of process in the Crown Court is confined to cases where the prosecution has acted in a way that prevents he fair trial of the accused or, more rarely, where the circumstances are such that it would be unfair to try the accused. The learned judge reiterated the rule in R (Corner House Research) v Serious Fraud Office  1 AC 756, that only in exceptional cases will the Court disturb the decisions to prosecute of an independent prosecutor. That decision can only be challenged through an abuse of process argument, not judicial review, the judge giving the example of Moss & Sons Ltd v CPS  EWHC 3658 (Admin). At paragraph 18, Flaux LJ set out that it is “also clear that to establish abuse of process it is not sufficient to establish a breach of the relevant guidance or policy. The defendant must go on and establish misconduct or oppression of the type explained in Ex parte Bennett  1 AC 42: see R v A  EWCA Crim 434 at  per Lord Judge, CJ and  of the judgment of the Divisional Court in Moss.” It is “highly undesirable” for there to be a difference standard of review for decisions depending on who is prosecuting, whether that be the HSE or the CPS.
The prosecutor submitted that there was no breach of policy and that the HSE did consider the economic impact of prosecution in making the decision to prosecute. The Appellate Court agreed with this. The trial judge was right to find that the submissions that the Scottish Power contract would be lost were speculative, and was vindicated as the contract was awarded a Scottish Power contract for a further four years, despite awareness of the prosecution. The company did stay in business and the workforce were retained. Ground 4 was based on misreading the judgment of HHJ Brandon, who was by that stage adding that the consequences of conviction were a matter for mitigation, not for the jury as is the standard rule.
Flaux LJ considered the proportionality of prosecution in the public interest issues from paragraph 37 onwards. It is a factual issue, dependent on the circumstances. In this case, an Improvement Notice would not meet the public interest in enforcement as the saw had been removed. It is right that, just because another option is available, it does not render prosecution an abuse of process (referring to Wandsworth LBC v Rashid  EWHC 1844 (Admin), and paragraphs 44-45 of Moss). Being placed at medium culpability, category 3 harm in the sentencing guidelines does not rebut that it was a serious breach causing serious harm. Local unemployment figures are not a public interest factor militating against prosecution as that would lead to inconsistencies and to a reduction in protection for workers in areas of high unemployment.