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

1. In these proceedings the Claimant seeks judicial review of the decision of the Health and Safety Executive (“the HSE”), communicated in a letter dated 9 January 2003 and explained at a meeting on 11 March 2003, not to prosecute the London Borough of Islington (“Islington”) or Hyde Housing Association Ltd (“Hyde”) for offences under the Health and Safety at Work etc. Act 1974 (“ the Act ”) arising out of the tragic death of her son on 13 September 2000. The relevant provisions of the Act

2. Section 3(1) of the Health and Safety at Work etc Act 1974 is as follows: “It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.” By section 33 of the Act , breach of this duty is punishable as a criminal offence, triable both summarily and on indictment. Section 3 is subject to section 40: “In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement.” The reverse onus of proof imposed by section 40 has been held to be compatible with Article 6 of the European Convention on Human Rights: see Davies v HSE [2002] EWCA Crim 2449 .

3. Section 3 is also subject to regulation 21 of the Management of Health and Safety at Work Regulations 1999: “Nothing in the relevant statutory provisions shall operate so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions by reason of any act or default of – (a) an employee of his, or (b) (irrelevant).” It follows that a default of an employee provides no defence. The facts

4. In September 2000 the Claimant lived with her family on the Market Estate, North Road in Islington. She had a twelve-year-old son called Christopher. The Estate is owned by Islington. It had contracted out its obligations for the maintenance and repair of the Estate to Hyde with effect from 3 July 2000.

5. At about 6 pm on 8 September 2000, Christopher went to play with his friends in a block of flats, Southdown House, which is next to the block where he lived. Shortly after 6 pm a heavy steel-framed security door on the second floor, weighing significantly more than 50 kg, fell on him and fractured his skull. The door had been removed from its hinges. It had been propped against a wall in a communal area of the flats. Christopher suffered serious brain damage. He did not regain consciousness. He died on 13 September 2000 when his life support machine was turned off.

6. There is little direct evidence as to how, precisely, the door came to fall on Christopher. The evidence given at the Coroner’s Inquest on 20 February 2001 was that Christopher was lying on his back when the ambulance crew arrived. He had large swellings to both sides of his head and was unconscious. The pathologist’s evidence was that Christopher had suffered crush fractures on either side of his head. These injuries suggested that his head was already on the ground when the door fell on him. This supported the suggestion from one of Christopher’s friends (who was in front of him when the incident happened) that Christopher had slipped on the wet floor and collided with the door, which had then toppled onto him. There was evidence that the window near the site of the incident was broken and that rain had fallen onto the floor.

7. Hyde reported the incident to the HSE on 15 th September 2000. The HSE’s investigation was carried out by Mr Mark Farrell, an HSE inspector. He prepared a report for the inquest and gave evidence at it. His report, prepared mainly on the basis of interviews with members of management of both Islington and Hyde, stated that the Estate suffered from vandalism, as a result of which there was a high level of disrepair. It stated that the door had been first noted by housing staff as off its hinges on 19 June 2000, that it had been left propped lengthways in a corridor until Wednesday 6 September 2000, when it was moved from the corridor and left partially blocking the stairwell. A further move had taken place that had left it propped upright alongside the doorway where it had originally hung until the accident on 8 September. It was not known who had moved the door on any of these occasions.

8. Mr Farrell’s report stated that Hyde had won the maintenance contract for the Estate following an extensive and fully documented selection process. Hyde took over Islington’s housing staff who worked in the Estate, but brought in their own management structure and some key personnel. According to Mr Farrell: “At the start of their contract, HN (Hyde) sought to significantly improve the level of repair on the Market Estate. Management meetings were held at senior level between HN and IBS (i.e., Islington) to address the problems. A major initiative commenced with experienced HN and IBS housing staff visiting the Market Estate together on the 26 July 2000. They drew up extensive schedules of repair, floor by floor, on each of the three housing blocks on the estate, including Southdown House. IBS began actioning the repairs. However, the need to rehang the 2 nd floor communal door at Southdown House had not been spotted on this floor-by-floor survey (even though a different staff member had noted it needed rehanging on 19 June). Anybody could make a request to LBI Housing for repair work to be carried out (e.g. Housing Officers, caretakers, tenants etc,) and procedures existed for the repair to be raised and prioritised for action. A formal repair order for the vandalised communal door, first spotted on 19 June, was neither raised at that time (by LBI Housing) nor later (by HN) following the survey on 26 July. This was one repair among many that the repairs procedure did not capture. Although management responsibility for repairs at Southdown House had changed at the time of the accident on 8 September, most of the staff involved in raising repairs or actioning them were the same individuals. There does not appear to have been a loss of continuity of knowledge or expertise during the changeover. The new management (Hyde) appear to have brought considerable extra urgency and commitment to dealing with the problems of housing repairs on this estate. At the time of the accident they had in place reasonably practicable procedures for raising and checking on housing repairs, and were seen to be making progress.”

9. Mr Farrell gave evidence at the inquest into Christopher’s death, which was held on 20 February 2001. His evidence accorded with his report. In particular, he assumed that the door that fell on to Christopher was the same door that had been noted as off its hinges on 19 June 2000, i.e., some 3 months before the accident, by Mr Kirkpatrick, an employee of Islington’s Housing Department. Mr Kirkpatrick had noted the door as being a very urgent outstanding repair, a priority category one (which is presumably the same thing). It is clear from the Deputy Coroner’s remarks during Mr Farrell’s evidence that she took the view that the door was a source of considerable danger to children and that a prosecution should be brought against Hyde. She said, when giving her findings: “Now the door in question was a large steel heavy door and it was in a communal area where children were likely to pass. How precisely it came to be not hanging as it should have been is not evident from the available information, but what is evident is that it was not hanging correctly as earlier as the 19 th June, but I’m not saying it was removed on that date, but it was known to be in its present state on that date and described as a priority repair. Despite the floor-by-floor examination on the 26 th July it seems the door was not noticed, how that happened I think must remain a matter of concern. But the door it seems was in different positions before the 8 th September, there were people around, it was a very visible danger to those in the premises, but how it precisely got into again the position it was in at the time of the accident there is I’m afraid no evidence, no way that I can answer that point.” A verdict of accidental death was recorded.

10. Notwithstanding the Deputy Coroner’s remarks, the HSE decided not to prosecute either Islington or Hyde. Regrettably, Mrs Pullen learnt of their decision from a newspaper article: the HSE had informed Christopher’s father, who was separated from her, and he did not pass on the information to her. Mrs Pullen wished to dispute the decision. She made contact with the Centre for Corporate Accountability.

11. Mr Farrell gave an account of the findings that had led to the decision not to prosecute in a letter to Mrs Pullen dated 12 November 2001, in the course of which he stated: “I would expect a programme for building maintenance to include reasonable procedures for identifying and recording potentially dangerous defects in and around properties, procedures to allocate jobs, and any follow-up action. Whereas it would not be reasonable to expect all defects to be repaired simultaneously, it would be reasonable to expect the system to be able to identify priorities for attention first. My investigation therefore sought to establish the existence of recognised building maintenance programmes that: (a) were followed, and (b) were appropriate to the housing stock involved within Islington’s’ Rosetower and Copenhagen Housing Area (approx. 6500 homes) including Southdown House on the Market Estate. During the investigation I obtained details of the maintenance and repairs procedures operated by both the Borough and Hyde Northside. I also examined maintenance records for Southdown House. I was presented with a systematic approach and supporting records to show what had been done. I also met some of the housing staff and was able to confirm their competence in that they had considerable experience in dealing with building maintenance in local authority housing. There was also a frank recognition of the high levels of disrepair and repeat vandalism occurring on the Market Estate, and initiatives underway to tackle these problems. I also liaised with local police from the Islington Police Station during the investigation. They tried to determine if there was any criminal or malicious intent in moving the door, which had already been taken off its hinges, possibly through vandalism. It was found blocking the stairs at the first floor on 6 September 2000. Neither I nor the police were able to discover who put the door in that position, nor when or who subsequently moved it so that it was resting upright in the position from which it fell on 8 September 2000. I can therefore not even confirm if the act of placing the door was a work activity to which the above Health and Safety law applies. Please be assured that a decision on what action, if any, HSE takes after an investigation is not one taken lightly when there has been a fatality. We have procedures to follow and these are set out in the Health and Safety Commission’s published policy on the enforcement of Health and Safety law (copy enclosed). I can confirm that these procedures have been followed”

12. Subsequent correspondence with the HSE led to a meeting held on 1 February 2002 between Mrs Pullen, a representative of the residents of the Estate, representatives of the Centre for Corporate Accountability and officers of the HSE, including Mr Farrell. During the course of the meeting, Mr Farrell referred to the British Standard for Building Maintenance, which was a benchmark for the standard of maintenance, and again expressed his opinion that “the procedures of the Housing Association and the Housing Department were what could reasonably be expected”. He stated that he believed that all reasonable steps had been taken by Hyde and Islington. Mr Devine, the Divisional Director of HSE for London and the South East, undertook to pass the case file to HSE’s prosecution team, who were lawyers independent of the investigation, for them to assess the case and decide whether they considered that the decision not to prosecute was correct. If they thought it was incorrect, the investigation would be re-opened. If they considered that the case should not be taken forward, a further meeting with Mrs Pullen would be held to explain this.

13. The legal review team of the HSE considered the case and decided that the decision not to prosecute was appropriate. Mrs Pullen was informed of this in a letter dated 9 January 2003, which offered her a meeting with the team. Mrs Pullen accepted the offer, and the meeting took place on 11 March 2003. It was attended by Mr Turnill, the HSE lawyer who had carried out the review, by Mr O’Shea on behalf of Mrs Pullen, and by representatives of the Centre for Corporate Accountability and, in addition by Mr Farrell, Mr Horsefield, Head of Field Operations of the HSE.

14. Mr Turnill explained his role. According to the note of the meeting made by the Centre for Corporate Accountability: “Mr Turnill … set out his role within the HSE and what he had undertaken in relation to this case. He said that the PP looks at all of the HSE inspector decisions not to prosecute and assess whether or not the decision is correct, the right charges are being laid, and whether any further inquiries are necessary. He said that his role was like that of the CPS (where in fact he used to work). He said that his role was as a prosecutor and ‘he wanted to prosecute’ if at all possible. He wasn’t there to find reasons not to prosecute. As a review lawyer, he was there to judge from an evidential point of view the strength of the case and the prospects for a successful prosecution.”

15. He identified the evidence he had considered: “He said that he was given all the papers that the HSE had on the case – and looked at what further information could be obtained. He then requested the inquest transcript – and one of the reasons for the delay was the length of time it took the coroner to provide a transcript. He also sought statements taken by the council as part of it’s internal investigation. The council however was only willing to provide the statements if the contents of the statements was not revealed to anyone outside the HSE, and that if the HSE wanted to use the statements as part of any legal proceedings, they would have to take fresh statements. He said that he also asked the Centre for Corporate Accountability about whether they could provide any further materials. He said that he reviewed the all the information, and then applied the Crown Prosecution Service’s two-stage test. He explained the evidential and public interest tests. He said that in this case the evidential test was not satisfied. There was not enough evidence to secure a conviction.”

16. He explained his conclusion as follows: “He said that the evidence was that the door – when it fell – had been in a dangerous position but the door had for much of the time been in a position, which the witnesses considered to be safe. The evidence was that the door had been moved from a safe position into a dangerous position shortly before (a few hours?) the incident took place. It had not been possible to find out what exactly had happened to the door from the time it was taken off its hinges (whenever that was) and to the time the incident took place. However it was clear that in this period, the door had moved from place to place. The people who gave evidence about the location or the door all said that at the time they saw it was in a ‘safe’ position. In addition, it is also the case that there were ‘different’ doors and various sightings of a door may not relate to the same door. He said that the evidence concerning the position of the door and whether or not it was in a ‘safe’ position came from other caretakers and other people who worked for the door. The statements reveal that ‘a’ door was in various places on the landing. When questioned, he said that he was unable to tell us where the door(s) were actually located since this came from statements taken by the council, the contents of which could not be disclosed. The last sighting of the/a door was by a probation officer. He gave a statement (this was the only new one that the HSE had taken during the period of review) which stated that the door was leaning against the wall on its side and the probation officer had put it so that it was flat on the ground. Mr Turnill said that the door had at that point been in a dangerous position but it was then put into a safe position. It is not known what happened to the door after it was left on the floor. Mr Turnill said he had to consider what was reasonable and practicable for the council and North Hydeside to do. It was his view that it was not ‘reasonable and practicable’ for there to organise ‘constant vigilance’ they had a system in place to deal with issues like doors and in the view of the HSE it was an appropriate system. He said that he could have put the case in two ways: • A reasonable and practicable system required constant surveillance by the council etc • The presence of a door off its hinges was unsafe in itself. It was the view of the HSE there was not enough evidence to sustain either of these arguments in court.”

17. Mr Farrell answered questions raised at the meeting, including the following: “Q. Should the council not have a system in place to ensure that doors were not on a dangerous place? A. It is the evidence that there was a system in place the evidence is that the doors were kept in a safe place – and I have no evidence to the contrary. In addition there is evidence that doors were removed by the caretakers and taken out of the estate. There was a system in place for repairers and persons walking along the estate and checking for hazards monitored it. Q. The caretaker reported that the door was off its hinges and on the landing and in an unsafe place; A. An inspection of the estate was taken and no door was found. Q. But surely if a door was reported, and then not found not to be present questions would need to be answered. Q. An employee reported that this door should be treated as an extreme urgency and he was ignored! A. He did not report it as an urgency because of safety matter but urgency because it was a security door; the concerns were about security.”

18. Mrs Pullen, and the Centre for Corporate Accountability, were not satisfied with the HSE’s decision or the reasons given for it. Solicitors were consulted and these proceedings instituted.

19. The explanation given at the meeting of 11 March 2003 was subsequently supplemented by the witness statement of Ronald Wright, a principal inspector of health and safety of the HSE. He referred to the Code for Crown Prosecutions, which requires consideration of the issues (a) whether the evidence is such as to provide a realistic prospect of conviction, and (b) whether a prosecution would be in the public interest. It is necessary to set out large parts of Mr Wright’s witness statement, which for convenience are in the Appendix to this judgment. The Code for Crown Prosecutors

20. The Code for Crown Prosecutors is issued by the Director of Public Prosecutions under section 10 of the Prosecution of Offences Act 1985 and provides: “5.1 Crown Prosecutors must be satisfied that there is enough evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge. They must consider what the defence case may be and how that is likely to affect the prosecution case. 5.2 A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. 5.3 When deciding whether there is enough evidence to prosecute, Crown Prosecutors must consider whether the evidence can be used and is reliable . . .”

21. It is common ground that the Code is applicable to the decision of the HSE whether or not to prosecute Islington or Hyde. The grounds for judicial review of decisions not to prosecute

22. The grounds for applying for judicial review in the context of decisions not to prosecute were identified by Kennedy LJ in R. v. Director of Public Prosecutions, ex parte C [1995] 1 Cr App. Rep. 136, 141C-D: “... it seems to me that in the context of the present case this court can be persuaded to act if and only if it is demonstrated to us that the Director of Public Prosecutions acting through the Crown Prosecution Service arrived at the decision not to prosecute: (1) because of some unlawful policy (such as the hypothetical decision in Blackburn not to prosecute where the value of goods stolen was below ££100); or (2) because the Director of Public Prosecutions failed to act in accordance with her own settled policy as set out in the Code; or (3) because the decision was perverse. It was a decision at which no reasonable prosecutor could have arrived.”

23. That statement of the law was expressly restricted to the context of that case. In C it was not alleged that the Director had made a mistake of law in construing the effect of a relevant criminal statute; if it had been, I have no doubt that such a mistake would have been included in the grounds for judicial review to which Kennedy LJ referred. Hence, in R. v. Director of Public Prosecutions ex parte Jones , unreported, 23 rd March 2000 (CO/3008/99), Buxton LJ said, at paragraph 26: “... But [as counsel for the Director] properly agreed, none of the statements in earlier authorities can have been intended to exclude from this Court’s consideration other fundamental aspects of the judicial review jurisdiction, for instance, as at least potentially relevant to our present case: (1) has the decision-maker properly understood and applied the law? (2) has he explained the reasons for his conclusions in terms that the court understand and act upon? (iii) has he taken into account an irrelevant matter or is there a danger that he may have done so?”

24. Lord Bingham LCJ said in R. v Director of Public Prosecutions, ex parte Manning [2001] QB 330 , 343, at [22]: “Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review: see, for example, R v Director of Public Prosecutions, Ex p C [1995] 1 Cr App R 136 . But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the Crown Prosecution Service, as it was here, and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the Director's provisional decision is not to prosecute, that decision will be subject to review by senior Treasury counsel who will exercise an independent professional judgment. The Director and his officials (and senior Treasury counsel when consulted) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied.” The Claimant’s case

25. The principal submissions on behalf of Mrs Pullen were that the decision of the HSE not to prosecute either Islington or Hyde was flawed for the following reasons: i) The HSE had not clearly addressed the legal issues relevant to their decision. ii) They had not appreciated that the offence created by section 3 is one of absolute liability, subject only to the defence, to be established by the defendant, that he had conducted his undertaking so as to ensure, so far as reasonably practicable, that there was no risk to the health or safety of non-employees. iii) They had misdirected themselves on the question of risk and the issue whether a door such as that which fell on Christopher was, once removed from its hinges, dangerous of itself. As to risk, they had not appreciated that it was sufficient, on the facts of the case, to show that an injury had been caused in the context of the proposed defendants’ business undertaking; it was then for the defendants to show, on a balance of probabilities, that they had conducted their undertaking so as to ensure, so far as was reasonably practicable, that person who were not employees were not exposed to risks to their health or safety: see the decision of the Court of Appeal in R v Associated Octel Co Ltd [1994] 4 All ER 1051 at 1063: “In our judgment, the ingredients of the offence are that the accused is (1) an employer (2) who so conducts his undertaking (3) as to expose to risk of health or safety (4) a person not employed by him (5) who may be affected by such conduct of the accused’s undertaking. Where injury in fact results, as in this case, the position can be more shortly stated. (1) and (2) are the same (3) as to injure (4) a person not employed by him.” That case went to the House of Lords, whose decision is reported at [1996] 1 WLR 1543 . Lord Hoffman, who gave the only substantive speech, did not refer to this passage. iv) In particular, they had wrongly taken into account the views expressed by witnesses that they did not regard the door as dangerous: whether there was a risk of injury was an objective question to be determined by the criminal court, and the views or perceptions of factual witnesses were irrelevant and would be inadmissible. v) They had not taken into account the effect of regulation 21 of the Regulations. vi) There had been no sufficient explanation of the change in the position of the HSE as expressed at the Inquest, namely that the door had been off its hinges since 19 June 2000 (if not before), and their later stance that the evidence did not so establish. Mr Knowles submitted that in a criminal trial, it would be for the Islington and Hyde to establish that the door that fell on Christopher was not the door seen off its hinges on 19 June 2000. vii) The decision of the HSE depended on factual issues (in particular as to the period that the door had been off its hinges) that should be left to the criminal court. viii) Generally, the prospects of a successful prosecution had been sufficiently made out. Furthermore, if the HSE had lawfully concluded that they should not prosecute on the basis that Christopher’s death had been caused by a breach of section 3 , they had not adequately explained why they had not prosecuted on the basis that there had been a breach of section 3 which had not caused his death – the so-called technical offence.

26. Mr Knowles, for Mrs Pullen, also submitted that the reasons given for the HSE’s decision in Mr Wright’s witness statement should be excluded from account, or at least should be carefully scrutinised, as being ex post facto reasoning for an administrative decision.

27. All of these submissions were disputed by the HSE. Discussion

28. It was common ground that it is unnecessary for the purposes of my decision to distinguish between Islington and Hyde. That would not be the case if a prosecution were undertaken.

29. I do not think it right to exclude the evidence of Mr Wright. This is not a case in which statute requires reasons to be given contemporaneously with the decision to which they relate, or indeed at all. The reasons for the HSE’s decisions were given informally in meetings. There is no reason to believe that the reasons put forward by Mr Wright are not genuinely the reasons for the decision which is the subject of these proceedings. Moreover, the HSE would be entitled, and probably bound, to take the matters to which he refers into account if they were required to take their decision again.

30. The present case differs from the generality of cases under section 3 . In most cases, the employer creates the risk of injury by his operations, and the injury is caused either by something done by his employee or by a failure to take steps to prevent injury being caused by those operations: see, for instance, the facts of R v Associated Octel Co Ltd itself. In this case, the operation that initially created the alleged risk of injury – the original act of commission – was not that of either of the Defendants, but that of a vandal or vandals over whom they had no conceivable control. The undertaking to which section 3 applies in this case is the maintenance and repair of the common parts of a residential estate. The HSE accept that section 3 applies to such an undertaking. Its application to such an undertaking is straightforward where the cause of risk is the work of repair (as where a workman injures a resident); it is less straightforward where the cause is something done by an unauthorised third party. Mr Knowles submitted that in such a case too all that is necessary for the prosecutor to establish is an injury caused by the condition of the common parts; if that is established, it is for the defendant to establish that the risk occurred despite his doing what is reasonably practicable to prevent the risk of injury.

31. The difficult questions that may arise in this connection are highlighted by the issue between the parties in the present case as to whether, on a prosecution under section 3 , the HSE would bear the onus of proving that the door that fell on Christopher had been taken off its hinges in June 2000 and been present in the common parts of the Estate from then until the date of his death, or whether Islington or Hyde would bear the onus of establishing that it had been removed from its hinges on shortly before the accident. On any basis the onus would be on the defendants to establish that they operated a system that was as effective as reasonably practicable in preventing risk. I assume that they would also have to give evidence that their employees, in operating that system, were not guilty of any default. It would be for the prosecution to show that the defendants’ evidence did not explain a salient fact, namely the length of time the door had been present off its hinges, and that that fact established default on the part of someone for whom the defendants were responsible. On this basis, the prosecution would have to establish how long the door had presented a relevant risk in order to prove the act or default of an employee of the defendants, who had omitted to appreciate that the door presented a danger or failed to report the unsafe door to those responsible for its removal or re-attachment to its door frame, or who had failed to deal with the door appropriately.

32. Cases such as the present however do not necessarily turn on issues as to the onus or standard of proof on a defendant. The HSE could not be faulted for assessing the case on the evidence in the round.

33. On any basis, the first crucial question to be considered by the HSE was, therefore, whether Hyde and Islington had in place during the relevant period a system for identifying and remedying relevant risks that was as effective as reasonably practicable. If the HSE were satisfied that the proposed defendants would be able to establish that fact, then no prosecution would have a reasonable prospect of success unless the evidence indicated that an employee or contractor of the proposed defendants had been guilty of a relevant act or default.

34. The question whether the door that fell onto Christopher had been off its hinges and lying around or propped against the wall in the common parts of the block of flats in which he was injured is central to both of those issues. If the door had been removed from its hinges in June 2000, then unless it was unreasonable to appreciate that it presented a risk to safety, either the system operated by the proposed criminal defendants was deficient, or it was operated deficiently. On the other hand, if the door had only been recently removed from its hinges when the accident occurred, there would be insufficient evidence that the system was ineffective or of any act or default by an employee.

35. It is clear that the HSE addressed the issue as to the adequacy of the system operated by Hyde and Islington and reached a firm conclusion favourable to them: see Mr Farrell’s letter dated 12 November 2001 and paragraphs 27 to 33 of Mr Wright’s witness statement.

36. The second issue, whether there had been a relevant act or default of an employee in the operation of the system, depended in part on the period that the door had been off its hinges. The HSE addressed the facts relevant to this issue and concluded that the evidence did not sufficiently establish that the door that fell on Christopher was the door that had been off its hinges in June 2000. That conclusion depended in large part on the view taken as to the effectiveness of the “blitz” inspection of 26 July; but also on the view taken of the evidence referred to in paragraph 22(6) and paragraph 23 of Mr Wright’s witness statement. The view of this evidence taken by the HSE was not unreasonable or perverse. As pointed out by Lord Bingham LCJ in his judgment in Manning, the assessment of the relevant evidence is very much a matter for the prosecuting authority.

37. I reject Mr Knowles’s submission referred to at paragraph 25(vii) above. It is for the prosecuting authority to determine whether the evidence gives rise to a realistic prospect of conviction; its decision is a precondition of the case coming before the criminal court.

38. I do not think that the HSE misdirected themselves as to the lack of safety of the door once removed from its hinges or as to the relevance of the views of witnesses as to the risk it presented. As to the former, Mr Wright makes it clear that the HSE did not conclude that the door, even if laid flat, was safe. The HSE departed from the view of Mr Turnill on this issue. There is however a difference between the risks presented by such a door if laid flat on the floor or if propped horizontally against a wall as against the risk presented if it is leant vertically against a wall. The degree of risk is relevant to the urgency of remedial measures. So far as the views of witnesses, such as cleaners who saw the door and Mr Franklin, are concerned, the HSE is not to be faulted for taking them into account. Those views are likely, if not inevitably, to be given in evidence in any prosecution, if only as a result of examination or cross-examination on behalf of the defendants, who would ask the witnesses, for example, why they did not report the door or did not report it as an urgent repair. The HSE were entitled to take a realistic view of the likely impact of that evidence on a jury or justices or district judge, in the case of a jury notwithstanding a direction of the judge as to its relevance or irrelevance. In any event, that evidence would be admissible on issues as to the adequacy of the proposed defendants’ systems and, if relevant, any issue under regulation 21.

39. Furthermore, it is evident why the HSE came to a view as to whether the door that fell on Christopher was that seen in June 2000 different from that put forward by Mr Farrell at the inquest. Following the inquest, the HSE came into possession of additional evidence, including the statements taken by Islington referred to in the meeting note of 11 March 2003.

40. It follows from the above that the HSE was not at fault in its consideration of the relevant legal issues arising from the death of Christopher.

41. In the present case, on the basis of the view taken by the HSE of the Hyde/Islington systems and the evidence as to the period the door had been off its hinges, and the risk it appeared to present, they concluded that there was no reasonable prospect of a successful prosecution for the “technical” offence of a breach of section 3(1) that was causally unrelated to Christopher’s death. In my judgment, for the reasons I have set out, that conclusion was one they could reasonably have arrived at. On this basis, Hyde and Islington had a system for dealing with risks that was as effective as was reasonably practicable in the very difficult circumstances prevailing on the Estate, and there was insufficient evidence of fault on the part of any of their employees.

42. On this view of the facts, there was no realistic prospect of a successful prosecution even for the “technical” offence, i.e. one that was not causative of Christopher’s death. It is presumably for this reason that Mr Wright’s witness statement did not address the HSE’s reasons for not prosecuting such an offence. I would only comment that in my judgment the court should be more cautious in relation to the grant of judicial review in circumstances where the only probable offence was technical and the HSE was satisfied, on cogent grounds, that the proposed defendants were doing everything reasonably practicable to deal with dangers not of their own making, but caused by vandalism. That caution should take into account the emotions necessarily attendant on any trial investigating an accident causing death, and particularly that of a child. Conclusion

43. It was incumbent on the HSE to consider carefully the question whether to institute a prosecution following any death, and particularly the death of a child in circumstances as tragic as the present case. It bears a heavy responsibility if it decides not to prosecute. But a decision to prosecute in such a case is equally weighty. I am satisfied that the decision made by HSE was one that was reasonably open to it. It follows that the claim must be dismissed. - - - - - - - - - - - - - - - - - - - - - MR JUSTICE STANLEY BURNTON: My judgment has been distributed in draft. I am grateful to counsel for their corrections. Copies of the final judgment are now available to the parties, press and public. For the reasons set out in my judgment, the application for judicial review is dismissed. MR EADIE: My Lord, there is really only one matter, as you will see, I hope, from the skeleton argument I submitted, I am afraid rather late, this morning. MR JUSTICE STANLEY BURNTON: It is all right, I read quickly. MR EADIE: I am grateful, my Lord. There is no issue about costs, the defendant does not claim his costs, so the only issue is whether or not, indeed I do not know whether this is actually going to arise, it may be that -- MR JUSTICE STANLEY BURNTON: You are responding a bit prematurely, are you not? MR EADIE: Well, possibly. If my learned friend is going to agree then I shall sit down, but he was taking instructions as to whether he was going to run the point about criminal causes or matters. MR JUSTICE STANLEY BURNTON: Well, you are the person who is running the point. I have not had an application for leave yet. MR KNOWLES: My Lord, the position is this. It was certainly always my understanding of these things that they are criminal causes or matters. Certainly there is no case I have been able to find where the Court of Appeal Civil Division has not stated appeal. MR JUSTICE STANLEY BURNTON: I have to say that when I saw the skeleton, I was a bit taken aback. I had never appreciated that, but now I do. MR KNOWLES: That being said, our position is that we would like a little time to consider the matter of leave to appeal in the round. If it is a criminal cause or matter then we have a period of 14 days to apply for leave to appeal. We would obviously need a certificate of general public importance. MR JUSTICE STANLEY BURNTON: What is the point? MR KNOWLES: We would like some time to see if there is a point that can be formulated and whether a viable application for leave to appeal can be made. So my submission is: no application today, but could we put something in writing, if so minded, within the period? MR JUSTICE STANLEY BURNTON: I shall be in New Zealand by this coming Monday. I do not think that is very helpful to you. MR KNOWLES: Perhaps we could have 24 hours to reflect, and we will notify the courts and obviously my learned friend if anything is to be done or if nothing is to be done. MR EADIE: My Lord, our position is that is entirely up to your Lordship. If you want to allow them a period of 24 hours to reflect, then so be it. They have been on notice since the judgment draft was issued some time ago, but it is obviously a matter for your Lordship. MR KNOWLES: My Lord, there is no great secret about it. We have taken steps, we would like leave for counsel to consider my Lord's judgment -- MR JUSTICE STANLEY BURNTON: It is all right. I think the deadline must be Friday. MR KNOWLES: I am very grateful. MR JUSTICE STANLEY BURNTON: So there must be an application on Friday. I am probably giving judgment in another matter already on Friday, but it will be Friday morning, assuming Mr Eadie can make it. I have to say, at the moment I find it difficult to see that there is a point of law, but the events were distressing, and I have a lot of sympathy with your client. In those circumstances, I will do what I can to accommodate your request, but it must be by Friday. MR KNOWLES: My Lord, we are very grateful. MR JUSTICE STANLEY BURNTON: If there is an application to state a point of law, then I think that must be in writing and given to Mr Eadie and my clerk by 2 o'clock tomorrow. MR KNOWLES: My Lord, so be it. MR JUSTICE STANLEY BURNTON: I do not think that is unfair. MR KNOWLES: No. My Lord, the only other order I seek is for the usual legal services costs. MR JUSTICE STANLEY BURNTON: Yes. MR KNOWLES: Thank you. MR JUSTICE STANLEY BURNTON: If listing or my clerk do not hear from you, I shall assume that the decision has been made that there is no point of law, or no point in pursuing that matter. MR KNOWLES: Of course, my Lord, but we will as a matter of courtesy let you know whatever the position. MR JUSTICE STANLEY BURNTON: That would be helpful. Thank you both very much.