Proportionality and the Regulator’s decision to prosecute in the time of Coronavirus

September 25, 2020

Has the public interest test for prosecution been changed in the regulatory context by COVID-19? James Puzey analyses the issues.

“A hard rain’s gonna fall” sang the great Bob Dylan. This is surely true for UK businesses and industry over the last six months. These are unprecedented hard times. Every week we hear of thousands more being laid off and businesses that are going into insolvency. The law, however, grinds onwards, more slowly for sure but the regulators are still at their computer screens, if not pounding the streets. The process of enforcing the obligations created by environmental, workplace safety, trading standards, financial conduct and the whole panoply of regulatory legislation has not come to shuddering halt. There have been some changes in the mood, however.

This article considers whether the public interest test for prosecution has been changed in the regulatory context by coronavirus and whether challenges to the decision to prosecute on the grounds of public interest are more likely to succeed now. It is written from the perspective of health and safety law but the broad points hold true for other fields of regulation.

Paragraph 14.4(f) of the Prosecutor’s Code provides that proportionality must be considered when applying the public interest test. The CPS has issued “Interim CPS Case Review Guidance” to assist Crown prosecutors in their decision-making on this aspect in the present circumstances. Paragraph 9 states that:

“9. When reviewing a case and considering this question, prosecutors should do so in the context of the ongoing impact on the criminal justice system of the Covid-19 pandemic, as set out above. In particular, prosecutors should note:

The crisis is producing an expanding pipeline of cases waiting to be heard.
Criminal proceedings and case progression are likely to be delayed. Significant delay may impact adversely on victims, witnesses and defendants, in some cases, may reduce the likelihood of a conviction.
Each case that is introduced into the system, or kept in the system, will contribute to the expanding pipeline and delay.”

Guidance upon the implementation of these paragraphs enjoins prosecutors to consider Coronavirus as a change in circumstances which requires a decision on the impact this has had on the public interest in continuing the prosecution. The Guidance states that

“In the majority of cases, there will be no impact at all, and the public interest will lie with continuing the prosecution. In some cases, however, prosecutors may decide to:

Discontinue proceedings or offer no evidence.
Offer an out of court disposal.
Accept a guilty plea to some, but not all charges; or to a less serious offence.”

Prosecutors are specifically told to consider in the context of the inevitable delays to trials whether witnesses will still support a prosecution and come to court. The “mood music” therefore is that prosecutors should contemplate the effects of the strain on the criminal justice system when considering or reconsidering the public interest test and implement this by identifying and weeding out those cases that may be on the borderline in terms of the public interest.

In terms of health and safety prosecutions the CPS guidance has been reflected in the instruction that when reviewing a case and considering the public interest HSE prosecutors “should do so in the context of the ongoing impact on the criminal justice system of the pandemic.” The HSE’s policy permits consideration of issuing a caution in “exceptional circumstances”. Coronavirus is now recognised as one such circumstance if deemed appropriate.

However, the guidance reminds prosecutors that the pandemic is only one of many factors to consider before commencing or continuing a prosecution.

The HSE operates an Enforcement Policy Statement (“EPS”) and Enforcement Management Model (“EMM”). The former sets out guiding principles for enforcement action and reiterates five relevant factors in decision-making, namely: proportionality, targeting, consistency, transparency and accountability. The EMM provides the detailed framework to enable inspectors to take decisions in accordance with the principles of the EPS. Strategic factors such as the public interest must be considered.

Paragraph 106 of the EMM provides:

“When considering public interest, inspectors are looking to satisfy themselves that the proposed action will produce a net benefit to the wider community in terms of reducing risks, targeting public resources on the most serious risks and the costs of pursuing a particular course of action.”

The recent case of R (HSE) v Connors Building and Restoration Ltd. [2020] EWCA Crim 868 saw an appeal against conviction by a company prosecuted in relation to a workplace accident. The company had sought to dissuade the HSE from prosecuting it with submissions that prosecution would not be a proportionate response pursuant to the EPS and EMM because the Defendant had a single customer, Scottish Power, that would not renew its contract if the company was prosecuted. Therefore it would become insolvent and 40 people would lose their jobs. The HSE considered these representations but prosecuted nonetheless. The company appealed its conviction on the grounds that the Judge at first instance had wrongly rejected a submission of abuse of process on the same grounds, i.e. the prosecution was disproportionate under the EPS and EMM, it was oppressive and Wednesbury unreasonable.

The company’s appeal was dismissed. Flaux LJ reiterated the long-established position that it was “only in exceptional cases will the Court disturb the decisions to prosecute of an independent prosecutor” and this was not such a case. With independent prosecutors such as the HSE it was not enough to show they had breached their own policy. The appellant had to go on to show misconduct or oppression of the type found in Bennett [1994] 1 AC 42. The same standard of review was required over decisions by independent prosecutors such as the HSE as for the CPS. Hence there was no wider standard of review by the HSE that encompassed a rule that a decision in breach of an internal prosecution policy was automatically abusive.

The appellant pursued its appeal on the grounds that wholly inadequate regard had been given to the business consequences of a prosecution and that the HSE had failed to pursue the least burdensome enforcement action. Paragraph 1.2 of the EPS states that the HSE will have regard to economic growth and the impact that its decisions were likely to have on business. The Court concluded however, that consideration of these factors could not form the basis of an attempt to impugn a decision to prosecution in the absence of oppression. In any event, the company had failed to show on the facts that the HSE had breached its own policy or that the economic consequences of prosecution were as dire as were predicted.

This case illustrates the point that whilst financial considerations are always relevant to mitigation it would be virtually impossible, in the absence of oppression by a prosecutor, to succeed before a Court on an abuse submission on the grounds that the decision to prosecute would cause financial hardship and is therefore disproportionate.

James Puzey is a barrister at St Philips specialising in Government litigation, particularly in the fields of Tax and Health and Safety law.

See also: Decisions whether to prosecute - Ben Williams sets out the general principles when it comes to decisions to prosecute.