Corporate Crime analysis: The Court of Appeal provided a user-friendly summary of the caselaw relating to abuse of process arguments in cases involving independent prosecutors. The Court of Appeal confirmed that oppression or misconduct must be established in order to pursue an abuse of process argument before the court. The Legislative and Regulatory Reform Act 2006 (LRRA 2006), the Regulators’ Code 2014 and the Deregulation Act 2015 (DA 2015) do not have the effect of removing the requirement for oppression in applications to stay proceedings. This case deals specifically with the public interest test and questions of proportionality. The court outlined factors which could not impact on the public interest test carried out by regulators while also reaffirming the principle that a prosecutor is not necessarily acting disproportionately simply because their policy or guidance provides alternatives to prosecution in the particular circumstances of a case. The culpability categorisation for the purposes of the Sentencing Guidelines does not infer that a case is not sufficiently serious to justify prosecution. Written by Rosalind Emsley-Smith, barrister, at Deans Court Chambers.
R v Connors  EWCA Crim 868,  All ER (D) 87 (Jul)
What are the practical implications of this case?
The Court of Appeal has confirmed the law in respect of abuse of process arguments which seek to challenge a decision to prosecute by a regulator who is subject to the LRRA 2006, Regulators’ Code 2014 and the DA 2015. The Court of Appeal were clear that there was nothing in the provisions of LRRA 2006 that bears specifically upon decisions by regulators to prosecute or on the law in relation to abuse of process.
The court were furthermore equally clear that DA 2015, s 108 did not apply to the public interest test and the decision to prosecute carried out by regulators. The impact of this decision for practitioners is that oppression must still be demonstrated in addition to a failure by a prosecutor to follow their enforcement policy if a challenge to a decision to prosecute is to be pursued. The oppression must be adequately evidenced. It will not be sufficient merely to place unsupported fears before the court.
The Court of Appeal confirmed what was said in Wandsworth LBC v Rashid  EWHC 1844 (Admin) and Moss and Sons LTD v CPS  EWHC 3658 (Admin), namely that a prosecutor is not necessarily acting disproportionately simply because their policy or guidance provides alternatives to prosecution in the particular circumstances of a case. Practitioners must be aware that the obligation on a regulator to pursue the least burdensome enforcement action does not mean that a prosecutor is bound to pursue an alternative to prosecution merely because a policy document provides that as an option. The least burdensome enforcement action is to be judged in the context of the extent of a breach not merely the fact of a breach. The mere fact that a defendant is judged as medium culpability for the purposes of the Sentencing Guidelines does not mean that an offence is not sufficiently serious to justify prosecution.
Practitioners should take note and advise their clients that unemployment figures in the geographical area where a business operates is not a factor which should feature in the public interest considerations carried out by regulatory prosecutors.
What was the background?
The appellant was convicted of an offence contrary to section 2(1) of the Health and Safety at Work etc. Act 1974 following a ripsaw incident which resulted in an employee suffering a serious injury with lifelong consequences.
The appellant company employed 40 people to maintain electricity substations on behalf of Scottish Power, who were the appellant’s only client. The contract to maintain was subject to a regular re-tender process. The company director believed that a health and safety conviction would result in the loss of that contract.
The appellant maintained that the conviction was unsafe because the prosecution should have been stayed as an abuse of process; arguing that the Health and Safety Executive (HSE) had not applied the public interest test appropriately and accordingly the judge had erred in her decision to refuse the stay.
It was argued that the decision to prosecute was inconsistent with the HSE’s Enforcement Policy Statement and Enforcement Management Model, in that inadequate consideration had been given to the consequences of prosecution for the company, for the employees of the company and that prosecution did not represent the least burdensome enforcement response available. It was argued that the ‘growth duty’ derived from DA 2015, s 108 applied to public interest decisions and created a legislative steer for regulators.
The appellant argued that the closure of the company amounted to the kind of oppression that would be required for the purposes of demonstrating an abuse of the process of the court. In the alternative it was argued that the additional requirement to demonstrate oppression in prosecutions brought by regulators would undermine the statutory purpose of the LRRA 2006, the Regulators’ Code 2014.
What did the court decide?
The Court of Appeal held that the HSE had ‘faithfully complied with its own guidance’ and that the judge had not erred in refusing to stay the prosecution.
In reaching that conclusion the court rejected the submission that the requirement to demonstrate oppression in support of an application to stay a regulatory prosecution undermined the LRRA 2006 and the Regulators’ Code 2014. The court stated that it would be highly undesirable for a different standard of review in abuse of process applications to apply to challenges to decisions by the HSE to prosecute than apply to such decisions by the CPS; Moss and Sons LTD v CPS  EWHC 3658 (Admin) and R (Barons Pub Co Ltd) v Staines Magistrates Court  EWHC 898 (Admin) applied.
The court rejected the submission that DA 2015, s 108 applied to the public interest test carried out by regulators.
The court held that pubic interest considerations are ‘squarely about the stage when the prosecuting authority is considering the instituting of criminal proceedings, from which it follows that they are untrammelled by the growth duty in section 108’.
The court reaffirmed the line of authority, which establishes that a prosecutor is not necessarily acting disproportionately simply because their policy or guidance provides alternatives to prosecution in the particular circumstances of the case.
The court rejected the submission that unemployment figures in a particular area should be a public interest factor militating against prosecution. The court stated that ‘not only would different enforcement decisions based solely on economic conditions in a locality lead to inconsistency, but it would mean that workers in high unemployment areas would have less protection because HSE enforcement powers would be fettered’.
1. Court: Court of Appeal, Criminal Division
2. Judge: Lord Justice Flaux, Mr Justice William Davis, Mr Justice Fordham
3. Date of judgment: 1 July 2020