Practice and Procedure


PUBLISHED December 11, 2003

The Health and Safety Executive had been correct in deciding not to prosecute under the Health and Safety at Work Act 1974. On the facts there was no reasonable prospect of a successful prosecution against the proposed defendants for the death of a child caused by a vandalised door falling on him on a housing estate.The applicant ('P') sought judicial review of the Health and Safety Executive's decision not to prosecute either the London Borough of Islington ('Islington') or the Hyde Housing Association Ltd ('Hyde') for offences under the Health and Safety at Work Act 1974 arising from the death of P's 12 year old son. P's son had died when playing with friends on a housing estate. A heavy, steel-framed security door, which had been vandalised, removed from its hinges and propped up against a wall, had fallen on him and fractured his skull. The estate suffered from vandalism. Housing staff had noted three months before the incident that the door was off its hinges and that it had been left propped up in a corridor, classified as needing urgent repair. During the inquest into the boy's death, when a verdict of accidental death was recorded, the deputy coroner had remarked that the door was a considerable danger to children and that a prosecution should be brought against Hyde who, prior to the incident, had taken over the maintenance of the estate from Islington. The Health & Safety Executive ('HSE') decided against prosecuting Hyde or Islington. P submitted that the decision of the HSE was flawed in that, inter alia, HSE: (i) had not addressed the legal issues relevant to their decision; (ii) had misdirected themselves on the question of risk; (iii) had wrongly taken into account the views of the various witnesses who did not regard the door as dangerous; and (iv) that the prospects of a successful prosecution had been made out.HELD: (1) The HSE was not at fault in its consideration of the legal issues. (2) In the instant case the risk of injury was created by the act of vandals over whom the prospective defendants had no control. There was, given the circumstances in the estate at that time, an adequate system in place for identifying and remedying risks. (3) The HSE had not erred in taking into account the views of the witnesses as they were likely to be given in evidence in any prosecution. The HSE were accordingly entitled to take a realistic view of the likely impact of that evidence on a jury or judge. (4) There was no realistic prospect of a successful prosecution given that the system for dealing with risks was adequate and there was insufficient evidence of fault on the part of any of Hyde or Islington's employees.Application refused.

[2003] EWHC 2934 (QB)