1. A prosecution that takes place in breach of a promise by the prosecutor not to prosecute is capable of amounting to an abuse of process. However, a breach of promise does not automatically mean that there will be an abuse of process. The longer that a person is left to believe that s/he will not be prosecuted, the more unjust it is likely to be for the prosecution to renege on its promise, and if there is any prejudice resulting from the promise (e.g. the defendant helps the prosecution), it will be unfair for the prosecution to continue1.
2. In deciding whether to stay (halt) a case because of the breach of an assurance not to prosecute, the court will consider whether there would be any prejudice to the defendant from continuing and whether there are other special circumstances present2. The courts have found that such special circumstances existed in the following situations:
3. Where a person has complied with previous inaccurate advice from a regulatory body, and that regulatory body then decides to prosecute because the person has committed an offence in complying with the advice, then this is likely to amount to an abuse of process. Where inaccurate advice is corrected, but a breach continues, then it is unlikely to be an abuse of process to prosecute3.
4. An abuse submission by a defendant may succeed in cases where direct advice is given by HSE in relation to something later alleged as a failing. The direct advice could be viewed as a promise that HSE would not prosecute if the advice was followed.
5. Where a risk is not mentioned at all (for example, by an inspector during the course of an inspection of a duty holder’s premises), and prosecution is later undertaken, the defendant should not be able to argue that the failure to mention a risk amounted to a breach of promise not to prosecute.
6. Caution should be exercised in circumstances where regulatory bodies other than HSE provide advice on matters which overlap with health and safety issues. For example, local authority social services inspectors may refer to health and safety requirements during inspections of care homes carried out for their own purposes. Where they are published, you will wish to refer to relevant Memoranda of Understanding.
7. When other official bodies have given health and safety advice, even when not specifically empowered by the Health and Safety at Work etc Act 1974 or the Health and Safety (Enforcing Authority) Regulations 1998, potential difficulties may arise. If HSE subsequently decided to prosecute a duty holder who, in good faith, had followed defective health and safety advice from another official body, it is uncertain how a court would act. The facts and circumstances of the individual case would be paramount in determining whether there had been an abuse of process for breach of promise, even though the defective advice had not come from HSE.
8. Where a duty holder has been genuinely lulled into a breach or a continuing breach by incorrect advice, this could be a relevant factor to consider when applying the public interest stage of the Code for Crown Prosecutors, prior to making any decision on prosecution.