1. Approval Officers must ensure that there is a detailed record made at the time of the reasons for their decisions in relation to a proposed prosecution. It is not sufficient to just note that a decision has been made. Challenges to approval decisions will be difficult to defend if it is unclear from the Approval Officer’s note how a decision was reached in relation to a prosecution. Decisions should clearly record which factors have been taken into account and the weight applied to them in reaching the decision 1. This information should be held in the prosecution/investigation file.
2. Section 6 of the Human Rights Act 1998 (“HRA”) states that it will be unlawful for a public authority to act in a way which is incompatible with the European Convention on Human Rights. The Approval Officer must therefore consider the HRA in reaching a decision on approving a prosecution, in particular whether there are Convention rights that might be relevant to the approval of the case. For example, the Approval Officer should consider:
3. These are all subject to the test of proportionality. You should refer to the Operational Guidance for further details of the impact of the HRA in the context of HSE’s work.
4. A decision to prosecute cannot, in the absence of dishonesty or ‘mala fides’ or other exceptional circumstances, be judicially reviewed.2 However, an Approval Officer's decision not to prosecute may be the subject of judicial review, as can a decision on venue or the selection of charges.
5. The introduction of the HRA opens the possibility of a review of not only how the decision was reached but also the merits of the decision itself. Decisions made during the course of a prosecution can also be the subject of a judicial review, such as decisions not to disclose unused material, or decisions not to discontinue a prosecution.
6. If HSE can show that the approval process was undertaken properly and that the decision was not unreasonable or taken in bad faith, the Administrative Court is likely to uphold that decision 3. In this context, unreasonable means a decision which no other person acting properly would reach. Approval Officers must therefore ensure that there are detailed notes and explanations covering all aspects of their decisions. Further guidance may be found in the section on Abuse of Process.