Regulatory prosecutions often develop in complex and sometimes unexpected ways. Even so, the recent judgment in R (HSE) v Chester Crown Court [2026] EWHC 688 (Admin) is a clear reminder of the importance of getting the fundamentals right at the outset.
The decision arose from the HSE’s prosecution of Falcon Tower Crane Services Ltd (Falcon), which collapsed mid-trial, resulting in a wasted costs order of £587,382.76 against the regulator.
This centred on the allegation that Falcon had not appointed an 'Appointed Person' to oversee the erection of a tower crane that collapsed and killed three individuals. Falcon identified an individual as the Appointed Person. That individual denied being the Appointed Person to the HSE. However, he later accepted he was the Appointed Person in evidence at trial as their key witness, amongst other matters. This led the HSE to offer no evidence and conclude the trial.
The HSE sought to challenge the costs order in the Administrative Court, arguing that the Crown Court's reasons for making the order were wrong. The court rejected that challenge, upholding both the criticisms made and the scale of the financial consequences. The focus of the judgment is clear: this was not simply a case that deteriorated over time, but one in which the underlying difficulties should have been identified from the start.
Regulatory prosecutions often begin with a strong enforcement instinct, particularly following an incident. But that instinct must be matched by rigorous analysis of the evidence before charge. Here, the court’s conclusion was that the prosecution proceeded on a footing that did not adequately engage with obvious lines of difficulty in its own material or inquiry. This is not to say that every evidential tension should prevent a prosecution. But where material raises clear questions about how a case is framed, those questions need to be resolved before proceedings are commenced.
If they are not, the risk is that the prosecution is built on assumptions that do not withstand scrutiny.
For regulators, the takeaway is therefore front-loaded. Regulators operate in a demanding environment, but that does not lessen the need for disciplined early case analysis. The court’s criticism was not that the case became difficult; it was that the difficulty was already apparent in the material and was not adequately addressed before the charging decision. The consequence was a prosecution that could not ultimately be sustained, resulting in significant exposure to costs.
For defendants, the case reinforces the importance of engaging early and strategically with the prosecution’s evidential foundation. That is not just a question of factual defence, but also of legal scrutiny of how the case was constructed and decided in the first place. Where the prosecution’s theory is not properly supported by its own material, that is a point to be taken early and carefully pursued.
Stepping back, the broader message is one of discipline at the start of a case. Enforcement is essential, but it depends on cases being properly grounded from the outset. Where that foundation is not secure, the risks are not just evidential. They are also procedural, financial, and reputational.
A misjudged prosecution is not always obviously wrong. More often, it is one where the right questions were not asked early enough. This case is a reminder of the cost of that gap.
