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Early Investigations and Claims to Litigation Privilege

14 March 2018
Regulatory Compliance
In the recent judgement in R v Jukes the Court of Appeal has cast further light upon the challenges faced when seeking to access the many benefits of legal privilege in early investigations following workplace incidents.

The defendant had been employed as the transport and operations manager at Gaskell Waste Services Ltd. In December 2010, an employee had been crushed to death when he entered a baling machine in order to clear a blockage. Mr Jukes was alleged to have had responsibility for all health and safety on the site and was subsequently convicted of a breach of s7 of HSWA and sentenced to nine months’ imprisonment.

One of the issues raised by his legal team as part of their appeal was the admissibility of a statement which he had made to the Company’s solicitors as part of their investigation soon after the incident whereby he accepted his responsibilities for health and safety on site. This document was subsequently relied upon by the prosecution, as it undermined his defence. Mr Jukes argued that this statement was covered by privilege and as such should not have been relied upon at his Trial.

The Court of Appeal disagreed with Mr Jukes. Regarding the claim for litigation privilege, the Court reflected upon the fact that at the time the statement was made, the HSE were investigating the matter but hadn't as yet commenced any proceedings. In fact Jukes wasn't interviewed by the HSE and police until some sixteen months later. Crucially, there was no evidence which showed that at the time the statement was made that anybody knew what the company’s or the HSE’s investigations would unearth. 

As such, it couldn't be said that they considered there to be a reasonable prospect of the HSE deciding to prosecute. As such a claim to litigation privilege would fail owing to the fact that litigation was not reasonably contemplated.

This judgment is an unwelcome application of last year's decision in SFO v ENRC in which significant inroads were made into the principle of legal privilege.

The Judge in R v Jukes made specific reference to Mrs Justice Andrew's judgement  in ENRC that, “Criminal proceedings cannot be reasonably contemplated unless the prospective defendant knows enough about what the investigation is likely to unearth, or has unearthed, to appreciate that it is realistic to expect a prosecutor to be satisfied that it has enough material to stand a good chance of securing a conviction.”

The case of Jukes demonstrates the difficulties in asserting litigation privilege in a criminal context, when an issue has arisen and investigations begin, but there is a dearth of information available at that stage to anticipate whether or not a prosecution will follow.

It remains open to claim litigation privilege at early stages of incident investigations but more so than ever companies must take the time to establish whether litigation is reasonably contemplated at that time. In the event that this is the case, you must then take prudent steps to be able to evidence this if challenged at a later date.

The judgement in R v Jukes is a timely reminder of the need to proceed with caution when carrying out an internal investigations and to consider at the outset how to structure this work.

Should you have any questions as to how this judgment may impact upon your own internal investigation procedures and how these might be refined so as to protect against the dangers articulated in SFO v ENRC and R v Jukes please contact a member of our team.

As an additional point, we eagerly await the result of the appeal in the ENRC case, due to be heard in July this year. We can only hope that this decision brings with it much needed clarity and, if successful, goes some way to repairing the damage done to the application of legal privilege.

If you have any queries please contact a member of the RCI team

Further Reading