Court of Appeal on litigation privilege – defendant’s statement provided to company solicitors admissible
On 25 January 2018 the Court of Appeal Criminal Division in R v Jukes  EWCA Crim 176 dealt with the question when a criminal prosecution can be said to be in reasonable contemplation. In the case of R v Jukes it mattered for the decision whether a statement provided by the appellant in the case was admissible in evidence or not.
The facts were as follows. The appellant was the transport and operations manager of a waste and recycling company based in Bootle. A baling machine was used to compress paper and cardboard into bales. The baling machine was situated in a so-called compaction chamber which was fitted with an interlocked guard which stopped the machine if the door was opened. On 23 December 2010 the interlock was bypassed and an employee entered the chamber to clear a blockage. He was crushed by the hydraulic arm and fatally injured.
Six weeks later, on 9 February 2011, the appellant provided a statement to the company’s solicitors DWF (at their request) in which he said that “Following Des [Brown’s] redundancy I took over formal responsibility for health and safety. I started a process of assessing the overall health and safety competency of the lads”.
The prosecution wanted to rely on this statement to prove its case that the appellant had failed to discharge his duty to take reasonable care of the health and safety of employees contrary to section 7 of the Health and Safety at Work Act 1974. The prosecution asserted that this statement undermined the appellant’s defence statement and what he had said in interview to the Health and Safety Executive and the police in June 2012, when he denied being responsible for health and safety. In his defence statement he said: “Des Brown was the second in command as the senior operations manager and as health and safety manager. I was not the health and safety manager. I relied on supervisors to manage operations and to ensure that employees were competent to do their job. They reported to me and I reported to Des Brown”.
The judge in the case held that the February 2011 statement was material evidence. The statement was admissible because as the time it was created there were no investigations or proceedings. The statement would not be privileged had proceedings been contemplated because it had been provided to DWF, the company’s solicitors.
The appellant was convicted and sentenced on 15 December 2016 to nine months’ imprisonment and ordered to pay £7,000 prosecution costs.
The appellant appealed against conviction on the basis that the statement was privileged. It was submitted that DWF at the time the statement was made, were acting for the company and all the individuals linked to it. The statement had been created with lawyers and for the sole purpose of anticipated civil or criminal litigation. It was not clear whose privilege it was, but nobody had waived and as such the prosecution could not use it.
The Court of Appeal disagreed. The statement did not attract legal advice privilege because it was found that DWF did not act for the appellant. Litigation privilege did not apply because matters were still at the investigatory stage. The three conditions for litigation privilege to apply in criminal or civil proceedings from the Judgment in Three Rivers District Council v Governor and Company of the Bank of England (No 6)  UKHL 48 were reiterated by the Court of Appeal:
- Litigation is in process or reasonably in contemplation;
- The relevant communication or document is made or created with the sole or dominant purpose of conducting that litigation; and
- The litigation is adversarial, not investigatory or inquisitorial.
The Court of Appeal made it clear that at the time of creating the statement in February 2011, no decision to prosecute had been taken by the Health and Safety Executive and matters were still at the investigatory stage and therefore that litigation privilege did not apply. “An investigation is not adversarial litigation.” At the time of the statement it was not known what the investigation by the company or in fact by the Health and Safety Executive would uncover.
When can adversarial litigation be in contemplation though?
Interestingly the Court of Appeal cited the following part of Andrews J on this point:
“Criminal proceedings cannot be reasonably in contemplation 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.”
This is the tricky point; a company or individual connected to an investigation will usually not know “enough” about what is likely to be uncovered and how would they assess that it is realistic to expect a prosecutor to be satisfied that there is enough material for a “good chance of securing a conviction”? That is not the job of a potential defendant, it is the job of the prosecutor/investigatory authority. What is inherent to the purpose of any investigation is the prospect of a possible prosecution. In any event, for the company or individual to come forward with that kind of information defeats the purpose of a possible claim to documents being privileged. Given the recent ruling from the Court of Appeal, it is advisable to tread carefully when assisting with an investigation outside the lawyer-client legal advice arena. Employees in particular beware.
Marleen is a lawyer in the criminal and regulatory team with experience in defending a variety of fraud and white collar crime matters. She represents clients both pre and post charge in relation to investigations of money laundering, corruption, insider dealing and (tax) fraud. In addition, she represents clients facing extradition and is familiar with mutual legal assistance requests. She has previous experience in commercial/insurance litigation. Marleen is a native Dutch speaker.