Whilst legal professional privilege is a concept which pervades most practice areas, there are arguably limited contexts where it is more essential than during an investigation by the Health and Safety Executive ("HSE") or a Local Authority ("LA").
The HSE and LAs have powers pursuant to s.20 of the Health and Safety at Work Act 1974 ("HSWA"), which are more onerous, draconian and invasive than the powers available to either the police or some other regulators. Powers include the ability to enter premises at any reasonable time, to seize documents and materials, and even to compel an individual or company to answer its questions. To contravene an Environmental Health Officer's/HSE Inspector's use of a s.20 power (either by obstructing, or failing to comply), is of itself a criminal offence.
Whilst the rationale behind the provision of these remarkable powers is understandable, to allow the HSE/LA to properly investigate risks to health and safety in order to protect the wider public so far as possible and properly administer justice to those who have failed in their duties, it can sometimes feel like they are able to run riot through a business without restriction.
However, a restriction does come in the form of s.20(8) HSWA, which provides that the HSE/LA cannot "compel the production by any person of a document of which he would on grounds of legal professional privilege be entitled to withhold production". Legally privileged documents are therefore the one category of document, which a business can legitimately refuse to provide to the HSE/LA (even where compelled to), without committing a criminal offence. The preservation of privilege in the context of a HSE/LA investigation is therefore paramount to protecting a client's position as far as possible.
Following an incident, regardless of whether there has been a fatality, minor injury, or simply the existence of a risk that did not actually materialise, a business will undoubtedly need to investigate the circumstances of the incident in order to understand: (i) the factual matrix of what occurred; (ii) whether any failings on its part were causative of the incident; and (iii) whether it needs to take remedial action to prevent a recurrence.
If a company were to progress that investigation without obtaining legal advice, and thus availing itself of legal professional privilege, the HSE/LA could simply compel the company to provide all of the material that it creates in the course of its investigation. Where a company has conducted a "warts and all" investigation, which in most cases is legitimately required to identify areas where it may be non-compliant with its statutory duties, the HSE/LA's case for a prosecution would essentially have been produced for them. Unfortunately, we see this time and time again when Clyde's are instructed at an advanced stage and this only serves to highlight the importance of getting the SHE Regulatory Team instructed in the immediate aftermath of an incident.
Seeking legal advice in the immediate aftermath of an incident, to commence a legally privileged investigation, allows a company to carry out a thorough privileged investigation in the knowledge that the HSE/LA cannot compel the company to disclose the product of its work. This allows the company to protect its position as far as possible, which is more important than ever given the relatively new sentencing guideline which is directly linked to turnover.
For completeness, there are two forms of legal professional privilege: (i) legal advice privilege; and (ii) litigation privilege. Privileged investigations have, until recently, always been conducted under litigation privilege. Litigation privilege requires a reasonable contemplation of litigation to be held by the company, following which they can proceed to prepare their case for that litigation by producing reports, obtaining witness statements and seeking expert opinion. All of these categories of documents would be privileged and thus incapable of being seized by the HSE/LA. The traditional approach in our industry was to proceed under litigation privilege from the outset, on the basis that there had been an incident which may be subject to a criminal investigation by the HSE/LA, from which a prosecution was a potential outcome.
Conversely, legal advice privilege is limited to communications between client / lawyer, sent for the purpose of seeking and receiving legal advice. It does not usually extend to any documentation that may be produced, and as importantly does not cover any communications with third parties.
Developing Case Law
Over the last few years, there have been a series of judgments which have significantly impacted upon the applicability of litigation privilege, particularly at the outset of a case. The case with the greatest impact on the health and safety practice area however, is R v Paul Jukes  EWCA Crim 176 ("Jukes"). Jukes concerned a fatal incident which was subject to a HSE investigation, and the subsequent prosecution of several parties, where the company in question commenced an investigation under litigation privilege. As part of that investigation, a witness statement was taken from an employee (Jukes) two months after the incident. Conversely, Jukes was not interviewed by the HSE until sixteen months after the incident. It transpired that Jukes had given two different accounts relating to his health and safety responsibilities at the company, in the two statements. Following a search of the company's premises, the initial witness statement was obtained by the HSE.
In the course of the subsequent legal proceedings, Jukes sought to argue that the initial statement had been provided to the company as part of a privileged investigation (litigation privilege) and was therefore inadmissible. Whilst the Judge in that case made the obvious point that any privilege would vest in the Company and not Jukes, they went on to consider whether the statement was privileged in any event. In doing so they concluded that:
- The reasonable contemplation of a criminal investigation does not necessarily equate to the reasonable contemplation of a prosecution;
- Whilst it is always possible that a prosecution might ensue, depending on what an investigation uncovers, but unless that person is aware of circumstances which might make a prosecution likely, it cannot be established that just because there is a real risk of an investigation, there is also a real risk of prosecution;
- A criminal investigation is not akin to adversarial litigation; and
- At the outset of a case, a company could not have enough knowledge as to what an investigation may unearth, in order to conclude that there was a real risk of prosecution.
The decision in Jukes threatened to undermine the way in which regulatory investigations had been progressed, by introducing a risk that documents / statements / reports produced at the outset of a case, were not privileged and could be seized by the HSE.
ENRC -v- SFO: The Appeal
This concurrent case went before the Court of Appeal in July 2018 and involved similar considerations around the applicability of litigation privilege at the outset of a case (albeit, not within a health and safety context). It was hoped that the Judgment from this appeal, in which the Law Society had intervened, would provide some much needed clarity to a longstanding legal principle which had effectively been turned on its head.
Whilst the resulting Judgment was helpful in some regards, the Court of Appeal Judges confirmed that Jukes had been correctly decided upon its facts. This has meant that a great degree of uncertainty remains around when litigation privilege can be properly asserted in the context of a HSE/LA investigation.
In order to invoke litigation privilege, each case will have to be considered and judged upon its own facts, which will require an assessment of the nature of any incident, what information has been identified by a company, the stage of any HSE/LA investigation and also what that investigation either has or will uncover.
In short, there is a real risk that progressing a case under litigation privilege from the outset of a case, if challenged by the HSE/LA, would fail.
In order to mitigate this risk, we have formulated a "Legal Advice Framework" under which investigations can still be properly progressed under legal advice privilege, instead of litigation privilege. If and when we are satisfied that the criteria for litigation privilege applies, we will advise our client accordingly and, assuming the client agrees, stand-alone documents may then be created as part of the company's incident investigation. At that stage, communications with third parties will also be covered by litigation privilege.
Whilst legal advice privilege can only apply to communications between client and lawyer for the purpose of seeking and receiving legal advice, there is no other qualification. The privilege is absolute and applies at any point. The only restriction is that the privilege can only attach to communications between client and lawyer.
Therefore, now more than ever, it is paramount that solicitors are instructed at the very outset of a case, to ensure that all communications and investigative enquiries can be properly protected under privilege. Failure to do so may result in documentation / communications being made, which cannot be protected from being seized by the HSE/LA, and may well end up forming part of the prosecution's case in the event of a prosecution and/or the HSE/LA's justification for issuing an improvement or prohibition notice.