In another recent case relating to the circumstances required to successfully establish a claim to litigation privilege (see Philip Salvesen’s blog on the case of Bilta & Ors v RBS & Anor [2017] EWHC 3535 (Ch)), the Court of Appeal (Criminal Division) has followed the approach adopted in SFO v ENRC [2017] 1 WLR 4205 in ruling that a statement made by an employee to his company’s solicitors as part of their investigation into a death at work was not covered by privilege.

In R (for and on behalf of the Health and Safety Executive) v Paul Jukes [2018] EWCA Crim 176, the appellant had been the transport and operations manager of Gaskells NW Limited. In 2010, an employee was crushed to death when he entered a baling machine to clear a blockage. The appellant was alleged to have had responsibility for health and safety and maintenance of the machine at the relevant time and had failed to take reasonable care for the safety of employees. He was convicted of a health and safety offence and sentenced to nine months’ imprisonment.

On appeal against conviction, one of the issues raised by the appellant was the admissibility of a statement which he had made to the company’s solicitors as part of their investigation a few weeks after the incident. This had been relied upon by the prosecution at the trial, as it undermined the prepared statement he had later given to the Health and Safety Executive (HSE) and the police, which he had repeated in his defence statement. The appellant argued that this statement was covered by privilege and as such should not have been relied upon by the Crown.

The Court of Appeal disagreed and held that the document did not enjoy the protection of privilege. Legal advice privilege could not apply as Mr Jukes was not a client of the company’s solicitors. As far as litigation privilege was concerned, at the time the statement was made the HSE were investigating the matter but had not yet commenced any proceedings. The appellant was not 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 anybody knew what the company’s or the HSE’s investigations would unearth. As such, it could not be said that they considered there to be a reasonable prospect of the HSE deciding to prosecute. A claim to litigation privilege would therefore fail.

It is of note that this reasoning echoes that of Andrews J in ENRC, and the Court of Appeal in Jukes has endorsed at least part of the judgment. In particular, Flaux LJ in Jukes repeated with approval Andrews J’s point 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.”

Jukes serves to remind us of just how difficult it can be to assert a claim to litigation privilege in a criminal context, when an issue has arisen and investigations begin, but there is simply not enough information available at that stage to anticipate the direction in which the matter will proceed and whether a prosecution will follow.

Along with ENRC and Bilta, it also demonstrates just how fact-specific issues of this nature are (whether in a criminal or civil context). ENRC and Jukes are two cases which, at first glance, may appear fairly similar to Bilta, in which a claim to litigation privilege was successful, but in reality there are important, albeit subtle, distinctions which make all the difference for the purposes of litigation privilege. The claimants in Bilta were able to benefit from the fact that the documents in question had come into existence following a significant change in circumstances, which meant that litigation (in this case with HMRC) now looked likely. The relevant circumstances in ENRC and Jukes arose at a much earlier stage where such clarity simply did not exist.