The next step

To a summary of the R v Jukes 2018 case

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What you tell a solicitor may not be secret

Fatal accident

In December 2010 a worker climbed inside a cardboard compacting machine at Gaskells Waste Services (G) in Bootle. The machine had become blocked and he planned to clear it. A safety device which should have automatically disabled the machine had been bypassed and he was killed when the compactor’s hydraulic ram activated.

Interviewed

A few weeks after the accident the Transport and Operations Manager, Paul Jukes (J), and other managers were interviewed by the firm’s solicitor. In the resulting statement J confirmed that he was solely responsible for health and safety. However, 16 months later, when he was interviewed jointly by the HSE and the police, J denied these responsibilities.

Prosecution

After a long investigation, the HSE eventually decided to prosecute three members of the management team, including J. The other two pleaded guilty to safety breaches, but J pleaded not guilty. During an eight-day trial the HSE relied on the statement which J had made to G’s solicitor to prove that he was being untruthful. This persuaded the court that his role had been to oversee health and safety, as well as the maintenance of machinery. Consequently, he was convicted on two charges and sentenced to nine months in prison.

The appeal

J appealed against his conviction saying that his statement to the solicitor should not have been admissible (see The next step ). The rule he relied on is called “legal professional privilege” but it only applies in strict circumstances. To benefit from this protection the statement must be made in the defence of court action which is either in progress or reasonably in contemplation.

J lost the appeal because this wasn’t the case: his statement was given a long time before the HSE had decided to prosecute.

What this means

It’s possible that a statement taken during an internal accident investigation could be obtained by the HSE and used in a prosecution.

You can try to argue that a document is legally privileged but you may not succeed even when you think you’ve met the criteria. Each situation is decided by the court on a case-by-case basis.

Tip 1. When witness statements are given, staff should be made aware of the seriousness of their testimony, i.e. that they could be required to corroborate the contents under oath in court.

Tip 2. If you already know that the HSE is contemplating prosecution before your in-house investigations begin, you could appoint an independent investigator in writing identifying that “the purpose of the work is for the sole or dominant purpose of defending court action” . If you need to claim legal professional privilege later on this will give you a chance to do so.

For a link to a case summary of R v Jukes 2018, visit http://tipsandadvice-healthandsafety.co.uk/download (HS 16.18.02).