Health And Safety Executive, R. (On the application of) v Jukes

Litigation privilege requires litigation to be in progress or reasonably contemplated, a sole or dominant litigation purpose, and adversarial rather than investigatory litigation. A criminal investigation alone does not establish that a prosecution was reasonably contemplated. There must be evidence that the prospective defendant knew enough to make prosecution a realistic prospect.

A maker of a statement provided to another party’s solicitors cannot rely on that party’s privilege. Nor does otherwise admissible and probative evidence become unfair merely because it may have been privileged to another person. A co-accused who has pleaded guilty and is not tried before the same jury is not a co-defendant for the bad-character gateway. Evidence of a non-defendant’s bad character must have substantial probative value and substantial importance in the case as a whole.

The appellant, the transport and operations manager of a waste and recycling company, was convicted at the Crown Court at Liverpool of failing to take reasonable care for employees’ health and safety, contrary to section 7 of the Health and Safety at Work etc Act 1974. An employee had been fatally injured while clearing a blockage in a baling machine whose safety interlock had been bypassed.

He appealed against conviction. The appeal challenged the admission of a statement he had signed for the company’s solicitors concerning his health-and-safety responsibilities. It also challenged the exclusion of evidence that a former co-accused, who had pleaded guilty, had later been convicted of conspiracy to pervert the course of justice.

The central issues were whether the statement attracted litigation privilege and whether the proposed bad-character evidence met the statutory admissibility conditions.

1. Appeal dismissed. Neither ground showed that the conviction was unsafe.

2. The signed statement was not protected by litigation privilege. Applying the three conditions stated in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48, litigation must be in progress or reasonably contemplated, the document must have been created for the sole or dominant purpose of that litigation, and the litigation must be adversarial. At the relevant time the matter remained an investigation. There was no evidence that the company, its managing director, or the appellant knew enough to make prosecution a realistic prospect. The reference to section 9 of the Criminal Justice Act 1967 on the statement form did not establish that proposition.

3. The court agreed with the analysis in Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 QB that reasonable contemplation of a criminal investigation does not necessarily mean reasonable contemplation of a prosecution. A prosecution requires a sufficient evidential basis and satisfaction of the public-interest test.

4. In any event, any privilege belonged to the company or its managing director, who were the solicitors’ clients, rather than to the appellant. As at most a potential witness, he could not invoke another person’s privilege. The statement was probative and had not been obtained improperly. Its admission was therefore not unfair and gave no basis to exclude it under section 78 of the Police and Criminal Evidence Act 1984.

5. The former co-accused was not a co-defendant within section 101(1)(e), read with section 104, of the Criminal Justice Act 2003. He had pleaded guilty and was not tried in the same proceedings before the same jury. As a non-defendant and non-witness, his later conviction had at most peripheral relevance. It lacked the substantial probative value and substantial importance required by section 100(1)(b) of that Act. Its exclusion caused no unfairness.

• Court of Appeal (Criminal Division) Dismissed the appellant’s appeal against conviction: [2018] EWCA Crim 176.

• Crown Court at Liverpool A jury convicted the appellant on 22 September 2016. On 15 December 2016, he was sentenced to nine months’ imprisonment and ordered to pay £7,000 prosecution costs.