What you tell your solicitor may not be secret

Fatal Accident
In December 2010 a worker moved inside a cardboard compacting machine at Gaskells Waste Administrations in Boone. The machine had turned out to be blocked and he wanted to clear it. A safety device which thought to have consequently impaired the machine had been circumvent and he was killed at the point when the compactor’s hydraulic ram activated.

Interview
Fourteen days after the accident the Transport and Operations Manager, Paul Jukes, and senior managers were met by the association’s solicitor. In the subsequent articulation Jukes confirmed that he was exclusively in charge of health and safety. In any case, after 16 months, when he was met mutually by the HSE and the police, Jukes denied these duties.

Prosecution
After a long investigation, the HSE in the end chose to prosecute three individuals from the administration group, including Jukes. The other two conceded to safety breaches, however Jukes argued not guilty. Amid an eight-day preliminary the HSE depended on the announcement which Jukes had made to Gaskell’s solicitor to demonstrate that he was being untruthful. This persuaded the court that his part had been to supervise health and safety, and additionally the maintenance of the machinery. Thus, he was convicted on two charges and sentenced to nine months in jail.
Jukes appealed against his conviction saying that his statement to the solicitor ought not to have been permissible. The control he depended on is called “legal professional privilege” yet it just applies in strict conditions. To benefit from this protection the statement must be made in the defence of the court action which is either in progress or reasonably in contemplation. Jukes lost the appeal since this wasn’t the situation: his statement was given quite a while before the HSE had chosen to prosecute.
What this means

It’s conceivable that a statement taken amid an internal accident investigation could be obtained by the HSE and utilized as a part of 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. Every circumstance is chosen by the court on a case-by-case basis.

Tip 1. At the point when the witness statements are given, staff ought to be made aware of the seriousness of their testimony, i.e. that they could be required to support the contents under oath in court.
Tip 2. If you already know that HSE is thinking about prosecution before your in-house investigations start, you could designate 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 a chance to do so.

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