UK: Health And Safety Regulatory Investigations - Privilege Redefined

Last Updated: 3 April 2019
Article by Rod Hunt and Nathan Buckley

Most Read Contributor in UK, April 2019


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.

Post-incident investigation

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.

Traditional Regime

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 [2018] 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.

Current Position

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions