Stuart

It is my understanding that legal privilege is very narrow and often misunderstood. I looked into this matter somewhile back and received the information below from a reliable source:

Legal privilege only exists to allow a client to take legal advice from a solicitor or barrister. Therefore, the report in question must have been commissioned by a lawyer for the sole purpose of him providing legal advice to the client. There are therefore a number of ways of testing whether the report is privileged or not:

i. Is there a contractual obligation on the organisation to investigate accidents or does it have a policy of doing so? If the answer is yes, you might be able to argue that the report cannot be privileged.

ii. Was the report prepared by or commissioned by a lawyer for the purposes of him giving legal advice? If not, the report cannot be privileged.

iii. Is the report in any way in the public domain, by that I mean, are you or is anybody outside the PC organisation aware of what the report contains (i.e. has there been any leak about the report's contents)? If yes, then arguably the organisation has deliberately or inadvertently waived privilege, which may entitle you to a copy of the report.

Thanks for posting Stuart, I'd missed this.

Fascinating.

I've long held that the whole process of seeking legal privilege was likely flawed.  The mere involvement of a solicitor in the initial investigation (by whatever means) always struck me as somewhat artificial and purely to deny information to other parties.

The ruling appears to address that - investigations undertaken following commencement of litigation are different from investigations taken in anticipation of one (where this process has recently been misused).

And I think the point is, your own investigation isn't guaranteed to be private nor do you necessarily have a legal right to arrange/assume it will be.  Not sure about your timely investigation comment?  Nothing about a regulator investigation stops you from also asking questions/investigating unless they've detained or taken away equipment etc. in which case they should share findings and allow appropriate access too.

A mature organisation will tend to be open with the regulators anyway about their own findings and hopefully demonstrate a level of higher safety culture as a consequence.  Of course, then you have to trust the regulator to realise this....

I would contend that:

Contemplation point in time:

The contemplation of the legal action from the prosecution side realistically starts at the call for Ambulance/Police to attend site, the hse inspector on arrival is looking to see if there is a basis for a realistic prospect of conviction, in the public interest, after all.  

as such the clock should start ticking at the same time and should apply to the defence side as well. 

Ability to properly advise/defend case ,access to relevant information:

Whilst it may well be said, a nuber of times, "there may not be a prosecution" during the investigation phase, realistically, in a large proporion of cases, it is likely that an prosecution will likely follow, and the purpose of the visit is "contemplation of a case" through an investigation.  

As such, as the effect of the decision, (un-amended) is that the prosecution can gather evidence and hold until a decision has been come to on pleading not guilty for access to the "unused evidence", then fairness and balance should dictate that the same should apply for defence throughout. 

It is extremely one sided to say that all activity done on behalf of the organisation be handed over whilst the prosecution wouldn't offer the same. 

Perhaps I am looking at it from a perspective of wanting to see fairness and equality under the law, rather than another hand tied behind the back of defendent. - should one not be equal under the law? 

already the defendent will:-

have to pay ffi for investigation costs, have to pay for own investigation, lawyer/barrister costs, and then a fine of significance.(if convicted), additional ongoing insurance hikes etc. 

Consequences:

Whilst there will be lots saying, "good, that's because you didn't take safety seriously in the first place", I would contend that it is a step too far, one-sided for the prosecution, leaving only the largest in a position able to attempt to challenge assertions of the prosecution or defend oneselves.

As such, I anticipate that there will be a number of cases set aside once people think about the consequences - retrials, challenged and unsafe prosecutions because the defence was hamstrung. 

 - last things anyone would want would be to have to go through whole process again. 

I would agree the prevention of a recurrance is an objective in the first instance. 

Severity: I was thinking about serious accidents / KSI compared to minor events

I was trying to imply this through reference to lawyers/barrister costs etc being significant.

There may well be a line drawn between those that have significant impacts vs low consequences, and I think there may be scope for a line there, however I don't see an accident with serious outcomes not being taken through to a conclusion, as with all there will be exceptions to the rule, however that should in no way impede the ability of the organisation to investigate in a no-holds-barred way. 

the sentencing guidelines are now based on a matrix approach, and as such, would suggest that perhaps complexity will have to follow with the investigations too.

It appears to me it is now likely companies will decide it is too important/costly/variable to do a blanket hold hands up and to not challenge the narrative provided. this will then be something which will get in the way of achieving an agreed "what happened and why", drawing out the process, and bringing argy-bargy into what was once a more civilised affair.  

it sets a precident whichever way things end up, but there needs to be a better answer than everything going one way, and nothing the other.