With sight of the report, the HSE often uses it as evidence volunteered by a company of the facts on which they decide to issue summonses and then also in court to prove that offences have been committed.
The HSE has some even wider powers of investigation than the police, such as demanding answers to questions and a declaration that those answers are true. Sometimes this can extend to a company having to reveal its own opinion that the steps it took may not have met the legal test of 'reasonable practicability'.
The only exception to the general assumption that all documents are disclosable is where a document is covered by legal professional privilege. That can arise in one of two ways. If a document is created for the dominant purpose of litigation, or obtaining legal advice, or considering a defence, or understanding the liabilities, legal position and implications of an accident, then it might attract litigation privilege.
Investigation report
Further, it is more common for a lawyer instructed precisely to consider those matters and advise on the investigation and process to commission an investigation report on her or his behalf so that advice can be given about a company’s response.
If legal advice privilege applies, then communications relating to the event and discussions between a lawyer and their client are also of course confidential and need not be disclosed.
Food manufacturers should look at their existing arrangements and any accident investigation procedures or manuals.
If the purpose of undertaking an investigation looks more about learning lessons and establishing facts so as to correct or improve standards without the involvement of the solicitor, then it will be more difficult to establish that the reason for creating a document was related to the legal position and obtaining confidential advice.
Candid and frank views
Great care needs to be taken that statements are not obtained and conclusions are not leapt to as a routine, without staff realising why they are doing so. It is only by being sure that a court would not order the disclosure of internal reports and opinions that candid and frank views can be provided, and that a degree of control can be had without fear that the confidentiality will be lost.
One cannot make an investigation confidential just by choosing to do so. Documents do not just become privileged because they are marked as such or solely because someone believes or says that they are. There needs to be a genuine reasonable belief that the matter is likely to lead to an HSE case or worse and one cannot assume that everyone within a large manufacturing company would be classed as the lawyer’s client so as to ensure that matters are kept confidential.
By getting legal advice from the very outset, the position can be fully considered and an element of retaining managerial control over the process can be asserted.
Chris Green is partner, crime and regulatory at law firm Keoghs and a committee member of the Institute of Safety & Health's Food and Drink Industries Group.
