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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Health And Safety Executive, R. (On the application of) v Jukes  EWCA Crim 176 (25 January 2018)
Cite as:  EWCA Crim 176
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B e f o r e :
MRS JUSTICE NICOLA DAVIES DBE
HIS HONOUR JUDGE BIDDER QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
|R E G I N A|
|(For and on behalf of the Health and Safety Executive)|
|- v -|
Wordwave International Ltd trading as DTI
165 Fleet Street, London EC4A 2DY
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)
Mr A Long appeared on behalf of the Crown
Crown Copyright ©
LORD JUSTICE FLAUX:
"Des Brown was the second in command as the senior operations manager and as health and safety manager. I was not the health and safety manager. I relied on supervisors to manage operations and to ensure that employees were competent to do their job. They reported to me and I reported to Des Brown."
The prepared statement also stated that the appellant could not recall that the baler had broken down regularly and that he had no knowledge that the chamber door interlock switch had been bypassed. He stated that he had introduced a system of reporting faults, known as "Daily Defect Sheets".
"Following Des [Brown's] redundancy I took over formal responsibility for health and safety. I started a process of assessing the overall health and safety competency of the lads.
I'm responsible for daily housekeeping and health and safety on site, including the implementation of site safety and working practices."
The prosecution contended that those statements undermined the appellant's assertion in the prepared statement given to the Health and Safety Executive and to the police, repeated in his Defence Statement, that he was not responsible for health and safety.
"The reasonable contemplation of a criminal investigation does not necessarily equate to the reasonable contemplation of a prosecution."
We agree with the analysis of the judge in that case at  to  as to when a criminal prosecution can be said to be in reasonable contemplation:
"160. However, the situation is rather different where the investigation is into suspected criminality. One critical difference between civil proceedings and a criminal prosecution is that there is no inhibition on the commencement of civil proceedings where there is no foundation for them, other than the prospect of sanctions being imposed after the event. A person may well have reasonable grounds to believe they are going to be subjected to a civil suit at the hands of a disgruntled neighbour, or a commercial competitor, even where there is no properly arguable cause of action, or where the evidence that would support the claim has not yet been gathered. Criminal proceedings, on the other hand, cannot be started unless and until the prosecutor is satisfied that there is a sufficient evidential basis for prosecution and the public interest test is also met. Criminal proceedings cannot be reasonably contemplated unless the prospective defendant knows enough about what the investigation is likely to unearth, or has unearthed, to appreciate that it is realistic to expect a prosecutor to be satisfied that it has enough material to stand a good chance of securing a conviction.
161. Of course, a person who knows that he had committed a criminal offence may reasonably anticipate that if certain facts come to light, a prosecution is likely to follow, even if there is no investigation currently underway. Likewise, the state of knowledge of the prospective defendant may be such that, even before the investigation has concluded, it knows that it has, in Mr Lissack's words, 'a problem which makes criminal prosecution a real rather than a fanciful prospect'. …"
"… the appellant had no confidence that any answer obtained from solicitors instructed by Jonathan Gaskell would be helpful …"
That apparent marked reluctance to accept a statement by solicitors who were officers of the court was surprising. At one stage it appeared to the Court that it might be open to criticism. But, having raised the point with him at the hearing today, Mr Ageros has made it clear that he does not suggest for one minute that this Court should not accept what is said by DWF as solicitors and as officers of the court. Indeed, as emerges from a subsequent email from the solicitors now acting for the Health and Safety Executive to the Criminal Appeal Office, dated 24 January 2018, at the relevant time when DWF wrote that email on 18 August 2017, they had ceased to act for Gaskell and the company who had instructed new solicitors. As we have said, Mr Ageros no longer pursues any argument or insinuation that what DWF had said was not true and accurate. He has essentially moved away from the suggestion that the privilege was that of the appellant to saying that the document was privileged and in one sense it mattered not whose the privilege was. As we have held, we consider that the document was not privileged; and that even if it were, it was not the appellant's privilege.