Judge Malcolm Simmons

Brexit

If Brexit ever happens there is a significant risk the European Arrest Warrant regime will disappear as will access to EU criminal databases. This raises profound concerns for law enforcement in the UK. However, it is unlikely EU Member States will close their doors to data sharing which is in their interest as much as that of the UK. 

In the event of Brexit, it is likely the UK will remain within the European Arrest Warrant regime rather than executing numerous bi-lateral agreements.

Privilege in Internal Investigations

In SFO v ENRC [2018] EWCA Civ 2006 the Court of Appeal held that legal professional privilege applies to internal investigations.  The Court found that interview notes on the facts of the case in question were privileged, and their production could not be compelled.

Interestingly, the Court also stated that it considered English rules of Legal Advice Privilege (as opposed to litigation privilege) were inconsistent with other legal jurisdictions.  It was suggested that English privilege rules affording less protections to companies. The Court did not address this issue and there was no appeal.  

Whether privilege will attach to internal investigations is very much fact specific.  Much will depend on what the company believed at the time about the risk of litigation. 

It is important to recall that in Three Rivers (No. 5) it was held that, for the purposes of privilege, the ‘client’ includes only those persons within the company who are specifically tasked with receiving advice on behalf of the company.  The client – in terms of who, within the company, is authorised to seek and receive legal advice – should be defined by the company in its internal memoranda, instructions, etc. The memoranda or instructions should also set out the remit of the investigation, its dominant purpose and the use of privileged material.  If confidentiality is lost so may the claim for privilege.

Employee interviews are not, in and of themselves, privileged – even if conducted by the ‘client’ unless litigation privilege applies.Litigation privilege might apply provided it is made clear that the interview is conducted for the purpose of advising the company.