Areas of Law Concerning The Grenfell Tower Inquiry
Confidential Briefing Note In Relation To The Grenfell Tower Inquiry
Sailesh Mehta is a Barrister at Red Lion Chambers He is experienced in prosecuting and defining in serious fire and health & safety cases involving fatality, and lectures on the topics. Red Lion Chambers specialize in major Public Inquiries.
The following is a very rough guide to the areas of law that are likely to feature in investigations of the Grenfell Tower fire and the areas which should be of concern to the Public Inquiry. I enclose an extract from an article commissioned by a newspaper, which outlines of some of the issues.
- The Police Investigation
The police have established the immediate cause of the fire (a fridge) and will be looking at the speed with which it spread – this will require much specialist advice. They will be considering a range of criminal offences including:
- Corporate Manslaughter: [The Corporate Manslaughter and Corporate Homicide Act 2007]. Companies and organisations including local authorities can be found guilty of corporate manslaughter as a result of very serious management failures resulting in a gross breach of a duty of care they owe to residents of Grenfell Tower. This is not an easy offence to prove: it requires strong evidence pointing to very serious culpability at top management level. Juries have often been disinclined to convict. The local authority, the management company responsible for fire safety at Grenfell Tower, as well as the company that supplied the cladding might be potential defendants;
- Gross Negligence Manslaughter: as a result of gross negligence by a person in doing (or failing to do) something which causes (or significantly causes) the death of a person towards whom a duty of care was owed; this is an easier to prove than corporate manslaughter because the evidential thresholds are lower. Only individuals can be convicted but there are more potential defendants, including heads of local authority departments, directors of companies etc. So for example, if the director of a company supplying / fitting the cladding can be proved to owe a duty of care to ensure the residents’ safety, and the cladding was of the banned type (likely on current reports), then this may amount to gross negligence which led to deaths of people to whom a duty was owed.
- Fire Brigade / Health and Safety Executive Investigation
These bodies will also want to investigate, but they often take their place in the queue until the police investigation is complete. They should be encouraged to work with the police as they can provide much needed expertise and their assistance is likely to speed up the investigation.
Fire Offences: These are mainly found in The Regulatory Reform (Fire Safety) Order 2005 which focuses on the common parts of a block of flats (not the inside); fire risk assessment, the adequacy of escape routes, the correctness of a “stay put” policy, whether the doors and walls provided proper “compartmentation” to keep the fire contained for a sufficient period of time; whether the cladding was inappropriate and affected the ability of residents to escape safely. The main focus will be on the management company for the block (whether they did all that was required to ensure fire safety), the company supplying and fitting the cladding and the local authority (the nature and quality of the cladding), the person who drafted the fire risk assessment (whether it was adequate), the person / company advising the management company. This is a very specialised area of law – the prosecuting bodies would do well to find a fire law expert to advise at an early stage. One difficult aspect of this area of law is to find the “relevant person” upon whom liability for failure falls – usually such a person who has a key role to play in the fire safety of a building.
HSE Offences: Most HSE offences focus on places of work, but some overlap with fire offences and the police investigation offences.
Possible Areas Of Concern Relating To The Investigation:
- The local authority (and other authorities around the UK) will be exerting much pressure / influence on the Government to ensure there are no prosecutions. They will claim some of the problems were the fault of Government funding restrictions. Already many are seeking advice from lawyers on liability and strategy.
- The London Fire Brigade will be concerned about failure in its own regulatory role for Grenfell Tower, and whether it might be criticized; another fire brigade should be brought in to deal with this point;
- The fire brigades and the HSE have both seen significant reduction in their funding and their regulatory role has become much more “light touch” in the last 15 years. As a result, where the regulators need to be robust and hands-on in relation to life and death matters, they are seen to be too relaxed and defensive against large organisations. There is a threat of joining up the fire brigades with the police, which will result in a huge reduction of expertise and regulatory action.
- There is concern that documents may be destroyed by some potential defendants pending investigation. The police and fire brigade (and HSE Inspectors) have very wide powers of entry, search and seizure, which are more than adequate to stop destruction of evidence, if exercised quickly and robustly. This is an area the police could be assisted by expert advice from the fire brigade.
- There are one or two key BME lawyers’ groups who have tirelessly worked to give pro bono assistance to the victims’ families and they should not be over shadowed by the large legal firms and well-known barristers who are already circling to find their next big briefs.
THE PUBLIC INQUIRY
The Public Inquiry has beenannounced and there is much public pressure to ensure it is carried out quickly. A key concern is whether the Inquiry can start before the end of the criminal investigation / trial. It should start by looking at the cause of the fire and its spread, how to prevent a repetition and possible changes in law and practice. The Inquiry can then look at other issues including culpability, by which time the criminal process will be complete. This way, the Inquiry can commence immediately, without the risk that many witnesses will refuse to give evidence until they know whether they (or their organisations) will be potential defendants.
- The Chair and Panel: The Chair will be a senior Judge, ideally a Court of Appeal Judge rather than just a High Court Judge. S/he needs gravitas to have weight to the Report. The Panel should include at least one expert, and should reflect the diversity of London.
- Counsel to Inquiry: Likely to be a senior barrister, ideally with experience of criminal and regulatory law;
- Terms of Inquiry: These need to be fairly wide to ensure every aspect of concern is covered, including prevention in the future.
- Timing: there is a need for the Inquiry to report fairly quickly. An interim report can be produced on each discrete part of the Inquiry so that further work can commence, rather than await a long report for years. The timing should be incorporated in the terms of reference, with interim and final dates recommended.
- Implementation: Too often after an Inquiry has reported, the findings are forgotten. To ensure this does not happen, one should consider setting up an audit body (perhaps made up of experts) to regularly report to Parliament on the progress made in implementing the recommendations of the Inquiry.
The inevitable inquest will start but be adjourned until the end of the criminal investigation, and is likely to be further adjourned until after the Public Inquiry reports.
Many cities in other countries are watching to see how we respond to the tragedy and whether their residents are in similar danger. Some of these cities will have local or national Governments who will be hostile to any suggestion that their housing stock is dangerous. The Mayor of London and our Government should do all they can to ensure the lessons learnt are widely publicised so that others may benefit.
The above is only a sketch of some areas of importance. I am happy to deal in much more depth with any specific aspect of the law and practice in relation to the Grenfell Tower fire and investigation / Inquiry.
Barrister at Red Lion Chambers
23rd June 2017
The following Is An Extract From An Article Commissioned By A Newspaper.
Grenfell Tower: What the Government Needs to do Next
Sailesh Mehta is a Barrister at Red Lion Chambers. He heads the Fire Law Group and regularly prosecutes and defends in serious fire cases involving fatality.
The Need for an Inquiry
The Government has acted surprisingly quickly in announcing a full Public Inquiry into the fire at Grenfell Tower in London. There was no other political option available: as the death toll mounts and local anger and public disquiet threaten to further damage a weakened Government. An apology (made in Parliament on Wednesday) and an Inquiry were necessary.
Appointment of Chair of Inquiry
The person chosen is going to be important, as it will decide how serious the Government is about the inquiry. It will have to be a senior and robust Judge, assisted by a panel of “the great and the good” whose presence is designed to instill confidence in the public and encourage participation. A senior barrister is also often appointed to be Counsel to the Inquiry, to present relevant evidence before the Panel and to guide it through a morass of legal and factual complexity.
The Saville Inquiry (into the Bloody Sunday massacre), the Scarman Inquiry (into the state of policing after the Brixton Riots) the MacPherson Inquiry into Stephen Lawrence’s murder) and the Chilcott Inquiry (into the invasion of Iraq) all took many years to report. The Grenfell Tower Inquiry will have to report within a very short time span – the grieving families need to have closure quickly and the public will insist that lessons learnt are immediately implemented to avoid another inferno. There could be a time clause introduced within the terms of reference to ensure that the Inquiry works quickly and efficiently.
Already, the lawyers are gathering. Most are well intentioned and are providing much needed free advice to grieving families and residents on subjects as diverse as housing, benefits and immigration law.
All Governments would rather that lawyers did not exist – even liberal States have corners they would prefer to remain unlit by the harsh light of fearless inquiry. Public funding will ensure the families of the deceased will have a voice in the Inquiry through legal representation. However, the number of lawyers in a room is inversely proportional to the speed of the clock, so the Chairman will impose tight deadlines on disclosure and cross-examination.
Areas Of Interest
There will be three key areas of interest: the cause of the fire, lessons learnt and recommendations for the future, which may include suggestions about law reform and more “hands on” regulation. The role of the local authority, particularly its buildings regulations department, the supplier and fitters of the lethal cladding, the management committee for the building, the fire advisors, particularly those that carried out a fire risk assessment and devised the “stay put in case of fire” policy – all will come under scrutiny. The role of the fire brigade’s regulation of the building could also come under scrutiny. The Inquiry is likely to hear from experts in fire law as well as building regulations experts. A number of race groups are already asking why so many BME residents seem to be housed on the upper (and more dangerous) floors. Once the Report is produced, a yearly “audit” would ensure implementation.
The Metropolitan Police has begun a criminal investigation into the fire. “Corporate manslaughter” and similar allegations have been widely aired by politicians. This is a horrendously difficult area of law and the burden of proving it is (rightly) very heavy. As a result, such allegations are rarely prosecuted and often result in acquittal after trial. Mrs. May has said “for any guilty parties, there will be nowhere to hide”. That is as it should be, but politicians of all hues should be slow to raise expectations that cannot be met, and only have the effect of pressuring investigators into rash judgments.
Other bodies such as the Health and Safety Executive, and the Fire Brigade will be carrying out their own investigations. Often, they wait their turn after the Police investigation is near completion. However, in this case, there is a good argument for a joint investigation to speed up the process. These bodies will investigate a wider range of organisations and will have a greater range of offences to investigate. Typically, such investigations can take 12 months or more before a decision is made about whom to prosecute.
The World Is Watching
The problem of fire safety in high-rise accommodation is of international concern and many countries around the world will be watching developments anxiously. Over the last 50 years, as the poor have moved into cities looking for employment, the high rise block has been the cheap solution for most cities’ housing problems. Already, vulnerable and poor people crammed in badly built flats from Mumbai to Beijing to Rio are asking their local representatives questions about fire safety. They will be watching what happens in the UK with keen interest.
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